Date: 20110330
Docket: IMM-379-10
Citation: 2011
FC 391
Ottawa, Ontario, March 30, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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GABRIELA PEREZ VARGAS
ALEX ERNESTO AGUILAR PEREZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated December 30, 2009, wherein the applicants were determined
not to be Convention refugees or persons in need of protection under sections
96 and 97 of the Act. This conclusion was based on the Board’s finding that
state protection was available to the applicants.
[2]
The applicants request that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board in
accordance with such directions as the Court considers appropriate.
Background
[3]
Gabriela
Perez Vargas is the principal applicant in this application, along with her son,
Alex Ernesto Aguilar Perez. The principal applicant was born on June 4, 1981
and is a citizen of Mexico.
[4]
The principal
applicant was sexually assaulted by her brother-in-law and godfather when she
was a child. She only realized this after attending counselling as an adult.
[5]
In
February 2003, the principal applicant, along with her common-law spouse, moved
from Mexico
City to
the State of Oaxaca where she gave birth to
their child. The principal applicant’s spouse bought a restaurant in which she
assisted. At this restaurant, local police and army men in uniforms would often
refuse to pay, claiming that they knew the previous owner. In one incident,
several of these men carrying guns became enraged after they were refused
service at the restaurant. In another incident, one man from a group of five
threatened the principal applicant at gunpoint telling her that she “would pay
for it” if she did not serve him for free.
[6]
During
this time, the principal applicant moved back and forth several times between
Mexico City and Oaxaca because her
relationship with her spouse was breaking down as she questioned his sexual
orientation. In September 2004, the principal applicant ended the relationship
with her spouse.
[7]
The principal
applicant’s ex-spouse left Mexico in February 2006 after being threatened with death and
beaten by army men in Tlaxcala.
[8]
The principal
applicant alleges that in January 2007, she was pulled into a police car. She
was held on the floor of the car and driven away. The perpetrators asked about
the location of her ex-spouse. The five men in the car each raped the principal
applicant before taking her purse and abandoning her. She recognized one of the
men as the man who threatened her with a gun in the restaurant.
[9]
The principal
applicant went to a doctor after the incident but did not get a medical report or
report the incident to the police. The principal applicant stayed at her aunt’s
home following the assault while she arranged to come to Canada where she then claimed
refugee status.
Board’s Decision
[10]
The
Board found that the principal applicant was neither a Convention refugee nor a
person in need of protection because she does not have a well-founded fear of
persecution and her removal to Mexico would not subject her personally to a risk
to life, risk of cruel and unusual treatment or punishment or a danger of torture.
[11]
The
Board found that there is a presumption of state protection which the principal
applicant could rebut by providing clear and convincing evidence of the state’s
inability to protect its citizens. The Board found that the onus is on the principal
applicant to approach the state where protection might reasonably be
forthcoming. This burden is proportional to the level of democracy in a state.
What steps the principal applicant is required to have taken depends on the
context of the country of origin and the principal applicant’s interactions
with the authorities. The Board found that the principal applicant had not
provided clear and convincing evidence of the inadequacy of state protection in
Mexico.
[12]
The
Board found that the principal applicant did not report any of the sexual
assaults to the police. The principal applicant’s reason for not seeking police
assistance regarding the most recent assault was that the military and police
work together and if she denounced them they would kill her and her family. The
Board found that this reason was based on speculation. The Board found that an
applicant cannot rebut the presumption of state protection simply through
showing subjective fear. The Board found that where agents of the state are
the source of persecution, the presumption of state protection still applies
but can be rebutted without exhausting all avenues of recourse in the country.
[13]
The
Board found that the principal applicant’s psychologist’s report referred to
the attackers as a gang and not military men. Since the psychologist had
accurately described the principal applicant’s other sexual assaults, the Board
found it implausible that the psychologist incorrectly described this assault.
Therefore, the Board found that the principal applicant did not tell her
psychologist that she was attacked by the military. Further, there was no
corroborating evidence to support the principal applicant’s claim that she was
sexually assaulted apart from a prescription note. The Board rejected the principal
applicant’s allegation that she was raped at all in January 2007.
[14]
The
Board accepted that the principal applicant may have been sexually assaulted as
a child but found that there was no persuasive authority that the Mexican
authorities would not assist her in Mexico against these
perpetrators. The Board found that there have been recent laws enacted in Mexico to combat
violence against women and that the Mexican government is making serious
efforts to address bribery and corruption within the security forces and public
sector.
Issues
[15]
The
applicants submitted the following issues for consideration:
1. Whether the Board
erred in its credibility findings by ignoring relevant evidence that was before
it.
2. Whether the Board
erred in its credibility findings by making perverse and capricious findings
and by drawing a negative inference from the lack of corroborative documents in
view of the principal applicant’s explanations.
3. Whether the Board
ignored relevant evidence and erred in its findings concerning the availability
of state protection for this principal applicant in Mexico?
[16]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board base
its decision on an erroneous finding of fact that the principal applicant was
not sexually assaulted in January 2007 that it made in a perverse manner and
without regard to the material before it?
Applicants’ Written
Submissions
[17]
The
applicants submit that the Board erred in finding that the principal applicant
was not sexually assaulted by members of the military. The Board requested and
received a letter from the principal applicant’s psychologist clarifying her
use of the term “gang group” and confirming that the principal applicant told
her that she was attacked by military men. The applicants submit that the Board
ignored this evidence.
[18]
The
applicants submit that the Board erred in drawing a negative inference from the
lack of corroborating evidence of her assault. The principal applicant provided
a reasonable explanation for the lack of a medical report; that she told the
doctor that she was afraid to go to the police. The applicants submit that the
Board’s finding that the principal applicant was not raped in January 2007 was
perverse and capricious.
[19]
The
applicants submit that the Board erred in finding that state protection was
available to the principal applicant. The Board’s state protection findings
were based partially on its error in finding that the principal applicant was
not raped by agents of the state. Moreover, the Board failed to analyze the
documentary evidence which supported the applicants’ position. Specifically,
that Mexico routinely
fails to protect female victims of abuse. While Mexico may be
making efforts to combat this problem, the applicants submit that this does not
equate with adequate state protection. The Board also failed to analyze who
the principal applicant’s agents of persecution were. The Board’s state
protection findings should be set aside.
Respondent’s Written Submissions
[20]
The
respondent submits that the applicants did not rebut the presumption of state
protection. Mexico is a
functioning democracy and the applicants were required to take all reasonable
steps to seek state protection in Mexico. It was open to the
Board to find that it was unreasonable for the applicants not to seek state
protection. The Board also made a reasonable assessment of the country
conditions and concluded that state protection was available.
[21]
The
Board’s finding that the principal applicant was not sexually assaulted is not
a reviewable error because even if the Board found that she was assaulted,
there was sufficient evidence that the applicants had failed to rebut the
presumption of state protection.
Analysis and Decision
[22]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[23]
It
is established law that in reviewing assessments of credibility, the applicable
standard of review is that of reasonableness (see Dunsmuir above; Gaymes
v Canada (Minister of
Citizenship and Immigration), 2010 FC 801 at paragraph 8). Assessments
of credibility are essentially pure findings of fact and it was Parliament’s
express intention that administrative fact finding would command this high
degree of deference (see Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 46).
[24]
Likewise,
the
adequacy of state protection raises questions of mixed fact and law and is also
reviewable against a standard of reasonableness (see Hinzman, Re, 2007
FCA 171 at paragraph 38).
[25]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
should not intervene on judicial review unless the Board has come to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph
47).
[26]
Issue
2
Did the Board base its
decision on an erroneous finding of fact that the principal applicant was not
sexually assaulted in January 2007 that it made in a perverse manner and
without regard to the material before it?
The Board rejected the principal
applicant’s testimony that she had been physically and sexually assaulted in
January 2007. The Board stated that:
[It] does not believe that the claimant
was raped on January 29, 2007 and rejects the allegation that she was raped.
The panel believes the claimant claimed to have been raped by military men to
enhance her claim for refugee protection through embellishments and
exaggerations.
[27]
The
Board’s rationale for this rejection was two-fold. First, it found that “in the
psychological report, her attackers were referred to as gang and not
military men.” Since the psychologist had accurately portrayed the principal applicant’s
previous attackers, the Board found that there was no reason to believe she
incorrectly identified the perpetrators of this alleged attack.
[28]
However,
in the report the psychologist refers to the attackers as a “gang group”. The principal
applicant submitted, and I would agree, that the term gang group and a group of
military men are not mutually exclusive.
[29]
Moreover,
the psychologist clarified this point in a letter submitted to the Board
subsequent to the hearing. During the hearing, the Board requested that the principal
applicant submit further clarification from the psychologist regarding what she
meant:
REFUGEE PROTECTION OFFICER: …Presiding
Member could ask if the claimant could get an explanation from the doctor in
that the claimant said that she said to the doctor that these were military
people (inaudible). So what did she actually say –you know – to the doctor?
COUNSEL FOR CLAIMANTS: It is possible,
we just don’t know.
REFUGEE PROTECTION OFFICER: Yeah we
don’t know. So that the claimant --- when counsel send in his submissions the
Presiding Member also may be willing to accept a further update from the
psychologist.
COUNSEL FOR CLAIMANTS: I think I can do
that, if you would like.
[…]
MEMBER: Well you can do that as much as
a comprehensive submission as you possibly can, and I will see what weight I
put on any new evidence.
[30]
The
principal applicant did submit a further letter to the Board from her
psychologist. In this letter, dated October 28, 2009, the psychologist stated:
In order to clarify the previously
reported psychological assessment, I want to add the following information:
1. The abovementioned gang were
members of the military, as reported;
2. I was clinically referring to
a group of perpetrators;
3. My patient Gabriela Perez
Vargas did in fact specify that such individuals were members of the military.
This raises serious concerns as to the
reasonableness of the Board’s rationale for finding that the principal applicant
was not assaulted by members of the military.
[31]
Secondly,
the Board rejected that the principal applicant had been sexually assaulted at
all in January 2007 because she did not submit corroborating documentary
evidence of the assault. The Board relied on the case Sinnathamby v Canada (Minister of
Citizenship and Immigration), 2001 FCT 473, for the proposition that
where the Board has put its credibility concerns to an applicant, it may
require the applicant to produce corroborating evidence to support her
testimony (see paragraph 24). However, the Board’s credibility concerns arose
directly from its misapprehension of the evidence of the psychologist’s
report.
[32]
In
addition, in Isakova
v Canada (Minister of Citizenship and Immigration), 2008 FC 149,
322 FTR 276 at paragraph 23, Mr. Justice Douglas Campbell held that the Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution (Gender
Guidelines) require “a contextual approach which takes into account
the trauma of a sexual assault.” The principal applicant provided an
explanation for the absence of a medical report; that she told the doctor she
feared going to the police. The Board’s dismissal of this explanation and the
requirement of a medical report as corroborating evidence does not take into
account the affect of the principal applicant’s fear produced by the trauma of
sexual assault. As such, it was inconsistent with the Gender Guidelines.
[33]
Thus,
the Board’s finding of fact that the principal applicant was not sexually
assaulted in January 2007 was made in a perverse manner and without regard to
the material before it.
[34]
The
respondent submits that this is not fatal to the Board’s decision because even
if the Board had accepted that the principal applicant was raped by members of
the military, the principal applicant did not provide clear and convincing
evidence of the inability to the state to protect her. This cannot be the case
as the state protection analysis differs when the state is the agent of
persecution. In Silva
v Canada (Minister of Employment
and Immigration)
(1994), 82 FTR 100 (FCTD), Mr. Justice Pierre Denault held at paragraph 4 that
where the state is itself the agent of persecution, the inquiry shifts from the
willingness of the state to protect to the willingness of the applicant to seek
the protection of the state. This understanding was reiterated by Chief Justice
Lutfy in Yokota v Canada (Minister of Citizenship and Immigration), 2004 FC 1226. At
paragraph 5, Chief Justice Lutfy endorsed Silva above, and added that:
If
the agents of persecution were indeed the state, the Refugee Protection
Division should have considered whether the applicants' unwillingness to seek
the protection of the state was based on a well-founded fear of persecution
rather than whether the state was willing or able to protect the applicants.
[35]
Similarly
in Chaves v Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 45 Imm LR (3d), Madam Justice
Danièle Tremblay-Lamer held at paragraph 15 that:
….[W]here
agents of the state are themselves the source of the persecution in question,
and where the applicant's credibility is not undermined, the applicant can successfully
rebut the presumption of state protection without exhausting every conceivable
recourse in the country. The very fact that the agents of the state are the
alleged perpetrators of persecution undercuts the apparent democratic nature of
the state's institutions, and correspondingly, the burden of proof.
[36]
The
Board’s finding that the principal applicant was not sexually assaulted by
members of the military was perverse and made without regard to the material
before it. This finding directly impacted on the Board’s analysis of the
availability of state protection. Among other examples, the Board did not
analyze whether the principal applicant’s failure to go to the police was
reasonable given her interactions with the authorities.
[37]
As
the availability of state protection was the only issue raised by the Board to
reject the applicants’ refugee claim, I believe that this matter should be sent
back for redetermination by a differently constituted Board taking into
consideration the letter from the psychologist indicating that the principal applicant
did tell her that she was raped and physically assaulted by members of the
military.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[39]
IT IS
ORDERED that the
application for judicial review is allowed, the decision of the Board is set
aside and the matter is referred to a different panel of the Board for
redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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