Toronto, Ontario, April 3, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns the rejection by the Refugee Protection Division (RPD) of the Applicant's claim of refugee protection on the ground of gender as a victim of horrific abuse at the hands of her "boyfriend in Mexico".
[2] The RPD accepted the Applicant's evidence as credible, and, consequently, the following story of abuse was accepted as true: in 2002, at the age of 20, the Applicant's relationship with a police officer commenced, became sexual in six months, but deteriorated to the point that, by January 2003, he beat her regularly; by July 2003, he had raped the Applicant three times and made a death threat; and in July 2003, he inflicted a brutal assault on the Applicant which caused her vaginal bleeding, and as she was four weeks pregnant, caused the loss of her fetus.
[3] As a result of the persecution she suffered, in September 2003, the Applicant fled Mexico and applied for refugee protection upon her arrival in Canada.
[4] In April, 2005, the Applicant was psychologically assessed as suffering from "Post Traumatic Stress Disorder" and "Major Depressive Episode, Mild Severity" directly as a result of the abuse she suffered (Applicant's Application Record, pp.35-38). The psychological report was accepted by the RPD as "relevant" (RPD Decision, p.209).
[5] However, regardless of the persecution that the Applicant suffered, the RPD rejected her claim on the basis that she did not do enough to seek protection from the police in Mexico. Indeed, the Applicant's evidence was accepted that she attended the police three times. The following paragraphs from the RPD's decision give the details:
The claimant testified that she attempted to report the beating in April 2003 and the police wanted to see evidence of beating [sic]. She reported in June 2003 with the help of her parents, after the Red Cross gave her a medical certificate. She testified that she tried to follow up the next day and the police wanted money to process her complaint. When asked if she or her parents asked to see a senior officer about this outrageous demand by the police officers she said that she did not. She testified that they did not do so because police are corrupt. I find this to be insufficient attempt on the part of the claimant to seek national protection before seeking international protection. This was the sum total of her attempts to report violent acts against her to the police or other authorities. The alleged rapes that occurred after her June 2003 report and the assault that caused her to abort her child were not reported because she did not think that police in Mexico would help her (RPD Decision, pp.3-4).
[...]
She testified that she did not know of any other agencies or women's shelters that could have helped her. While on the one hand it does not surprise me that she did not seek help from other agencies, because country documents indicate that domestic violence is underreported, on the other hand I would have expected a young lady with 16 years of education to know about these services (RPD Decision, p.4)
[...]
I find that had the claimant contacted the senior police authorities or the human rights authorities, she would have had state protection (RPD Decision, p.8).
[6] The Applicant was also criticized by the RPD for not making it "perfectly clear" to the police that her boyfriend was a police officer, even though she reported this fact (RPD Decision, p.6). Moreover, the Applicant was criticized for not reporting to the physician that aborted her fetus that her injuries were caused by her boyfriend, on the basis that, if the report was received, the physician would have been obliged to report the assault to the police (RPD Decision, p.8). On the basis of the following analysis that expectations placed on the Applicant were not properly assessed, I find that the RPD's criticisms are remarkably unfair.
[7] The RPD states in its reasons that the Chairperson's Gender Guidelines were taken into consideration in rejecting the Applicant's claim for protection. I find that the following aspect of the Guidelines is important to the decision rendered:
C. EVIDENTIARY MATTERS
When an assessment of a woman's claim of gender-related fear of persecution is made, the evidence must show that what the claimant genuinely fears is persecution for a Convention reason as distinguished from random violence or random criminal activity perpetrated against her as an individual. The central factor in such an assessment is, of course, the claimant's particular circumstances in relation to both the general human rights record of her country of origin and the experiences of other similarly situated women. Evaluation of the weight and credibility of the claimant's evidence ought to include evaluation of the following considerations, among others:
1. Decision-makers should consider evidence indicating a failure of state protection if the state or its agents in the claimant's country of origin are unwilling or unable to provide adequate protection from gender-related persecution. If the claimant can demonstrate that it was objectively unreasonable for her to seek the protection of her state, then her failure to approach the state for protection will not defeat her claim. Also, the fact that the claimant did or did not seek protection from non-government groups is irrelevant to the assessment of the availability of state protection.
[...]
(Footnotes and formatting omitted)
(Emphasis added)
(Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution)
[8] I find that, for the RPD to properly take the Guidelines into account in rendering the decision under review, before placing any expectations on the Applicant, it was necessary for the RPD to judge any potential expectations against the reality of the Applicant's life, including the tremendous upset she suffered as a result of extreme violence, and the existence of a very fragile psychological make-up. Since this analysis was not conducted, I find that the Guidelines were not properly applied.
[9] It is important to note that the RPD does not make any mention of the psychological report which establishes the tenuous nature of the Applicant's mental condition in April 2005 as a direct result of the persecution she suffered in Mexico. I find this is a key factor in concluding that the RPD's decision is rendered in fundamental error.
[10] In any case where an applicant suffers violence inside a relationship, and in particular, in a case where the violence is extreme such as that suffered by the Applicant, an applicant's mental state is a primary factor to be considered in determining her willingness and ability to access state protection, and is, therefore, required to be carefully considered. This was not done in the present case, very much to the Applicant's detriment.
[11] On the point of willingness, the RPD accepted that the Applicant did go to the police on three occasions, but did not give any weight to this evidence. On the first occasion, for no reason, the police did not believe the Applicant's story of being beaten. This is evidence that the police in Mexico do not provide women who suffer violence a fair chance to access justice and protection without suspicion. However, following the unwarranted directions of the police, the Applicant returned with solid physical proof of the violence she suffered, and the next day, followed up with another attendance. On this last attempt to access justice and protection, the police treated the Applicant with contempt; they demanded a bribe before they would take any action. This is evidence of a dysfunctional police force.
[12] It is not difficult to imagine how any citizen would come away from this conduct with a feeling of repugnance and hopelessness. It is also not hard to understand that, after suffering such a rejection, it would take an inordinate amount of courage and determination to go back again, or try harder, to gain what is rightfully yours: fair treatment and access to justice and protection from public safety officials.
[13] But, in the present case, the concern is not with any citizen, it is with the Applicant. The question is: having suffered horrific abuse causing physical injury but also serious mental trauma, would the Applicant find it extremely difficult, if not impossible, to confront an uncaring and corrupt police force? It is this determination that the RPD was called upon to evaluate, and failed to do.
[14] In its decision, the RPD does not provide any evidence upon which to base its expectation that the Applicant should have taken further action to access state protection. To stand up to scrutiny, the RPD's expectation finding requires evidence that, in the Applicant's condition at the time, she could reasonably have been expected to go further or try harder. As there is no evidence to support this finding, I find it is capricious. Indeed, there is cogent evidence to support the Applicant's position that her unwillingness to access state protection in Mexico with respect to the violence she suffered is reasonable.
[15] With respect to whether the Applicant is able to receive state protection from the police in Mexico, there is ample evidence on the record constituting clear and convincing proof that women who suffer violence in Mexico are not provided with state protection. In my opinion, the fact that civil society in Mexico is attempting to help women who suffer violence is not proof that state protection is available. The police provide protection, social organizations do not.
[16] In my opinion, the RPD did not reasonably evaluate the wealth of evidence of police corruption and indifference in reaching its decision that state protection for the Applicant exists in Mexico. As there is ample evidence to rebut the presumption of state protection, which was not reasonably evaluated, I find the RPD's state protection finding is capricious.
[17] For these reasons, I find that the RPD's decision is patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
With respect to the conduct of the redetermination, I direct that the Applicant's evidence provided in the RPD hearing presently under review with respect to the violence she suffered and her attempts to access justice and protection from the police in Mexico prior to her arrival in Canada, be accepted as true. However, I also direct that it is open to either the Applicant or the Respondent to provide further evidence and argument on the outstanding claim for protection.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3661-05
STYLE OF CAUSE: FABIOLA GAMA PEREZ v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 31, 2006
APPEARANCES:
| Daniel Fine
|
|
| David Tyndale
|
SOLICITORS OF RECORD:
| Daniel Fine Barrister and Solicitor Toronto, Ontario |
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
|