Date: 20070306
Docket: IMM-1169-06
Citation: 2007 FC 256
Ottawa, Ontario, March 6,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CINTHYA VALLADARES LOW
VICTOR DANIEL AYALA VALLADARES
Applicants
And
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated February 10, 2006, which found that the applicants
were neither Convention refugees nor persons in need of protection.
[2]
The
applicants request that the Board’s decision be set aside and referred for
redetermination by a differently constituted panel of the Board.
Background
[3]
The
principal applicant, Cinthya Valladeres Low and her son, Victor Valladeres (the
minor applicant), are citizens of Mexico. The applicants alleged
a fear of persecution at the hands of the principal applicant’s ex-husband,
Victor Castellanos. The principal applicant sought refugee status on the basis
of her membership in a particular social group, namely, as a woman subjected to
domestic abuse. The minor applicant also sought refugee status as a member of a
particular social group, namely, as a member of the principal applicant’s
family.
[4]
The
principal applicant’s relationship with Mr. Castellanos began in 1996, when she
was 16 years old. During their marriage, she was physically, verbally, and emotionally
abused by her husband. The applicant was also violently sexually assaulted by
him. He also physically assaulted the minor applicant. In September 2002, the
principal applicant moved out of the family home. However, her husband used
his access rights to their son in order to harass, threaten, and stalk her.
She seriously feared for her own safety, as well as that of her son.
[5]
In
December 2002, the principal applicant sought help from the government’s Centre
for the Attention of Intra-family Violence (CENAVI), and reported her husband’s
behaviour. CENAVI staff advised her to seek help from the criminal justice
system. The principal applicant claims that CENAVI staff also told her that the
police would be unlikely to investigate unless she could show physical signs of
having been seriously beaten by her husband. She did not go to the
authorities, but sought a divorce from her husband in May 2003.
[6]
The
principal applicant continued to experience harassment, intimidation and threats
from her ex-husband following their divorce. In August 2004, she met with him
in order to collect child support payments. During this meeting, he physically
assaulted her and uttered death threats against her and her new boyfriend. She then
began to make arrangements to leave Mexico. On October 18, 2004,
the principal applicant’s ex-husband accompanied her to a notary public’s
office and signed an authorization document giving the minor applicant permission
to travel to Canada. The
applicants arrived in Canada on October 21, 2004.
[7]
The
applicants sought refugee status in December 2004. The hearing took place on
December 2, 2005. The principal applicant was designated the representative of
the minor applicant. Prior to the hearing, applicants’ counsel submitted a
written motion requesting that reverse order questioning not be applied in the
case. Counsel set out the principal applicant’s vulnerability and the problems
she would experience while testifying, as a woman who had survived
gender-related persecution. The Board refused the motion and proceeded to
question her first. By decision dated February 10, 2006, the applicants’ claims
were refused on the basis that they had not established an objective fear of
persecution, and that they would be able to seek state protection.
Board’s Reasons
[8]
The
Board found the principal applicant’s testimony to be straightforward and
unembellished. However, the Board found it implausible that her ex-husband
wanted to possess and control the applicants, since he had signed a document
which gave her permission to travel outside Mexico with the
minor applicant, for an indefinite period of time. As a result, the Board found
it implausible that the applicants had good grounds to fear persecution at the
hands of the principal applicant’s ex-husband.
[9]
The
Board noted the principal applicant’s explanations as to why her ex-husband had
signed the consent form. She explained that he was forced to sign the form,
since the conditions of their divorce mandated shared custody. She had also
assured him that their visit to Canada would be brief. Her
ex-husband also stipulated that he should be informed as to where they were
travelling and for how long. Counsel submitted that the principal applicant’s
explanations should be given much weight, given the timing of the signature of
the document. The Board countered this submission by noting that the consent
form was signed after the August 2004 incident in which the principal
applicant’s ex-husband had threatened her and expressed his desire to control
her. In addition, the evidence did not show that her ex-husband was prevented
from changing his mind and blocking the authorization that he had given. There
was therefore no persuasive evidence that he was legally required to sign the
consent form.
[10]
The
Board was not persuaded by counsel’s submission that her ex-husband may have
merely signed a standard form, the implications of which he was unaware. The
Board found that he was aware of what he was signing and that the principal
applicant’s fear of her ex-husband lacked an objective basis.
[11]
The
Board also found that the applicants could seek state protection if returned to
Mexico and that it
was not objectively unreasonable to expect them to make efforts to do so. The
Board cited Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689, in which the Supreme Court of Canada held that states are presumed to be
able to protect their citizens, and that convincing proof of a state’s
inability to protect is required to rebut this presumption. The Board found
that the principal applicant made no effort to seek state protection, although
it noted her claim that her ex-husband’s threats prevented her from doing so,
and that his parents were influential in Mexico. The Board
noted that even when advised by CENAVI to seek help through the criminal
justice system, she failed to do so.
[12]
The
Board noted documentary evidence and supporting affidavits with respect to the
principal applicant’s allegations and psychological state. This evidence
indicated that domestic violence was widespread in Mexico and that
measures against it needed to be increased. Counsel argued that it was not
unreasonable for the principal applicant not to have approached the Mexican
state for protection. The Board cited contradictory documentary evidence which
indicated that Mexico was a democracy, with laws in place to address
domestic violence. The Board found that the principal applicant had recourse to
legal counsel during child custody proceedings, and would be able to exercise
this option should she return to Mexico.
[13]
The
Board noted its consideration of the Gender Guidelines, which stated that among
the evidentiary matters to be considered in assessing the well-founded nature
of a woman’s gender-related fear of persecution would be testimony of past
personal incidents where state protection did not materialize. In addition,
the Guidelines stated that an assessment must be made as to the adequacy of
state protection as it relates to gender persecution. The principal applicant
had not sought state protection, and there was no evidence that she had been
offered inadequate state protection. Therefore, there was no evidence showing that
the applicants had good grounds to fear persecution in Mexico. The Board
concluded that the applicants were neither Convention refugees, nor persons in
need of protection.
Issues
[14]
The
applicant submitted the following issues for consideration:
1. Did the Board’s
denial of counsel’s motion to question first breach the rules of natural
justice?
2. Did the Board err in
law through ignoring evidence that supported the applicant’s testimony
concerning the consent document, and was the resulting implausibility finding
therefore flawed?
3. Did the Board err in
failing to clearly analyze and articulate why it did not accept the principal
applicant’s explanations as to why her ex-husband signed this consent document?
4. Did the Board err in
failing to recognize the cycle of domestic violence?
5. Did the Board err in
law in finding that state protection was available to the applicants by
ignoring or misapprehending relevant evidence?
[15]
I
would rephrase the issues as follows:
1. Did
the Board err in finding that state protection was available to the applicants?
2. Did
the Board err in denying the well-founded nature of the applicants’ fear based
upon implausibility findings related to the consent document?
3. Did
the Board’s denial of counsel’s motion to question first breach the rules of
natural justice?
Applicants’ Submissions
Reverse Order
Questioning
[16]
The
applicants submitted that the Board unduly fettered its discretion and breached
the rules of natural justice when it engaged in reverse order questioning (see Jin
v. Canada (Minister of
Citizenship and Immigration) (2006), 40 Admin. L.R. (4th) 266, 2006 FC
57). In the case at hand, the Board dismissed counsel’s motion to dispense with
the application of Guideline 7, citing efficiency concerns. The Board failed to
address the reasons given for the motion to dispense with reverse order
questioning, including the principal applicant’s vulnerability, and problems in
testifying as a victim of gender-related persecution.
Plausibility
[17]
The
Board doubted the plausibility of the objective basis of the applicants’ claim
due to the circumstances surrounding the signing of the consent document. It
was submitted that the Board misapprehended and ignored evidence including: an
affidavit, a letter from a notary public in Mexico, and the
applicants’ testimony, in coming to this finding. This evidence supported the
principal applicant’s assertion that she and her ex-husband merely signed a
standard form document which stipulated a period of one year or whatever time
was necessary, which was a standard element of such documents in Mexico. The Federal
Court has established that the Board errs if it considers evidence selectively
by failing to refer to evidence that is contrary to its findings and supports
the applicant’s claim (see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264).
[18]
In
Valtchev v. Canada (Minister of Citizenship and Immigration) (2001),
208 F.T.R. 267, 107 A.C.W.S. (3d) 293, the Court held that tribunals must be
careful in rendering decisions based upon a lack of plausibility, because
refugee claimants come from diverse cultures, and actions which appear
implausible from Canadian standards may be plausible when considered from the
claimant’s milieu. It was submitted that the Board did not nourish its
plausibility findings by reference to documentary evidence (see Fok v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 800 (F.C.A.) (QL)).
[19]
The
applicants submitted that the Board did not address the principal applicant’s
explanations as to why her ex-husband signed the consent form, nor were reasons
provided for the rejection of her evidence. She testified that the document was
a standard form and that her ex-husband signed it in order to indulge their
son. It was submitted that in the context of a divorce, such an explanation was
plausible. She also testified that her ex-husband signed the form on the basis
of many unwritten conditions, including where they would be going and the
duration of the trip. She never testified that he was forced to sign the form,
or that he had to do so in order to comply with the conditions of their
divorce.
[20]
The
reasoning process of a decision-maker must be set out and must reflect
consideration of the main factors in a case (see Via Rail Canada v. National
Transportation Agency, [2001] 2 F.C. 25, (2000) 193 D.L.R. (4th) 357 (C.A.)). The
Federal Court of Appeal has held that plausibility findings must be based upon
reasonably drawn inferences, not speculation (see Hilo v. Canada (Minister of Employment
and Immigration) (1991),
130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.)). It was submitted that in finding
that the principal applicant’s ex-husband likely had the ability to rescind his
consent, given his shared custody of the minor applicant, the Board speculated
as to what he could have done under Mexican family law. It was submitted that
there was no documentary authority referred to in support of the speculation,
nor was it put to the principal applicant in order for her to respond.
Cycle of Domestic Violence
[21]
The
applicants submitted that the Board erred in misunderstanding the cycle of
domestic violence. In Griffith v. Canada (Minister of
Citizenship and Immigration) (1999), 171 F.T.R. 240, 904 A.C.W.S. (3d) 118,
the Court held that the Board must give specific reasons for doubting the
credibility of an applicant who alleges to have suffered domestic abuse. In Griffith,
the Court relied upon the Supreme Court of Canada’s reasoning in R. v. Lavallee,
[1990] 1 S.C.R. 852, in finding that the special knowledge needed to properly
judge a case involving domestic violence could be acquired from expert
testimony or sociological sources.
[22]
The
applicants submitted that the Board’s boilerplate reference to the Gender
Guidelines did not indicate that it had assessed their situation with the required
sensitivity (see Keleta v. Canada (Minister of Citizenship and Immigration) (2005), 49 Imm. L.R.
(3d) 69, 2005 FC 56). It was submitted that the Board did not address the
applicant’s testimony that: (1) she was scared that her husband would seek
retribution against her if he found out that she had contacted the authorities;
(2) her husband had threatened her if she did not sign a pardon document
lifting reporting conditions upon him due to his failure to pay child support;
(3) CENAVI had advised her that she would have to be seriously injured for the
police to investigate her complaint and that upon this advice, she believed
that the police would not help her. It was submitted that these factors were
classic indicia of abusive relationships.
[23]
The
applicants submitted that the Board’s comments at the hearing support the
argument that it misunderstood the nature of domestic violence. At one point,
the Board described the principal applicant’s separation from her ex-husband as
pleasant. Later, the Board interpreted a comment made by the principal
applicant’s ex-husband regarding the unsafe nature of her car, as an expression
of concern made during a pleasant conversation. However, she had made it clear
that she felt threatened by the remark. The applicants submitted that the
Board did not consider testimony or expert evidence regarding the principal
applicant being stalked by her ex-husband. Finally, the Board did not address
the fact that the applicant now had a baby, which the principal applicant
testified would enrage her husband, should she return. It was submitted that
the definition of persecution was forward-looking, and that this factor should
have been addressed by the Board.
State Protection
[24]
The
applicants submitted that the Board ignored relevant evidence that corroborated
the principal applicant’s testimony concerning the information about state
protection that she received from CENAVI. The affidavit of Madeline Oquendo
provided evidence that CENAVI referred abused women to the judicial system, and
that their cases would only be seen to have merit should the woman be able to
demonstrate serious physical harm. This evidence corroborated the principal
applicant’s testimony that CENAVI referred her to the police, but indicated
that the authorities would only find merit in her case if she showed evidence
of serious physical abuse. It was submitted that the Board also ignored her
testimony that she believed that the Mexican police would be ineffective in
protecting her because they were corrupt. The applicants submitted that the
Board’s failure to mention affidavit evidence which contradicted its finding on
state protection, showed that it ignored evidence (see Cepeda-Gutierrez
above).
[25]
The
applicants submitted that the Board failed to address several other documents regarding
this issue. It was submitted that the Board selectively relied upon evidence to
support its finding of state protection, while ignoring evidence that there was
no effective state protection. It was submitted that the documentary evidence
relied upon by the Board stated that legislation regarding violence against
women was insufficient, that there was still a reluctance to punish offenders,
and that reconciliation with abusive partners was often suggested by the
authorities.
[26]
The
applicants submitted that the Board’s finding on the issue of state protection
was unreasonable, as it ignored relevant evidence. It was submitted that the
issue of state protection was reviewable on the standard of reasonableness (see
Ramirez v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1413). In Ward above, the Supreme
Court of Canada held that only in situations in which state protection might
reasonably have been forthcoming would a claimant’s failure to approach the
state for protection defeat his claim. It was submitted that in deciding the
issue of state protection, the Board must consider whether protection was
effective, and whether the laws in place to counter domestic abuse were applied
(see Bobrik v. Canada (Minister of
Citizenship and Immigration) (1994) 85 F.T.R. 13, 50 A.C.W.S. (3d) 850).
[27]
The
Board found that the applicants failed to seek state protection. It was
submitted that the Board misinterpreted the principal applicant’s testimony and
deviated from the legal standard which stated that she need not put her life at
risk by attempting to seek state protection where it was ineffective. The Board
failed to appreciate her testimony that CENAVI indicated that in order for the
police to investigate, she would have to have strong evidence of physical abuse.
It was submitted that this error, when assessed in light of documentary
evidence speaking to the ineffectiveness of state protection, rendered the
Board’s state protection finding unreasonable. The applicants submitted that
the Board’s unsupported assumption that the principal applicant had recourse to
legal counsel during child custody proceedings implied that a family lawyer
could ensure that the police would protect her, was unreasonable.
[28]
The
applicants noted that while the Board relied on certain documentary evidence
which supported its finding of adequate state protection, there was a
significant amount of documentary evidence indicating that the state response
to domestic violence in Mexico was ineffective. The applicant submitted
that the Board’s finding was patently unreasonable, as it did not address such
documents.
Respondent’s Submissions
Reverse Order
Questioning
[29]
The
respondent submitted that the applicants failed to establish that the
proceeding did not comply with natural justice. The affidavit filed in support
of their motion to vary the order of questioning did not state any reasons for
deviating from Guideline 7 procedure, and did not mention that the principal
applicant might be prejudiced by the usual order of questioning. It was
therefore open to the Board to find that there were no exceptional
circumstances warranting deviation from the usual procedure (see Kamiak v.
Canada (Minister of
Citizenship and Immigration) (2005), 145 A.C.W.S. (3d) 131, 2005 FC
1655).
[30]
The
respondent noted that in Thamotharem v. Canada (Minister of
Citizenship and Immigration), [2006] 3 F.C.R. 168, 2006 FC 16, , the
Court found that Guideline 7 did not adversely affect the Board’s role in
refugee determination proceedings. In addition, in Benitez v. Canada (Minister of
Citizenship and Immigration), [2007] 1 F.C.R. 107, 2006 FC 461, the
Court found that the Board’s procedure did not require the right to an
examination-in-chief, but rather required that the hearing be conducted fairly.
The respondent noted that there were no allegations in the applicant’s
affidavit of unfairness in the hearing.
Standard of Review, Onus
upon the Applicants
[31]
The
respondent submitted that the Court should not intervene unless the Board based
its decision upon an erroneous finding of fact, made in a perverse or
capricious manner, or without regard to the material before it. It was
submitted that the applicants must support their claim with credible evidence.
It was submitted that the applicants failed to discharge this onus, as their
evidence was implausible, and adequate state protection was available in Mexico
(see Ndbombele v. Canada (Minister of
Citizenship and Immigration) (2001), 110 A.C.W.S. (3d) 154; see Ward above).
It was therefore open to the Board to find that the applicants did not have
good grounds for fearing persecution. It was submitted that the Board’s
reasons, when read as a whole, demonstrated that the facts of the claim were
understood and that the evidence in support of the claim was insufficient to
support a positive determination (see Miranda v. Canada (Minister of
Employment and Immigration) (1993), 63 F.T.R. 81, 40 A.C.W.S. (3d) 947).
Plausibility
[32]
The
respondent submitted that as the primary finder of fact, the Board was entitled
to reject even uncontradicted evidence, so long as it was not consistent with
the probabilities affecting the case as a whole (see Faryna v. Chorny,
[1952] 2 D.L.R. 354 (B.C.C.A.)). It was submitted that the Board may make an
adverse credibility finding based upon the implausibility of the applicants’
story alone. It was therefore open to the Board to find it implausible that the
principal applicant’s ex-husband wanted to possess and control the applicants,
when he allowed them to leave Mexico for an indefinite period. It was also open
to the Board to find that the evidence did not show that the principal
applicant’s ex-husband was prevented from changing his mind and blocking the
travel authorization, nor that he was legally required to sign the consent
form.
[33]
The
respondent submitted that the Board did not ignore evidence that the travel
authorization signed by the principal applicant’s ex-husband was a standard
form document. Rather, the Board was not persuaded by the applicants’ argument
that as a result of the fact that the document was in standard form, he was
unaware of what he was signing. As he did not appear to have been legally
obligated to sign the form, nor was he prevented from changing his mind, the
Board found that he knew what he was signing. It was therefore irrelevant
whether the form was standardized, since this would not vitiate the fact that
the principal applicant’s ex-husband could have refused to sign it. It was
therefore the Board’s responsibility to determine the amount of weight to
attribute to the Mexican notary public’s letter.
State Protection
[34]
The
respondent submitted that as part of a claim for refugee status, applicants
must establish that they are unwilling or unable to avail themselves of state
protection in their home country. Since the applicant had not reported her
alleged abuse to the police, it was open to the Board to conclude that she had
not established that state protection was unavailable. The Board considered
documentary evidence with respect to Mexico’s protection of abused
women, and concluded that state protection was adequate (see Szucs v. Canada (Minister of
Citizenship and Immigration) (2000), 100 A.C.W.S. (3d) 650). It was
therefore open to the Board to conclude that the applicants’ failure to seek
state protection was unreasonable, and that they had not clearly established
that state protection was unavailable to them.
Analysis and Decision
Standard of Review
[35]
The
standard of review applicable to a breach of procedural fairness is
correctness. The Board’s findings regarding the objective basis of the
applicants’ fear of persecution are reviewable on the standard of patent
unreasonableness (see Nyachieo v. Canada (Minister of
Citizenship and Immigration) (2006) 149 A.C.W.S. (3d) 1101, 2006 FC 869
at paragraph 20).
[36]
With
respect to the standard of review applicable to state protection findings, the
underlying factual findings are subject to the standard of patent
unreasonableness, while the Board’s findings on the adequacy of state
protection is a question of mixed fact and law that is reviewable on a standard
of reasonableness simpliciter (see Machedon v. Canada
(Minister of Citizenship and Immigration) (2004), 256 F.T.R. 211, 2004 FC
1104).
[37]
Issue
1
Did the Board err in finding
that state protection was available to the applicants?
The applicants submitted that
the Board member erred by selectively relying upon sections of the documentary
evidence which supported its finding of adequate state protection. It was
submitted that other documentary evidence contradicted the finding, including
the very document cited by the Board. The respondent submitted that it was open
to the Board to conclude that state protection was adequate on the basis of its
consideration of the documentary evidence.
[38]
The
Board’s analysis of the documentary evidence is found at pages 8 to 10 of its
reasons:
Counsel has pointed out some documentary
evidence, and supporting affidavits with respect to the claimants’ allegations
and her current psychological state. From these documents, it is evident that
domestic and gender violence continue to be a serious problem in Mexico. [. . .]
I have noted the references as pointed
out by Counsel. However, in my opinion, the principal claimant has not met her
obligation of making reasonable efforts to obtain national protection in
Mexico, given other documentary evidence, where it is indicated that Mexico is a democracy, with laws,
and legal and administrative measures in place to address gender and domestic
violence. It is stated that:
… Mexico has enacted domestic laws
addressing violence against women (OAS 13 Oct. 2004; see also UN 2 Mar. 2005a)
and ratified two international conventions; the Convention on the elimination
of All Forms of Discrimination against Women (CEDAW) in 1981, and the
Inter-American Convention on the Prevention, Punishment and Eradication of
Violence Against Women, also known as the Belem Do Para Convention, ratified in
1996 (ibid.; CIMAC July 2003).
In 1997, the Federal District Legislative
Assembly (Asamblea Legislativa del Distrito Federal, ALDF) created domestic
violence offences within the Federal
District’s penal
code, with penalties ranging from a minimum of four months to six years in
prison (ibid.; OAS 13 Oct. 2004). As of October 2004, the federal government
reported that 25 of the 31 states had some form of prevention and assistance
laws relating to domestic violence (ibid.). However, the government further
noted that the mechanisms provided by these very heterogeneous (muy
heterogeneas) laws varied across the country: from conciliation, arbitration
and administrative proceedings in some states, to filing of official criminal
complaints (denuncias) in others (ibid.)
In addition, a national policy on
domestic violence, known as the NOM-190, is in effect since March 2000 and
requires all health centres to report cases of domestic violence (CIMAC 24 Nov.
2003; ibid. July 2003 …
The federal government listed a number of
its efforts to address violence against women, including the training of 1000
community workers in 236 municipalities in 31 states under the rubric of the
National Program for Life Without Violence (Programa Nacional por una Vida sin
Violencia) in 2003 (Mexico Mar. 2004 …)
I have considered that the document also
quotes some sources who express the view that, despite the legislative, police,
judicial and community-based measures, domestic violence remains widespread,
that the measures need to be increased, and that there is need to improve the
effectiveness of the implementation of the measures. …
… It is evidence that the government of Mexico is making serious efforts at
providing national protection in the area of domestic violence, and it meets
its obligations of providing adequate though not necessarily perfect protection
to its citizens.
(See Mexico: State Protection (December 2003 – March
2005) – May 2005)
[39]
The
same document includes the following statements:
News and human
rights sources reported in 2003 and 2004 that violence against women remained a
serious problem, despite government efforts to remedy the situation …
…
According to the
president of INMUJERES, Patricia Espinosa Torres, ten years after Mexico signed
the Belem do Para Convention, the country’s legislation with regard to violence
against women was insufficient…and, in five states, ineffective … Participants
at a June 2004 seminar entitled The Needs of Victims of Domestic
Violence…stated that Mexico’s domestic violence laws and protective
institutions for assisting victims of violence were [translation]
“ambivalent”…According to Julia Lopez, a legal defence specialist, there is a
reluctance to punish male perpetrators because domestic violence is still
considered a private issue with no witnesses …
In reference to
reforming the penal code for domestic violence offences, the President of the
Human Rights Commission of the ALDF and PRD legislator, Julio Cesar Moreno
Rivera, noted that many domestic violence victims receive little support from
the Public Ministry. …According to Barbara Yllan, Deputy Prosecutor of the
Victims and Community Services unit of the Federal District Attorney General’s
office…MP officials commonly question a victim’s complaint, even suggesting
that the victim attempt to reconcile with an abusive partner …
Marta Torres,
professor and researcher at the Interdisciplinary Program of Women’s
Studies…observed that there were not enough shelters, and those in operation
had lengthy waiting lists ... Moreover, the shelters reportedly provide
lodging for only 15 days and after this period many women return to their
abusive partners (Torres 3 Apr. 2005).
…
In preliminary
findings of her February 2005 visit to Mexico, Yakin Erturk, the UN Special
Rapporteur on violence against women, noted her concern for “the lack of
responsiveness of the police or the prosecutors when receiving a complaint and
their reluctance to take action and to follow-up to the complaints related to
violence against women (2 Mar. 2005b). According to Marta Torres, women
generally distrust the police and are hesitant to report an abusive partner (3
Apr. 2005). …
[40]
In
the present case, the Board acknowledged that there was contradictory evidence
but did not say why it preferred one piece of evidence over the other. The
Board failed to properly address the negative evidence relating to the
availability of state protection. There is no doubt that the Board can prefer
one piece of documentary evidence over the other, but it must state why it did
so. In my view, the Board’s failure to address this negative evidence with
respect to state protection is a reviewable error, as I have no way of knowing
whether the Board would have come to the same conclusion on state protection
had it addressed this evidence.
[41]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[42]
Because
of my finding on this issue, I need not deal with the other issues.
[43]
Neither
party wished to submit a serious question of general importance for my
consideration for certification.
JUDGMENT
[44]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
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.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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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.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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Chairperson’s Guideline 7 (Concerning Preparation and Conduct of
Hearing in the Refugee Protection Division):
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19. In a
claim for refugee protection, the standard practice will be for the RPO to
start questioning the claimant. If there is no RPO participating in the
hearing, the member will begin, followed by counsel for the claimant.
Beginning the hearing in this way allows the claimant to quickly understand
what evidence the member needs from the claimant in order for the claimant to
prove his or her case.
23. The
member may vary the order of questioning in exceptional circumstances. For
example, a severely disturbed claimant or a very young child might feel too
intimidated by an unfamiliar examiner to be able to understand and properly
answer questions. In such circumstances, the member could decide that it
would be better for counsel for the claimant to start the questioning. A
party who believes that exceptional circumstances exist must make an
application to change the order of questioning before the hearing. The
application has to be made according to the RPD Rules.
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19.
Dans toute demande d'asile, c'est généralement l'APR qui commence à
interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le
commissaire commence l'interrogatoire et est suivi par le conseil du
demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile
de connaître rapidement les éléments de preuve qu'il doit présenter au
commissaire pour établir le bien-fondé de son cas.
23.
Le commissaire peut changer l'ordre des interrogatoires dans des
circonstances exceptionnelles. Par exemple, la présence d'un examinateur
inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune
enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y
répondre convenablement. Dans de telles circonstances, le commissaire peut
décider de permettre au conseil du demandeur de commencer l'interrogatoire.
La partie qui estime que de telles circonstances exceptionnelles existent
doit soumettre une demande en vue de changer l'ordre des interrogatoires
avant l'audience. La demande est faite conformément aux Règles de la SPR.
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