Docket: IMM-132-11
Citation: 2011 FC 855
Vancouver, British Columbia, July 8, 2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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MARIA DE LOURDES GONZALEZ DURAN
DAIRA VANESSA GONZALEZ
CESAR ANTONIO GONZALEZ
SANDRA NOEMI GONZALEZ DURAN
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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
by the Refugee Protection Division of the Immigration and Refugee Board of
Canada (the tribunal) dated December 8, 2010, whereby the applicants’ claims
for refugee and protected person status were dismissed.
I. Background
facts
[2]
Maria
de Lourdes Gonzales Duran (the principal applicant), her two children, Daira
and Cesar, and her sister, Sandra, sought protection in Canada. They are all citizens
of Mexico.
[3]
The
principal applicant claimed protection in Canada based on alleged abuse at the hands of her
former partner, Arturo. The other applicants based their claims on that of the
principal applicant.
[4]
The
principal applicant met Arturo in 1993. As they were living in different
cities, they saw each other once or twice a week over a six-year period. Arturo
began showing signs of abusive behaviour, but the principal applicant did not
recognize them at first. In the summer of 1999, the principal applicant discovered
that she was pregnant. Arturo did not support the pregnancy and so he abandoned
her. On April 6, 2000, Daira was born. The principal applicant moved out of her
parents’ home to live with her sister.
[5]
In
2001, Arturo re-established contact with the principal applicant. He began
visiting her regularly and revealed that he was married to another woman.
[6]
In
2005, Maria became pregnant with the couple’s second child, Cesar. At this
time, Arturo moved to the United States.
[7]
In
mid-2006, Arturo returned to Mexico. He became physically and verbally abusive towards the
principal applicant, and denied being the father of the child. At no time did
Maria or her sister make any report to the police.
[8]
The
principal applicant alleges that in March 2009, Arturo threatened to abduct the
children. On April 5, he kept their daughter for two days without her consent.
He blackmailed the principal applicant in order to continue their
relationship and to ensure that she would not inform the police. He warned her
that he had friends and relatives in the police force.
[9]
In
November 2008, the principal applicant claims that Arturo’s wife started to
contact her and her family members. She called the principal applicant at
work and home to insult her. In April 2009, she insulted her daughter in
front of other children at school.
[10]
The
principal applicant left Mexico with her family on May
11, 2009, and they fled directly to Canada to seek protection. She alleges that she left
because she did not believe that she could remain safe anywhere in Mexico since Arturo was a
salesman and had a network throughout the country.
II. Issues
[11]
This
application for judicial review raises the following issues:
a) Did the tribunal err in
determining that state protection was available?
b) Did the tribunal err in
applying the gender guidelines?
III. Analysis
[12]
The
jurisprudence has clearly established that the question of state protection
should be reviewed using the reasonableness standard (Corzas Monjaras
et al v Canada (Minister of Citizenship and Immigration), 2010 FC 771 at
paras 15-16; Hippolyte v Canada (Minister of
Citizenship and Immigration), 2011 FC 82 at paras 22-23). The
question of whether the tribunal adequately applied the gender guidelines
should also be reviewed using the reasonableness standard (Juarez v Canada, 2010 FC
890, at para 12).
a) Did the
tribunal err in determining that state protection was available?
[13]
In
Mendoza v Canada, 2010 CF 119
at para 33 [Mendoza], my colleague Justice François Lemieux set out
a useful summary of the legal principles arising from the jurisprudence on
state protection:
From
these cases, I derive and summarize some relevant legal principles:
1) The
state is presumed to be willing and capable of protecting its citizens (Ward).
2) Evidence
of the state’s willingness to protect cannot be imputed as evidence of adequate
state protection (Ward).
3) Each
case is sui generis so while state protection may have been found to be
available in Mexico, maybe even in a particular state, this does not preclude a
court from finding the same state to offer inadequate protection on the basis
of different facts (Avila).
4) The
claimant is expected to have taken all reasonable steps in the
circumstances to seek state protection from his persecutors (Ward, Avila). A claimant who does
not do so and alleges that the state offers ineffective or inadequate
protection bears an evidentiary and legal onus to convince the tribunal (Carillo).
5) This
exception to the general expectation that claimants approach the state supports
the principle that the claimant is not required to put himself in danger in
order to demonstrate ineffectiveness (Ward, Avila).
6) Where
a tribunal determines the applicant has failed to take steps to seek protection
this finding is only fatal to the claim if the tribunal also finds that
protection would have been reasonably forthcoming. A determination of
reasonably forthcoming requires that the tribunal examine the unique
characteristics of power and influence of the alleged persecutor on the
capability and willingness of the state to protect (Ward, Avila, Heurtado-Martinez).
8) The
kind of evidence that may be adduced to show that the state protection
would not have been reasonably forthcoming includes: testimony of similarly
situated persons, individual experience with state protection and documentary
evidence (Ward).
9) The
standard of proof is balance of probabilities (Carillo).
10) The
quality of such evidence will be raised in proportion with the degree of
democracy of a state (Avila).
11) The
degree of democracy may be lowered if the state tolerates corruption in its
institutions (Avila).
12) Evidence
of remedies for corruption is not evidence of their practical effect (Avila). In order to neutralize
impact of corruption on the evidentiary analysis, the Board must determine
that these remedies have a positive practical effect.
13) The evidence must be relevant,
reliable, and convincing to satisfy the trier of fact on a balance of
probabilities that the state protection was inadequate (Carillo).
[14]
The
applicants argue that the tribunal erred in applying too high a threshold for rebutting
the presumption of state protection. Since Mexico is a
developing democracy, they submit that the presumption of state protection
is more easily rebutted. Moreover, they argue that there is no evidence that
adequate state protection is practically available for women fleeing domestic
violence and that the tribunal should not have relied on evidence about mere
state efforts to provide protection. Finally, they submit that the principal
applicant should not have been required to seek ineffective state protection
just to prove its inadequacy. I disagree with the applicants for the following
reasons.
[15]
It
is well established that the claimant bears the burden of introducing evidence and
proving, on a balance of probabilities, that state protection is inadequate (Carillo
v Canada, 2008 FCA
94). In the present case, what is problematic is the lack of evidence to rebut
the presumption of state protection and to demonstrate that it is inadequate in
Mexico.
[16]
Neither
the principal applicant nor her sister Sandra ever attempted to seek the
assistance of the police in Mexico. They claim that this
was because the principal applicant was told that Arturo had a cousin
working in the police. However, as noted by the tribunal, the principal
applicant could not provide the name of the cousin or the location of the
cousin’s job within the police or, in fact, provide any evidence that
Arturo had connections with the police. Thus, the applicants did not satisfy
the burden of convincing the tribunal that protection was ineffective and
inadequate. It is insufficient for an applicant to rely solely on
documentary evidence of flaws in the judicial system if they have failed to
avail themselves of available state protection (Alvarez v Canada (MCI), 2010 FC 197
at para 22).
[17]
Further,
the tribunal is not required to mention every piece of evidence relied upon in
its decision, particularly when it is clear from the reasons that the tribunal
has taken into account all the relevant evidence acknowledging that the
Mexican state protection apparatus is imperfect and highlighting the
shortcomings and improvements that the government has made (Monjaras
v Canada (MCI), 2010 FC 771).
[18]
On
the balance of probabilities, the tribunal was unconvinced that state
protection was inadequate. It was of the view that the applicants had not
demonstrated that, had they actively sought it out, state protection would have
been unavailable to them in Mexico. This conclusion is a possible and acceptable
outcome, in light of the facts and the law. As such, the intervention of this Court
is not justified.
b) Did the
tribunal err in applying the gender guidelines?
[19]
The
applicants argue that the tribunal erred by mentioning the Immigration and Refugee
Board gender guidelines, but by nonetheless failing to meaningfully apply a
gender-based analysis in its decision and to its assessment of state
protection. Again, I disagree.
[20]
In
its reasons, the tribunal acknowledged some inconsistency as to the level of
state protection available to victims of gender violence. It recognized that
violence against women was widespread and that there was “still much work… to
be done regarding official responses to cases of gender-based violence in Mexico”.
[21]
However,
the tribunal also pointed out that the documentary evidence shows that in
recent years, there has been a shift in the attitude of the federal and state
government and an increase in the implementation of mechanisms to provide a
more effective response. Moreover, the tribunal pointed to the fact that new
legislation had been implemented that “allows victims to seek protective or
restraining orders, and gives police authority to remove the aggressor from the
home, prohibit him from approaching the victim’s home, workplace, home of
relative, places of study and other places regularly visited,…allows police to
seize firearms, and provides victims with immediate assistance”. Furthermore,
the tribunal emphasized that there was a state program established on March 7,
2008, for the eradication of violence against women.
[22]
Overall,
the tribunal’s reasons demonstrate that it took into account the gender-related
aspect of the applicants’ allegations but nonetheless found that the
effectiveness of the state response to the specific issues of gender-based
violence raised was improving. In light of the evidence, this conclusion is
reasonable and it is not the role of this Court to reweigh the evidence and to
substitute its own conclusion.
[23]
For these reasons, the application for judicial review of the
decision is dismissed.
JUDGMENT
THIS COURT
ADJUDGES that the application for judicial review of the decision is
dismissed.
“Danièle
Tremblay-Lamer”
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