Date:
20131223
Docket:
IMM-8533-12
Citation:
2013 FC 1284
Ottawa, Ontario,
December 23, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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BRENDA MILAGROS CORDOVA
CALOGGERO
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Applicant
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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]
The
Applicant is seeking judicial review pursuant to section 72.1 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision
made by the Refugee Protection Division of the Immigration and Refugee Board
(the Board) dated August 3, 2012, whereby it was decided that Brenda Milagros
Cordova Caloggero was neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97(1) of the Act.
[2]
For
the reasons that follow, I have found that this application ought to be
dismissed. The Applicant has failed to convince the Court that the Board erred
in finding that she is not a credible witness, that she lacks subjective fear
of persecution, and that she did not rebut the presumption of state protection.
FACTS
[3]
The
Applicant is a woman of Peruvian citizenship born in 1985 who alleges a fear of
persecution and a risk to her life at the hands of her former boyfriend,
Alberto Pazos, and her mother’s former partner, Cesar Saldana Alvarez, if she
were forced to return to Peru.
[4]
In
October 2007, the Applicant moved in with her mother and Cesar, who became
abusive towards her mother and herself. Both women fled Cesar’s home in Lima in May 2008 and stayed for two weeks with a friend in Ica, a city five hours away
from Lima. Cesar found them and convinced them to return home. The abuse continued
thereafter.
[5]
In
August 2008, the Applicant and her mother once again left Cesar’s home and
sought refuge with another friend in Trujillo, eight hours away from Lima. Two weeks later, Cesar found them and again convinced them to return. On the
evening of August 30, 2008, Cesar attempted to sexually assault the Applicant. Her
mother intervened, and was stabbed by Cesar in the abdomen. She spent more than
two weeks in the hospital and reported the incident to the police. The
Applicant herself never reported the attempted sexual assault.
[6]
When
the Applicant’s mother was released from hospital, she and the Applicant went
to live with an aunt in Lima. In December 2008, Cesar and two other men came
to that house and threatened to kill them for having made a complaint to the
police. The police were contacted and arrived after Cesar had already left the
premises. The police said they were still looking for Cesar and that the
stabbing incident was still under investigation.
[7]
The
Applicant’s mother then left Peru and claimed refugee status in Canada. Her current status in Canada is unknown.
[8]
In
May 2009, Cesar assaulted the Applicant at a shopping mall in Lima. The police were
called and the Applicant made a formal complaint.
[9]
The
Applicant went to the USA in September 2009 in an attempt to reach Canada and join her mother. She was in fact refused a Canadian visa and returned to Peru three weeks later, when she learned that her uncle had become critically ill.
[10]
She
then met a man named Alberto Pazos, to whom she looked for protection. They
became romantically involved. Alberto became abusive when the Applicant tried
to leave him. On more than one occasion he locked her up in a room and
sexually assaulted her for days. The Applicant never reported Alberto to the
police.
[11]
On
April 28, 2011, the Applicant left Peru and went to the USA. She made her way to Canada approximately four weeks later. She claimed refugee
status on June 1, 2011.
THE IMPUGNED
DECISION
[12]
The
determinative issues before the Board were credibility, subjective fear and
state protection.
[13]
At
the outset of its reasons, the Board noted that it has considered the
Chairperson’s Gender Guidelines on gender-related persecution.
[14]
On
the issue of credibility, the Board found that the Applicant had presented
inconsistent statements with regard to what transpired after the incident of
May 2009. The Applicant testified that Cesar had run away and that police told
her they would contact her once he was caught. However, the complaint submitted
by the Applicant indicates that Cesar had been brought to the police station. The
Applicant also testified that she heard the police say they had captured Cesar.
The Board concluded that the Applicant “deliberately attempted to mislead the
panel with regard to her allegations that the Peruvian police were not able to
provide her with adequate state protection”. The Board assigned little weight
to a psychological report from a Canadian therapist as it relied in part on the
Applicant’s narrative, which was found to be not credible.
[15]
With
regard to subjective fear, the Board took issue with the fact that the
Applicant provided no reasonable explanation for her failure to claim asylum in
the United States on two occasions. The Board further found that the Applicant
had provided inconsistent statements concerning her knowledge of the asylum
system in the USA.
[16]
Finally,
the Board found that the Applicant had not rebutted the presumption of state
protection. The Board considered that Peru is a functioning democracy and must
be presumed capable of protecting its citizens. In such cases, a refugee
claimant must provide clear and convincing evidence that the state is unable to
provide adequate protection. The Board noted that the police had adequately
intervened when their help was solicited by the Applicant or her mother on
three separate occasions, and that Cesar was arrested and detained in May 2009.
The Board further noted that the Applicant had withheld key information from
the police on two occasions and made no reasonable efforts to seek protection
with regard to Alberto’s abuse.
[17]
The
Board addressed the objective evidence and found that Peruvian law requires
police to investigate domestic violence complaints within five days, and that
penalties for domestic violence against women vary from one month to six years.
The Board also mentioned the Women’s Emergency Program, which combines police
prosecutors, counsellors and public welfare agents to help victims of domestic
abuse. The Board recognized that Peru faces corruption and difficulties in
addressing criminality, but concluded that in the circumstances, the police had
effectively responded when they were given a chance to do so.
ISSUE
[18]
The
Applicant has raised a number of issues in her written and oral submissions,
including the reasonableness of the Board’s findings with respect to her
credibility and her subjective fear. I am of the view, however, that the
determinative issue in this case is the reasonableness of the Board’s
assessment with respect to the availability of state protection.
ANALYSIS
[19]
It
is well established that the Board’s conclusions on state protection are findings
of fact and law reviewable on the deferential standard of reasonableness: Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171, at para
38.
[20]
When
reviewing a decision under the reasonableness standard, the Court must
determine whether the decision-making process is justified, transparent and
intelligible, and whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir
v New Brunswick, 2008 SCC 9, at para 47.
[21]
The
Applicant submits that the Board wrongly considered the state’s efforts to
protect, as opposed to the effectiveness of these efforts on the operational
level. The Applicant further argues that, contrary to the Board’s finding, there
is no evidence that Cesar had even been arrested or charged. Indeed, the
documentary evidence that was before the Board allegedly corroborates the
Applicant’s experiences and belief that women in Peru are not given adequate
protection.
[22]
It
is well established that a refugee claimant has the burden of rebutting the
presumption of state protection by presenting clear and convincing evidence
that the state is unable to provide protection. The protection afforded by
authorities need not be perfect, but only adequate: Minister of Citizenship
and Immigration v Flores Carrillo, 2008 FCA 94. On the other hand, the
protection offered by the state cannot be only theoretical, it must also be
available in practice: Aguirre v Canada (Minister of Citizenship and
Immigration), 2010 FC 916, at para 20; Sanchez v Canada (Minister of
Citizenship and Immigration), 2009 FC 101 at para 37; Cervenakova v
Canada (Minister of Citizenship and Immigration), 2012 FC 525, at para 73. Failure
to seek protection from authorities can be fatal to a claim, unless the
claimant can establish that the protection would not be forthcoming: see, inter
alia, Pineda v Canada (Minister of Citizenship and Immigration), 2012 FC
1543 at paras 16-17. As Justice Sexton stated in Hinzman, above, at
para 57, “a
claimant coming from a democratic country will have a heavy burden when
attempting to show that he should not have been required to exhaust all of the
recourses available to him domestically before claiming refugee status”.
[23]
I
note, first of all, that the Board did apply the appropriate test of state
protection. It states from the outset that both the claimant and her mother
“were given adequate state protection on at least three occasions while
they resided in Peru” (Decision, para 25; emphasis added). Moreover, there is no
proof that the documentary evidence cited by the Applicant has not been
reviewed and assessed by the Board. It noted that, although domestic violence
remains a problem in Peru, that country has a functioning security force. The
Board also took into account that Peruvian law prohibits domestic violence and
requires police to investigate incidents of domestic violence within five days.
It also mentioned that the Ministry of Women and Social Development has
established the Women’s Emergency Program, which helps victims of domestic
abuse through the services of police, prosecutors, counsellors and public
welfare agents, and received a monthly average of 1,543 calls in November.
[24]
Having
said that, the Board acknowledged that violence against women remains a problem
in Peru, and did not paint a rosy picture of the situation. The Board quoted
from the DOS Country Report on Human Rights Practices for 2010 which showed
that violence against women remains a problem in Peru, and reported that a 2009
ombudsman study highlighted that police officers react indifferently to charges
of domestic violence despite legal requirements to investigate such complaints.
The Board went on to state the following:
The panel accepts that the documentary evidence indicates
that Peru has had some difficulties in the past with addressing the criminality
and corruption that exist within the security forces in that country. As well,
the panel notes that there are some inconsistencies among several sources
within the documentary evidence since the Overseas Security Advisory Council
(OSAC) indicates that Peru has one of the highest reported crime rates in Latin
America, but Freedom House, a non-government organization (NGO), contends, by
regional standards, the incidence of crime is low in Peru and, in fact, that it
remains far below the level found in many Latin American countries. The
objective evidence regarding current country conditions suggests that, although
not perfect, there is an adequate state protection in Peru for victims of crime, that Peru is making serious efforts to address the problem of criminality
and domestic violence.
[25]
What
was crucial, in the Board’s view, was that in the circumstances of this case,
the Applicant had failed to rebut the presumption of state protection with
clear and convincing evidence, and that the police had provided her adequate
protection on three separate occasions, and in one case, leading to the arrest
and detention of Cesar. The Board further found that the Applicant had
withheld information from the police and failed to take any steps to seek
protection in relation to Alberto’s abuse. In light of the foregoing, it
cannot be said that the Board applied the wrong test in focussing on
theoretical protection.
[26]
The
Board was correct in emphasizing that the effectiveness of the protection
offered by a state cannot be put in doubt when one has not really tested it. In
the present case, the police did take a report following the stabbing incident
in August 2008 and initiated an investigation. Notwithstanding the fact that
the police did interview the Applicant’s mother and a complaint was filed by
her against Cesar, the Applicant admitted she had deliberately withheld
information from the Peruvian police with regard to the alleged attempted
sexual assault by Cesar.
[27]
The
authorities also intervened when Cesar came to the home of the Applicant’s
aunt, and when Cesar attacked the Applicant at a shopping mall in May 2009. It
is true that there was no specific indication on the record that Cesar was
arrested or charged on that last occasion, as the complaint states that he was
“driven to this Police Station for the investigations on the case”. It is
clear, however, that Cesar was apprehended, and the Applicant reported no
incidents involving Cesar after the mall incident, until she left in June 2011.
[28]
In
light of all the facts of this case, the Board could reasonably conclude that
state protection was adequate and available. The police responded every time
the Applicant or her mother asked for help. The Applicant has not clearly
demonstrated that she has exhausted all courses of actions to avail herself of
the protection she could have sought from the Peruvian authorities before
claiming refugee protection in Canada. This finding, in and of itself, is
sufficient to dismiss the application for judicial review.
[29]
The
Applicant also submitted that the Board failed to accord proper attention to
the Gender Guidelines. It was contended that the Board was not sensitive to
the hesitation of women victims of domestic violence, to seek protection from
the authorities and to the Applicant’s desire to reunite with her mother in
those circumstances.
[30]
I
do agree with the Applicant that the Board failed to give proper consideration
to the Gender Guidelines when assessing whether the Applicant had taken
reasonable steps to seek police protection. Although the Board did note at the
outset of its reasons that it had considered the Gender Guidelines, it appears
that it was not sensitive to the Applicant’s situation as a woman victim of
domestic violence when it faulted the Applicant for not reporting Alberto’s
abuse and for withholding information from the police. The only reference to
the Gender Guidelines in the Board’s reasons deals with the Board’s comments
during the hearing, to the effect that it did not mean to embarrass the
Applicant through questioning. However, the Gender Guidelines are not only
procedural. In Bibby-Jacobs v Canada (Minister of Citizenship and
Immigration), 2012 FC 1176, Justice Martineau wrote (at para 8):
In the case at bar, the Board also fails to mention
in the impugned decision the Gender Guidelines. While a failure to consider the
Gender Guidelines is not necessarily a prelude to a successful judicial review,
I find that in this case, the Board member did not demonstrate the sensibility
and understanding of gender related persecution. It is apparent that key
findings were made without any regard to the applicant’s cultural, social and
personal circumstances. It is not sufficient to claim today that the Board
member accommodated the applicant at the hearing. The sensitivity must also be
reflected in the rationale for refusing the refugee claim. (emphasis added)
[31]
In
the case at bar, the Board apparently paid only lip service to the principles
enunciated in the Gender Guidelines. Notably, the Board made no mention of the
Applicant’s psychological report, which indicates that the Applicant suffers
from Post Traumatic Stress Disorder, and significantly minimizes her symptoms.
The report also cites the Applicant as saying that in Peru it is considered “weird to talk to other people about your problems”. The report also
suggests that, for the Applicant, her mother’s problems are more pressing than
her own. The information contained in this report could have explained, in
part, why the Applicant did not tell the police that Cesar had tried to rape
her before attacking her mother, and why she never reported Alberto’s abuse to
the police.
[32]
That
being said, the failure to give more weight to the psychological report and to
give fuller consideration to the Gender Guidelines does not render the Board’s
entire state protection analysis unreasonable. Even if the Board had found
that the Applicant had established her subjective fear (despite the lack of a
reasonable explanation for her failure to claim asylum in the USA), it would not assist in relation to the objective issue of state protection. The Board’s
determinative conclusion was based on the adequacy of actual police
intervention on three separate occasions and the objective documentary
evidence, two findings that remain undisturbed by the Board’s failure to
address the Gender Guidelines or the psychological report. Considering the
principles relating to the burden of proof, the standard of proof and the
quality of the evidence needed to rebut the presumption of state protection, I
cannot say that it was unreasonable for the Board to have concluded that the Applicant
has failed to establish that the state protection is inadequate.
[33]
As
a result, this application for judicial review ought to be dismissed. Neither
party wished to submit a proposed serious question of general importance, and
none is certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question is certified.
"Yves de
Montigny"
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