Date: 20091116
Docket: IMM-1563-09
Citation: 2009 FC 1163
BETWEEN:
Maria del Carmen RUIZ MARTINEZ
Monica Beatriz FEIJOO RUIZ
Aminta Alejandra FEIJOO RUIZ
Ximena Guadalupe TOVAR FEIJOO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON D.J.
Introduction
[1]
These
reasons follow the hearing at Toronto, Ontario, on Thursday the 22nd of October,
2009 of an application for judicial review of a decision of the Convention
Refugee Determination Division (the “CRDD”) of the Immigration and Refugee
Board, wherein the RPD determined the Applicants not to be Convention refugees
or persons otherwise entitled to protection equivalent to Convention refugee
protection in Canada. The decision under review is dated the 24th
of February, 2009.
Background
[2]
The
Applicant Maria Del Carmen Ruiz Martinez is the mother of Monica Beatriz Feijoo
Ruiz. Monica Beatriz Feijoo Ruiz (the “Principal Applicant”) is the mother of
Aminta Alejandra Feijoo Ruiz and Ximena Guadalupe Tovar Feijoo. Aminta
Alejandra Feijoo Ruiz and Ximena Guadalupe Tovar Feijoo are minors.
[3]
The
Principal Applicant and her daughters fled Mexico for Canada on the 1st
of June, 2007, fearing persecution at the hands of the Principal Applicant’s
male partner, Tovar, against which they had concluded they could not obtain
adequate state protection. They arrived in Canada the same day
and claimed Convention refugee protection the next day.
[4]
Maria
Del Carmen Ruiz Martinez, the Principal Applicant’s mother, fled Mexico for Canada
on the 4th of July, 2007 and arrived in Canada the same
day. The next day she too claimed Convention refugee protection citing the
same fear as that of her daughter and granddaughters.
[5]
In
September or October of 2003, the Principal Applicant met Manuel Tovar
Rodriguez (“Tovar”). On or about the 24th of November, 2003, the
Principal Applicant and her elder daughter, Aminta, started living with Tovar.
While the Principal Applicant described Tovar as a “nice person” before she
moved in with him, she wrote in her narrative that accompanied her Personal
Information Form that “everything changed” when she moved in with him. He
prohibited the Principal Applicant from seeing her mother and members of her
extended family, hit her and otherwise treated her roughly. He threatened the
Principal Applicant that, if she didn’t do whatever he wanted, he would rape
her daughter Aminta. He would not allow the Principal Applicant to go out of
their apartment without him. He brought prostitutes to the apartment and had
sex with them and forced her to join them.
[6]
The
Principal Applicant became pregnant.
[7]
The
Principal Applicant convinced Tovar to allow Aminta to move to her mother’s
place of residence.
[8]
The
Principal Applicant’s second daughter, Ximena, of whom Tovar was apparently the
father, was born. When Ximena was seven months old, Tovar forced the Principal
Applicant to return to work because he needed money. He would leave the baby
Ximena alone in their apartment. On the 5th of October, 2005, the
Principal Applicant decided to take Ximena and to leave Tovar. She did so
when, according to her narrative, Tovar was so drunk that he became
unconscious.
[9]
After
leaving Tovar with her baby daughter, the Principal Applicant went to the
police. They took her declaration and advised her that they would notify Tovar
and there would be a “confrontation”. The Principal Applicant and Ximena moved
into her uncle’s home. The Principal Applicant contacted Tovar’s ex-wife who
by this time was apparently in Canada, having successfully claimed Convention
refugee status.
[10]
A
few days later, the Principal Applicant received a telephone call from an
individual she described as Commander Jesus Zarate (“Zarate”) who apparently was
an officer in the police. He told the Principal Applicant to return to Tovar
and that it had been a “bad idea” for her to go to the police because Tovar
wanted to kill her.
[11]
The
Principal Applicant moved to a women’s shelter in Veracruz with
Ximena. For a while, she did well there. Unfortunately, before too long, the
shelter manager advised the Principal Applicant that she had received a call
from Zarate indicating that “they” were looking for the Principal Applicant and
knew that she was in the shelter. They pressed the shelter manager to evict
the Principal Applicant and threatened that if she did not do so, the shelter
would be closed and the shelter manager’s life would be in danger. In the
result, the Principal Applicant and her baby daughter left the shelter and
moved into her father’s home in another part of Veracruz.
[12]
On
the 10th of November, 2005, while the Principal Applicant was
returning to her father’s home from buying food, Tovar confronted her and,
according to the Principal Applicant, put a knife to her throat, told her to go
pick up Ximena and to go to his home. The Principal Applicant alleges that
Tovar threatened that if the Principal Applicant did not comply with his
instructions, he would kill the Principal Applicant’s older daughter Aminta.
[13]
The
Principal Applicant returned to Tovar’s home. He continued to abuse her and to
threaten that he would kill her and her two daughters.
[14]
In
her narrative, the Principal Applicant advises that Tovar beat her on the 29th
of September, 2006 in the presence of Ximena, who started screaming, so that
Tovar beat Ximena as well, so badly that the Principal Applicant had to call an
ambulance. The Principal Applicant called her family and the police. Ximena
remained in hospital for almost a week. The Principal Applicant filed a
denunciation and Tovar remained in jail for some eight months. The Principal
Applicant returned to her uncle’s home.
[15]
On
the 10th of October, 2006, the Principal Applicant’s older daughter
moved back in with her mother and younger sister.
[16]
On
the 20th of May, 2007, Tovar was released from prison subject to
certain restrictions. On the 29th of May, 2007, early in the morning,
Tovar broke into the Principal Applicant’s bedroom. She wrote in her narrative
that Tovar was drunk and drugged. Tovar threatened Ximena with a knife. The
Principal Applicant escaped with her two daughters. The police were called and
arrived promptly. Tovar escaped but was quickly caught by the police and taken
to jail. The Principal Applicant filed a denunciation. The next day, Tovar
was released. The Principal Applicant concluded that Zarate was helping Tovar
and that therefore she and her children could not escape him. In the result,
the Principal Applicant and her daughters, with the aid of Tovar’s former wife
in Canada, fled to Canada.
[17]
As
early as June, 2004, according to the Principal Applicant’s mother’s narrative,
Tovar had been insulting her, precluding her access to the home where he and
the Principal Applicant lived and refusing to let them talk by telephone. In
September of 2004, the Principal Applicant’s mother nonetheless visited the
home shortly after Ximena was born and while Tovar was away. Tovar returned
unexpectedly. He threatened the Principal Applicant’s mother and older
daughter with violence. That same month, the Principal Applicant’s mother went
to the police and filed a report regarding Tovar’s threats. The police indicated
they would “look into it and speak with him” but she never heard back from
them.
[18]
By
November or December of 2004, the Principal Applicant’s mother writes that she
and her daughter had lost contact. That situation apparently prevailed for
almost a year until the Principal Applicant re-established contact while she
was living with her father.
[19]
In
October of 2006, when Tovar went to jail, the Principal Applicant’s daughter
Aminta left her grandmother’s home and returned to her mother’s home. That
situation apparently prevailed until the Principal Applicant and her daughters
left for Canada.
[20]
Following
the flight of the Principal Applicant and her daughters to Canada, the
Principal Applicant’s mother attests that Tovar began harassing her. He
telephoned her and used foul language. He confronted her on the street and
threatened to hurt her if she did not tell him where her daughter was. She
found her dog dead with a threatening note beside its body indicating that she
“... would end up just like the dog.” She went to the police who took note of
her complaint and advised that they would call Tovar in for questioning and let
her know the result. She never heard back.
[21]
The
Principal Applicant’s mother communicated with her daughter by telephone who
recommended that she come to Canada. She applied for a passport. On the 28th
of June, 2007, Tovar confronted the Principal Applicant’s mother, grabbed her
and punched her until she fell and threatened her. She went to the hospital to
be checked out for damage to a knee. She began taking precautions in her
everyday life. On the 4th of July, 2007, she left Veracruz and Mexico for Canada.
[22]
All
of the foregoing unfolded in the city of Veracruz or in the State of Veracruz within
reasonable proximity to the city.
[23]
In
addition to the foregoing efforts to access state protection through the
police, the Principal Applicant obtained a protection, custody and support
order and the terms of Tovar’s release from incarceration included a “no
contact” provision.
The Reasons for the
Decision Under Review
[24]
The
claims of the four applicants were joined pursuant to Rule 49(1) of the Refugee
Protection Division Rules. No separate Narratives were
filed by or on behalf of the infant claimants and no separate claims were made
on their behalf. The infant claimants are now nine and five years of age.
[25]
The
RPD accepted the Applicants’ identities as citizens of Mexico. The RPD
noted that since the claims involved gender-related violence, it took into
account the Chairperson’s Guidelines on Gender-Related Persecution. With
respect to the Convention refugee claims of the Applicants, the RPD found the
determinative issue to be whether the Applicants had rebutted the presumption
in favour of a state’s, in this case Mexico’s, ability to protect.
It found that they had not. With regard to the presumption, citing extensively
from relevant case law, it wrote:
There is a presumption that a state is
capable of protecting its citizens except in situations where the state is in a
state of complete breakdown. To rebut the presumption of state protection, a
claimant must provide clear and convincing evidence of the state’s
inability to protect absent an admission by the national’s state of its
inability to protect that national. While the effectiveness of the
protection is a relevant consideration, the test is whether the protection
offered is adequate. The evidence that state protection is not adequate
must be reliable and probative and it must also satisfy me, on a balance of
probabilities, that the state protection is inadequate. Claimants [here the
Applicants] must approach the state for protection, providing that state
protection might be reasonably forthcoming. Where a state is in effective
control of its territory, has military, police and civil authority in place and
makes serious efforts to protect its citizens, the mere fact it is not
always successful at doing so will not be enough to justify a claim that the
victims are unable to avail themselves of protection. The fact that state
protection is not perfect does not constitute clear and convincing proof of the
state’s inability to protect its citizens, since no state can guarantee the
protection of all its citizens at all times. Local failures to provide
effective policing do not amount to a lack of state protection unless they are
part of a broader pattern of the state’s inability to provide protection. The
burden of proof that rests on the claimant increases with the level of
democracy of the state in question. The more democratic a state is, the more
the [second] claimant[s] must have done to exhaust all course[s] of action open
to them to demonstrate state protection was or would not be forthcoming.
[citations omitted, emphasis added]
[26]
The
RPD engages in an extensive analysis of the evidence before it, particularly
the evidence of the Principal Applicant and of her mother, and makes briefer
reference to the country conditions documentation before it.
[27]
Except
for what follows, it does not question the credibility of the Applicants. It
writes:
It is notable that up until the issuance
of the custody order, there is documentation to support the second claimant’s
allegations. However, after that time, none of the claimants were able to
provide documentary evidence such as police or medical reports to support their
claims. Both the second claimant [here, the Principal Applicant] and the first
claimant [here, the Principal Applicant’s mother] testified that they were
unable to provide police reports because they were lost and that the second
claimant’s uncle could not find them. This, despite the reports being made at
different places, by different people, kept at different locations and at
different times. While this is possible, it is not probable considering that
other documentation was readily available including documentation that was
older, i.e. custody order.
However, the second claimant did present
a number of hostile electronic mail (e-mail) messages sent to the second
claimant by Tovar. They are dated after the second claimant was already in Canada and seem to centre on Tovar’s
desire to see his daughter which he was entitled to as per the custody order.
The messages escalate in hostility as the length of the second claimant’s
absence increases. Tovar does ultimately threaten the second claimant. While
the messages would tend to support some of the claimants’ allegations, such as
Tovar’s abusive behaviour, they remain untested. Further, their value as
evidence supporting the events that transpired prior to the second claimant
leaving Mexico is limited because there is
no reference in the messages to those events.
Further, there were concerns with the
second claimant’s credibility with respect to events that transpired after she
moved to her uncle’s home in September 2006. For example, the second claimant
testified that in May 2007 while living at her uncle’s house, Tovar broke the
locks of the home as well broke the window in an attempt to take the minor
claimant. The second claimant testified that these were separate events.
However, in her uncle’s letter this is described as one event. Further, the
second claimant testified that both she and her uncle were going to the police
but then the second event happened so there was no report to the police. In
the letter from her uncle he says that he did go to the police. The second
claimant explained that these were possibly errors on the part of her uncle. I
find this explanation unreasonable. If the events transpired as she describes,
and her uncle was there as well, it is reasonable that the number of times harm
was caused and whether police were contacted would be consistent in both
accounts. I find that the events at her uncle’s home did not transpire as she would
have me believe. Aside from this, the testimony of the second claimant with
respect to abuse suffered prior to her travel to her uncle’s home was
consistent and generally credible allowing for minor differences that may be
due to the circumstances of the claim.
[28]
The
RPD concludes with regard to state protection:
I am satisfied that the claimants have
rebutted the presumption of state protection. They have not provided some
reliable clear and convincing evidence with probative value that would lead me
to conclude state protection in Mexico
is not adequate.
Therefore, I find that the claimants are
not Convention refugees and the claims under section 96 of the IRPA
fail. ...
[29]
The
RPD then very briefly disposes of the Applicants’ claim to protection equivalent
to Convention refugee protection, under section 97 of the Immigration and
Refugee Protection Act, on precisely the same basis and therefore rejects
the Applicants’ claims.
The Issues
[30]
As
earlier noted in these reasons, Tovar’s former female partner fled from Mexico to Canada,
alleging persecution of somewhat the same nature here alleged by the
Applicants, and successfully claimed Convention refugee status in Canada. Counsel
for the Applicants urges that the RPD erred in a reviewable manner in failing
to address and analyze what he describes as “the core issue” for these
Applicants, that being that they are similarly situated to the former partner
of Tovar and should therefore have received the same result on their claims as
did that partner.
[31]
Secondly,
counsel urges that the RPD erred in a reviewable manner in its state protection
analysis against the totality of the evidence before it.
[32]
Counsel
further urges that the RPD erred by failing to specifically identify where in Mexico the
Applicants could find a viable internal flight alternative. Finally, the
Applicants urge that the RPD erred in a reviewable manner by ignoring the
claims of the minor applicants.
[33]
In
addition to the foregoing issues, the issue of standard of review arises as it
does on all applications for judicial review such as this.
Analysis
a) Standard
of Review
[34]
The
standard of review of a decision such as that here under review is, in the case
of an error of law not within the special expertise of a tribunal such as the
RPD in this case, or in the case of a breach of procedural fairness or of
natural justice, is “correctness”. In all other cases, the standard of review
is “reasonableness”. Where the “reasonableness” standard applies, the Court’s
analysis must be concerned with:
... the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law ... .
[35]
In
considering the issues raised on behalf of the Applicants, the foregoing
guidance will be applied.
b) The Similarly Situated Former
Partner of the Principal Applicant’s Alleged
Agent
of Persecution
[36]
While
counsel for the Applicant urged that Tovar’s former partner who suffered
similar treatment at the hands of Tovar to that here experienced by the
Principal Applicant was in all respects similarly situated to the Principal
Applicant, counsel for the Respondent urged otherwise. Counsel for the Respondent
noted that the earlier decision, made in March of 2006, was based upon the
decision-maker’s conclusion on the facts before him or her that, at the
relevant time, state-protection was simply not available to victims of domestic
abuse in Mexico. Counsel
noted that, in fact, in the earlier matter, Tovar’s former partner never sought
the protection of authorities which is simply not the case in this matter.
Here, the Principal Applicant did seek the protection of authorities and was
afforded protection although that protection was far from perfect protection.
As noted by the RPD in its analysis of the state of the law on state protection
quoted earlier in these reasons, the test is “adequate protection”, not
“perfect protection”. On the facts of this matter, the police did respond to
the Principal Applicant’s complaints. Tovar was imprisoned for a period of
months, though obviously not for so long as the Principal Applicant might have
wished. The Principal Applicant was accorded a custody, protection and support
order and Tovar was restrained from contact with the Principal Applicant and
her children. While all of the foregoing was far from entirely effective in
enabling the Principal Applicant and her children, and ultimately her mother,
to live without fear and without further harassment, threats and violence, that
is not the test. Absolute safety and protection from harassment and threats in
circumstances of spousal abuse cannot be guaranteed or anywhere nearly
universally achieved in any nation that this Court is aware of.
[37]
The
RPD found that, in all of the circumstances of this matter, the Applicants
simply did not meet the onus on them to demonstrate that the state protection
provided to them, and that would be available to them if they returned to
Mexico, would not be adequate. I am satisfied that that conclusion was
reasonably open to the RPD on the totality of the evidence before it both with
regard to the personal experiences of the Applicants and with regard to country
conditions in Mexico.
[38]
In
Cius v. Canada (Minister of Citizenship and Immigration), Justice
Beaudry wrote at paragraph 35 of his reasons:
In response, the respondent submits that
the Board is not bound by decisions made by another panel. I agree. Although
it would have been preferable to distinguish these cases with the present one,
I think that it is for each Board member to make its decision based on the
evidence before her or him. In the case at bar, the Board assessed the
applicant’s story and found him not credible due to inconsistencies,
implausibilities and incoherence in his claim.
[39]
While
the RPD here assessed the Applicants’ evidence and the country conditions
evidence before it and generally found the Applicants’ story to be credible, it
nonetheless determined their
claim against them based on its
determination that they had failed to rebut the presumption of state
protection. While, as in Cius, I am satisfied that it would have been
preferable to distinguish the case of Tovar’s former partner from that which
was here before it, I am satisfied that, as in Cius, the RPD here was
not bound by the earlier decision in question and was free to arrive at its
decision based on the evidence before it.
[40]
In
the result, I am satisfied that the RPD made no reviewable error simply by
failing to distinguish the decision of an earlier panel in the case of Tovar’s
earlier partner.
c) The
RPD’s Determination With Respect To Available State Protection
[41]
Counsel
for the Applicants urged that the RPD erred with respect to available state
protection in applying the test for overcoming the presumption in favour of
state protection and its application, in excusing slow and inconsistent
progress in Mexico in adapting and acting upon legislation meant to protect
women because it found “serious efforts” were being made by Mexico, and in
finding and that such efforts are sufficient in the face of what counsel urged
was overwhelming evidence of corruption, impunity and inefficiency. I
disagree.
[42]
In
the Flores Carrillo v. Canada (Minister of Citizenship and
Immigration)
Justice Létourneau, for the Court, wrote at paragraph 30:
In my respectful view, it is not
sufficient that the evidence adduced be reliable. It must have probative
value. For example, irrelevant evidence may be reliable, but it would be
without probative value.
The evidence must not only be reliable
and probative, it must also
have sufficient probative value to meet
the applicable standard of proof. The evidence will have sufficient probative
value if it convinces the trier of fact that the state protection is
inadequate. In other words, a claimant seeking to rebut the presumption of
state protection must adduce relevant, reliable and convincing evidence that
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.
[43]
I
regard the foregoing as the correct test to determine whether or not the RPD,
on the facts of any particular case, erred in reviewable manner in determining
whether or not the presumption of state protection has been rebutted. On the
facts of this matter, and on the terms of the RPD’s decision, the RPD
effectively evaluated the totality of the evidence before it, whether or not it
referred in detail to all elements of that evidence, in determining that the
Applicants simply had not rebutted the presumption of state protection in Mexico. It found
the evidence adduced by the Applicants that was relevant, reliable and
convincing simply not sufficient, on a balance of probabilities, to convince it
that the state protection afforded to the Applicants in this matter was
inadequate. I am satisfied that that conclusion was reasonably open to the
RPD, whether or not it might have been the conclusion that I would have reached
on the same evidence.
d) Failure
to Identify an Internal Flight Alternative [IFA] for the Applicants in Mexico
[44]
The
issue of an IFA in Mexico for the Applicants simply did not arise on the
facts of this matter. The RPD found the Applicants not to have rebutted the
presumption of state protection for themselves in Mexico including in Veracruz and in the
State of Veracruz. In the
circumstances, given that finding, it simply was not incumbent on the RPD to
examine the question of whether or not state protection might have been
adequate for the Applicants in some other location in Mexico. The RPD made no
reviewable error in failing to address the issue of IFA in the circumstances
that were before it and in light of its conclusion regarding state protection
in Veracruz and
surrounding region.
e) Failure
to Assess the Claims of the Minor Applicants
[45]
As
earlier noted in these reasons, no separate claims were asserted on behalf of
the minor applicants. Their claims were entirely comprehended within the
claims of their mother and grandmother. The claims of the mother and
grandmother were fully addressed by the RPD and I have found that the RPD made
no reviewable error in reaching the conclusions that it did with respect to
those claims. In the circumstances, the RPD similarly made no reviewable error
in failing to address separate claims on behalf of the minor applicants that
simply weren’t made.
Conclusion
[46]
For
the foregoing reasons, this application for judicial review will be dismissed.
Certification of a
Question
[47]
At
the close of the hearing of this matter, I advised counsel that I would reserve
my decision and that I would prepare and distribute signed reasons at the
earliest possible time. I further advised counsel that, once the reasons were
distributed, they would be provided an opportunity to make written submissions
on certification of a question. These reasons will be distributed.
Thereafter, counsel for the Applicants will have seven (7) days to serve and
file written submissions on certification of a question. Thereafter, counsel
for the Respondent will have seven (7) days to serve and file any responding
submissions. Once again thereafter, counsel for the Applicants will have three
(3) days to serve and file any reply submissions. Upon receipt of any
submissions served and filed, the Court will issue an order responding to any
such submissions and giving effect to its reasons
“Frederick
E. Gibson”
Ottawa, Ontario
November
16, 2009
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