Toronto, Ontario, June 6, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
MARIA LUZVIMIND TACDA, ANGELIE TACDA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The present Application concerns a gender based claim for protection by a mother and child who fled the Philippines to escape extreme violence from the man with whom the mother had lived for a period of thirteen years.
[2] In its reasons, the Refugee Protection Division (RPD) found that the claims of both the mother and child should be rejected on the basis of a failure to rebut the presumption of state protection in the Philippines.
[3] The central finding with respect to the failure to rebut the presumption is contained in three paragraphs in the decision as follows:
The claimants never sought state protection from any authorities in the Philippines. The claimant testified she was unaware of any measures taken by the state to protect females who are victims of gender violence.
(...)
I am not persuaded by counsel's submission that the claimants should be absolved of the expectation as set out in Ward [(Canada (Attorney General) v. Ward [1993] 2 S.C.R.689)] to make a diligent effort to access state protection simply because of cultural considerations.
(...)
Relying on the documentary evidence, I find the claimants did not make diligent efforts to inform themselves of the resources available in the Philippines before seeking protection abroad. The claimants' failure to diligently seek protection in their country of origin prior to claiming asylum abroad does not rebut the availability of state protection in the democracy of the Philippines.
(RPD's Decision, p. 2, p. 4)
[4] It is agreed that all evidence on the record with respect to the Applicants' willingness to seek state protection must be considered in making a finding related to state protection. The mother's reasons for not reporting the violence to the police was elicited, through an interpreter, under questioning by her Counsel as follows:
Q: Okay, you say that you did not seek help from the police or other authorities, why is that? You've told us that they don't do anything. Are there any other reasons?
A: First of all my fear for my husband and another thing is, I've been hearing so many things about things like that, those problems we're in, it doesn't help and most of all I'm really avoiding scandal.
Q: Let me ask you about these things. What kind of scandal were your trying to avoid?
A: In our place our family is well known and we have a name to protect. That's why it's not possible if there's any problem within the family, I don't want other people to know.
Q: If they found out, if other people did find out what would that mean? Describe more to me what that would mean to you.
A: They will talk to me...they will be talking about us and my husband will be worse. Because what he feels is that everybody knows that he is a good family man, everybody looks at him as a good family man. They really don't know history or character and what he is really doing inside the house.
Q: So if people found out and he knew that people found this out and you said he'll be worse. What do you mean he would be worse?
A: If at first when he is hurting me I say it's only between the two of us but I know they will come a time that he will hurt me that my kid will also be affected, including my family.
(...)
Q: Okay, let me go back, one of the things you said when I asked you why not go to the police, other reasons, you said fear from your husband, which I take it to be fear of your husband. Can you explain that a little bit for me?
A: Lately going to the point wherein that he is hurting me so much, he's assaulting me and he's using a knife.
Q: What I'm interested in what would happen if you went to the police and said he's hurting me so much and he's using a knife, what would happen then?
A: Nothing will happen cause first of all the policemen are his friends because they're all drinking together.
Q: All right, now you also said you heard things that the police don't help. How did you know that or how did you hear that?
A: It not only happened to me, it only so happened to my comrades, and with that kind of problem the police were not able to help them.
(Tribunal Record, p.8, pp. 9-10)
[5] In its decision, the RPD states that the Chairperson's Guidelines on Women Refugee Claims and Fearing Gender Related Persecution were taken into consideration in rendering the decision under review. However, I find that the sensitivity called for in the Guidelines was not applied in the decision rendered.
[6] In my opinion, in order to properly judge the actions of a woman who is living in a violent relationship, it is first necessary to articulate what might be realistically expected. On this point, there is a wealth of sociological evidence to take into consideration, of which a decision-maker can take judicial notice. Indeed, the mother's evidence in the present case provides some of the many reasons for why women living in violent relationships do not report. Only after establishing what can be realistically expected, is it possible to make a finding with respect to an individual's conduct. This careful and sensitive analysis was not undertaken by the RPD in the present case before making a finding that the Applicants' failure to report is fatal to their claim for protection.
[7] Therefore, I find that the RPD's failure to properly consider all the evidence on the record with respect to state protection constitutes a reviewable error which renders the decision under review as patently unreasonable.
ORDER
Accordingly I set aside the RPD's decision and refer the matter back to a differently constituted panel for re-determination.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7000-05
STYLE OF CAUSE: MARIA LUZVIMIND TACDA v. MCI
REASONS FOR ORDER: CAMPBELL, J.
APPEARANCES:
Daniel Fine FOR THE APPLICANTS
Negar Hashemi FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel Fine FOR THE APPLICANTS
Barrister & Solicitor
Toronto, Ontario
Negar Hashemi FOR THE RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario