TA6-06490

Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD File No. / N° de dossier de la SPR : TA6-06490 Private Proceeding / Huis clos Claimant(s) XXXXX XXXXX XXXXX XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing 5 June 2007 Date(s) de l'audience Place of Hearing Toronto Lieu de l'audience Date of Decision 20 June 2007 Date de la décision Panel M. Freilich Tribunal Counsel for the Claimant(s) Belinda Bozinovski (Barrister and Solicitor) Conseil(s) du / de la / des demandeur(e)(s) d'asile Refugee Protection Officer N/A Agent(e) de protection des réfugiés Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre You can obtain the translation of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB at 344 Slater Street, 11th floor, Ottawa, Ontario, K1A 0K1, or by sending a request by e-mail to translation.traduction@irb-cisr.gc.ca or by facsimile to (613) 947-3213. La Direction des services de révision et de traduction de la CISR peut vous procurer les présents motifs de décision dans l'autre langue officielle. Vous n'avez qu'à en faire la demande par écrit à l'adresse suivante : 344, rue Slater, 11e étage, Ottawa (Ontario) K1A 0K1, par courriel à traduction.translation@cisr-irb.gc.ca ou par télécopie au (613) 947-3213. These are the reasons for the negative decision of the Refugee Protection Division (RPD) with respect to the claim of XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX) (the claimant), a XX year-old citizen of the Philippines.1 The hearing for this claim was held pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).2 The claimant alleged that she has a well-founded fear of persecution if she were to return to the Philippines by reason of her membership in a particular social group, that is, a person who has been subjected to domestic violence. In addition, she claims to be a person in need of protection by reason of either a danger of torture within the meaning of Article 1 of the Convention Against Torture or a risk to her life or a risk of cruel and unusual treatment or punishment ISSUES AND DETERMINATION The determinative issue in this claim is whether the claimant has a well-founded fear of persecution in the Philippines by reason of a Convention ground including whether the claimant has rebutted the presumption of state protection. Having considered the totality of the evidence the panel finds that the claimant has not rebutted the presumption of state protection and is not a Convention refugee or a person in need of protection. ALLEGATIONS The claimant alleged that she met XXXXX XXXXX when she was XX years-old and married him soon after. The claimant stated that this was a civil marriage only as she is Catholic and her husband is an ultra-conservative Muslim. Together they have three children, two boys and a girl. The claimant alleged that she was not aware that the Muslim tradition which allows men to have more than one wife at the same time. The claimant stated that eventually she found out that her husband was seeing other woman. The claimant alleged that when she would confront her husband about the other woman, she would be subjected to severe emotional and psychological stresses and as a father he was not a good provided. The claimant alleged that she once followed him to a bar in XXXXX 2002 and caught him flirting so he cursed and beat her. The claimant alleged that on XXXXX, 2002 she reported him to the police and the XXXXX officials, who advised her to come back to see them if he bothered her again. The claimant alleged that she never got to call or report to the police again because he threatened her that if she called the police, he would take all their children and she would never see them again. The claimant stated that they separated for a couple of months, but got back together. The claimant alleged that she went to XXXXX Medical Hospital for a check-up after he beat her on XXX XXXXX, 2002. The claimant alleged that he forced her to have sex with him, she got pregnant and gave birth to their daughter in XXXXX 2003. The claimant alleged that things became worse and she learned that he was living with another woman and that he intended to make this other woman his second wife. The claimant alleged that she took the children and went into hiding at Iloilo Province, but by the end of that month he had found them again and forced them to return to Manila. The claimant alleged that once back in Manila, she was informed by the children's nanny that her husband had been living with this woman. The claimant alleged that in XXXXX 2005, her husband beat her because she asked his parents for money to send the children to school. The claimant alleged that she was beaten every day. By XXXXX 2005, her husband started to spend most of his time with the other woman and usually came home two or three times a week. On XXXXX 2005, the claimant's in-laws asked permission to have the children for a week, which she agreed to. The claimant alleged that her in-laws took the children away and she has never seen the children since. The claimant alleged that she reported everything to the police and filed a kidnapping charge and that her husband counter sued her for kidnapping. The claimant came to Canada in XXXXX 2006 and made a claim for refugee protection. ANALYSIS The panel has taken the Gender Guidelines3 into consideration before rendering a decision in this claim. The panel is not convinced, as it must be that the state would not be reasonably forthcoming with serious efforts to protect the claimant if she were to return to the Philippines.4 The panel finds that the totality of the evidence does not support a conclusion of state breakdown, nor does it rebut the presumption that a state is able to protect its nationals. A state is not expected to be able to provide perfect protection to its citizens. STATE PROTECTION The issue is whether the government of the Philippines is making serious efforts to provide adequate protection to individuals in the claimant's situation in the Philippines. The panel is guided by the Court of Appeal decision of Kadenko,5 which considered the following certified question: Where there has not been a complete breakdown of the government apparatus and where a State has political and judicial institutions capable of protecting its citizens, does the refusal by certain police officers to take action suffice to establish that that State in question is unable or unwilling to protect its nationals? The Court answered the question in the negative: Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal by certain police officers to take action cannot in itself make the state incapable of doing so.... When the state in question is a democratic state... the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant 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 claimant must have done to exhaust all the courses of action open to him or her. In Villafranca,6 the Federal Court of Appeal found that the mere fact that a country is not always successful at protecting its citizens is not enough to justify a claim. It found that no government could guarantee the protection of all of its citizens at all times. In Milev,7 the Federal Court noted that the fact that the state does not provide perfect protection is not, in itself, a basis for determining that the state is unwilling or unable to offer reasonable protection in the circumstances. International refugee protection is not meant to permit a claimant the opportunity to seek better protection abroad that he/she would receive at home.8 Supreme Court of Canada in Ward9 set out that there is a presumption that, except in situations where the state is in a state of complete breakdown, the state must be presumed capable of protection their citizens. This presumption can be rebutted by "clear and convincing" evidence of the state's inability to protect.10 In other words, a claimant must show that it was objectively unreasonable for him or her not to seek state protection.11 The panel accepts that the claimant was in an abusive situation when she resided with her husband. The panel further accepts that the claimant has had to endure her spouse deciding to reside with another woman and that the claimant personally has not resided with her husband since XXXXX 2005. The panel also accepts that the claimant's in-laws took the children for a week and have not returned them and that the claimant has had no further contact with the children since XXXXX 2005. The panel notes that the claimant stated in oral evidence that she filed a kidnapping charge against her husband and his parents in the Philippines, but did not have a copy to show the panel. The claimant did not know that outcome of this application, but it was brought to the Board's attention that the Philippines are not a party to the Hague Convention on the Civil Aspects of International Child Abduction12 and therefore she may have serious difficulties in getting her children back. The panel does not however, find that state protection would not be available to the claimant if she were to return to the Philippines and be subjected to domestic violence in the future. The panel accepts that domestic violence is still a serious problem in the Philippines and that the claimant was a victim of domestic violence. The panel notes that counsel provided the panel with many documents in relation to state protection for woman in the Philippines, which the panel perused before making its determination. The panel finds however, that the Philippines is a functioning democracy, and thus the presumption of state protection applies. The claimant can rebut this presumption by providing "clear and convincing" evidence that the Philippines are unable or unwilling to protect her.13 The panel finds that the claimant failed to rebut this presumption. Notwithstanding the documents submitted by counsel, the panel finds that the Philippines have taken major steps in regard to the issue of domestic violence, as follows in these reasons, including the 2004 Anti-Violence Act Against Women and Children, criminalizing physical, sexual and psychological harm or abuse to woman and their children committed by their spouses or partners, the death penalty for rape and protection orders available. The panel notes that the claimant provided the panel with a copy of two police report dated February 15, 2002 and December 12, 2002,14 The panel notes that the police report of February 15, 2002 indicated that the claimant reported the physical abuse she had sustained from her husband and that she was advised to contact the police and the station if the domestic violence ensues and was referred to PNP Women in Crisis Help and Info Desk. The panel finds that in regard to the time the claimant went to the authorities in February, she was not ignored by the authorities. The police report from December 02, 2002 stated that: "XXXXX XXXXX, husband of the complainant was contacted and sought by police investigators for interrogation but to no avail. Mrs. XXXXX refused to give the complete whereabouts of the husband claiming the incident was "an argument between husband and wife. The claimant and the complainant's family and accompanying friends were advised to contact police and this station if the abuse continues and was referred to PNP Women in Crisis Help and Info Desk." Again, the panel finds that this is not an indication of a lack of protection on the part of the authorities. Further, the panel takes note of the documentary evidence15 that states: The Philippines, with a population of 87 million, is a democratic republic with an elected president, an elected bicameral legislature, and a fractious but functioning multiparty system. The May 2004 national elections for president and both houses of congress continued to be a source of contention, and the political opposition called for the president's impeachment alleging election fraud and corruption. Civilian authorities generally maintained effective control of the security forces; however, some elements of the security forces committed human rights abuses. The government generally respected the human rights of its citizens. However, pervasive weakness in the rule of law, official impunity, and the wide disparity between rich and poor contributed to cynicism about official justice. The constitutionally mandated Commission on Human Rights (CHR) described the Philippine National Police (PNP) as the worst abuser of human rights. The law provides for an independent judiciary; however, the judicial system suffered from corruption and inefficiency. Personal ties and sometimes venality resulted in impunity for some wealthy and influential offenders and widespread scepticism that the judicial process could ensure due process and equal justice. The Supreme Court continued efforts to ensure speedier trials and to sanction judicial malfeasance, and is in the midst of a five-year program to increase judicial branch efficiency and raise public confidence in the judiciary The law provides that those accused of crimes be informed of the charges against them, have the right to counsel, and be provided a speedy and public trial before a judge. Defendants are presumed innocent and have the right to confront witnesses against them, to present evidence, and to appeal convictions. The authorities respected the right of defendants to be represented by a lawyer, but poverty often inhibited a defendant's access to effective legal representation. Skilled defence lawyers staffed the Public Attorney's Office (PAO), but their workload was large and resources were scarce. The PAO provides legal representation The law provides citizens with the right to change their government peacefully, and citizens exercised this right through periodic elections that largely were free and fair and held on the basis of universal suffrage. The law requires a judicial determination of probable cause before issuance of an arrest warrant and prohibits holding prisoners incommunicado or in secret places of detention; however, in a number of cases, police arrested and detained citizens arbitrarily. At year's end the TFDP documented 37 cases of illegal arrest and detention involving 88 victims, a considerable decline from the 128 cases CHR recorded in 2004. Role of the Police and Security Apparatus The Department of National Defence directs the AFP, which has primary responsibility for counterterrorism and counterinsurgency operations. The Department of Interior and Local Government controls the PNP, which is responsible for enforcement of law and order; however, governors, mayors, and other local officials have considerable influence. The 115 thousand-member PNP has deep-rooted institutional deficiencies dating back to the 1990-91 reorganization that changed it from a constabulary force within the AFP to a national police force. The PNP suffered from a widely-held and accurate public perception that it was corrupt, and the PNP's Internal Affairs Service remained largely ineffective. Members of the PNP were regularly accused of torture, of soliciting bribes, and of other illegal acts committed with impunity. However, efforts were underway to reform the institution. From January to December, the PNP Directorate for Investigation and Detective Management dismissed 197 policemen. Of the 4,670 administrative cases filed against PNP officers and personnel, 2,344 were resolved, 1,288 remained under preliminary investigation, and 1,038 underwent summary hearings. Arrest and Detention Detainees have the right to a judicial review of the legality of their detention and, except for offendes punishable by a life sentence or death (when evidence is strong), the right to bail; however, only 6.5 percent of detainees were able to post bail. Authorities are required to file charges within 12 to 36 hours of arrests made without warrants, with the time given to file charges increasing with the seriousness of the crime. Lengthy pre-trial detention remained a problem (see section 1.e.), but during the 26 months from June 2003 to August 31, the courts released 2,087 detainees who had been in jail longer than the maximum prison term they would have served if convicted. Government Corruption and Transparency A justifiable public perception of corruption in the judicial, executive, and legislative branches remained high. Both the government and the private sector have established a number of anticorruption bodies including an Ombudsman's Office and an anticorruption court. Cases were opened against high-ranking military officers and against officials in the Department of Public Works and Highways, the Bureau of Customs, and the Department of Transportation and Communication. Nonetheless, the perception remains of a "very high" and "steady" level of corruption in public agencies. The law provides for a right to information on matters of public concern, and the Supreme Court has affirmed this provision. However, denial of such information often occurred when the information related to an anomaly or irregularity in government transactions. Much government information was not available electronically and was difficult to retrieve. Women Violence against women, both in and out of the home, remained a serious problem. The 2004 Anti-Violence Against Women and their Children Act criminalized physical, sexual, and psychological harm or abuse to women and their children committed by their spouses or partners. During the year the PNP reported 818 cases under the new law and 2,015 other cases of wife battering and physical injuries under older laws. This number likely underreported significantly the level of violence against women in the country. A 2003 survey by the NGO Social Weather Station found that 12 percent of men admitted having physically harmed women (39 percent of these respondents indicated violence against their wife, 15 percent against their girlfriend, and 4 percent against their partner). Women in the same survey cited the following reasons for not reporting violence: embarrassment; not knowing how or to whom to report; belief that nothing would be done; and believing it was too small of a thing. The PNP and DSWD both maintained women's help desks to assist victims of violence against women and to encourage the reporting of crimes. With the assistance of NGOs, officers received gender sensitivity training to deal with victims of sexual crimes and domestic violence. Approximately 7 to 8 percent of PNP officers were women. Rape continued to be a serious problem. During the year the PNP reported 784 rape cases. There were reports of rape and sexual abuse of women in police or protective custody--often women from marginalized groups, such as suspected prostitutes, drug users, and lower income individuals arrested for minor crimes. The law provides for the death penalty in cases of rape, and as of year's end there were a total of 968 prison inmates who had been sentenced to death for this crime. Spousal rape and abuse are also illegal, but enforcement was ineffective. Some NGOs argued that courts' imposition of death sentences for rape convictions inhibited some victims, particularly relatives of the accused, from pressing charges. Further documentary evidence states:16 On March 8, 2004, the Philippine government passed the Anti-Violence against Women and Children Act, which, ...extends protection to women outside the home. It also covers all kinds of violence against women, be it harassment or physical abuse. Protection is guaranteed in all kinds of relationships, including among lesbians. ...the law lists acts that were originally considered "harmless" and branded them illegal. Examples are stalking and other forms of harassment. The act also provided for the issuance of protection orders, although it was observed that women who are poor or live in remove areas would experience difficulties in accessing municipal and city centres where such orders can be obtained. The panel finds that when analyzing the issue of state protection in the context of the documentary evidence, the claimant has failed to rebut the presumption of state protection with clear and convincing evidence. The panel assigns far greater probative value to the documentary evidence than to the testimony of the claimant with regard to the availability of state protection in the Philippines. In this regard, the panel takes guidance from the case law in Edomsky,17 which stands for the proposition that the Board can prefer the objective documentary evidence to the subjective testimony of the claimants. The documentary evidence cited herein is drawn from a variety of reliable and independent sources, none of whom can have any vested interest in whether or not the claimants are determined to be Convention refugees. To that extent they are free of bias. After careful consideration of all the evidence and because of the reasons set out above, the panel finds that the claimant does not have a well-founded fear of persecution by reason of any of the enumerated grounds. Given that the panel finds that adequate state protection would be available to the claimant in the Philippines, the panel therefore finds that the claimant is not a Convention refugee. Having found that the claimant is not a Convention refugee, the panel also considered the applicability of sections 97(1)(a) and 97(1)(b) of the Act, and finds that no evidence was adduced that would support a finding that the claimant faces a danger of torture. With respect to a risk to her life or a risk of cruel and unusual treatment or punishment, the panel's finding with respect to the availability of state protection applies to this ground as well. Having found that there is adequate state protection, the claim fails under section 97 of the Act. CONCLUSION For these reasons, the Refugee Protection Division determines that the claimant is not a Convention refugee nor is she a person in need of protection and therefore, rejects her claim for refugee protection. "M. Freilich" M. Freilich DATED at Toronto this 20th day of June, 2007. REFUGEE PROTECTION DIVISION / DOMESTIC VIOLENCE / VIOLENCE AGAINST WOMEN / GUIDELINES / ABDUCTION / CHILDREN / IN-LAWS / WANT OF PROSECUTION / PRODUCTION OF DOCUMENTS / STATE PROTECTION / FEMALE / NEGATIVE / PHILIPPINES 1 Exhibit R/A/2 - certified true copy of the claimant's Philippine passport. 2 Immigration and Refugee Protection Act, S.C. 2001, c.27. 3 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to Section 159 (1)(h) of the Immigration and Refugee Protection Act. 4 Xue, Jian Fei v. M.C.I. (F.C.T.D., no. IMM-4477-99), Rothstein, October 23, 2000. 5 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). 6 Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 7 Milev, Dane. 8 Manorath, Rahonie v. M.C.I. (F.C.T.D., no. IMM-2369-94), Cullen, January 26, 1995. 9 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 10 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 1t 724-726. 11 Ibid., at 724. 12 Exhibit C-10 Item 2 13 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 14 Exhibit C-7, item 2. 15 Exhibit R/A-1, Section 2.1.1 U. S. Department of State Country Report on Hunan Rights Practices, March 8 2006. 16 Exhibit R/A/1 - Item 5.4.1 REFINFO Report PHL42572.E June 14 2004 17 Edomsky, Roman v. M.C.I. (F.C., no. IMM-2591-97). Blais, September 16, 1998. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (July 2006) Disponible en français RPD File No. /Nº dossier de la SPR : TA6-06490 1