Docket: IMM-8486-14
Citation:
2015 FC 1084
Ottawa, Ontario, September 17, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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MARIA DEL
ROSARIO NAVARRO LOPEZ AND HER DEPENDANT CHILDREN
BRIAN RODRIGUEZ
NAVARRO
MARCO DAVID
ORTIZ
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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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JUDGMENT AND REASONS
[1]
Maria del Rosario Navarro Lopez and her two
children sought refugee protection in Canada. They claimed to fear Ms. Navarro’s
former partner who had subjected her to longstanding physical and mental abuse
while the family was living in the United States. While the Board accepted that
Ms. Navarro was a victim of domestic violence, it rejected her claim
because she failed to establish that there was more than a mere possibility
that she would face a risk to her life in Guatemala, her country of
citizenship. The Board further found that adequate state protection would be
available to her two children in the United States, where they were citizens.
[2]
No challenge has been taken to the Board’s
finding with respect to Ms. Navarro’s children. Ms. Navarro submits,
however, that in refusing her refugee claim, the Board erred in its assessment
of her prospective risk, and by failing to carry out a state protection
analysis.
[3]
I have concluded that the Board’s assessment of Ms. Navarro’s
prospective risk was reasonable. Having found that Ms. Navarro did not
face more than a mere possibility of persecution in Guatemala, the Board was
not required to go on to assess the availability of state protection for
victims of domestic violence in that country. Consequently, the application for
judicial review will be dismissed.
I.
Background
[4]
Ms. Navarro entered the United States in
2003, settling there without legal status. She subsequently entered into a
conjugal relationship with Luis Melvin Rodriguez, a citizen of the Dominican
Republic, who was also living in the U.S. without status. The couple were
together for approximately eight years, during which time they had a child. Ms. Navarro
has a second child from a previous relationship.
[5]
Ms. Navarro’s relationship with Mr. Rodriguez
was marked by domestic violence. He was physically, sexually, verbally and
psychologically abusive towards Ms. Navarro, and had threatened to kill
her several occasions. The police were often called to the couple’s home,
criminal charges were laid and restraining orders were taken out. On occasion, Ms. Navarro
required medical treatment for her injuries.
[6]
Ms. Navarro separated from Mr. Rodriguez
in May of 2012. She testified that Mr. Rodriguez continued to pursue her
and her children after the separation, and that he had physically abused her on
one occasion during a period when the couple had briefly resumed their
relationship. During this time, Mr. Rodriguez again threatened that he
would kill Ms. Navarro himself, or have a friend do it for him. Ms. Navarro
testified that Mr. Rodriguez also told her that if she were to return to
Guatemala, he would find her there and kill her.
[7]
The couple separated again, and Ms. Navarro
testified that the last time that she had contact with Mr. Rodriguez was
in August of 2013. One year later, Ms. Navarro and her children came to
Canada seeking refugee protection.
II.
Analysis
[8]
The Board accepted Ms. Navarro’s testimony,
finding that her relationship with Mr. Rodriguez had been marked by years
of domestic violence, and that she was genuinely afraid of him. The Board was
not, however, satisfied that there was more than a mere possibility that Mr. Rodriguez
would seek out Ms. Navarro in Guatemala.
[9]
While the Board had found Ms. Navarro to be
generally credible, it did find that she had attempted to embellish her
evidence regarding how Mr. Rodriguez would be able to locate her in
Guatemala. Ms. Navarro claimed for the first time at her refugee hearing
that Mr. Rodriguez had visited her family home in Guatemala in 2006, and
would thus know where to find her if she were to return to Guatemala.
[10]
Given that Ms. Navarro’s refugee claim was
entirely based upon her assertion that Mr. Rodriguez would seek her out in
Guatemala, it was reasonable for the Board to be concerned about Ms. Navarro’s
failure to mention Mr. Rodriguez’ 2006 visit to Guatemala (and his resultant
awareness of the location of the family home in Guatemala) at either the port
of entry or in her Basis of Claim form.
[11]
Ms. Navarro testified at her November, 2014
refugee hearing that she had not had any personal contact with Mr. Rodriguez
since August of 2013, and that she did was not aware of his current
whereabouts. She did say, however, that in mid-September, 2014, she had heard
that Mr. Rodriguez was leaving the Dominican Republic to return to the
United States, and that he intended to pass through Guatemala on the way there.
Ms. Navarro also testified that Mr. Rodriguez had called her mother
in September of 2014, telling her that he was in Guatemala and asking for Ms. Navarro.
During this call, Mr. Rodriguez threatened Ms. Navarro and her
children, telling Ms. Navarro’s mother that he knew how to locate her.
[12]
It was reasonable for the Board to find that
this evidence did not establish that Mr. Rodriguez was actually in
Guatemala when he made the call, because, as the Board noted, the call could
have been made from anywhere. Even though Mr. Rodriguez apparently believed
that Ms. Navarro was at her mother’s home in September of 2014, there is
no suggestion that he ever went to the home during the period that he was
ostensibly in Guatemala, There is also no suggestion anyone saw Mr. Rodriguez
in Guatemala at that time, and the police report produced by Ms. Navarro in
support of her refugee claim simply recites that Mr. Rodriguez had told
her mother that he was in Guatemala, and does not provide independent proof of
that fact.
[13]
There was also no evidence before the Board that
Mr. Rodriguez was in Guatemala at the time of the hearing, or that he
would be there at any point in the future. Moreover, as the Board noted, while Ms. Navarro
testified that Mr. Rodriguez had threatened to use his contacts to hurt Ms. Navarro,
there was no suggestion that he had ever done so in the past.
[14]
Taking all of these considerations into account,
the Board concluded that the risk posed by Mr. Rodriguez was speculative,
and that Ms. Navarro had failed to establish that she faced a forward-looking
risk of harm at the hands of Mr. Rodriguez in Guatemala. This was a
finding that was reasonably open to the Board on the record before it.
[15]
This does not mean that claimants seeking
refugee protection on the basis of domestic abuse must always be able to
provide proof of their abuser’s whereabouts in order to establish that they
face a serious possibility of persecution. They do, however, have to provide
non‑speculative evidence that they face more than a mere possibility of
persecution in their country of citizenship. The Board found that Ms. Navarro
failed to do so in this case and I have concluded that this finding was
reasonable.
[16]
The Board applied the correct legal test for
persecution, and Ms. Navarro has not pointed to any evidence that was
misinterpreted or overlooked by the Board. Rather, she is essentially asking
this Court to re-weigh the evidence that was before the Board and to come to a
different conclusion on the basis of that evidence. That is not the task of
this Court in considering an application for judicial review.
[17]
Ms. Navarro also takes issue with the
Board’s failure to carry out an assessment of the level of state protection
available to victims of domestic violence in Guatemala.
[18]
The Board recognized that there is a serious
problem with violence against women in Guatemala. However, Ms. Navarro’s
claim was based upon her fear of one specific individual - Mr. Rodriguez -
and not on a generalized fear of conditions for women in Guatemala. Having
concluded that Ms. Navarro had not established that there was more there was
more than a mere possibility that Mr. Rodriguez would seek her out in
Guatemala, there was no requirement for the Board to go on to assess whether
adequate state protection would be available to her in that country.
III.
Conclusion
[19]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case is fact-specific,
and does not raise a question for certification
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