Federal Court Decisions

Date: 20050824

Docket: IMM-8967-04

Citation: 2005 FC 1143

Ottawa, Ontario, August 24, 2005

PRESENT:    The Honourable Mr. Justice O'Reilly

BETWEEN:

GIL CABREJOS, YOVANA GENARA, ESPINOZA GIL, VALERIA IVONNE

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]    Ms. Yovana Genara Gil Cabrejos arrived in Canada in the Spring of 2004 with her daughter, Valeria, who was then just barely 5 months old. Ms. Cabrejos had spent the previous seventeen months in the United States, where she met Valeria's father. She had fled her native country, Peru, to escape her abusive common law husband, Cesar.

[2]    Ms. Cabrejos sought refugee protection in Canada, but a panel of the Immigration and Refugee Board dismissed her claim. The Board concluded that there was little chance that her ex-husband would continue to want to cause her harm at this point. Ms. Cabrejos argues that the Board failed to appreciate the basis for her claim and asks for a new hearing.

[3]    I agree that the Board's decision is unsupported by the evidence and must, therefore, allow this application for judicial review.

I.         Issues

1.       Did the Board fail to consider the essence of Ms. Cabrejos' claim?

2.       Did the Board fail to consider Valeria's best interests?

II.      Analysis

A.      Did the Board fail to consider the essence of Ms. Cabrejos' claim?

[4]    The Board accepted that Ms. Cabrejos had been in an abusive relationship with Cesar in Peru. She presented a medical report indicating that she had suffered a miscarriage after Cesar beat her. But the Board did not believe important parts of Ms. Cabrejos' version of events and, ultimately, concluded that Cesar was no longer a threat to her.

[5]    The Board found:

(i)                   Ms. Cabrejos had not proved that Cesar was a policeman and, therefore, that there was no good reason for her failure to seek state protection in Peru;

(ii)                 It was implausible that Ms. Cabrejos had been a prisoner in her own home for two years;

(iii)                Ms. Cabrejos had not seen or heard from Cesar since September 2002;

(iv)               If Ms. Cabrejos had truly feared Cesar, she would have sought refugee status in the United States during her time there.

[6]    Based on these findings, the Board concluded that Ms. Cabrejos had not behaved in a manner consistent with a subjective fear of returning to Peru and had failed to show that Cesar was still a threat.

[7]    Having reviewed the record, I do not see support for the Board's findings in the evidence. I will deal with each of them:

(i)       Was Cesar a policeman?

[8]    The Board discounted Ms. Cabrejos' claim that Cesar was a policeman for two reasons: First, she produced a photograph of Cesar in front of a police station in Huancavelica, yet she had testified that he worked in Lima. Second, she was unable to describe his work in any detail.

[9]    In fact, Ms. Cabrejos testified that the photograph was taken before they met, prior to his transfer to Lima. She explained that she had no other photographs of him because she had torn them up in a gesture of anger and repudiation of their relationship after he had beaten her so severely that she miscarried and was forced to escape to her parents' home.

[10]                        Regarding Cesar's employment, Ms. Cabrejos named the station where he worked and his rank. She also stated that he was involved in anti-terrorist assignments, which would explain why he shared few details with her.

(i)          Was Ms. Cabrejos a prisoner in her own home?

[11]                        The Board doubted that Ms. Cabrejos could have lived "under virtual house arrest" for two years.    It thought it unlikely that Cesar would, as an extremely "macho" individual, buy the groceries and take out the garbage himself.

[12]                        Actually, Ms. Cabrejos never claimed to be a prisoner, although she did state that Cesar would sometimes lock her in their apartment. Their door locked from the outside. In her personal information form, Ms. Cabrejos gave a detailed account of the numerous beatings and assaults she received from Cesar, and of the many ways he attempted to control her, limit her access to her family and friends, and demoralize her. She said that he began to lock her up and that she eventually escaped after a friend called a locksmith. She confirmed this narrative in her oral testimony and added further details. For example, she said that she could not use a telephone because he locked it in a box. She made excuses for not visiting her family.

[13]                        The Board never asked Ms. Cabrejos who did the chores outside the home.

(i)                   Was Cesar still a threat?

[14]                        The Board noted that Ms. Cabrejos did not see Cesar again after a violent confrontation in September 2002. Nor had her family seen him. While her parents declared that they had heard that Cesar had left for New York to find Ms. Cabrejos, in November 2003, the Board found this evidence to be speculative or fabricated. It did not explain why.

[15]                        Ms. Cabrejos testified that she feared that Cesar would still wish to harm her. He had already followed her to her parents' home and had fought with her father. She fled New York in fear when she heard that he might be on his way there. She had left him just two years before and she believed, based on his extreme temper and violent tendencies, that he continued to be a threat to her.

(iv) Was Ms. Cabrejos' behaviour inconsistent with a genuine fear of returning to Peru?

[16]                        Ms. Cabrejos went to New York to escape Cesar. She stayed with friends of her family, who had no status in the United States. She began a relationship with a co-worker at a Peruvian restaurant who became the father of her daughter, Valeria. The Board felt that Ms. Cabrejos would have tried to obtain refugee status in the United States if she had truly feared returning to Peru.

[17]                        It is certainly open to the Board to draw a negative inference from a claimant's failure to try to obtain refugee status at the first reasonable opportunity. However, it must also consider other relevant factors. Here, the Board failed to consider Ms. Cabrejos' full circumstances.    When she was in the United States, Ms. Cabrejos had no reason to fear Cesar until she learned that he may have been trying to find her in New York. Further, she was living in a secure location, working to support herself, becoming involved in a new relationship, and caring for a new-born daughter, who is a citizen of the United States. These factors, considered in their entirety, might well have suggested that Ms. Cabrejos had no imminent need to formalize her status in the United States.

[18]                        In my view, looking at the full context of Ms. Cabrejos' experiences and exigencies, as reflected in the record, I cannot find support for the Board's conclusions that she did not genuinely fear Cesar or have good reason to do so. In the circumstances, it would have been appropriate for the Board to consider the Chairperson's Guidelines for Women Refugee Claimants Fearing Gender-Related Persecution. The Guidelines contain helpful advice for Board members deciding the claims of women in circumstances such as those in which Ms. Cabrejos found herself.

B. Did the Board fail to consider Valeria's best interests?

[19]                        The Board found that Valeria would be entitled to state protection in the United States. It did not go on to consider where her best interests lay because this issue was beyond its jurisdiction.

[20]                        In my view, the Board was correct. Valeria's best interests will be assessed, if necessary, by others. The Board's role is to assess claims for refugee protection, not all of the issues surrounding a claimant's entitlement to remain in Canada: Alshynetsky v. Canada (Minister of Citizenship and Immigration, 2004 FC 1322, [2004] F.C.J. No.1621 (F.C.) (QL). There was no evidence before the Board suggesting that Valeria had any reason to fear returning to the United States.

[21]                        I will allow this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.       The application for judicial review is granted;

2.       No question of general importance is stated.

"James W. O'Reilly"