Date: 20090127
Docket: IMM-3356-08
Citation: 2009 FC 82
Ottawa, Ontario, January
27, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
VERONICA PATRICIA AGUILAR
ZAMORANO
(a.k.a. VERONICA PATRIC AGILAR ZAMORANO)
ANA YURITZY AYALA AGUILAR
KAREN DENISSE AYALA AGUILAR
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board dated June 27, 2008,
denying the applicants’ refugee claim.
FACTS
[2]
The primary applicant, Veronica Patricia Aguilar Zamorano, and the minor
applicants, her children, Ana Yuritzy Ayala Aguilar and Karen Denisse Ayala
Aguilar, are citizens of Mexico.
[3]
The primary applicant was the office manager of Telisis S.A. de C.U., a
telecommunications company. Her responsibilities included keeping the company
accounts, and depositing monies for the company.
[4]
On August 15, 2007, the applicant was kidnapped by two men after making
a deposit of 25,000 pesos in a bank in Mexico City. The kidnappers called the
applicant’s mother and demanded 500,000 pesos. After the applicant informed
the kidnappers that they did not have the money, she was raped. She was held in
captivity for three days and escaped when her kidnappers fell asleep after
drinking.
[5]
After returning to her mother’s home, the applicant made a police
report. The police sent the applicant for a medical examination at a special
clinic for rape victims.
[6]
The applicant states that the day after she escaped and made the police
report, her mother received a call from her kidnappers warning her not to go to
the police and threatening to harm her if she did so. The applicant’s mother
cancelled her home phone line immediately. The phone call was not reported to
the police.
[7]
A week later, the police recovered the applicant’s vehicle. The
applicant states that the police told her she had not provided them with enough
information to find the kidnappers because she was unable to identify her
kidnappers, provide a location where she had been taken, or give any other
information they could use to track down her kidnappers. The applicant states
that she was afraid because of the threatening phone call her mother had
received, and decided to flee to Canada. She arrived in Canada on September
14, 2007. Her children continued to reside with her mother in Mexico, and
joined the applicant in Canada on June 3, 2008.
Decision under review
[8]
The panel did not make any finding as to the applicant’s credibility.
The determinative issues in the decision were state protection and the
existence of an internal flight alternative.
[9]
On the issue of state protection, the Board found that the applicant had
not made adequate efforts to avail herself of state protection. The applicant
stated in her testimony that she did not fear anyone in Mexico other than the
two individuals who had assaulted her. The Board found that after making the
initial police report, neither the applicant nor her mother had made any
attempt to follow up with the police, including failing to report the
threatening phone call that the applicant’s mother had received. The Board
stated:
The claimant testified that
neither she nor her mother made any subsequent attempts to follow-up on the
reports they made at the Attorney-General’s office. It was the police who,
after investigating her claim, called to tell her that they were able to
recover her vehicle that was used by her kidnappers to kidnap her. The panel
does not believe that the police did not perform any forensic tests on the
claimant’s vehicle as alleged since the claimant and her mother never
followed-up on their reports or met with the authorities. Therefore, it is not
plausible that they knew what tests the police carried out before they released
it to the claimant.
Based on the evidence adduced,
the panel finds that the Mexican authorities made serious efforts to recover
her vehicle as well as sending her to be medically examined by a forensic doctor;
all this happened within a week of her filing the denunciation. It is not
reasonable to expect the police to seek out and capture the claimant’s
kidnappers when she was not able to provide their identities or any leads for
the police. The claimant did not stay in Mexico long enough to see the outcome
of the police investigations based on what she provided them. The claimant
left for Canada in less than a month after filing her denunciations.
[10]
The panel found that although the applicant testified that she was
dissatisfied with the police action, she did not seek any redress, either by
filing a complaint or by following up on her initial report, including
informing the police of the subsequent threat, at any time.
[11]
The
panel then found that the applicant had a viable Internal Flight Alternative
(IFA) in Monterrey. The panel
stated that the applicant, as a certified accountant, would not have
difficulties finding employment and schools for her children in Monterrey. The panel
found that the applicant’s kidnappers have not, since the August 19, 2007 phone
call to her mother, attempted to find her. Her mother has continued to live in
the same house, a location the applicant states the kidnappers were aware of.
Given that their threat to the applicant was not to go to the police, the panel
found that the kidnappers did not know the applicant had already filed a police
report and therefore are not in cahoots with the police. Thus, the panel
concluded the kidnappers would not be able to find the applicant in Monterrey or
elsewhere.
ISSUES
[12]
The
applicant raises the following issues in its submissions:
a. that the
panel erred in failing to examine the adequacy of state protection, made
selective use of documentary evidence in relation to state protection;
b. that the
panel did not consider, or properly consider, the psychological report in its
IFA analysis; and
c. that the
panel did not rely on any evidence, and ignored evidence, in its IFA analysis.
STANDARD OF REVIEW
[13]
The
Board’s determination of the refugee claim was a question of mixed fact and law
and is subject to a standard of review of reasonableness. Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 362 N.R. 1. The Court will
therefore review the Board’s findings with an eye to "the existence of
justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.” (Dunsmuir
at paragraph 47).
ANALYSIS
Issue No. 1: Did the panel err in its findings
on state protection?
[14]
The
applicant submits that the panel ignored relevant evidence in reaching its
conclusions on state protection. The panel found that the police were making
serious efforts to investigate her case and that if she was dissatisfied with
the police action, she had an obligation to pursue the available recourses
given that Mexico is a
democracy. The panel found evidence that she could have sought assistance from
several organizations, and that public officials are punished in Mexico for
misconduct.
[15]
According
to the applicant, these findings ignored contradictory documentary evidence
that was before the panel. The applicant points to numerous statements in the
evidence that the panel purportedly ignored, relating to corruption in the
police force; problems relating to the witness protection programs; and the
minimal success that the police have had in dealing with small, amateur
kidnapping rings. The applicant submits that all this evidence contradicts the
panel’s findings that the police in the D.F. are relatively “clean” and
effective.
[16]
The
respondent submits that it was open to the Board to find that the applicant had
failed to rebut the presumption of state protection as she had only approached
the police once, failed to report the subsequent threat she had received, and
had left Mexico less than a month later without following up on the police
investigation. The applicant also did not contact any of the state agencies
that are able to provide assistance to victims of kidnapping and sexual abuse.
[17]
The
applicant further submits that the fact that all the documentary evidence is
not mentioned does not indicate that the panel failed to consider it. The Board
acknowledged the mixed evidence on the issue of state protection, but found
that the applicant had failed to make reasonable efforts to avail herself of
state protection. Thus, the respondent submits, the applicant cannot rebut the
presumption of state protection simply by pointing to evidence of flaws in the
justice system. The respondent relies on Palomares v. Canada (MCI), (June
7, 2006) Doc. No. IMM-5447-05 (FCTD) wherein Madam Justice Heneghan
stated:
The problem with this position is that it
ignores the uncontradicted evidence that the Prinicpal Applicant did not seek
state protection at any time during the period of cohabitation with her spouse
in Mexico. The Board heard her
evidence. It is mandated to weigh the evidence. It is not enough for the
Principal Applicant to refer to documentary evidence that, admittedly, paints a
mixed picture about the state response to domestic violence and say that the
Board committed a reviewable error in her case.
See
also: Cortes v. Canada (MCI), 2006 FC 1487, 154 A.C.W.S. (3d)
450 at paragraph 9.
[18]
I
agree with the respondent that this reasoning is applicable in this case. The
applicant in this case did go to the police and the evidence on the record
indicates that her complaint was taken seriously. The contradictory evidence
relating to the efficacy of some of the state agencies mentioned by the panel,
and the evidence relating to corruption in the police force, are not of such
direct relevance and importance that the failure to specifically mention them
is a reviewable error, in light of the fact that the applicant did not attempt
to avail herself of protection from these agencies and the fact that her police
complaint had been taken seriously and was being investigated by the police.
There was no evidence that the police in her case were corrupt, and in fact,
the call from her kidnappers indicated that they were not aware that the police
report had been filed and therefore were not working in concert with or
receiving protection from the police. The Board reviewed the documentary
evidence in depth and there was ample support for the Board’s finding.
Issue
No. 2: Did the panel err in failing to consider the psychological report in its
IFA analysis?
[19]
The
applicant submits that the psychological report is relevant in determining
whether an IFA is reasonable, and that the Board erred in failing to adequately
consider it. The Board made one reference to the psychological report under
its state protection analysis, stating:
The panel considered the psychological
report, which indicates the claimant’s present psychological condition. Since
the claimant obtained psychological help prior to leaving Mexico, it would not
be unreasonable for her to continue with therapy should she return to Mexico.
[20]
The
applicant further submits that this reasoning demonstrates a factual error, as
there was no evidence on the record that the applicant received any
psychological help in Mexico.
[21]
The
Board clearly made a factual error in stating that the applicant received
psychological help in Mexico, as there is no evidence to that effect on
the record. However, this is not a material error. The respondent submits that
the Board was under no obligation to consider the report specifically under the
IFA analysis.
[22]
In
this case, the psychological report indicated that the applicant is suffering
from depression and post-traumatic stress disorder, and has had suicidal
feelings. The report further states at page 111 of the Applicant’s Record:
Ms. Aguilar has had suicidal ideation,
and one attempt in the past, and being deported to Mexico will only heighten this sense of
hopelessness that sustains her depression. Her love for her daughters provides
a buffer, but the patient needs to rebuild her own sense of being cared for and
living in a protected environment.
As well, Posttraumatic Stress Disorder is
a condition highly sensitive to environment cues that remind the patient of the
context of the trauma. Deportation to Mexico would result, most assuredly, in an
intensification of her symptoms in this regard.
[23]
I
agree with the applicant that the Board’s statement that it considered the
psychological report does not suffice where the contents of the reports provide
evidence which is highly relevant to credibility or some issue raised by the
applicant. However, the Board’s finding on state protection was reasonable,
and the psychological evidence does not establish otherwise. The applicant
made no submission before the Board under section 108(4) of IRPA that the
applicant’s psychological condition provides a “compelling reason” not to
return her to Mexico. The
applicant’s psychological condition could also be the basis for an H&C
application. It is not, however, sufficient to disturb the Board’s reasonable
finding on state protection or IFA.
Issue
No. 3: Did the Board err by ignoring evidence, or failing to rely on evidence,
in its IFA finding?
[24]
The
applicant submits the panel failed to address the applicant’s oral evidence
wherein she provided an explanation as to why her mother was not targeted by
the kidnappers although she continued to reside in the same location. The
applicant testified that she herself went to live with a friend in Marisol
until she left the country, and that the kidnappers did not target her mother
because the applicant was the one at risk, as she was the one the kidnappers
feared could identify her. The applicant also submits that the kidnappers could
not call her mother again because the applicant’s mother had disconnected her
phone line.
[25]
However,
the applicant testified that the kidnappers had her identity documents and thus
were aware of her mother’s address. The panel’s finding was that the
kidnappers never attempted to contact her mother and that if they were
searching for the applicant, they would have approached her mother for
information about her whereabouts. The fact that neither the applicant nor her
mother never heard from the kidnappers after the August 19, 2007 phone call,
was found by the panel to establish that the kidnappers were no longer
interested in locating her or were unable to locate her. This finding was
reasonably open to the panel in my view.
[26]
The
applicant further submitted that the Board had failed to consider evidence that
if she was returned to Mexico, she could be tracked down using the
Infonavit system which allows anyone to go onto the internet and locate a
person’s name and date of birth. The Board specifically considered this
information, but found that based on the totality of the evidence, the
kidnappers were no longer trying to find the applicant.
[27]
I
find that the Board’s finding that the applicant did not make adequate attempts
to avail herself of state protection was reasonable. Additionally, the applicant
has not established that she would not have an IFA in Monterrey or
elsewhere.
[28]
For
these reasons, this application for judicial review is dismissed.
[29]
Both
parties advised the Court that they do not consider that this case raises a
serious question which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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