MB8-12796

RAD File No. / No de dossier de la SAR : MB8-12796 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision December 31, 2020 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal Me Gisela Barraza Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Mexico. She alleges that she was the victim of physical and mental abuse from her ex-husband at various intervals from XXXX 2007 to XXXX 2007, and from XXXX 2014 to XXXX 2017. She states that she left the marital home in XXXX 2017 and moved in with a friend near the city of Zapopan, but since her ex-husband kept looking for her, she decided to leave the country for Canada, which she did in XXXX 2017. [2] On May 9, 2018, the Refugee Protection Division (RPD) rejected the appellant's refugee protection claim. It found that, despite certain omissions in her Basis of Claim Form (BOC Form), the appellant's allegations that she had had a factious and violent relationship with an abusive partner were credible. The RPD also found it credible that, despite the appellant's departure from Mexico, this man still had an interest in the appellant as he contacted and visited her family that remained in the country. However, the RPD was of the opinion that the appellant failed to demonstrate through clear and convincing evidence that she could not avail herself of state protection in Mexico. [3] The appellant is appealing the RPD's decision, arguing that it erred in its assessment of state protection and that its conclusion in this regard is unreasonable. [4] I am of the opinion that the determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred in its conclusion that the appellant failed to demonstrate, through clear and convincing evidence, that the state is unable to provide her with adequate protection. DETERMINATION OF THE APPEAL [5] After conducting a full and independent analysis of the evidence presented, I am of the opinion that the RPD's decision is erroneous. The RAD allows the appeal, sets aside the RPD's determination and substitutes a determination that, in its opinion, should have been made. [6] The RAD determines that the appellant is a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees (the Convention). NEW EVIDENCE AND ORAL HEARING [7] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] In this case, the appellant submitted her written statement as new evidence under subsection 110(4) of the IRPA. Yet it appears from consulting the RPD record that this statement was in fact in evidence before it. It is the amended written account filed before it on XXXX XXXX XXXX 2018, as Exhibit D-7.1 Consequently, it is not new evidence since it is part of the record. [9] Since there is no new evidence, there is no cause for the RAD to hold an oral hearing under subsection 110(6) of the IRPA. ROLE OF THE REFUGEE APPEAL DIVISION [10] The RAD must apply the correctness standard, in accordance with the Federal Court of Appeal's decision in Huruglica.2 The exception to this rule is where the RPD enjoys a meaningful advantage with respect to the credibility assessment.3 I am of the opinion that the RPD did not enjoy a meaningful advantage in this case. I will therefore conduct my own analysis of the record, which includes listening to the recording of the hearing, applying the correctness standard of review, in order to determine whether the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL [11] In reviewing this appeal, I considered the Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution.4 State protection [12] The appellant argues that the RPD's analysis in respect of her was unreasonable and perverse because it notes at paragraph 19 of its decision that, after she had voluntarily fled from her ex-husband, she got back together with him, which shows that it is more likely than not that she would avoid falling into the same trap in the future. The appellant also argues that by indicating that the appellant had voluntarily resumed her relationship with her ex-husband, the RPD overlooked the XXXX state of victims of domestic violence and the fact that her ex-husband is manipulative and still wants to see her. [13] I am sensitive to the appellant's submissions; it is true that since she was a victim of domestic violence, including mental abuse, for several years, it cannot be stated that, on a balance of probabilities, she would not go back to her ex-husband. The RPD erred in this regard, and I will not take this conclusion into account in my analysis. That said, this wording does not mean that the RPD erred in its decision when it found that the appellant failed to demonstrate through clear and convincing evidence that the Mexican state would not provide her with adequate protection if she needed it or if her ex-husband went after her again. [14] Case law has established that, except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting its citizens. This presumption can be rebutted by "clear and convincing" evidence of the state's inability to protect.5 In this case, nothing in the evidence indicates that there is a complete breakdown of the state apparatus in Mexico, and this was not alleged before the RPD or on appeal. [15] It has also been established that a refugee protection claimant must turn to the state of which he or she is a citizen to ask for its protection in such cases where protection could reasonably be provided.6 Likewise, the adequacy of state protection cannot rest on a refugee protection claimant's subjective fear.7 Consequently, the issue of state protection goes to the objective portion of the test of fear of persecution, and simply asserting a subjective belief that state protection is not available is not enough.8 [16] In this case, however, the appellant did not turn to the Mexican authorities to seek protection in connection with the violence she faced at the hands of her ex-husband due to her lack of confidence in the system. As a result, the RPD undertook an analysis of whether it was objectively reasonable for the appellant, in the particular circumstances of the case, not to do so. I am of the opinion that this is what had to be done. [17] The RPD considered the nature of the human rights violations against her, namely domestic violence, the fact that the abuse was from her ex-husband, the reasons why she did not make efforts to seek protection from the authorities and protection offered to victims of domestic violence, as well as the available documentary evidence, in order to assess whether adequate state protection could have reasonably been provided by the Mexican authorities in response to the appellant's specific situation.9 It appears to me that this was the approach to take and that the RPD did not err in proceeding this way. Review of the documentary evidence in light of the appellant's personal profile [18] In order to draw its conclusion that the appellant failed to rebut, through clear and convincing evidence, the presumption that the Mexican state would be able to provide her with adequate protection should she require it in the future, the RPD considered both the documentary evidence and the appellant's personal circumstances. [19] I acknowledge, as outlined in the Chairperson's Guideline 4, that a claimant who is a victim of domestic violence may have difficulty in substantiating her claim with any "statistical data" on the incidence of sexual violence in her country, as this evidence is sometimes non-existent or hard to obtain. In this case, the documentary evidence on state protection available to women who are victims of domestic violence is extensively documented and the RPD examined it thoroughly and in detail. What is more, it completed its evaluation in light of the appellant's personal situation. Contrary to the situation in King,10 which the appellant refers to in her memorandum, the RPD did not review just part of the evidence and did not rely only on secondary documentary evidence. Rather, it should be noted that the RPD extensively reviewed all of the evidence, including both favourable and unfavourable elements for the appellant. The appellant also notes, upon reading the decision, that it seems that the RPD gives more reasons for accepting her position than reasons for arguing against her. It is wrong to allege that the RPD argued against the appellant. That is not its role. It should be noted that the burden or onus is on the refugee protection claimant, not the RPD, to prove the lack of state protection.11 [20] The appellant alleges that the RPD acknowledged that, despite a significant legislative framework and the authorities' efforts, gender-based violence remains a significant and widespread problem throughout the country and that this issue is likely underestimated, partly because many victims fail to report violence out of fear, lack of confidence in the system, or inadequate knowledge of their rights and the mechanisms available to protect them. In my opinion, the fact that the RPD acknowledged that there is a problem with gender-based violence and that it is underestimated is not an error, but simply an observation based on the documentary evidence, an observation the appellant does not contradict. In this context, the RPD cannot be reasonably criticized for taking it into consideration in its decision. [21] Similarly, the appellant criticizes the RPD for referring, at paragraph 19 of its decision, to her financial status, her education level and her employment, as it seems to suggest that she is not so much a victim as she is a poor and uneducated woman, which is inappropriate since victims of domestic violence come from all social classes and all education levels. With all due respect to the appellant, I do not have the same interpretation of that paragraph. I see no indication from the RPD that only poor and uneducated women are victims of domestic violence. It should be noted that the RPD accepted that the appellant, based on her profile, was the victim of domestic violence at the hands of her ex-husband. All the RPD did at paragraph 19 of its decision was take the appellant's personal profile into account. I do not see how this could be an error. [22] The appellant alleges that the RPD's analysis was not based on the documentary evidence and that the RPD was unable to identify a single source to capture the full scope of state protection. Since the issue of state protection offered by the Mexican authorities to women who are victims of domestic violence is addressed in several documents in the National Documentation Package (NDP) on Mexico, I am of the opinion that it is in fact preferable for the RPD not to rely on a single source. In my opinion, the RPD exercised caution in choosing to analyze several documents. This criticism is unfounded. [23] The appellant alleges that one of the weaknesses of Mexico's protection system is that the documentary evidence available is sometimes aimed only at one level of government, one region and one time. She offers as an example the fact that the RPD agreed the Mexican law, the "Ley General de Acceso de las Mujeres a una Vida Libre de Violencia" has its share of challenges with respect to harmonization across various levels of government and the effectiveness of mechanisms to implement and oversee it. [24] I acknowledge that while there is ample documentary evidence regarding state protection in Mexico for women who are victims of domestic violence, it is not homogeneous. It seems appropriate to me that, in this situation, the RPD considered the obstacles in the protection available to victims of domestic violence, including in the enforcement of this specific law. The RPD carefully reviewed the documents and reports from various sources regarding gender-based and domestic violence in Mexico, which are included in the NDP on Mexico in evidence on the record, in particular tabs 2.1, 5.2, 5.3, 5.8, 5.10 and 7.10. It was only following the analysis of these documents that the RPD drew its conclusions. [25] The RPD accepted that the judicial statistics show that of the 1,555 sentences by the lower courts involving domestic violence, 70 percent of these resulted in a guilty verdict, while less than 3 percent resulted in an acquittal.12 If problems persist in the administration of protection orders, which are acts of protection and urgent enforcement of a preventative nature, their timeframe for issuance went from 24 hours to 48 hours and more than a hundred thousand of these orders are issued every year by the Mexican courts.13 Like the RPD, I note that many state institutions that are part of Mexico's judicial process are mandated to assist women who are victims of domestic violence. They include the Special Prosecutor's Office for Violence against Women and Trafficking in Persons in the Attorney General's Office, which has 40 prosecutors dedicated to violence against women.14 This Special Prosecutor's Office is responsible for investigating and prosecuting crimes of violence against women and human trafficking, as well as for providing victims with a decent, safe and secure place to live temporarily if necessary.15 [26] Furthermore, I also note that the evidence does indeed establish that the best option for women victims of domestic violence is to reach out to a Domestic Violence Support Centre, Centro de Apoyo a la Violencia Intrafamiliar (CAVI), where the victim is given support.16 CAVI are centres of the Special Prosecutor's Office for Violence Against Women that were created to help women who report their aggressor with legal, psychological and medical services. Moreover, to improve the access of female survivors to legal support, 31 Justice Centres for Women (Centros de Justicia para las Mujeres) have to date been established across the country in a federal-statal collaboration. These centres are interinstitutional local state agencies that offer legal, medical and psychological assistance and redirect women to emergency shelters in case of necessity.17 The appellant states that there is only one shelter per state and that only half of them fall under the jurisdiction of the public authorities. What the evidence reports and what the RPD referred to is that there are actually about 72 shelters in the country, at least one per state, 34 of which fall under the jurisdiction of the public authorities. [27] In short, I am of the opinion that the RPD considered the documentary evidence before it to conclude that, beyond the legal framework, there are authorities and institutions in Mexico that offer support to women who are victims of domestic violence. [28] That said, the RPD also acknowledged that, in spite of these resources, access to protection services is known to be difficult across judicial institutions such as the police and CAVI, as well as health facilities designated as being the first and second levels of the protection system. [29] However, the Federal Court has repeatedly held that the assessment of availability of state protection should be focused on the operational effectiveness of a police force or law enforcement in the country in question.18 [30] It is precisely because of the scope of the difficulties in accessing protection services and their effectiveness, as revealed by the recent documentary evidence that arose after the RPD's decision, that I am of the view that the protection the Mexican state could provide the appellant if she returned to Mexico is inadequate. [31] I considered the updated NDP on Mexico of September 30, 2020, including Tab 5.10.19 [32] The new Tab 5.10 notes that cases of violence against women reported to the authorities have increased in Mexico, and it also reports the challenges observed by the RPD. In addition, it reports that the state agents responsible for the practical implementation of the law in Mexico regarding domestic violence do not have a gender perspective, are not committed to women or are openly misogynistic. [33] In my opinion, even more significant is that fact that it reports that none of the protocols and laws related to violence against women in Mexico have been effective.20 I am of the view that this is a harsh assessment of the effectiveness of laws against domestic violence in Mexico that I cannot overlook. Equally important is the note that the authorities failed to investigate domestic violence and perpetrators were rarely brought to justice. [34] I also note that the same evidence shows that, according to the last four National Surveys on Victimization and Perception of Public Security, only 7% of the crimes against women were investigated and, later, only between 5% and 7% percent of the criminals were taken before a judge.21 [35] What is more, it appears that women are discriminated against by the same public institutions included in the care mechanism provided in the General Law and to which they apply for protection, treatment and reparation of the violence they experience. It has been reported that civil society organizations that service women victims of domestic violence all point out that judiciary institutions are the least efficient of all those who work on the issue of domestic violence in Mexico. It states that accessing support and protection services leads to institutional violence toward women already experiencing domestic violence, because public officers lack empathy and do not apply the law, thus becoming an obstacle to the victims. [36] In short, my own analysis of the recent documentary evidence has revealed that, given the extent of the challenges in accessing protection services and their effectiveness for women who are victims of domestic violence, if the appellant were to return to Mexico today, she could not obtain adequate protection from the police or law enforcement in her country due to her particular circumstances where she spent years as a victim of domestic violence at the hands of a man from whom she is separated, but who still has an interest in her despite her departure from Mexico. CONCLUSION [37] For these reasons, the RAD allows the appeal and sets aside the RPD's determination. The RAD determines that the appellant, XXXX XXXX XXXX XXXX, is a Convention refugee, pursuant to subsection 111(1) of the IRPA. [38] I allow the refugee protection claim. (Signed) Love Saint-Fleur Me Love Saint-Fleur December 31, 2020 Date IRB translation Original language: French 1 SPR-2, Refugee Protection Division (RPD) record, Consolidated List of Documents, Exhibit D-7: Amended statement. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018, 2018 FC 1145. 4 Immigration and Refugee Board of Canada (IRB). Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Guideline issued by the Board pursuant to subsection 65(3) of the Immigration Act. Effective November 13, 1996. 5 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pp. 724-726. 6 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 724. 7 Martinez v. Canada (M.C.I.) (F.C., No. IMM-7329-04), Phelan, July 29, 2005, 2005 FC 1050. 8 Canada (M.C.I.) v. Olah (F.C.T.D., No. IMM-2763-01), McKeown, May 24, 2002, 2002 FCT 595; Camacho v. Canada (M.C.I.) (F.C., No. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830; Kambiri, Nandeviara v. Canada (M.C.I.) (F.C., No. IMM-9979-12), Noël, September 4, 2013, 2013 FC 930. 9 Gonzalez Torres v. Canada (M.C.I.) (F.C., No. IMM-1351-09), Zinn, March 1, 2010, 2010 FC 234, at paras. 37-42. 10 King v. Canada (Minister of Citizenship and Immigration), 2005 FC 774. 11 Segura Cortes v. Canada (M.C.I.) (F.C., No. IMM-951-06), von Finckenstein, December 12, 2006, 2006 FC 1487; see also Rodrigues Bexiga v. Canada (M.C.I.) (F.C., No. IMM-3449-10), O'Keefe, June 13, 2011, 2011 FC 676, where the Court stated the following at paragraph 30: "The onus is on a refugee claimant to rebut the presumption of state protection, not on the Board to provide evidence of adequate state protection." 12 SPR-1, RPD record, National Documentation Package (NDP) on Mexico (August 31, 201), Tab 5.10: Domestic violence, including legislation; protection and support services offered to victims by the state and civil society, including Mexico City (2015-July 2017). IRB. August 11, 2017. MEX105952.E. 13 SAR-1, NDP on Mexico (September 30, 2020), Tab 5.10: Domestic violence, including treatment of survivors of domestic violence; legislation; protection and support services available, including psychological services, particularly in Mexico City and Mérida (2017-September 2020), IRB, September 11, 2020, MEX200311.E. 14 SAR-1, NDP on Mexico (September 30, 2020), Tab 2.1: Mexico. Country Reports on Human Rights Practices for 2019. United States. Department of State. March 11, 2020. 15 Supra, endnote 13. 16 Ibid. 17 SAR-1, NDP on Mexico (September 30, 2020), Tab 5.2: Mexico. Social Institutions and Gender Index 2019. Organisation for Economic Co-operation and Development. December 7, 2018. 18 Ruszo v. Canada (Citizenship and Immigration), 2018 FC 943, para. 27. Tanarki, Imre v. Canada (Citizenship and Immigration), 2019 C 1337, para. 45. 19 Supra, endnote 13. A notice was sent to the appellant and her legal counsel indicating that the updated package, including this tab, would be taken into consideration and that more time would be given-until November 13, 2020-to make submissions. When the time limit expired, the RAD had not received additional submissions. 20 Supra, endnote 13. 21 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-12796 RAD.25.02 (January 2020) Disponible en français 7 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 2020) Disponible en français