Ottawa, Ontario, February 1, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Sonia Maria Lopez Serrano was verbally and physically abused by her ex-husband in Costa Rica. She fled to Canada in 2004 and sought refugee protection here. A panel of the Immigration and Refugee Board heard her claim and dismissed it on the basis that she could obtain state protection in Costa Rica.
[2] Ms. Lopez Serrano maintains that the Board's conclusion was not supported by the evidence before it and asks me to order a new hearing. I agree that the Board erred and, therefore, will grant this application for judicial review.
I. Issues
[3] Ms. Lopez Serrano argues that the Board erred in some of its adverse credibility findings. I find it unnecessary to deal with those particular findings because, in the end, the Board accepted that she had been abused by her ex-husband. It then went on to conclude that she should have taken greater steps to obtain the state protection that is available to women in her situation in Costa Rica. In the circumstances, I need only consider whether the Board's finding on this latter question is supported by the evidence.
II. Analysis
[4] I can overturn the Board's decision only if it was out of keeping with the evidence before it.
[5] As mentioned, the Board found that Ms. Lopez Serrano was a victim of domestic violence. The Board then reviewed documentary evidence describing the measures available to abused women in Costa Rica. It found that those who are victims of "less serious domestic assaults" are protected, while those whose aggressors are "dangerous, persistent and violent" are not. The Board concluded that Ms. Lopez Serrano was in the former category, not the latter.
[6] The Board reasoned that victims of relatively minor domestic crimes, whose assailants agree to abide by orders issued by the Domestic Violence Court, are not in danger. The Board found that Ms. Lopez Serrano had not been the victim of serious abuse and had not taken reasonable steps to obtain state protection.
[7] In fact, Ms. Lopez Serrano had obtained a restraining order against her ex-husband. Thereafter, he failed to comply with a summons that had been issued to him and to abide by the terms of the order. He continued to live with Ms. Lopez Serrano and to stalk her, contrary to the order. Further, she testified that he threatened to harm her if she tried to enforce the order against him.
[8] There was no evidence before the Board suggesting that Ms. Lopez Serrano's spouse was willing to abide by court orders. Accordingly, given the Board's own finding that women are protected adequately if their abusers voluntarily comply with restraining orders, but not if they refuse to do so, its conclusion that state protection was available to Ms. Lopez Serrano in Costa Rica was not supported by the evidence.
[9] I must, therefore, grant this application for judicial review and order a new hearing before a different panel of the Board. 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 and a new hearing is ordered before a different panel of the Board;
2. No question of general importance is stated.
Judge
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM- 629-05
STYLE OF CAUSE: SONIA MARIA LOPEZ SERRANO v. MCI
PLACE OF HEARING: Toronto, ON.
DATE OF HEARING: December 15, 2006
REASONS FOR JUDGMENT
APPEARANCES:
Mr. Ryan Persad FOR THE APPLICANT
Mr. John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
Persad, Patel LLP FOR THE APPLICANT Toronto, ON
tOTTT
Toronto, ON FOR THE RESPONDENT