Halifax, Nova Scotia, this 24th day of August, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated August 17, 2004, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection
[2] The applicant seeks an order setting aside the Board's decision and referring the matter back for redetermination by a differently constituted Board.
Background
[3] The applicant, Rosa Maria Santos Castro (the "applicant"), is a citizen of Mexico who claims a well-founded fear of persecution on the basis of domestic violence from her common-law partner, Jaime Decena Elias ("Jaime"). The applicant stated that she started a romantic relationship with Jaime in June 1998. She alleged that soon after she started living with him, he became very jealous. He became violent when he found out she was pregnant in December 1998. They had a physical argument, he pushed her down the stairs and she subsequently had a miscarriage. She continued to live with Jaime after that.
[4] The applicant stated that the violent relationship continued while they lived together. The applicant alleged that she attempted to leave Jaime on two occasions in 1999 and mid-2001, but as they worked together in the same company, he forced her to go back to him. The applicant stated in her PIF that she did not approach the Mexican authorities as they see it as a private issue. She further stated that due to Jaime's position in the company, he knew people in the police and if she approached the police, Jaime would be notified immediately.
[5] The applicant alleged that when Jaime found out that she had become pregnant again in October 2001, he assaulted her and she had another miscarriage. The applicant became very depressed.
[6] The applicant decided to separate from Jaime in May 2002. She resigned from her employment at the radio station and moved in with one of her sisters. Jaime found out where she was a week later and threatened her while holding a gun, saying that if she did not go back with him, she was going to regret it.
[7] The applicant then moved to her aunt's house in Hidalgo, approximately a one hour distance from her previous residence. Jaime subsequently found out where she was and created "violent scenes" at the house. The applicant was afraid that he might hurt her aunt and uncle, so she moved back with him but decided that she had to leave Mexico altogether to be safe. She obtained a passport, left Mexico and arrived in Canada on September 8, 2002. She initiated a claim for refugee protection approximately fifteen days later.
Reasons of the Board
[8] The Board accepted that the applicant was a citizen of Mexico and that she had been a victim of assault from Jaime. The Board found that the applicant had made no attempt whatsoever to seek protection from Jaime's abuse. The Board found that while it could appreciate the applicant's fear of not wanting to go to the police in case an official report was accepted and Jaime subsequently found out about her complaint, the applicant had an obligation to approach the state for protection. The Board therefore found that the applicant was neither a Convention refugee nor a person in need of protection.
[9] The Board noted the 2003 Report referred to by the applicant's counsel indicated (i) that the legislation in place to protect the rights of women is not properly enforced; (ii) police often treat domestic violence as a private matter; (iii) there are examples of corrupt police taking bribes from the violent spouse; (iv) examples of protection being made available only to married women; and (v) that there are minimal provisions for women to seek protection if they are victims of stalking.
[10] The Board found that other documentary evidence indicated that different states had different legislation and services to address domestic violence. For example, according to the director of the Centre for Women's Research and Assistance, protection exists for women who are victims of spousal abuse in Mexico City. There are several different governmental authorities that can be contacted in order to receive assistance and protection from domestic violence in Mexico City, including the family court system and the public prosecutor. There are also centres that can provide victims of domestic violence with psychological support and legal assistance. Further, the documentary evidence showed that officials in Mexico City have taken measures to deal with corruption within the police force and in the judicial system.
[11] The Board then went on to state the following:
I find that the claimant's lack of efforts to seek protection does not satisfy the onus on the claimant to show clear and convincing proof of the state's inability or unwillingness to protect her. While the claimant may not have been aware of the protection available to her. While the claimant may not have been aware of the protection available to her in Mexico City, there is an onus on her to investigate the possibilities of support and protection in Mexico before seeking protection in another country.
Based on the above documentary evidence, the panel finds that the Mexican government in Mexico City is making serious efforts to protect women victims of domestic violence and that such protection would be available to the claimant even if her abuser is a person of influence or employed within the judicial system itself. I find that state protection is available to the claimant in Mexico City and that should the claimant return to Mexico and again be concerned for her safety, she could avail herself of that protection as well as counseling and legal services that are available to victims of domestic abuse in Mexico City.
The claimant states that the abuse she suffered from her previous common-law partner occurred approximately within a half an hour's driving distance from Mexico City.
The claimant in her oral testimony made reference to feeling so depressed after her second miscarriage that she had considered suicide. I asked the claimant whether she received any professional medical help, either from her family doctor or a psychologist for her depression. She states that it is only crazy people that have a mental illness that use the services of a psychologist in Mexico. Thus she states she made no effort to seek either medical help, nor did she seek the assistance of a lawyer in respect to receiving any guidance of what might be available to her through the court system.
Issue
[12] At the hearing, the applicant framed the issue as:
Did the Board make a reviewable error with respect to the issue of the availability of state protection for the applicant?
Applicant's Submissions
[13] The applicant submitted that the Board erred in its analysis of the availability of state protection in Mexico. The applicant submitted that the Board failed to address concerns related to responses to domestic violence noted even in the documentary evidence it referred to.
[14] The applicant submitted that the documentary evidence referred to by counsel for the applicant at the hearing was more recent than the documentary evidence referred to by the Board to refute the applicant's evidence.
[15] The report referred to by the applicant (Mexico: Domestic Violence and Other Issues Related to the Status of Women - March 2003) (the "2003 Report") indicated that (i) Mexican society generally considers domestic violence to be a private matter; (ii) that the law is not enforced adequately in the Federal District and had shortcomings in areas of protection and victim assistance; and (iii) institutions were not sufficiently participating. Further, protection orders are only available to married women, thereby excluding the applicant.
[16] The applicant submitted that one of the reasons she gave for not seeking state protection was due to corruption. The U.S. Department of State Report indicates that corruption, inefficiency, impunity, disregard of the law and a lack of training remained major problems.
[17] The applicant submitted that the failure of the Board to do any analysis of documentary evidence calling into question the availability and effectiveness of state protection, is a reviewable error (see Mohacsi et al v. Canada (Minister of Citizenship and Immigration),[2003] 4 F.C. 771).
[18] The applicant submitted that the Board erred in finding that protection was available because the state was making serious efforts in that regard. The proper test is whether there is actual protection available.
Respondent's Submissions
[19] The respondent submitted that the Board did in fact consider and summarize the 2003 Report the applicant referred to. That the bulk of the evidence cited and preferred by the Board predates the 2003 Report by a matter of months, does not demonstrate that the evidence is irrelevant or obsolete. The Board properly considered and balanced all of the evidence. The Board's conclusions were reasonably open to it on the evidence.
[20] The respondent submitted that while the number of incidents of domestic violence in Mexico City may be similar to Mexico as a whole, or that many victims do not report abuse for fear of reprisal, it does not detract from the fact that legal and social protections are available to the applicant in Mexico City.
[21] The respondent submitted that while the applicant may not be eligible for a protective order, she has other resources available to her, including legal resources should she seek them. She has lived in Mexico most of her life and the Board properly considered the resources available to victims of domestic violence in Mexico City.
[22] The respondent submitted that contrary to the applicant's submissions, the Board did consider the conflicting documentary evidence that was directly relevant to the applicant's claim. The applicant failed to demonstrate that the Board ignored relevant evidence.
[23] The respondent submitted that the Board provided the applicant with several opportunities to explain why she did not seek assistance (medical, legal or social) when she could. It was open to the Board to find her explanations unreasonable in light of the documentary evidence. Further, while domestic violence remains widespread and unreported all over the world, the fact that the applicant did not seek what protections were available to her at the material time goes directly to the question of state protection.
[24] The respondent submitted that there was ample evidence before the Board to support its finding that the government was taking effective steps to protect women. That ideal protection is not available does not mean an applicant is entitled to international protection (see Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689). As this was not a case where the applicant was making a complaint against the police, the fact that the Board acknowledged that the applicant feared going to the police in case her partner found out that a report had been made, does not make the protection insufficient. This Court has held that in the domestic violence context, state protection is not rendered insufficient or ineffective where, absent reasonable explanation, an applicant is unwilling to avail herself of available protection (see Ferguson v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1636).
Relevant Statutory Provisions
[25] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, supra, define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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[26] Standard of Review
The prevailing view is that while the underlying factual findings are subject to the standard of patent unreasonableness, the Board's findings on the adequacy of state protection is a question of mixed fact and law that is reviewed on a standard of reasonableness simpliciter (see Machedon v. Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 1331, and Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232).
[27] In Ward, supra, the Supreme Court of Canada stated that an applicant must provide "clear and convincing proof" of a state's inability to protect. The Court stated at pages 724 to 726:
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
. . . A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. . . .
[46] In Canada(Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.), the Federal Court of Appeal offered this guidance regarding assessing state protection:
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the applicant showing either that he is physically prevented from seeking his government's aid . . . or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a applicant merely to show that his government has not always been effective at protecting persons in his particular situation. . . .
[28] As noted in Ward supra, as a general rule, absent some evidence of the complete failure of state institutions to rebut the presumption of state protection, the applicant must show that it was objectively reasonable for her to not have sought the protection of her home authorities.
[29] The issue now becomes whether state protection was available to the applicant had she requested it. The Board, in its decision, referred to the 2003 Report to show that "there is current legislation in place to protect the rights of women but there has been criticism that this legislation is not properly enforced."
[30] The Board did not, however, refer, for example, to the following found in the 2003 Report:
2.2 Attitudes among authorities and the public
Mexican society generally considers domestic violence to be a private matter (Country Reports 2001 2002, Sect. 5) and views it as completely [translation] "normal" behaviour (CIMAC 13 Dec. 2002). This is why the police are reluctant to intervene in domestic violence cases (ibid.; Country Reports 2001 2002, Sect. 5). Similarly, many Mexicans believe that racism, sexism and even violence against women are part of the social fabric; in fact, such issues are even joked about (AP 22 Mar. 2002). The concept of womanhood is still structured around patriarchal concepts which are influenced by the Catholic Church (NACLA Report on the Americas Mar.-Apr. 2001, 30). According to a Washington Post article, a "machismo culture" has led many men to "believe they are superior and dominant, and that women are an object" (30 June 2002). In addition, that mindset has led many men - including policemen, prosecutors, judges and others in positions of authority - to underestimate the problem of violence against women (The Washington Post 30 June 2002; CIMAC 13 Dec. 2002).
Or at section 5.3 of the same report:
5.3 Services for women who are victims of violence
According to the National Shelter Network (Red Nacional de Refugios), six shelters offered psychological, legal and medical assistance to women who were victims of violence in November 2001 (Mexio 14 Nov. 2001). These shelters are located in Aguascalientes, the Federal District, Morelia, Mexicali, Puebla and Monterrey (ibid). the network added that it was urgent for each of the federal entities to open a shelter to respond to the growing problem of family violence (ibid). However, COVAC explains that existing shelters established for victims of violence are saturated and that the assistance that can be received there is temporary and does not generally respond to the growing needs in the cities (27 Nov. 2002).
[31] The Board had relied on a Response to Information Request dated October 11, 2002 to establish that victims of spousal violence can be referred to a temporary shelter for protection. However, the author of the information for this proposition is the same author who stated above that the existing shelters are saturated, temporary and do not generally respond to the growing needs in the cities.
[32] In the case of Quintanar v. Canada(Minister of Citizenship and Immigration) 2004 FC 677, Kelen J. stated at paragraphs 17 and 18:
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.
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.
[33] In Iqbal v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 568, Rouleau J. stated:
. . . A board need not refer to all documentary evidence in summarizing their reasons; this is well established in law. However, when expert affidavit evidence is before the Board as well as other documentary evidence raising some doubt or contradicting the documentary evidence put forth by the refugee claims officer, the Board should provide some explanation in its reasons as to why they preferred the expertise upon which they relied and should at least comment as to why they are discounting that provided by the applicants' counsel, which they failed to do.
[34] In the present case, the Board did not discuss the evidence which ran contrary to the evidence it relied on. There is no explanation as to why it preferred the evidence it relied upon to reach its decision rather the evidence noted above. In my view, the Board committed a reviewable error by not analyzing the contrary evidence. I do not know whether the Board would have come to the same conclusion as Justice Kelen in Quintanar, supra, that the presumption of the availability of state protection had been rebutted, if it had directed its mind to this evidence. I would note that the decision on the evidence is the Board's to make, but it must give some reason for not accepting this evidence.
[35] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[36] Neither party wished to submit a proposed serious question of general importance for my consideration.
ORDER
[37] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
J.F.C.
Halifax, Nova Scotia
August 24, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7648-04
STYLE OF CAUSE: ROSA MARIA SANTOS CASTRO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 3, 2005
REASONS FOR ORDER AND ORDER: O'KEEFE J.
APPEARANCES:
Jack C. Martin
Matina Karvellas
SOLICITORS OF RECORD:
Jack C. Martin
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada