Date: 20010815
Docket: IMM-5197-00
Neutral citation:2001 FCT 897
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
MARIA LUISA CHAVEZ DE SCHENONE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of Luz Marina-Nunez, an immigration officer, dated September 25, 2000, wherein the said immigration officer decided not to recommend a favourable decision under subsection 114(2) of the Immigration Act.
Facts
[2] The applicant was born in 1955 and is a citizen of Peru. She came to Canada in 1996 and made an application for consideration on humanitarian and compassionate ("H & C") grounds in 1999. The application was refused without an interview in September 2000.
[3] The applicant does not wish to return to Peru, as she fears her husband. The applicant stated in her application that her husband abused her over the years. The police had failed to protect her in the past because, although they had arrested her husband on many occasions, they never laid any charges against him.
[4] The applicant has support of her sister in Canada, who is a Canadian citizen, and does not wish to be separated from her. The applicant made reference in her application to the close family connection between her and her sister in Canada and the fact that the sister would suffer severe emotional hardship as she had no other close family members in Canada aside from her sister.
[5] The applicant has two children in Peru.
[6] A statutory declaration from the applicant's sister was filed confirming the abuse that the applicant had suffered at the hands of the husband.
Analysis
1. Did the officer err in law because she ignored credible and cogent evidence properly before her and failed to consider the totality of the evidence?
[7] The immigration officer in the case at bar, concluded as follows on the issue of the applicant's allegation that she was abused by her husband:
The fear of subject returning to Peru due to her past experiences with her abusive husband is not supported by any evidence. There is insufficient evidence to indicate subject ever complaint [sic] to the authorities thereby how is one to know the system was not available to her. The fact subject visited Canada in previous occassions, [sic] the latest being in 1994 and at that time not seeking any assistance from family in Canada places doubt on how greatly she's been suffering from this situation as it was her father who insisted she remained in this relationship and he passed away in 1982.
[8] The applicant submits that the immigration officer ignored the evidence when she stated that there was no evidence to substantiate the applicant's allegations of abuse. The immigration ignored the evidence in the form of the statutory declaration from the applicant's sister, which corroborated that she was aware of the abuse and also detailed an incident when the applicant's husband had attempted to abuse her as well. There is no reference in the notes of this corroborating evidence.
[9] On the issue of whether the immigration officer considered the affidavit of the applicant's sister, as the respondent pointed out, the immigration officer did state at page 15 of the applicant's record that she considered the affidavit of the applicant's sister.
[10] However, regarding the immigration officer's comment that the applicant's fear of returning to Peru was not supported by any evidence and that there was no evidence that the authorities would not provide protection, I agree with the applicant that the immigration officer ignored evidence.
[11] Both the affidavit of the applicant and her sister supports the applicant's allegation that she fears returning to Peru. Furthermore, the applicant submitted documentary evidence which indicates that the authorities often fail to protect abused women.
[12] Also, what disturbs me is that at page 15 of the applicant's record, the immigration officer stated:
Peru report on human rights not considered as subject fear of return is a personal, family (illegible) not one arising out of fear of life (illegible) to human rights issues, country conditions, political opinions, etc.
[13] It has to be noted however, that the immigration officer did write in her handwritten notes page 39 "Femicide due to domestic violence" which is another document submitted by the applicant on the issue of women abuse in Peru.
[14] Nevertheless, having reviewed the Peru report on human rights (page 150 of the applicant's record), I believe that it was relevant to the applicant's H & C application since it did describe the insensitivity on the part of law enforcement and judicial authorities toward female victims of abuse. This section was pertinent and should have been considered by the immigration officer.
[15] In my view, the immigration officer was not justified in stating that the applicant's fear was not supported by any evidence in light of the applicant's affidavit, her sister's affidavit and the documentary evidence. (My emphasis)
[16] Because of the immigration officer's comment that the applicant's fear of returning to Peru is not supported by any evidence, I am of the opinion that the immigration officer erred.
[17] Therefore, this judicial review application should be allowed.
[18] Neither counsel suggested a question for certification.
"Pierre Blais"
J.F.C.C.
Toronto, Ontario
August 15, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5197-00
STYLE OF CAUSE: MARIA LUISA CHAVEZ DE SCHENONE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, AUGUST 14, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: WEDNESDAY, AUGUST 15, 2001
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010815
Docket: IMM-5197-00
BETWEEN:
MARIA LUISA CHAVEZ DE SCHENONE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER