Date:
20130822
Docket: IMM-10144-12
Citation: 2013 FC 894
Ottawa, Ontario, August 22, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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JULIO
RAMON LALA BARROS,
ZOILA MERCEDES
MIZHIRUMBAY MIZHIRUMBAY,
KIMBERLY ASHLEY
LALA MIZHIRUMBAY
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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]
The applicants ask the Court to set aside a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada, dated September 14, 2012, refusing their application for
refugee protection pursuant to sections 96 and 97(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27. For the reasons that follow, their
application is allowed, in part.
[2]
Julio Ramon Lala Barros and his spouse, Zoila Mercedes Mizhirumbay
Mizhirumbay are indigenous persons of Ecuador from the province of Cañar. Their primary language is Quechua. Mr. Barros and Ms. Mizhirumbay have a daughter
named Kimberly Ashley Lala Mizhirumbay, who was born in the USA and is a citizen of that country.
[3]
The Board accepted their evidence as to the treatment they received in Ecuador. Both Mr. Barros and Ms. Mizhirumbay and their respective families suffered abuse
due to their indigenous heritage.
[4]
Wealthy landowners stole livestock from Mr. Barros’ community at
gunpoint. In 2000, these landowners threatened to kill all of the members of
Mr. Barros’ community if they did not leave. During this incident, Mr. Barros’
father was assaulted and injured. Mr. Barros and other members of his
community left and sought work on ranches in Cañar City. They reported the
incidents to the police but the police told them that nothing could be done.
Mr. Barros and his family were required to work from 4 a.m. until 11 p.m.
daily. They were paid with some of what they had produced, and on rare
occasions, with money. The overseers of the ranch often physically assaulted
the workers for not working fast enough. On one occasion, Mr. Barros was hit
in the eye and suffered an injury that caused vision problems. On other
occasions, Mr. Barros was assaulted with a horsewhip. The ranch was surrounded
by barbed wire and the overseers would send dogs after those who attempted to
escape. Mr. Barros did escape and fled to the USA in January, 2002 with the
help of his brother who has lived in the USA since 1999.
[5]
Ms. Mizhirumbay grew up on one of the ranches in Cañar and experienced
similar treatment. She was assaulted many times, bitten by the overseers’
dogs, hit with clubs, and suffered a fractured wrist from one assault. Ms.
Mizhirumbay says that the overseers raped many of the female workers and
murdered some of the inhabitants, including her uncle. Ms. Mizhirumbay
attempted to work at two other ranches outside of the area, but suffered the
same abuse. She eventually fled Ecuador and arrived in the USA in March, 2006, with the help of her two brothers who have lived in the USA since 1998.
[6]
Mr. Barros and Ms. Mizhirumbay met in the USA. They were married and in
2008, they gave birth to their daughter, Kimberly Ashley Lala Mizhirumbay. Mr.
Barros entered Canada on July 12, 2008 and filed for refugee protection on
August 17, 2008. Ms. Mizhirumbay entered Canada along with their child on
October 7, 2008 and filed for refugee protection the same day. Neither Mr.
Barros nor Ms. Mizhirumbay made an asylum claim in the USA.
[7]
The Board concluded that the applicants were neither Convention refugees
nor persons in need of protection pursuant to sections 96 and 97(1) of the Act.
It found that they had failed to rebut the presumption of state protection,
that they have a valid internal flight alternative [IFA] in Quito, the capital
of Ecuador, and that they lack subjective fear. The applicants submit that
each of these findings is unreasonable.
State Protection
[8]
The applicants testified that there were no police within a reasonable
distance of the rural areas where they lived. They also testified about
efforts they and similarly situated persons made to seek protection, without
result. The Board found that they had failed to overcome the presumption of
state protection:
I am not satisfied that police would
not investigate all of the principal and secondary claimants’ allegations if
they were to return to Ecuador and encounter problems and report the problems
to the police. I am also not persuaded that police would not prosecute the
perpetrators if there is sufficient evidence of a crime. … I found the
principal and secondary claimants’ responses regarding the effectiveness of
state protection were not persuasive, since they were largely unsubstantiated
and not consistent with the documentary evidence. [emphasis added]
[9]
This finding cannot withstand scrutiny. The
evidence of the applicants was consistent with the documentary evidence before
the Board. Although the reports laud the efforts of Ecuador, they state
clearly that those efforts have not resulted in responsive action in most
instances.
[10]
A 2011 report by the US Department of State found:
1.
Excessive force and isolated unlawful killings by the police force;
2.
Impaired effectiveness of the police force as a result of corruption,
poor hiring practices, insufficient training, supervision, and resources;
3.
Widespread impunity for police abuses, including extrajudicial executions;
4.
Corruption of officials;
5.
Failure to process legal cases unless the police and judicial officials
were bribed;
6.
Vigilante justice continuing to be a problem particularly in indigenous
communities and poor neighbourhoods of major cities where there is little
police presence.
[11]
The Report of the Special Rapporteur on
contemporary forms of slavery, states that “despite the legal, policy and
institutional framework aimed at eradicating contemporary forms of slavery and
the measures that illustrate the strong commitment towards the achievement of
this goal, in the Special Rapporteur’s view, major challenges remain.” [emphasis
added] It is noted that the Special Rapporteur actually visited Quito, the
exact location the Board found to be a viable IFA.
[12]
In the same report, the Special Rapporteur also concluded that:
Ecuador has shown genuine efforts
to establish policies aimed at the elimination of contemporary forms of slavery
affecting different sectors of the population.
…
Despite the progress made, the Special
Rapporteur holds the view that contemporary forms of slavery persist in Ecuador and are directly related to pervasive instances of discrimination, social
exclusion and poverty. They affect sectors of the population that have faced
historical wrongdoings, such as Afro-descendents and indigenous peoples…
[emphasis added].
[13]
In my view, the Board ignored the
evidence that measures taken, while laudable, remain insufficient in a concrete
sense. It examined efforts, not results. In so doing, it “undertook a
superficial, if not highly selective, analysis of the documentary evidence” and
this constitutes a reviewable error: Avila v Canada (Minister of Citizenship and Immigration), 2006 FC 359 at para 35.
Internal Flight
Alternative
[14]
The Board concluded that the applicants could live in Quito without a
serious possibility of being persecuted. However, this finding was based upon
its mischaracterization of the risk and the nature of the threat to the
applicants. The Board focused on the previous landowners and overseers who had
abused the applicants and concluded that it is unlikely that those parties
would pursue them in Quito. However, the applicants never said that they
feared that these previous persecutors would track them down.
[15]
During the hearing, the Board asked the applicants what they feared
about returning to Ecuador. They testified that they feared mistreatment by
the landowners of ranches and estates, people who would employ them as domestic
house workers, and people in Quito in general; but the Board does not turn its
mind to anything other than the landowners.
[16]
The Board failed to address the applicants’ testimony that if they were
to return to Quito instead of Cañar, they would experience racism, and their
only potential for employment would be on ranches similar to those they worked
on, or as domestic workers who also experience abuse; evidence consistent with
the findings of the United Nations Human Rights Council.
[17]
Accordingly, I find that the Board’s IFA finding
was unreasonable.
Subjective Fear
[18]
Upon review of the record, I find that it was open to the Board to
conclude that the applicants lacked subjective fear because they failed to file
a claim for asylum in the USA, despite living there for a number of years.
[19]
The applicants testified that they either did not know they could make
an asylum claim because of advice they had received from a lawyer, or they
would not have been able to because of significant language barriers. Both of
the applicants had family in the USA and the Board was reasonably of the view
that they would have known how the applicants could seek protection and have
assisted them.
[20]
In my view, that assessment cannot be set aside as unreasonable;
however, a finding of subjective fear only goes to the refugee claim under
section 96 of the Act and not a claim for protection under section 97: Sanchez
v Canada (Minister of Citizenship & Immigration), 2007 FCA 99 at paras
14-15, see also, Odetoyinbo v Canada (Minister of Citizenship &
Immigration), 2009 FC 501 at para 7. Therefore it is only the Board’s
conclusion that the applicants are not persons in need of protection under
section 97 that will be set aside.
[21]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is allowed, in part:
1. The decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada that the applicants are not persons in
need of protection under section 97 of the Immigration and Refugee
Protection Act is set aside and is remitted to a differently constituted Board
for determination; and
2. No
question is certified.
"Russel W. Zinn"
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