Date: 20070124
Docket: IMM-1567-06
Citation: 2007
FC 73
Toronto, Ontario, January 24, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
DIANA
ELIZABETH NAVARRO CANSECO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Canseco, a Mexican citizen, is a victim of
domestic abuse. The Refugee Protection Division (RPD) of the Immigration and
Refugee Board dismissed her claim and determined that she was neither a
Convention refugee nor a person in need of protection. It concluded that state
protection is available in Mexico.
[2]
Ms. Canseco contends that the RPD failed to
assess state protection in relation to the gender guidelines and the
psychological evidence. She asserts that context must be factored into the
analysis. Although I am sympathetic to Ms. Canseco’s circumstances, I find that
the decision is justified. Consequently, the application for judicial review
will be dismissed.
Facts
[3]
Ms. Canseco met her common-law husband when she
was 17 years old. Three years later, they began living together. Soon
thereafter, she became a victim of verbal, physical and sexual abuse. She
filed one complaint with the police, but nothing was done. When she learned
that her husband was selling and consuming drugs, she left him and went to her
aunt’s home. He learned of her whereabouts and promised to change if she
returned home. Ms. Canseco, pregnant with twins, returned home.
[4]
The abuse continued. In August of 2004, Ms.
Canseco was hospitalized for two days following an altercation which caused her
to lose the babies. She was released into her mother’s care, but her husband
visited her at her mother’s home. The couple reunited in September and the
abuse abated until after Christmas. In February of 2005, he raped her and
attempted to assault her with a knife. With the intervention of a neighbour,
Ms. Canseco escaped to her mother’s home and made plans to travel to Canada. During the two weeks she remained
with her mother, her husband visited her and “demanded sex”. When Ms. Canseco
arrived in Canada on March 13,
2005, she was pregnant. She claimed refugee status on March 29th.
Her son was born in Canada.
The Decision
[5]
The RPD found that Ms. Canseco was credible and
trustworthy. It noted her denunciation in 2003, but also noted that she
returned to her husband thereby making it difficult for the police to do
anything. It found that adequate state protection is available in Mexico and referred to several governmental
and non-governmental organizations which assist victims of violence. During
the hearing, Ms. Canseco admitted to knowing about these resources, but claimed
that she was too afraid to go to them. The RPD also considered the
availability of restraining orders and remarked that Ms. Canseco had not sought
this form of protection. It referred to the documentary evidence which
indicated that the Mexican government was making efforts to eradicate
corruption and reform policy. It concluded that Ms. Canseco had not rebutted
the presumption of state protection.
Issues
[6]
Ms. Canseco raises three issues:
(1)
the failure of the RPD to identify an internal
flight alternative (IFA);
(2)
the failure of the RPD to analyze the claim in
accordance with the gender guidelines and the psychological evidence;
(3)
the failure of the RPD to apply the proper test
for state protection.
Analysis
[7]
In relation to the first issue, Ms. Canseco’s
counsel acknowledged at the hearing that the RPD was not concerned with IFA.
Although it identified the analysis portion of its reasons as “IFA/State
Protection”, it determined the case on the basis of state protection.
Accordingly, it need not have identified a specific IFA.
[8]
Regarding the second issue, Ms. Canseco takes
exception to the RPD’s comment that she came across as a “weak person who was
unable to separate herself from her spouse despite all that he allegedly did to
her”. She contends that this displays insensitivity to the gender guidelines
and to the psychological assessment.
[9]
Having carefully reviewed the transcript and the
record, I respectfully disagree. The RPD specifically states that it
considered the gender guidelines and it acknowledged, among other things, the
psychological report. As opposed to being insensitive, the RPD found that this
evidence assisted it in making its credibility finding. It recognized that Ms.
Canseco did not have the willpower to do anything. Indeed, her counsel at the
hearing (not counsel on this application) stated that “she felt frozen”.
[10]
I agree that in cases of domestic abuse, it is
incumbent on the RPD to have regard to the gender guidelines. In this case, it
did. However, the gender guidelines do not necessarily absolve applicants from
seeking the protection of the state. The psychological assessment goes to
subjective fear. The RPD accepted that Ms. Canseco had a subjective fear. The
psychological assessment does not assist in relation to the objective issue of
state protection, which brings me to the third issue.
[11]
The parties agree, and I concur, that the applicable
standard of review in relation to a finding of state protection is that of
reasonableness.
[12]
I agree with Ms. Canseco that the RPD erred in
one respect regarding the documentary evidence. It is correct that, according
to the documentation, protection/restraining orders are available only to
married victims of domestic abuse and the RPD erred in concluding otherwise.
That said, I do not find that this error is fatal to the overall
determination.
[13]
Considered in its totality, the decision
underscores the range of protective measures available to victims of domestic
abuse in Mexico and the
inadequacy of Ms. Canseco’s attempts to access this protection. At the end of
the day, the RPD found that one visit to the police in September of 2003 was
insufficient to rebut the presumption of state protection.
[14]
There is no dispute that Mexico is a democracy with an elected
president and a bicameral legislature. It is in effective control of its
territory, institutions, military, police and civilian authorities. The RPD
found that it makes serious efforts to protect its citizens and “the mere fact
that it is not always successful at doing so is not enough to justify a claim
that the victims are unable to avail themselves of such protection”. In my
view, that conclusion was reasonably open to the RPD on the evidence before
it. I find myself in complete agreement with the reasoning of Mr. Justice
Russell in Ortiz v. Canada (Minister of Citizenship and
Immigration) 2006 FC 1365, F.C.J. 1716 where at paragraphs 43 and 44, he
stated:
¶ 43
Let me say at the outset that, having reviewed the evidence and the Decision,
it would have been quite reasonable for the Board to have reached a conclusion
favourable to the Applicants. But this does not mean that the Board's negative
conclusions were patently unreasonable, or even unreasonable, and that is the
point of this review.
¶ 44
In the end, the Applicants just find it unbelievable that, given the evidence
before the Board, the specifics of this case, and the Gender Guidelines, the
Board could have concluded as it did. But this is merely to disagree with the
Board, and disagreement with the Board is not a sufficient basis for this Court
to interfere with the Decision.
[15]
It is settled law that the more democratic the
state’s institutions, the more the claimant must have done to exhaust all
available avenues: Kadenko v. Canada (Solicitor General)(1996), 143 D.L.R.
(4th ) 532 (F.C.A.).
[16]
Of course, each case turns on its own unique
facts. Here, there was ample evidence before the RPD to enable it to conclude
as it did. Its determination is supported by an analysis that withstands a
somewhat probing examination. Consequently, my intervention is not warranted.
[17]
Counsel did not suggest a question for
certification and none arises.
ORDER
IT IS HEREBY ORDERED THAT the
application for judicial review is dismissed.
“Carolyn Layden-Stevenson”
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