Ottawa, Ontario, this 10th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
LUIS ALFREDO PEREZ MARTINEZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants challenge by way of judicial review the determination by the Refugee Protection Division of the Immigration and Refugee Board (Board) dated October 7, 2005 (Decision) that they are neither Convention refugees nor persons in need of protection.
BACKGROUND
[2] The Applicants are citizens of Mexico. The refugee claim of Luis Alfredo Perez Martinez was based on that of his mother, Lucia Martinez Ortiz (Principal Applicant).
[3] In 1996, the Principal Applicant met and began a relationship with a man whom she characterizes in her Personal Information Form (PIF) as an influential businessman with political connections. He lives and works in Mexico City.
[4] The Principal Applicant says that her ex-partner became “possessive, jealous and controlling,” that he assaulted her physically and sexually, and that he threatened her.
[5] The Board did not doubt the credibility of the Principal Applicant’s allegations.
[6] The Principal Applicant came to Canada in August 2004 with her son and aunt, purportedly with the consent of her abusive ex-partner, in an attempt to “rectify what had been done” (or to “placate” the Applicant, as the Board put it in its reasons). She returned to Mexico the same month.
[7] After going to the Public Ministry to make a statement on November 29, 2004, the Principal Applicant returned to Canada on December 3, 2004. She claimed refugee status five days later, on December 8, 2004.
DECISION UNDER REVIEW
[8] The Board rejected the Applicants’ claim. It commented on the fact that the Principal Applicant had not reported her abuse immediately after it occurred, and that she had returned to Mexico after her visit to Canada in August 2004.
[9] The Board said that the determinative issue was that the Applicants “are not Convention refugees or persons in need of protection, because they have an internal flight alternative (IFA) in Mexico City.” In its analysis, the Board examined documentary evidence and found that “while flawed, the situation with respect to the issue of domestic violence continues to be addressed and improved in Mexico, particularly in Mexico City.”
ISSUES
[10] The issues raised by the Applicants are:
1. Did the Board err in determining that state protection was available in Mexico City by:
a) Ignoring material evidence concerning the Principal Applicant’s persecutor?
b) Applying the wrong test for state protection?
c) Failing to assess material evidence with respect to the psychological and emotional risk of return?
d) Ignoring and mischaracterizing the documentary evidence relied upon?
2. Did the Board err in failing to consider the application of subsection 108(4) of IRPA?
3. Did the Board demonstrate bias by the comments it made regarding the Principle Applicant’s subjective fear?
APPLICABLE LEGISLATION
[11] Paragraph 108(1)(e) provides that a person cannot be considered a refugee if the reasons for seeking refugee protection have ceased to exist. Subsection 108(4) provides a limited exception to the cessation circumstances provided in paragraph 108(1)(e). These provisions provide as follows:
|
108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
[…]
(e) the reasons for which the person sought refugee protection have ceased to exist.
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment |
108. (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants :
[…]
e) les raisons qui lui ont fait demander l’asile n’existent plus.
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré. |
ARGUMENTS
Applicants
Internal Flight Alternative and State Protection
a) Evidence relating to the Principal Applicant’s persecutor
[12] The Principle Applicant submits that in Mexico City her ex-partner has a network of power and influence, including influence with the police, and can act without consequence.
[13] The Principle Applicant also submits that her ex-partner is highly motivated to continue to target her for several reasons: first, he is 20 years older than she is and she betrayed him in a male-dominated society; second, he provided financial and employment assistance to the Principal Applicant and her family; thirdly, the relationship was one of consequence; and finally, the Principle Applicant entered another relationship.
[14] According to the Principle Applicant, her ex-partner’s behaviour has included physical, sexual and emotional abuse and threats. The threats are ongoing.
[15] The Applicants submit that the Board ignored all of these situational factors in making its determination. Instead, it relied on country conditions in Mexico and the fact that the Principle Applicant is well-educated with several years of professional work experience and is well-travelled.
b) The Test for State Protection
[16] The Applicants submit that this Court has already determined on the basis of the same documentary evidence available in this case that no reasonable IFA exists in Mexico City for abused women. On this point, the Principle Applicant cites the decision in A.Q. v. Canada (Minister of Citizenship and Immigration), 2004 FC 677 (Quintanar).
[17] Furthermore, the Applicants maintain that this Court has determined that where credibility is not a live issue, it is patently unreasonable to find an applicant’s assertion that he or she could not obtain state protection non-credible.
[18] The Applicants further submit that the Board failed to address evidence that suggests the police did not respond to her request for protection, and that she did not make further requests because she knew the police would view assault as the right of the man.
[19] Finally, the Applicants point to the test in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1 and submits that they have rebutted the presumption of state protection through clear and convincing evidence. They submit that the Board relied on the test in Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605, 126 N.R. 126 (C.A.) which is not the appropriate test to apply. They also note that the jurisprudence provides that the ability of a state to protect encompasses not just the existence of a legislative and procedural framework but must also include the capacity and will to act.
c) Psychological and emotional risk of return to Mexico City
[20] The Applicants submit that reports from the Principal Applicant’s psychotherapists provide evidence as to the deterioration of her emotional, family and work life as a result of her relationship with her ex-partner. They also points out that she was not able to continue with psychotherapy in Mexico, but that the Board relied on documentary evidence that suggested her need for psychological assistance will be met in Mexico. They argue that the Board failed to consider all of the psychotherapy reports and that consideration of the psychological and emotional risk of return is a constituent element in determining claims for protection.
d) Ignoring and mischaracterizing documentary evidence
[21] The Applicants provide several excerpts from the Board’s National Documentation Package, March 7, 2005, that support their position. They argue that these passages contradict the Board’s interpretation of the evidence upon which it relies and that this makes the Board’s Decision patently unreasonable.
Compelling Reasons and subsection 108(4) of IRPA
[22] The Applicants submit that the Board should have considered whether there were compelling reasons for them not to seek state protection. They maintain that the Immigration and Refugee Board Gender Guidelines contain numerous decisions determined on the basis of compelling reasons and that the criteria that must be considered include the psychological and emotional state of the claimant both at the time of persecution and at the time of consideration.
The Board’s Comments Regarding the Principle Applicants’ Subjective Fear
[23] Finally, the Applicants argue that, although the Board based its Decision on the issue of IFA, the Board made a gratuitous comment concerning the Principle Applicant’s subjective fear because of her reavailment in Mexico following her initial period in Canada. The Applicants submit that by this comment the Board demonstrated it was biased and that bias tainted the entire Decision.
Respondent
Internal Flight Alternative and State Protection
[24] The Respondent submits that the Board’s Decision with respect to the availability of an IFA in Mexico City is reviewable on a standard of patent unreasonableness.
[25] With respect to the Board’s consideration of evidence pertaining to the Principle Applicant’s ex-partner, the Respondent says that the Board did carefully examine the documentary evidence, as well as the size and population of Mexico City. The Respondent says that the Board also considered the personal characteristics of the Principal Applicant’s ex-partner, the risks associated with him, and the impact of his current residence in Mexico City. However, the Board determined on the basis of all of these considerations that an IFA was available. The fact that some of the documentary evidence is not mentioned in the Board’s reasons is not fatal to the Decision, nor does it indicate the Board did not consider that evidence. In fact, the Board found Mexico City to be a suitable IFA because of the resources available there to protect women in the position of the Principal Applicant. The Principal Applicant never established that her ex-partner had any control over organizations dedicated to protecting persons in her position.
[26] With respect to the reports from the Principle Applicant’s psychotherapists, the Respondent argues that just because the Board did not mention each psychological report does not mean it did not consider them. The Board was not required to cite each report. This is particularly so since there was no dispute as to the contents and the reports were simply not relevant to the Board’s concerns regarding state protection and the availability of an IFA. Furthermore, the Board explicitly held that the Principal Applicant’s “need for psychological assistance will be met in Mexico City as well.” Finally, the Respondent submits that the Principal Applicant cannot rely on the psychological reports alone to demonstrate she would be persecuted in Mexico City.
[27] The Respondent submits that the Board did not err in relying on the decision in Zalzali. According to the Respondent, it is a well-established principle in the jurisprudence that state protection needs to be adequate, not perfect. That principle is not contradicted by the decision in Ward. The Respondent also submits that since this is not a case in which the agent of persecution is the state, the Principle Applicant was required by law to approach state resources for protection. Furthermore, the Board’s reasons demonstrate that it not only considered the efforts made by the government to address violence against women, but also the results and effectiveness of those efforts.
[28] With respect to the Board’s consideration of the evidence, the Respondent submits that where there is conflicting evidence, the Board is entitled to choose the evidence it prefers, provided it addresses contradictory documents and explains the reasons behind its preference. Therefore, the excerpts from the National Documentation Package provided by the Applicants are nothing more than a disagreement about the manner in which the Board weighed the evidence. Also, the Respondent argues that the decision in Quintanar cannot be taken to stand for the principle that state protection can never be found in Mexico. Each case must be decided on its merits.
[29] The Respondent submits that the Board is entitled to consider protection offered by state agencies other than the police, such as state funded non-governmental agencies.
[30] The Respondent also argues that the Board did not fail to consider that the Principal Applicant had once filed a police report. This fact was noted in the Board’s reasons. However, the Board found the Principal Applicant’s efforts to approach the state and other organizations in Mexico City insufficient.
[31] Also, the Board did not make its Decision regarding the absence of state protection on the basis that the Principal Applicant’s assertion was not credible. Rather, it found the assertion to be inconsistent with the evidence.
Compelling Reasons and subsection 108(4) of IRPA
[32] The Respondent submits that for a Board to undertake a compelling reasons analysis it must first find that there has been a valid refugee claim at some time and that the reasons for the claim have ceased to exist. As the Board did not make the initial threshold finding that there was a valid refugee claim, it was not required to consider subsection 108(4).
The Board’s Comments Regarding the Principle Applicants’ Subjective Fear
[33] The Respondent submits that it was open to the Board to note that the failure of the Principal Applicant to claim refugee protection when she was first in Canada demonstrated a lack of subjective fear, even if the Board’s Decision ultimately turned on the availability of an IFA in Mexico City. The Respondent argues that reavailment in itself can be considered inconsistent with a genuine fear of persecution.
STANDARD OF REVIEW
[34] Justice Richard addressed the standard of review with respect to IFA determinations in Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741, 87 F.T.R. 46. He held at paragraph 26 that Board determinations with respect to an IFA deserve deference because the question falls squarely within the special expertise of the Board. The determination involves both an evaluation of the circumstances of the applicants, as related by them in their testimony, and an expert understanding of the country conditions.
[35] Justice Snider in Chorny v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 289, 2003 FC 999 at paragraphs 5 to 11, reviewed the jurisprudence and held, without going into a full pragmatic and functional analysis, that the appropriate standard of review is that of patent unreasonableness. Several recent decisions of this Court have held this to be the appropriate standard. See for instance: Nwokomah v. Canada (Minister of Citizenship and Immigration), 2005 FC 1535 at paragraph 9, Ashiru v. Canada (Minister of Citizenship and Immigration), 2006 FC 6 at paragraph 7, Camargo v. Canada (Minister of Citizenship and Immigration), 2006 FC 472 at paragraph 7, Nakhuda v. Canada (Minister of Citizenship and Immigration), 2006 FC 698 at paragraph 8. As Justice de Montigny stated in Ako v. Canada (Minister of Citizenship and Immigration), 2006 FC 647 at paragraph 20:
It is trite law that questions of fact falling within a tribunal’s area of expertise are generally reviewed against a standard of patent unreasonableness. More particularly, this Court has consistently found that this is the proper standard to apply with respect to the existence of a viable internal flight alternative […]
Thus, it is well-settled that this Court should not disturb the Board’s finding of an IFA unless that finding is patently unreasonable. There does not appear to be any reason to depart from that standard in this case.
ANALYSIS
[36] The Applicants challenge the Decision in a number of respects. Principally, they submit that the Board erred in its analysis of state protection and IFA. I have reviewed each of the issues and the arguments raised by the Applicants with care. My conclusion is that this Decision must stand or fall on the way in which the Board handled the inter-related issues of IFA and state protection. There was no bias, apprehended or otherwise, and subsection 108(4) is not applicable on these facts.
[37] Some general guidance regarding the issue of IFA is provided in Omekam v. Canada (Minister of Citizenship and Immigration), 2006 FC 331, where Justice O’Keefe stated as follows at paragraph 36:
The two-pronged test for establishing an IFA was aptly summarized by Justice Mosley in Kumar v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 731, 2004 FC 601 at paragraph 20:
In order for the Board to find that a viable and safe IFA exists for the Applicant, the following two-pronged test, as established and applied in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunaukkarasu, supra, must be applied:
(1) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the proposed IFA; and
(2) conditions in the proposed IFA must be such that it would not be unreasonable, upon consideration of all the circumstances, including consideration of a claimant's personal circumstances, for the claimant to seek refuge there.
[38] It is well-settled that this Court should not disturb the Board’s finding of an IFA unless that finding is patently unreasonable.
[39] The Board’s IFA analysis proceeded on the basis that the Principal Applicant’s allegations of persecution were true. Indeed, the focus of the analysis was on available avenues of state protection available in Mexico City.
[40] The Board was “not persuaded there is clear and convincing evidence that the authorities would not reasonably be forthcoming with serious efforts to protect the [Principal Applicant], if she were to approach them in Mexico City.”
[41] The Applicants disagree with the Board’s conclusions on this issue because they say the Board failed to take into account, or failed to give due consideration to, the specifics of the risks faced by the Principal Applicant. Specifically, the Principal Applicant’s former partner is widely influential in Mexico City and will not desist from his persecution of the Principal Applicant if she moves there.
[42] The Applicants also say that the Decision fails to address the Gender Guidelines in any meaningful way or to weigh the evidence in accordance with those Guidelines. Also, they say that compelling psychological evidence was ignored, or was not adequately dealt with or considered.
[43] Let me say at the outset that, having reviewed the evidence and the Decision, it would have been quite reasonable for the Board to have reached a conclusion favourable to the Applicants. But this does not mean that the Board’s negative conclusions were patently unreasonable, or even unreasonable, and that is the point of this review.
[44] In the end, the Applicants just find it unbelievable that, given the evidence before the Board, the specifics of this case, and the Gender Guidelines, the Board could have concluded as it did. But this is merely to disagree with the Board, and disagreement with the Board is not a sufficient basis for this Court to interfere with the Decision.
[45] A review of the Decision reveals the following:
1. There were no issues of credibility and the Board accepted the Principal Applicant’s narrative of events;
2. The Board specifically refers to the assault and death threats suffered by the Principal Applicant and her need for psychological counseling in Mexico and Canada;
3. The Principal Applicant did not approach the authorities in Mexico City to seek protection;
4. The Board specifically refers to the Principal Applicant’s assertion that the authorities in Mexico City cannot protect her because that is where her assailant lives;
5. The Board acknowledges that while domestic violence is a continuing problem in Mexico it is being addressed, particularly in Mexico City;
6. The Board acknowledges specifically that violence against women is pervasive in Mexico because of societal attitudes and reluctance on the part of women to complain to the authorities. The Board refers to literature that discusses this problem;
7. Notwithstanding the acknowledged problems concerning violence against women, the Board refers to documentation that provides evidence of the availability of protection for the Applicants in Mexico City. The Board specifically says that “[…] some of the documents on this issue are mixed.” This means that the Board had to weigh the evidence and choose what to accept concerning the availability of protective assistance in Mexico City;
8. The Board also deals with the corruption issues raised by the Applicants;
9. The availability of protective assistance in Mexico City led the Board to conclude that the Principal Applicant had an obligation to relocate to that city and approach the state and other relevant organizations for assistance before seeking Canada’s protection;
10. The Principal Applicant had failed to rebut the presumption of the state’s ability to protect her;
11. There was no “clear and convincing evidence” that the authorities in Mexico City would not make a serious effort to protect the Applicants if those authorities were approached. Thus, it is the Board’s finding that there was no serious possibility of the Applicants being persecuted in the IFA;
12. The Board went on to address the reasonableness of the Applicants availing themselves of a IFA in Mexico City;
13. In weighing the evidence, the Board clearly indicates in the Decision that it considered the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and the Principal Applicant’s need for psychological assistance;
14. The Principal Applicant’s evidence was clear that she had not attempted to use any of the protective resources available to her in Mexico City.
[46] Was there documentary evidence before the Board of the availability of effective protection for the Applicants in Mexico City? The following examples appear in the record:
1. Page 131 – Response to Request for Information Recourse and Protection available to a woman who is a victim of spousal abuse and whose husband is a police officer in the state of Mexico, whether charges can be initiated in the Federal District (MEX39866.E September 27, 2002)
In a 26 September 2002 telephone interview, a representative of the organization Communication and Information for Women (Comunicacion e Informacion de la Mujer, CIMAC) provided the following information. The CIMAC representative explained that a victim of spousal abuse should visit a support group for victims of domestic violence and mentioned that there are a number of such groups in the State of Mexico and the Federal District. In addition, the representative explained that she could give the victim phone numbers and addresses of these support groups. The representative added that once contact with a support group has been established, the victim is given an orientation session on her rights and on how she can file a complaint against her husband.
2. Page 150 – Response to Request for Information Follow-up to MEX39866.E of 27 September 2002. (MEX40336.E October 11, 2002) The document expresses that the following options, (inter alia) are available:
CAVIDE (Centro de Atencion a Victimas del Delito) [support centre for the victims of crime]), where a complaint can be filed, and an agreement struck; emotional support is also provided;
UAPVIF (Unidad de Atencion y Prevencion a la Violencia Familiar) [family violence prevention and care unit]), where the authorities summon the assailant to sign a non-aggression agreement in the presence of a lawyer, and take other administrative steps with regard to fines and the arrest of the assailant. Therapy is also provided for both the assailant and the victim;
A third option is to approach a family court judge, which would mean court proceedings to rule on divorce on the grounds of family violence. The judge would order the necessary preventive measures at the beginning of the proceedings such as the temporary separation of the spouses and temporary benefits. Similarly, an agreement may be signed based on a deal reached by the parties.
A fourth option is to ask the Public Prosecutor to launch a preliminary investigation into the charges of the offence of family violence. A preliminary investigation would determine whether or not to launch a criminal case with proceedings before a criminal judge for the crime in question that would result in a conviction and a sentence of imprisonment being imposed on the assailant.
[47] As the Board pointed out in its Decision, some of the documentary evidence on State Protection in Mexico City is mixed, but the Board clearly examined what was available and came to its conclusions. Other conclusions may have been reasonable, and I might have come to a different conclusion if presented with the same evidence. But this does not mean that the Board’s conclusion were patently unreasonable. There was an evidentiary basis for the Decision as it stands.
[48] In finding an IFA, the Board was required to satisfy itself, on a balance of probabilities, that there was no serious possibility of the Applicants’ being persecuted in Mexico City and that, in all the circumstances, including circumstances particular to the Principal Applicant, conditions in Mexico City were such that it would not be unreasonable for the Applicants to seek refuge there. The Board in the case at bar found that Mexico City was such an internal flight alternative for the Applicants. The Applicants have not demonstrated that the finding is patently unreasonable in this case.
[49] The Principal Applicant has submitted that the Board only considered the fact that she is well educated, has work experience, and is well traveled, in making its determination. She says the Board failed to consider the risk issues. This is not the case. The above factors considered by the Board are part of its consideration of whether it was reasonable for these Applicants to live in Mexico City. Contrary to the Applicants’ argument, the Board did consider that the Principal Applicant’s persecutor lives in the proposed IFA of Mexico city. Indeed, the Board acknowledged this fact in its Reasons: (“… she averred that the authorities in Mexico City cannot protect her because that is where De Leon is based.”)
[50] The Board found Mexico City to be a suitable IFA because of the resources available there to protect women in the position of the Principal Applicant. This finding was not patently reasonable, given the Board’s careful examination of the documentary evidence and in light of the size and population of Mexico City.
[51] Contrary to the Principal Applicant’s submission, the Board did not ignore the specific characteristics and risks from her persecutor (i.e. that he was a powerful businessman and the brother of a woman who has held important positions in the administration of the Federal Government of Mexico). Rather, the Board was persuaded that the resources to protect and support women in the position of the Principal Applicant in Mexico City would be available to her.
[52] Further, the Principal Applicant’s testimony that Mr. De Leon has bribed members of government in order to achieve his business initiatives does not establish that he has control or influence over the women’s shelters, family court judges, public prosecutors, and the various non-profit organizations set up specifically to protect those in the Principal Applicant’s position. The Principal Applicant admitted that she did not attempt to avail herself of these resources in Mexico City.
[53] The Respondent submits that no error was committed by the Board in relying on the Zalzali decision. The principle that state protection needs to be adequate, not perfect, is well established in law, and is not contradicted by the Ward decision. The Board must be satisfied that there is actual adequate protection, not perfect protection. This proposition has been re-affirmed again and again by this Court, including in the recent decision Blanco v. Canada (Minister of Citizenship and Immigration), 2005 FC 1487, where Justice Phelan found at paragraph 10 that “The legal requirement is that state protection be ‘adequate’ not ‘perfect’”. See also: Canada (Minister of Employment and Immigration) v. Villafranca (1991), 150 N.R. 232, 99 D.L.R. (4th) 334, (F.C.A.).
[54] As Justice Snider succinctly explained in Judge v. Canada (Minister of Citizenship and Immigration), 2004 FC 1089, at paragraphs 8 and 10,
The onus is on the Applicant to lead evidence to rebut the presumption that adequate state protection exists. The test is an objective one and involves the Applicant “showing that [she] is physically prevented from seeking [her] government’s aid or that the government is in some way prevented from giving it”. (Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 at 234 (F.C.A.)) […]
In this case, it is clear that the Board heard and understood the Applicant’s testimony that she believed that the police were in “cahoots” with the people for whom she worked. This is a subjective belief; as noted above, the test for whether state protection “might reasonably be forthcoming” is an objective one. It is not sufficient for the Applicant to simply believe that she could not avail herself of state protection.
[55] It is also well established that in a democracy, such as Mexico, an applicant must do more than simply show that she went to see some members of the police force and that her efforts were unsuccessful. See N.K. v. Canada (Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532 (F.C.A.), 206 N.R. 272, at paragraph 5. The burden of proof that rests on the Applicant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state’s institutions, the more the Applicant must have done to exhaust all the courses of action open to her. In this case, the Principal Applicant only approached police on one occasion, and did not make use of the many resources available to abused women in Mexico City. This is not a case like Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339, 2002 FCT 1081 in which the state itself was the agent of persecution; thus it was incumbent upon this Principal Applicant to approach state resources before seeking international protection.
[56] The Applicants are similarly unable to demonstrate any error in the Board’s assessment of the documentary evidence on the basis of the Quintanar decision. Although in Quintanar, the Court found that state protection was not available, based on some of the documentary evidence examined in that case, that decision cannot be taken to stand for the principle that state protection can never be found for abused women in Mexico. Rather, each case must be decided on its own merits and it remains the responsibility of the Board to review and weigh the evidence. As Justice O’Keefe commented in Castro v. Canada (Minister of Citizenship and Immigration), 2005 FC 1165 at paragraph 34 regarding the implication of the Quintanar decision:
[…] 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. [emphasis added]
[57] In the case at bar, the Board recognized that protection in Mexico is not perfect, but found that the Principal Applicant had not attempted to use the resources that are available and set up for women in her position.
[58] As the Applicants note, credibility was not an issue in this claim because the Board accepted their testimony. The Board did not need to cite the psychological report at length, particularly when there was no dispute over its contents. The fact that the Principal Applicant received therapy in Mexico, and showed symptoms of post traumatic stress, and that such symptoms may have been triggered by her abusive former partner, is not at issue. The report was simply not relevant to the Board’s concerns, namely the Principal Applicant’s failure to rebut the presumption of state protection and the availability of an IFA in Mexico City.
[59] Moreover, psychological reports do not per se prove the underlying refugee claim. The Principal Applicant cannot rely on the psychological reports alone to demonstrate that she would be persecuted if returned to Mexico City. It is incumbent on the Board to consider the evidence and make a determination.
Subsection 108(4)
[60] Subsection 108(4) of IRPA allows Canadian authorities to confer refugee status on humanitarian grounds to the special and limited category of persons who “have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.” In other words, in order to invoke section 108(4) there must have been a determination that the Applicants were Convention refugees as contemplated by the statute, and also that the conditions that led to that finding no longer exist. The exceptional circumstances contemplated by section 108(4) of IRPA only apply to a tiny minority of claimants. See for instance Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739, (1992), 93 D.L.R. (4th) 144 at 157 (F.C.A.).
[61] Justice Noël recently discussed this issue in Martinez v. Canada (Minister of Citizenship and Immigration), 2006 FC 343 at paragraphs 19 and 22, and re-affirmed that if an applicant is found not to meet the definition of Convention refugee or person in need of protection, a section 108 analysis is not applicable:
In my view, sub. 108(4) of the IRPA is not applicable in the present matter. The RPD should not undertake a sub. 108(4) evaluation in every case. It is only when para. 108(1)(e) is invoked by the RPD that a “compelling reasons” assessment should me (sic) made, i.e. when the refugee claimant was found to be a refugee but nevertheless had been denied refugee status given the change of circumstances in the country of origin. In Kalumba c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2005 CF 680, [2005] A.C.F. No. 879, at para. 18 and 19, Justice Shore provided a succinct summary of the applicable principles:
[MY TRANSLATION] As per the wording of the section, before considering the application of subsection 108(4) of the Act, the Commission must conclude that the person would have been granted refugee status notwithstanding the change of circumstances which occurred in the country. In the matter at hand, the Commission determined that M. Kalumba had an internal flight alternative in his country of origin and therefore concluded that Mr. Kalumba was neither a refugee nor a person in need of protection as per sections 96 and 97 of the Act.
[…] As such, the Commission did not have to conduct a “compelling reasons” analysis pursuant to subsection 108(4) of the Act.
[…]
In the present matter, the claim of the Applicants was rejected because the RPD found that State protection was available. Their claim was rejected as they did not meet the necessary conditions in order to be considered refugees or persons in need of protection. The exception enacted at para. 108(1)(e) was not applicable. Therefore, the RPD was under no obligation to perform any assessment of “compelling reasons.”
[62] Similarly, in the case at bar, the Board found that the Applicants were not Convention refugees due to the availability of an IFA and state protection in Mexico City. This is not a situation where a compelling reasons analysis was warranted.
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-6646-05
STYLE OF CAUSE: LUCIA MARTINEZ ORTIZ ET AL v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 15, 2006
APPEARANCES:
Alison Engel-Yan FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario