Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CARMEN BARRERA JARA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review, made pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27, of a decision (Decision) of the Refugee Protection Division of the Immigration Refugee Board (Board) dated September 1, 2005, wherein the Board determined that the Applicant was not a Convention refugee or a person in need of protection.
BACKGROUND
[2] The Applicant is a citizen of Chile. She says she endured emotional, psychological and, at times, physical abuse at the hands of her ex-fiancé.
[3] As a result of the abuse, the Applicant came to Canada in August 2004 “with the hope,” as she expressed it in her Personal Information Form (PIF), that “if I was away for sometime, he would lose interest in me and stop persecuting me.” The Applicant stayed in Canada for approximately a month and a half.
[4] After the Applicant returned to Chile, she says the abuse continued. She said in her PIF that “My parents and I decided that I should return to Canada.”
[5] The Applicant returned to Canada on December 15, 2004. She says that she came with the “same objective” as on her first visit, namely, “to relax, to try and forget a bit.” The Applicant says she “didn’t know that [she] could make a refugee claim” but “found out about it after a week of having arrived here.” She got the idea of making a refugee claim from her parents’ friends with whom she was staying.
[6] The Applicant claimed refugee status in January, 2005.
DECISION UNDER REVIEW
[7] The Board rejected the Applicant’s claim. Although the Board accepted that she had been abused by her ex-fiancé, it did not accept as reasonable the Applicant’s explanation that she made no effort to seek state protection in Chile “on account of the conservative nature of the country and the macho attitude of society in general and the police in particular.” The Board concluded that the Applicant had “not discharged the onus of showing clear and convincing proof of [Chile’s] inability or unwillingness to protect [her].”
ISSUES
[8] The Applicant submits that the Board erred in its state protection analysis in two ways: first, by ignoring documentary evidence “contrary to the position on country conditions adopted by the Board”; and, secondly, by applying the “incorrect test”, i.e., “whether the state was making serious efforts” rather than “whether the protection afforded to women was adequate.”
ANALYSIS
Basic Principles
[9] As the Board stated at the outset of its reasons, “states are presumed to be capable of protecting their citizens” (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 725). That assumption operates “[a]bsent a situation of complete breakdown of state apparatus,” and, accordingly, “clear and convincing confirmation of a state’s inability to protect must be provided” (Ward, pages 724 to 725).
[10] Also in Ward, the Supreme Court of Canada held that a refugee claimant must approach his or her home state for protection if such protection “might reasonably have been forthcoming” (page 724). The failure to do so in such circumstances is fatal to a refugee claim.
[11] Torres v. Canada (Minister of Citizenship and Immigration), 2005 FC 660 at paragraph 10 is authority for the following proposition:
Absent a complete breakdown of state apparatus … the claimant must do more than simply show that she went to see some members of the police force and that her efforts were unsuccessful. The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to her.
[12] Similarly, as stated by the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Villafranca, (1992), 99 D.L.R. (4th) 334 at page 337: “… it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation.”
[13] Generally speaking, it will be difficult to fault the Board’s conclusion that a claimant has not rebutted the availability of state protection where the claimant has made “no effort whatsoever to seek protection”: Skelly v. Canada (Minister of Citizenship and Immigration), 2004 FC 1244 at paragraph 51).
Documentary Evidence
[14] In the context of these basic principles, the Applicant points to documentary evidence allegedly ignored by the Board which, in the Applicant’s submission, “reveals that the actual protection is inadequate.”
[15] The Board acknowledged that “there are serious problems affecting women in Chile in domestic violence cases.” It also acknowledged that “Chile’s law governing domestic violence, which is the 1994 Domestic Violence Law, prohibits the police from making an arrest for a domestic violence offence unless they directly observe a person committing a violent act.”
[16] The Board nevertheless concluded that it was “reasonable that the claimant ought to have made serious efforts to report the threats against her to the authorities before seeking international protection.” The Board expressed its conclusion in the following terms:
… the documentary evidence indicates that Chilean law provides that all persons affected by domestic violence can lodge a complaint with the Carabineros, who are the uniformed police, or the investigative police who are the plain clothes police. The police then must transfer the complaint to the Civil Court.
Cases involving serious injuries, attempted murder, rape or threats, are then transferred to the Criminal Court in the locality where the alleged incident took place.
Further precautionary measures are available, and the aggressor can be prohibited from entering the victim’s home or work place.
An order to enforce a precautionary measure on failure to comply could result in a jail sentence for a period of up to five years. I am referring to the Request for Information CHL36926.
…
… although the type of protection afforded by Chile is not perfect, the country is making serious efforts to protect the women of that country, and case law also says that state protection does not have to be perfect. [Canada (Minister of Employment and Immigration) v. Villafranca, (1992), 18 IMM. L.R. (2d) 130 (F.C.A.).][Footnotes omitted.]
[17] The Board is entitled to prefer some documentary evidence over other documentary evidence. As well, the Board need not refer in its reasons to every piece of evidence before it: see Gomez v. Canada (Minister of Citizenship and Immigration), 2006 FC 406 at paragraph 16. This is not, in my view, a case in which the Board failed to discuss “contradictory” evidence so as to found a conclusion that the Board ignored or misapprehended the evidence before it.
[18] In my view, the basic issue in this case is whether, given the fact that the Applicant did not even attempt to seek state protection, she presented clear and convincing evidence that, had she done so, there was no reasonable expectation she would receive it because, in Chile, the state is unable or unwilling to protect persons in the Applicant’s position. As the Supreme Court of Canada pointed out in Ward, at pages 723 to 725:
Does the plaintiff first have to seek the protection of the state, when he is claiming under the "unwilling" branch in cases of state inability to protect? The Immigration Appeal Board has found that, where there is no proof of state complicity, the mere appearance of state ineffectiveness will not suffice to ground a claim. As Professor Hathaway, supra, puts it, at p. 130:
Obviously, there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming:
A refugee may establish a well-founded fear of persecution when the official authorities are not persecuting him if they refuse or are unable to offer him adequate protection from his persecutors ... however, he must show that he sought their protection when he is convinced, as he is in the case at bar, that the official authorities -- when accessible -- had no involvement -- direct or indirect, official or unofficial -- in the persecution against him. (José Maria da Silva Moreira, Immigration Appeal Board Decision T86-10370, April 8, 1987, at 4, per V. Fatsis.)
This is not true in all cases. Most states would be willing to attempt to protect when an objective assessment established that they are not able to do this effectively. Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.
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 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.
[19] The Applicant points to the following as being clear and convincing evidence that the Board failed to consider that Chile does not protect people in her position:
1. The summary provided to the Board that appears at page 49B of the Tribunal Record and, in particular, the following passage:
In January 2001, Delpiano reported that the ability of the Chilean state to handle the volume of domestic violence cases was “woefully inadequate” and that the social services in place were only adequate to address the needs of about 5 per cent of domestic violence victims (Santiago Times 21 Jan. 2001). The Chilean National Women’s Service (SERNAM) hopes to establish by the end of 2001, care centres that would offer services to victims in all of Chile’s regional capitals with more centres in the provinces to follow (ibid.). The centres would be managed by municipal governments and private companies (ibid.). Delpiano reported that the creation of the national network of care centres would begin in March 2001 (Boletin Oct.-Dec 2000, 23). No reports as to whether the network has begun could be found among the sources consulted.
2. The specific case mentioned in the same document at page 49A of the Tribunal Record:
The Santiago Times report states that Marcela Valdes, a former Carabineros lieutenant, filed a complaint against her abusive spouse, Claudio Vasquez Cardinalli, a Carabineros captain, before the Inter-American Human Rights Commission in Costa Rica after exhausting her options for prosecution in Chile (15 Nov. 2000). Valdes first sought to launch a police process against Vasquez in May 1999 (ibid.). The internal review of the case concluded in January 2000 that Valdes’ “liberal behavior had provoked conflicts with her husband” and therefore she and a male friend would be sentenced to 10 days in prison, while Vasquez would be sentenced to 4 days (ibid.). Valdes sought to have the ruling reviewed and overturned by the Ninth Zone Valdivia Carabineros, but this authority ratified the decision of the lower tribunal (ibid.). Valdes then took her case before the Carabineros Order and Security Directorate for appeal but the Directorate increased her sentence to 15 days in prison (ibid.). She appealed the decision once again but this time before the Valdivia Court of Appeals; while the appeal was being heard, Valdes was fired by the Carabineros for violating “ethical and moral standards” and the appeal court determined that in light of “her actions as contrary to Carabineros behavioral standards,” her sentenced would be only on procedural matters (ibid.). She then approached the institute for Women, a Chilean NGO, which helped her lodge her case with the Inter-Amercian (sic) Human Rights Commission in October 2000 (ibid.). No corroborating information, including the outcome of this case, could be found among the sources consulted by the Research Directorate.
3. Section 5 of the U.S. Department of State Report that appears at page 60 of the Tribunal Record:
Women
Domestic violence against women was a serious problem. A 2001 University of Chile study, the most current available, indicated that more than half the women in the country had experienced violence in their relationship with their partner. The study estimated that 34 percent of women had been subjected to physical violence (of which 15 percent was sexual violence), and another 16 percent had suffered psychological violence.
The courts may order counseling for those involved in intra-family violence. At year’s end, there were 17 government and 8 private centers to attend to victims of intra-family violence. An awareness program to prevent intra-family violence in the country’s 13 regions reached 3,000 social workers, 2,000 families, and 2,500 young adults. During the year, the National Women’s Service (SERNAM) together with other NGOs conducted courses on the legal, medical, and psychological aspects of domestic violence for police officers and judicial and municipal authorities.
Rape is a criminal offense. The age for statutory rape was raised from 12 to 14. The law protects the privacy and safety of the person making the charge. SERNAM’s latest statistics indicated that 859 cases of rape were reported to the police in the first half of 2003. This number did not include other forms of sexual violence or abuse. Experts believed that a majority of rape cases went unreported.
The Ministry of Justice and the Investigative Police had several offices specifically to provide counseling and assistance in rape cases. A number of NGOs, such as La Morada Corporation for Women, provided counseling for victims of rape.
Adult prostitution is legal; however, police often detained prostitutes (usually as a result of complaints by residents of the neighborhood) on charges of “offenses against morality,” which could lead to a $70 (50,000 pesos) fine or 5 days in prison. Procurement or pandering is illegal and punishable under law. Including a minor (below age 18) to have sex in exchange for money or other favors is illegal; punishment ranges from 3 to 20 years in prison and a $1,000 (612,000 pesos) fine depending on the age of the minor.
Laws passed in December 2003 specifically targeted child pornography and cyberporn, substantially increasing penalties for these activities. The Investigations Police has a Sexual Crimes Brigade charged with investigating and prosecuting pedophilia and child pornography cases.
There were no laws against sexual harassment, although it generally was recognized as a problem. A SERNAM study in the Greater Santiago area estimated that 11.8 percent of female employees suffered some form of sexual harassment. In industrial and service sectors, more than 20 percent of female employees reported some form of sexual harassment, and a third of female office employees reported harassment. More than half of those interviewed for the study, both male and female, said that sexual harassment in the workplace was frequent or very frequent. Legislation that would provide specific protections against sexual harassment was pending in Congress at year’s end.
Women enjoy the same legal rights as men. In November, a Law on Civil Marriage entered into force that allows for civil divorces, although it still imposes lengthy waiting periods between filing for divorce and issuance of a final decree.
A 2001 SERNAM study found that in 1999 the average earnings of women were 77 percent of those of male heads of household. The minimum wage for domestic helpers, probably the largest single category of working women, was only 75 percent of the standard minimum wage (see Section 6.e.). Women with university education earned 60 percent of what their male counterparts did. A study during the year suggested that the overall income gap remained at 24 percent in 2003. The Labor Code provides specific benefits for pregnant workers and recent mothers, including a prohibition against dismissal; these also apply to domestic workers. Employers may not ask women to take pregnancy tests prior to hiring them, although La Morada received reports that the practice continued in some companies.
There were 25 registered NGOs working on women’s issues. The top five were La Morada, Study Center for Women’s Development (CEDEM); the Women’s Institute (Instituto de la Mujer), Movement pro-Chilean Women Emancipation (MEMCH), and Information and Communication among Women Service (ISIS International). La Morada engaged in political activism aimed at overcoming gender discrimination by modifying sexist political and cultural patterns. CEDEM worked in rural areas and provided training and consulting to different women’s organizations to implement social and economic development programs. The Women’s Institute advocated for women’s rights and political participation. MEMCH promoted personal development of women. ISIS International coordinated a network of women’s organizations devoted to defending and promoting women’s rights.
[20] The Applicant also says that the Board did not examine and address the societal and cultural context of this matter in accordance with the Gender Guidelines. If it had done so, it would have seen that Chile is an extremely macho culture in which women are constantly at risk and that this is condoned by the state and its institutions even though there are laws against domestic violence.
[21] I believe the correct approach to the issues raised by the Applicant was recently outlined by Justice Dawson in Muszynski v. Canada (Minister of Citizenship and Immigration), 2005 FC 1075 at paras. 6-9:
6. In my view, the determinative issue in this case is the panel's finding of state protection. More particularly, the RPD concluded that Mr. Muszynski failed to establish that state protection would not be available to him in Poland, noting that there was no evidence that Mr. Muszynski had ever approached the police or other authorities in order to seek protection. The RPD pointed to the fact that Poland is a democratic country with institutions and infrastructure which created the presumption of adequate state protection that Mr. Muszynski failed to rebut. In particular, the RPD referred to documentary evidence to the effect that while there was some problem with criminality in Poland, the state was making serious efforts to combat crime, and that state protection was available to victims of extortion.
7. In order to reach a conclusion with respect to the adequacy of state protection, the RPD is obliged to make certain findings of fact. Those findings of fact can only be set aside by this Court, if made in a perverse or capricious manner, or without regard to the material before the tribunal. See: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39, 2005 SCC 40, at paragraph 38.
8. Once those findings of fact are made, they must be assessed against the legal test articulated by the Supreme Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 724, namely do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption of state protection? This is a question of mixed fact and law. On the basis of the pragmatic and functional analysis conducted by my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, I accept that the appropriate standard of review of the decision as to the adequacy of state protection is reasonableness simpliciter.
9. The documentary evidence before the panel does indicate that organized crime is a problem in Poland, and that cases of "extortion robbery" increased from 1997 to 2000. However, the documentary evidence also establishes that Poland has implemented legislative amendments to combat crime, particularly extortion. While the documentary evidence indicates problem areas and weaknesses in Poland's current handling of various criminal activities, in my view, it cannot be said that the panel ignored or disregarded evidence on this issue or that its weighing of the evidence was perverse or capricious. The view which the RPD then took of facts as it found them when applied to the legal test articulated by the Supreme Court in Ward was one which could reasonably be taken. There is, therefore, no basis for intervention by this Court.
[22] If I apply the approach outlined by Justice Dawson to the Decision in the case before me, I accept that there was evidence before the Board of the following:
a) The ability of the Chilean state to handle the volume of domestic violence cases is “woefully inadequate”;
b) An example of one woman’s attempts (Marcela Waldes) to have the police and the courts deal with an abusive spouse that were totally unsuccessful as far as the available information went, but this information came from the Santiago Times, was not corroborated and the final outcome of the case was unknown;
c) A U.S. Department of State County Report for 2004 that confirms that “domestic violence against women was a serious problem.”
[23] Taken as a whole, I cannot say that the Applicant provided the Board with clear and convincing evidence that Chile is unable or unwilling to protect people in her position. The passages she relies upon to support her position appear with other documentary evidence that supports the Board’s conclusions, and the Applicant has not convinced me that she should not at least have given the state the opportunity to respond to the risks she was facing. The evidence is clear that her parents felt she should go to the police, and this would not make sense in a situation where no response could reasonably be expected. In addition, I cannot say that, on the facts before me, the Board failed to address the effectiveness of state protection in Chile. The situation required the Applicant to provide clear and convincing evidence of the state’s inability or unwillingness to protect people in her position and she did not, in my view, provide this evidence.
[24] Having come to this conclusion, I cannot say that the Decision was unreasonable. This application for judicial review is therefore dismissed.
JUDGMENT
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. There is no question for certification.
“James Russell”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6203-05
STYLE OF CAUSE: ANDREA ANGELINA DEL CARMEN
BARRERA JARA v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 18, 2006
APPEARANCES:
Bernard Assan FOR RESPONDENT
SOLICITORS OF RECORD:
Maureen Silcoff
Barrister and Solicitor FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario