PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
REINA ISABEL ALMENDAREZ MATUTE
FRANDER ARMENGO VELASQUEZ ANTUNEZ
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application by Reina Isabel Almendarez Matute and Frander Armengo Velasquez Antunez from a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered on July 24, 2006 following a hearing on March 6, 2006. In its decision the Board rejected the Applicants’ claims for refugee protection on the ground that state protection is available in their home state of Honduras.
Background
[2] Ms. Matute and Mr. Velasquez are married. Ms. Matute left Honduras in February 2005 and made her way to Canada through Guatemala, Mexico and the United States. She arrived here on June 27, 2005 and promptly claimed refugee protection. Mr. Velasquez followed and arrived in Canada on July 18, 2005. He applied for protection at the Canadian border.
[3] The Applicants’ claim was based on a history of physical abuse and threatening behaviour meted out by Ms. Matute’s previous husband, Miguel Antonio Zelaya Mejia. Mr. Zelaya is a violent person who repeatedly abused Ms. Matute throughout their marriage. Ms. Matute gave a history of numerous assaults and several unsuccessful attempts on her part to escape the marriage. By 1984 she was able to secure a divorce but Mr. Zelaya continued to harass her.
[4] In 1999 Ms. Matute met Mr. Velasquez and they began to live together in October 2000. Mr. Zelaya was not pleased by this relationship and frequently threatened and harassed them. On the night of September 10, 2004, Ms. Matute and Mr. Velasquez were confronted at gunpoint by Mr. Zelaya and four other members of his gang. Ms. Matute said that she was gang-raped in front of Mr. Velasquez and then both were savagely beaten and left in the street. When they were found the next morning, they were taken to a medical clinic where they each remained for 28 days. The medical records from that stay disclosed multiple fractures and dislocation injuries, soft tissue trauma and, in the case of Ms. Matute, evidence of sexual abuse.
[5] Ms. Matute said that she did not approach the police during this long history of violence because spousal abuse was not taken seriously by the Honduran authorities and because Mr. Zelaya was a leader of a violent criminal gang and had threatened to kill her if she reported him. She also believed that Mr. Zelaya was connected to the Honduran police and would be protected from prosecution.
[6] It was following the incident of September 10, 2004 that the Applicants decided to leave Honduras. They stayed out of sight for some time while they attempted to sell their shop to raise the money necessary to come to Canada.
The Board Decision
[7] Although the Board found Ms. Matute to be “credible with respect to the incidents which were alleged”, it rejected the claims because of the availability of state protection. In coming to that conclusion the Board the following findings:
a. the Honduran police “are under-funded, under-trained, understaffed and corruption is a serious problem, giving way to widespread public frustration at the inability of the security forces to prevent and control crime”;
b. under the current administration, joint police and military patrols had led to a significant reduction in petty crime;
c. although the Honduran police “are plagued by corrupt officers, at least 3000 police officers have been fired since 1998 for corrupt practices”;
d. Congress had created a new Council to monitor and prevent police abuses;
e. the police are under the control of the Ministry of State and Security; and
f. the Honduran authorities had been cited by international agencies for carrying out an unofficial social cleansing policy against criminal gangs including the mobilization of death squads to assassinate and attack gang members.
[8] Solely on the strength of these findings, the Board concluded that the corruption of the Honduran police was “not so persuasive [sic] that the claimant could not or would not have her complaint addressed in a proper manner”. The Board also stated that it had “no credible evidence to indicate that the state is unwilling or unable to provide protection”. Ms. Matute’s failure to seek the protection of the Honduran authorities was, accordingly, found to be unreasonable.
Issues
[9] (a) What is the appropriate standard of review for the issues raised on this application?
(b) Did the Board err in its analysis of the evidence bearing on the issue of state protection?
Analysis
[10] The issues raised on this application involve questions of mixed fact and law applicable to the Board’s state protection conclusions. These are issues which are reviewable on a standard of reasonableness: see Hinzman v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 584, 2007 FCA 171, at para. 38.
[11] Much of the Applicants’ argument on this application was directed at the issue of gender-based abuse and the Board’s apparent mischaracterization of the protection claims as being based on a generalized criminality risk. There is no question that spousal abuse was at the root of both of these claims and that the Board should have assessed them against that particular risk, including the issue of Ms. Matute’s reluctance to approach the police. However, the fundamental flaw in the Board’s analysis is its obvious failure to consider all of the material evidence bearing on the issue of state protection and, in particular, the Applicants’ reasons for not seeking it out.
[12] Here, the Board rejected the Applicants’ claims solely on the basis that they had failed to seek the protection of the Honduran authorities which the Board concluded would have been forthcoming. The problem, however, is that the decision fails to take account of significant aspects of the evidence. Nowhere does the Board reference Ms. Matute’s explanations for not seeking police protection in Honduras, explanations which were entirely consistent with much of the documentary record. In short, the Board failed to consider Ms. Matute’s personal circumstances as a victim of severe and prolonged spousal abuse at the hands of a vicious abuser with apparent connections to the local police. Ms. Matute also testified that she considered that a complaint to the police would not only be futile but would inevitably lead to life-threatening retaliation. The failure to consider Ms. Matute’s testimony is particularly troubling given the Board’s unqualified acceptance of her evidence including her description of the culminating assault and rape which left her and Mr. Velasquez hospitalized for almost a month. Clearly her former spouse was not a person much troubled by the likelihood of arrest and the viciousness of the assault added considerable weight to Ms. Matute’s fear of further abuse at his hands.
[13] Ms. Matute had testified that her former spouse had repeatedly threatened to kill her – a threat that was almost carried out at the time of her final rape and assault. Although the Board took note of the evidence that police corruption in Honduras is a serious problem and seems to have accepted, as fact, that “the Honduran police are plagued by corrupt officers”, no where did it assess Ms. Matute’s evidence against that established environment of police corruption. In fact, the Board not only ignored considerable evidence that state protection was largely illusory in Honduras, it wrongly asserted that there was “no credible evidence to indicate that the state is unwilling or unable to provide protection ” to Ms. Matute. This assertion was inconsistent with the Board’s own findings of rampant police corruption and other material evidence that cases of spousal assault and rape in Honduras are often not taken seriously by the police or within the judicial system. While it was open to the Board not to adopt that evidence, it was still necessary to consider it and it was an error to say that the Board had no credible evidence on this point before it.
[14] One of the Board’s further justifications for its state protection conclusion was based on the existence of an “unofficial social cleansing policy” directed at criminal gangs in Honduras whereby police “death squads” systematically assassinate or abuse suspected gang members. This is not the first time that I have seen the Board rely upon evidence of police criminality in this way. In my view, it is manifestly wrong to consider police criminality as evidence of the effectiveness of state protection. Systematic or wide-spread violations of human rights, whether condoned by the state or not, are only properly considered as evidence of the breakdown of the protective apparatus of the state. Police corruption in all of its forms is the antithesis of state protection. It is incompatible with the rule of law and it is a corrosive force which undermines the public trust in the civil authorities. As such, it should never be considered to be a form of effective law enforcement or seen as enhancing the public perception that state protection is available. The Board’s reliance on such evidence was, to my thinking, perverse and could not support a finding of available state protection. To the credit of counsel for the Respondent, this was a point that was not embraced during argument, albeit that the decision was vigorously defended on other grounds.
[15] I would also note that the Board’s conclusion that state protection was available in Honduras is not supported by its remaining factual findings. The finding that the Honduran police were ineffective and corrupt was hardly displaced by evidence of reductions in the petty crime rate and the oversight efforts of the civilian administration noted by the Board. There may well have been other evidence available to the Board to support such a conclusion but what it identified was entirely insufficient, particularly in the absence of any consideration of Ms. Matute’s contrasting evidence.
[16] The Board’s decision in this case does not stand up to scrutiny based on a standard of reasonableness. In the result, it is necessary to quash the Board’s decision and to remit this matter to a differently constituted panel of the Board for reconsideration on the merits.
[17] Neither party proposed a certified question and no question of general importance arises from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the matter to be remitted to a differently constituted panel of the Board for reconsideration on the merits.
“R.L. Barnes”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4698-06
STYLE OF CAUSE: REINA ISABEL ALMENDAREZ MATUTE ET AL
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
APPEARANCES:
Alesha Green FOR THE APPLICANT
Modupe Oluyomi FOR THE RESPONDENT
SOLICITORS OF RECORD:
GREEN, WILLARD
Barristers & Solicitors FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario