Date: 20040507
Docket: IMM-1909-03
OTTAWA, Ontario, this 7th day of May, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ANGELICA QUINTANAR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated March 10, 2003, which determined that the applicant, who was allegedly abused by her criminal boyfriend with whom she lived in Mexico City, is not a convention Refugee or a person in need of protection because her evidence was not credible, and because there is adequate state protection available to her in Mexico.
FACTS
[2] The applicant, then a 29 year old female citizen of Mexico, arrived in Canada on May 16, 2002, and made a refugee claim on May 23, 2002. She bases her claim on the grounds of membership in a particular social group, which is women subject to spousal abuse . She alleges that she was physically, emotionally, and sexually abused by her former boyfriend, Edgar Colin, during a relationship which started in 1998, and which she ended in early April 2002. She also claims that Mr. Colin belongs to an organized gang of kidnappers and drug dealers. She fears that Mr. Colin or one of the gang members will attempt to kill her if she returns to Mexico, because she knows too much about their criminal activities, and because Mr. Colin is obsessed with her.
[3] The applicant claims that on April 24, 2001, Mr. Colin orchestrated the kidnapping of her sister and brother-in law to pressure her into resuming their relationship. The applicant claims that her sister and brother-in law were released early the following morning, after she submitted to Mr. Colin's demand. She alleges that her sister and brother-law were beaten and tortured by their captors, and that one of the conditions of release was that the victims, and family members, all attend the police station the next day to report that they were safe and that there had been no crime. It appears the kidnapping incident was reported in the April 25, 2001 editions of La Segunda, and El Excelsior, both Mexican newspapers.
[4] After the alleged kidnapping, no one in the applicant's family made any attempt to report any of Mr. Colin's criminal activities to the police, including his alleged ongoing threatening behaviour toward the applicant. The applicant remained with Mr. Colin for another year before she left Mexico. She claims that, since then, Mr. Colin has inquired about her whereabouts but no attempts have been made to harm any of her family members Mexico.
[5] In rejecting her claim, the Board found that although her allegation of domestic abuse was plausible, the applicant's testimony of events following the alleged kidnapping was not credible. Specifically, the Board did not believe that the applicant's sister was kidnapped by Mr. Colin to coerce the applicant to resume their past relationship. At pages 3 of its reasons, the Board states:
However, the panel does not find the claimant's evidence with respect to her behaviour following the significant event on the 24th of April to be credible. The panel does not find it reasonable to believe that following an event as serious as a kidnapping of the claimant's sister and her brother-in law during which they were severely beaten, that her family would then agree to the claimant returning to live with this known criminal element.
The claimant was asked extensively about why her family would agree to this, and the panel finds her explanations to be not credible. It does not seem reasonable to believe that she would be encourage by her family to sacrifice herself for their safety.
[6] The Board also did not believe that the police would have remained complacent in light of what appeared to be real evidence of a kidnapping. At page 5 of its reasons, the Board states:
Rafael had had his head and eyebrows shaven off during his abduction. The panel finds it to be unreasonable to believe that people who had been beaten and, in the words of the claimant, tortured for a number of hours, and Rafael looking as he must would be able to convince the police only hours later that they were fine, not traumatised and that they had not been the victims of a kidnapping. The claimant provided no documentary evidence to support the assertion of either a report having been made to the police or withdrawn. The panel finds it not to be reasonable to believe even in the Mexican context, that police would not be somewhat suspicious given that they had been given details of cars and armed men and an alleged kidnapping, and that details of a kidnapping had actually found its way to the local newspaper.
[7] The Board also found the applicant's testimony regarding Mr. Colin's determination to harm her family, in order to coerce her to be with him, to be contradictory. At page 6 the Board notes:
However, the claimant's evidence is that since she left Mexico on the 16th of May 2002 until today, more than nine months, there is no evidence that Edgar has made any attempt to harm any member of her family as a way of trying to persuade her to return to him.
The panel does not find this to be evidence of determined pursuit or determined intention to harm the claimant's family in order to persuade her to live with him.
[8] Finally, the Board concluded that even if the applicant's evidence regarding the behaviour of her boyfriend was credible, she had failed to rebut the presumption of state protection because the extent of corruption in Mexico is not such that the applicant was not expected to have at least made efforts to obtain protection. At page 8, the Board states:
However, Mexico is a democratic state, in control of its territory and there is a presumption of state protection.
The documentary evidence reveals that there have been significant measures taken in Mexico towards improving the rate of arrest and conviction for abuse of women. It also indicates that the police are being trained, there are significant changes in law regarding assaults on women being criminal acts, and the police are more inclined to pursue complaints when there is a situation of a separation or divorce. Intra-family violence is a problem that the Mexican government is taking a number of steps to deal effectively with.
[...]
... However, the documentary evidence quoted by counsel, in fact, indicates that the police force in Mexico City have been actively involved in pursuing corrupt policemen in other jurisdictions for involvement in such things as kidnapping. The extent of corruption in Mexico is not such that the claimant is not expected to have at least made efforts to access available state protection.
Therefore, the documentary evidence indicates that the Mexican state is taking steps to deal with the issues of violence against women and police corruption. There are different levels of police force that the claimant could have appealed to if a report to local level police was not dealt with satisfactorily, and the claimant failed to do this.
ANALYSIS
[9] The issues raised in this application are as follows:
(1) did the Board make and rely upon patently unreasonable findings of fact in concluding that the applicant was not credible;
(2) did the Board err by not applying or referring to the Board's Guidelines for "Women Refugee Claimants Fearing Gender-Related Persecution" (the "Gender Guidelines") in assessing the applicant's evidence; and,
(3) did the Board make a patently unreasonable finding of fact in concluding that the applicant had not rebutted the presumption that there is adequate state protection for abused women in Mexico such as the applicant.
Applicant's Position
[10] The applicant submits that the Board failed to consider her explanations in light of the Board's Gender Guidelines. The applicant contends that the Board took no account of Mexican culture and the acceptance of violence against women. The applicant submits that the Board displayed a fundamental misconception of the "battered spouse syndrome" in rejecting her credibility. The applicant submits that police corruption is the norm in Mexican society, and that her safety cannot be guaranteed in Mexico. The applicant contends that the documentary evidence shows that high ranking officials in the police force are involved with and protect the "El Mocha Orejas" gang, to which her boyfriend belongs.
Respondent's Position
[11] The respondent submits that the Board is entitled to reject explanations that it finds not to be credible based on inconsistencies, contradictions, or implausibilities. The respondent submits that the Board gave sufficient reasons for rejecting the applicant's credibility and correctly concluded that the applicant failed to rebut the presumption of state protection in Mexico.
Issue No. 1 - Findings of Fact Relevant to Credibility
The Board did not find the applicant's evidence credible with respect to several aspects of her story such as:
1. why the member of Rafael's (the brother-in-law) family who initially reported the kidnapping to the police, would agree to tell the police the next day that there had been no kidnapping or how Rafael who had been beaten, tortured and had his hair and eyebrows shaved, would be able to convince the police a few hours later that he had not been a victim of a crime;
2. how the applicant could be totally controlled by Edgar when he was away from the apartment for about ten days every month (presumably on drug deals);
3. how the applicant could leave Edgar and Mexico on May 16, 2002 if the applicant believed that Edgar had a determined intention to harm the applicant's family if she left him. In fact, the evidence is that Edgar has made no threatening contact with any member of the family since she left; and,
4. how Edgar may still be living at her father's apartment rent free since she left the apartment to come to Canada in May, 2002 and how her father, who lives on a pension, would not have taken any kind of action to at least find out if Edgar is still living there, or if his apartment is empty.
These reasons for finding the applicant not credible are based on the Board's inferences that these facts are implausible. Plausibility findings should be made only in the clearest of cases, i.e. when the facts alleged are outside the realm of what could be reasonably expected. See Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] FCJ No. 1131 at paragraph 7 per Muldoon J. I do not need to decide if these implausible findings are erroneous because I am of the view that the main reason the Board found the applicant not credible was her story with respect to the kidnapping, in particular, the family's reaction to the kidnapping. This is the significant event with respect to the Board's assessment of the applicant's credibility.
[12] First, the Board did not believe that the kidnapping would not have been reported to the police and the applicant's boyfriend would not be prosecuted by the applicant's family. The Board found that it was not reasonable that her family would allow the applicant to return to her boyfriend in order to protect themselves. In this sense, the kidnapping story was not believed because the applicant's family, not the applicant, did not pursue the police investigation of the kidnapping. The Board held at page 3 in its reasons:
[...] The panel does not find it reasonable to believe that following an event as serious as a kidnapping of the claimant's sister and her brother-in-law during which they were severely beaten, that her family would then agree to the claimant returning to live with this known criminal element.
The claimant was asked extensively about why her family would agree to this, and the panel finds her explanations to not be credible. It does not seem reasonable to believe that she would be encouraged by her family to sacrifice herself for their safety. (Emphasis added)
This finding misstates the evidence. The applicant's evidence was that her family did not want her to return to live with her boyfriend. The applicant testified that her family "never agreed" to her returning to Edgar after the kidnapping, but that she thought it would be easier for her to return to Edgar and calm him down. Accordingly, the finding "that she would be encouraged by her family to sacrifice herself for their safety" is clearly wrong and patently unreasonable.
[13] Second, the Board held that the applicant's story was "inherently contradictory". The Board held at page 3 and 4 of its reasons:
The claimant's evidence was internally contradictory regarding her sister's reaction and motivation. In her Personal Information Form the claimant indicates that while talking to her sister on the phone during the kidnapping, her sister was crying but told the claimant not to give in to Edgar's demands or his blackmailing [...]
However, in her oral evidence the claimant is asserting that her sister and the rest of the family were quite willing to allow the claimant to return to Edgar to protect themselves. The claimant was not able to satisfactorily resolve this inherent contradiction as her only explanation was that she told her family she could handle Edgar. (Emphasis added)
In fact, the applicant testified that her family "never agreed" to the applicant returning to Edgar after the kidnapping. She testified that it was easier for her to continue living with Edgar and "calm him down", than reporting Edgar to the police and facing retaliation from Edgar. Accordingly, the Board's finding that the family was "quite willing to allow the applicant to return to Edgar" is patently unreasonable, as is the conclusion that the applicant's story is "inherently contradictory".
[14] I have concluded that these two patently unreasonable findings of fact are of overriding importance, and outweigh the four other reasons upon which the Board concluded that the applicant was not credible. The story of the kidnapping is the lynchpin of the applicant's credibility. Sometimes truth is stranger than fiction. Accordingly, the Board's credibility finding is based on two patently unreasonable findings of fact, and requires redetermination.
Issue No. 2 - The Gender Guidelines
[15] The Gender Guidelines were not raised by the applicant before the Board. The Gender Guidelines do not create a new ground for finding a person to be a victim of persecution. They require the Board be sensitive to the factors set out in the Gender Guidelines which may explain the reactions of an abused woman.
[16] While the Board did not refer to the Guidelines in its decision, I have examined the decision to determine whether the Board was alive to the fact that abused women often do not report to the police beatings and other crimes at the hands of their spouse for fear of retaliation. I have also considered whether the Board was alive to the readiness of abused women to return to the persecutors. It is incumbent on the Board to exhibit a special knowledge of gender
persecution and to apply the knowledge in an understanding and sensitive manner when dealing with domestic violence issues. See Newton v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 294 (T.D.) and Griffith v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240 (T.D). In this case, the key findings of fact relate to the reaction of the family to which the Gender Guidelines do not apply. Accordingly, I am of the view that the Board did not err by not applying or referring to the Board's Gender Guidelines in assessing this evidence.
Issue No. 3 - The Availability of State Protection
[17] The panel found that the applicant had not rebutted the presumption of state protection and that the documentary evidence regarding Mexico reveals that there have been significant measures taken in Mexico toward improving the rate of arrest and conviction for abuse of women. The applicant argued before the Court that this finding of fact was patently unreasonable, i.e. the evidence is that there is not any "significant measures taken in Mexico toward improving the rate of arrest and conviction for abuse of women". Both parties referred the Court to the same documents which do not support the Board's conclusion. For example, evidence referred to the Court by both parties show that on July 21, 2001 the Federal District Attorney General's Centre for Attention to Inter-Family Violence "had given 13,822 victims medical, psychological and legal assistance; however only 16 of the cases went on to be prosecuted". The documentary evidence is that the police are not protecting abused women in Mexico, and are not prosecuting such assaults.
[18] I am satisfied that the applicant presented sufficient evidence to rebut the presumption that there is adequate state protection for abused women in Mexico. I invited the respondent to provide evidence after the hearing that there is adequate state protection but the respondent only referred the Court to documentary evidence which confirmed that abused women in Mexico are not adequately protected by the police. Accordingly, the decision of the Board with respect to the availability of state protection must be set aside.
Internal Flight Alternative
[19] The Board did not make any finding about whether the applicant has an internal flight alternative in any one of the many major cities in Mexico. The applicant is a young, university educated woman who could find employment. A new panel of the Board must decide whether the applicant has a reasonable IFA or whether the applicant, if believed to be in a relationship with a criminal, has a legitimate fear for her safety anywhere in Mexico.
DISPOSITION
[20] Based on my findings, this case will be remitted to a different panel of the Board to determine:
1. the credibility of the applicant with reference and sensitivity to the Gender Guidelines;
2. whether Mexico provides adequate state protection for women who are assaulted and abused by their spouse, including common-law spouse;
3. whether the applicant has a reasonable flight alternative in Mexico so that she does not need to seek refuge in Canada.
CERTIFIED QUESTION
[21] Counsel for the applicant proposed the following question for certification:
Whether the Board errs by failing to expressly refer to the Board's Guidelines for "Women Refugee Claimants Fearing Gender-Related Persecution".
This question would not determine this application in view of my finding that the Board made patently unreasonable findings of fact regardless of these Guidelines. For that reason, this proposed question will not be certified. Neither party proposed any other question for certification. The Court agrees that this case does not raise any other question which ought to be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, and the matter referred to a different panel of the Board for redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1909-03
STYLE OF CAUSE: ANGELICA QUINTANAR v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA
DATE OF HEARING: APRIL 26, 2004
REASONS FOR ORDER
AND ORDER : THE HONOURABLE MR. JUSTICE KELEN
DATED: MAY 7, 2004
APPEARANCES: MS. JULIE TAUB
FOR APPLICANT
MS. SONIA BARRETTE
FOR RESPONDENT
SOLICITORS OF RECORD:
JULIE TAUB
OTTAWA, ONTARIO FOR APPLICANT
MORRIS ROSENBERG
DEPARTMENT OF JUSTICE
OTTAWA, ONTARIO FOR RESPONDENT
FEDERAL COURT
Date: 20040507
Docket: IMM-1909-03
BETWEEN:
ANGELICA QUINTANAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER