Date: 19990526
Docket: IMM-1139-98
OTTAWA, Ontario, May 26, 1999
BEFORE: Rouleau J.
Between:
SOLEDAD DEL CARMEN CONCHA TOBAR,
MATTHIAS GABRIEL VASQUEZ CONCHA,
PAUL JONATHAN DIAZ CONCHA,
MARCO ANTONIO DIAZ CONCHA,
Applicant,
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
[1] The application for judicial review is allowed and the matter is referred back to a newly constituted panel for re-hearing.
| P. ROULEAU JUDGE |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990526
Docket: IMM-1139-98
OTTAWA, Ontario, May 26, 1999
BEFORE: Rouleau J.
Between:
SOLEDAD DEL CARMEN CONCHA TOBAR,
MATTHIAS GABRIEL VASQUEZ CONCHA,
PAUL JONATHAN DIAZ CONCHA,
MARCO ANTONIO DIAZ CONCHA,
Applicant,
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the Board") on February 2, 1998 that the applicant and her three sons are not Convention refugees.
[2] The applicant asked the Court to quash the Board's decision and refer her case back for re-hearing.
[3] The applicants are Soledad del Carmen Concha Tobar and her three sons, Paul Jonathan Diaz Concha, 20, Marco Antonio Diaz Concha, 16, and Matthias Gabriel Vasquez Concha, 3. All are citizens of Chile and live in the city of Valparaiso. The sons based their application on that of their mother.
[4] The applicant"s common law spouse and father of the youngest child, Marco Antonio Vasquez Cepeda, arrived in Canada on October 13, 1995 and on October 21 claimed refugee status. The other members of the family filed their application after arriving in Canada on January 29, 1996 and initially based their application on that of Mr. Vasquez. However, the latter withdrew his application on December 10, 1996 and in January 1997 returned to Chile. The applicant and her children remained in Canada. Six months later, she based her application on a new argument: marital violence.
[5] The applicant met Mr. Vasquez in Valparaiso in June 1992, a year after obtaining a divorce from her first husband. Her sons Paul and Marco are children of this first marriage. In February 1993, Mr. Vasquez moved in with the applicant.
[6] From the outset Mr. Vasquez behaved in an authoritarian and aggressive manner. In May 1993 the applicant and Mr. Vasquez had a dispute and Mr. Vasquez left the house. The applicant became depressed and attempted to commit suicide. Mr. Vasquez then took the applicant and her sons into his home. The applicant accordingly became dependent upon him. Mr. Vasquez remained very authoritarian. Problems arose between him and Paul, a son of the applicant's first marriage. The latter left to live with an aunt.
[7] Mr. Vasquez began taking evening courses. Paul chose these evenings to visit his family. One evening Mr. Vasquez returned earlier than usual. He was furious to see Paul in the house and tried to hit him. He then threatened to throw out the entire family. After a few days, he calmed down.
[8] A few months later, Mr. Vasquez mistreated Marco and forced the applicant to leave his home. At first she rented a house, but subsequently ran out of money. She took refuge with Mr. Vasquez's sister: a few days later, he gave her money so she could find a place to live. He subsequently persuaded her to come back and have a child with him. Everything went well for a while, but eventually the situation deteriorated. Mr. Vasquez was hostile and aggressive, regularly threw the family out and refused to buy food for the older sons. He did not attend his son's birth. After Matthias was born, Mr. Vasquez hit Paul. He tried to throw the applicant out, but wanted to keep the baby. The applicant stayed, refusing to leave Matthias.
[9] After organizing his son's baptism, Mr. Vasquez came to Canada. The applicants followed him. Everything went well but on July 5, 1996 Mr. Vasquez became violent and tried to strangle the applicant. She called the police, who arrested Mr. Vasquez. A restraining order was issued against him and he observed it until he left Canada for Chile.
[10] The applicants received assistance from the Centre des femmes de Montréal. All three reacted well to counselling. The applicant feared returning to Chile because of Mr. Vasquez. A friend warned her that he intended to take revenge. She also, she feared that he would try and take away their son Matthias.
[11] The Board did not appear to doubt the credibility of the applicant's story. However, they concluded that there was a lack of any objective fear regarding their return to Chile as the Chilean government could protect her, in view of her specific circumstances.
[12] The applicant testified that she had already complained to the police in Chile, but without success. In her submission, the police only intervene in very serious cases of marital violence where there are visible physical injuries. She therefore could not count on their protection.
[13] The Board preferred to rely on the documentary evidence. This indicated that protective procedures exist in Chile. Law 19.325, the law on intrafamily violence, came into effect in Chile in August 1994. The Board summed up the effect of that statute as follows.
[TRANSLATION]
| [The law] lays down the procedure to be followed in laying a charge of marital violence, defines the special courts which are competent to hear such a charge and states the powers given to judges hearing such cases. The judges are empowered to attempt a reconciliation and order that measures be taken by the police if necessary. They may further order that the perpetrators of acts of violence take a rehabilitation program, pay fines or be put in jail. |
[14] The Board went on to indicate that the Chilean authorities have also set up a network of centres and programs to assist victims of family violence. Among the services offered are legal aid, psychological aid and educational programs on family violence.
[15] All police stations are empowered and qualified to intervene in family violence situations.
Three stations, including that in Valparaiso, have special responsibility for such matters and their officers receive special training.
[16] Finally, the Board referred to a letter dated June 7, 1996 from the national coordinator of the SERNAM program against family violence. It wrote:
[TRANSLATION]
| Further, the commissariats (in all the country"s townships), public assistance stations and the CIDEM (the SERNAM program responsible for information on women"s rights) have recorded complaints and served as a first place of refuge before and after Law 19.325 was promulgated. Additionally, in Santiago Chilean police officers have a station responsible for family affairs, a substation in Valparaiso and a family affairs section in Conception, centres which are all concerned with the fight against cases of intrafamily violence. |
[17] The question the Court must answer is the following: is the Board's conclusion that the applicant has not submitted clear and persuasive evidence that the Chilean government is unable to guarantee her protection reasonable and based on all the evidence before it?
[18] The applicant submitted that the Board did not take all the evidence before it into account. In her opinion, it failed to consider that in fact the Chilean police rarely intervened in cases of family violence. The cases in which they intervened are those of extreme violence or rape, never in cases of threats. The applicant further submitted that the Board had not dealt with the fact that prevention of abuse and family violence awareness programs do not exist in Chile. Finally, the Board did not deal with the absence of economic and educational resources in Chile to enable victims of family violence to live independently. The applicant said she would be forced to go back and live with her husband upon her return to Chile because these social services were lacking.
[19] Women who are victims of marital violence constitute a special group within the meaning of the definition of "refugee" in s. 2 of the Immigration Act, R.S.C. 1985, c. I-2. A woman claiming refugee status on this basis must establish the following:
| 1. that her fear is real; |
2. that the harm feared is sufficiently serious to constitute persecution;
| 3. that there is no possibility of internal refuge; and |
| 4. that she runs a reasonable risk of persecution if she returns to her country of origin and cannot reasonably expect adequate protection from the government. |
[20] The Board did not dispute that the applicant's fear was real. It appears to have accepted that the harm feared by the applicant constituted persecution; however, it appears to have rejected the application on the ground that there was a possibility of internal refuge and that there was government protection.
[21] The transcript showed that members of the Board put relevant questions. The applicant stated that she had family in the Valparaiso area. However, she did not have much contact with them and said she could not count on their assistance. She received no alimony from her first husband and had only worked as a domestic in the past.
[22] The Board completely ignored these statements. In her affidavit the applicant stated that
no resources existed in Chile to enable her to live independently. She would therefore have to go back to living with her spouse and family. Clearly an individual cannot be returned to her country of origin if her only choice is to go back to living with her attacker.
[23] I therefore consider that the Board made an error in not determining whether the applicant and her children could find internal refuge.
[24] A presumption exists that if the government apparatus has not completely collapsed a government is in a position to protect its citizens. Chile is not in a state of complete collapse. It was therefore up to the applicant to show clearly and convincingly that it was objectively unreasonable to seek protection from the Chilean authorities: see Ward v. M.E.I., 103 D.L.R. (4th) 1 (S.C.C.).
[25] To determine whether a government can offer adequate protection a court must look not only at whether the government is able to offer such protection, but whether it will do so: see Bobrik v. M.C.I. (September 16, 1994 - IMM-5519-93 (F.C.T.D.)). Among the relevant factors, it must ascertain whether family violence is penalized under the country's legislation, whether that legislation is designed to protect victims against attacks and, most importantly, whether it is applied.
[26] The existence of support services (counselling, legal and medical aid) is praiseworthy but does not in itself constitute protection. Similarly, the existence of a halfway house does not necessarily indicate that protection exists, if it only offers a temporary refuge and the local authorities do not protect the victims of family violence.
[27] In view of the rules recently laid down by the international community, a government which does not take steps to prevent offences of violence against women is as guilty as the perpetrators of such acts. Governments are in fact required to prevent offences involving violence against women, to investigate such acts and to punish them.
[28] In Bobrik v. M.C.I. (IMM-5519-93, September 16, 1994, F.C.T.D.), Tremblay-Lamer J. held that even if the government wishes to protect its citizens, a claimant will meet the refugee status criteria if the protection provided is ineffective. In particular, she noted that "a state must actually provide protection, and not merely indicate a willingness to help".
[29] It is clear from reading the panel"s decision that the latter relied very selectively on the documentary evidence. It relied too heavily on certain paragraphs from the national women's service report, but without reading on to the end. The conclusion in that document reads as follows:
[TRANSLATION]
| (3) It should be mentioned regarding law 19.325 that the creation of an intrafamily violence offence, the establishment of security measures which can be taken by judges to protect victims and the imposition of penalties to punish such behaviour represent important progress toward the institutionalization of a legal and judicial response to this problem area. |
| Despite the foregoing, during the almost two years that the law has been in effect various problems of implementation have been found, including: |
| - in many cases formalities not contained in the law are required (ratification of charges, filing of certificates that injuries exist and so on), and this delays the process and leads to a second victimization; |
| - deadlines imposed by the law are generally not observed, especially regarding dates of appearances, in which delays frequently occur; |
| - security measures are taken in a very small proportion of cases; |
| - it was found that in very few cases are the penalties provided by the law applied, which results in a very high proportion of cases handled by reconciliation (65% of cases according to data from a study carried out by the Instituto de la Mujer in the courts of Pedro Aguirre Cerda (Santiago), Valparaiso and Conceptión); |
| - the small number of therapy-oriented centres and the ineffectiveness of supervisory machinery results in many cases in the action taken being also ineffective; |
| - judicial offices and judges complain of a lack of resources, infrastructure and staff to handle such cases, quite apart from the fact that the courts are not the proper places to handle such victims. This situation appears to have improved recently as the Department of Justice has allocated resources to hire specialized staff. |
[30] This analysis clearly shows that the plaintiff has discharged the burden of proof upon her. Her credibility was not questioned; her fear was real; in view of the threats made by her husband, she had no prospect of internal refuge, and she could not reasonably expect adequate protection from the government.
[31] The application for judicial review is allowed and the case is referred back to a newly constituted panel for re-hearing.
| P. ROULEAU JUDGE |
OTTAWA, Ontario
May 26, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-1139-98 |
| STYLE OF CAUSE: Soledad Del Carmen Concha Tobar, Matthias Gabriel Vasquez Concha, Paul Jonathan Diaz Concha, Marco Antonio Diaz Concha |
| - and - |
| The Minister of Citizenship and Immigration |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 12, 1999
REASONS FOR ORDER BY: ROULEAU J.
DATED: May 26, 1999
APPEARANCES:
| Noël Saint-Pierre for the applicant |
Lisa Maziade for the respondent
SOLICITORS OF RECORD:
Saint-Pierre, Grenier for the applicant
Montréal, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada