TB7-03698

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 File No. / N° de dossier de la SAR : TB7-03698 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 28, 2017 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Wazana Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of the Republic of Ecuador (Ecuador), is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination. The Appellant submits new evidence in support of her appeal and requests an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. The RAD dismisses the appeal. Background [3] The Appellant alleges that at the age of XXXX she was a successful business owner when she met XXXX. Their relationship developed over the following months. In 1994 the Appellant and XXXX began to live together. The Appellant supported XXXX financially throughout, what proved to be, an unstable relationship. [4] The Appellant married XXXX in XXXX 2011. The Appellant became the victim of physical, emotional and sexual violence at the hands of XXXX. A number of times she made a complaint to the police and the police banned XXXX from entering the Appellant's home. On each occasion the Appellant allowed XXXX to return. She eventually feared that XXXX would kill her. [5] The Appellant arrived in Canada on XXXX XXXX XXXX 2016 and made a claim for refugee protection on December 2, 2016. [6] The Appellant had a refugee determination hearing on January 25, 2017. In a written decision issued on February 3, 2017, the RPD rejected the claim. The RPD found that the Appellant was a credible witness. The RPD found that the Appellant had not rebutted the presumption of adequate state protection in Ecuador. [7] Appeal pleadings were received on March 22, 2017. The Appellant argues that the RPD erred in concluding that she can continue to rely on state protection and misconstrued the findings of the psychological report she provided as evidence. ROLE OF THE RAD [8] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [9] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD's decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present 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. [11] The Appellant submitted the following new evidence: a) The Appellant's Affidavit, dated March 21, 2017:2 b) The Affidavit of XXXX XXXX XXXX XXXX, dated March 3, 2017;3 c) Six, undated and unsigned, notes.4 [12] The RAD is following the guidance in the Federal Court of Appeal (FCA) decision of Singh, 5in determining the admissibility of new evidence under subsection 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). [13] If the proposed new evidence meets the tests set out in the statutory requirements the RAD will then go on to assess the FCA's considerations in Raza6 with the exception of materiality which is to be considered only in relation to s. 110(6) of the IRPA. [14] In the case at hand, the RAD accepts document a), the Appellant's Affidavit, insofar as it explains the reasons for the new evidence. [15] Regarding documents b) and c), although some of the reported events occurred shortly before the Appellant had her hearing before the RPD and other events shortly before the RPD rendered its decision, the Appellant has provided a satisfactory explanation as to why the information was not made available to her until after the RPD made its decision. The RAD, thus, finds that the new evidence satisfied the requirements of section 110(4). [16] The RAD has, therefore, assessed documents b) and c), with regards to relevance and newness. For the following reasons, the RAD gives this evidence little probative value. In document b), the affidavit of XXXX XXXX XXXX XXXX, the Appellant's niece, Ms. XXXX affirms that she and her family have been living in the Appellant's home in XXXX, Ecuador since XXXX 2016. The affiant states that the Appellant's husband attended her home on six occasions, XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX, 2017, and made threats, including a death threat, against the Appellant. The affiant affirms that on XXXX XXXX, 2017, the Appellant's husband left threats on a piece of paper; this piece of paper was not specifically identified among the six notes. The Appellant, in her affidavit, states that her niece informed her that her husband left other threatening notes inside newspapers that had been delivered to home in Ecuador.7 The RAD reasonably assumes that some of the typed, unsigned, notes found in document c) are the notes referred to by the Appellant in her affidavit. [17] Although the husband's actions in sending threats to the Appellant via typed notes is new, threats themselves, including threats of death, are, according to information in the Appellant's Basis of Claim (BOC) narrative8 and in the recording of the hearing, are not new. According to the Appellant's BOC narrative, she began to fear her husband when she learned in 2000 that he had a fierce temper and got angry very quickly. She states that in 2008, at the same time she learned from her friends that XXXX was aggressive and he got into lots of fights, her husband became insulting and abusive towards her and she was very afraid of him. The Appellant states in her BOC narrative that in 2012 she learned that her husband could not obtain a visa to the United States (US) because he had abused a woman in the US and, as a result, he had been arrested. The Appellant provides further details in her BOC narrative of her husband's continued abusive behaviour towards her. In XXXX 2014, her husband was very violent towards her and threatened to destroy her face. In XXXX 2016, the Appellant's husband threatened her with a knife. The Appellant states in her BOC that her husband threatened to kill her while she lived in Ecuador and that she feared if she returned to Ecuador he would kill her. The RAD finds that information contained in documents b) and c) is such as to confirm abusive and threatening behaviour of the Appellant's husband which has been ongoing for well over a decade, evidence which was accepted as credible by the RPD. This evidence does not shed a new light on the Appellant's evidence regarding her husband's behaviour. Oral Hearing [18] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant that is central to the decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. The RAD has given no weight to the new evidence because it provide no new information regarding the behaviour of the agent of persecution. The new evidence, therefore, does not meet the requirements of 110(6). As such, the RAD has no discretion to hold a hearing. ANALYSIS OF THE EVIDENCE State Protection Adequacy of State Protection [19] The RPD found that there was adequate state protection for the Appellant in Ecuador. [20] The RPD based this finding on a number of factors including the Appellant's own evidence that when, on the two separate occasions, she approached the police for protection against her husband, the police responded immediately. In particular, in XXXX 2014, the police escorted the Appellant's home and contacted the Appellant's husband and advised him that he could not return home; the police also provided the Appellant with a notice to post on her door confirming that her husband could not enter the house. In XXXX 2016, when the Appellant's husband became extremely aggressive, she attended the police station to request protection. The police provided the Appellant with documents indicating that her husband could not enter her home and they advised her to change the locks on her door which she did. When XXXX came to her home and demanded to come in, the police responded to the Appellant's subsequent call for help. The police advised XXXX that he could not enter and gave him his personal belongings which the Appellant had packed. [21] The RPD also depended upon well-established jurisprudence such as the case of Villafranca9 which found that where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection. [22] The RPD found that there was no persuasive evidence that the daughter-in-law of the Appellant's husband, who has been the mayor or XXXX since 2014, interfered with the authorities' responses to the Appellant's reports against her husband. The RPD was not persuaded that there would be any interference on the part of the mayor of XXXX if the Appellant needed to seek protection if she returned to Ecuador. [23] The Appellant submits that the RPD erred when it failed to conduct an adequate assessment of what this state protection involves given her particular circumstances. The Appellant submits that it is difficult to conceive of how such protection will prevent her husband from murdering her. The Appellant submits further that the protection may prevent her husband from asserting access to her home but it is clear from the ongoing nature of his threats to her life that her husband's threats are not to be taken lightly. The Appellant refers to her affidavit in which she states that her husband, as evidenced by his threatening letters and the affidavit from her niece offered as new evidence to the RAD, that her husband continues to threaten her. The Appellant submits further that the police orders do not affect her husband and her husband could easily violate the orders and find her on the street and kill her. [24] The Appellant submits that there is nothing to suggest that the mayor of XXXX, the daughter-in-law of the Appellant's husband, would not intervene if XXXX is charged with a serious offense. [25] The Appellant submits that she was too ashamed to report to Ecuadorian authorities that her husband raped her. She submits further that the state cannot provide her with protection from sexual abuse because she would be unwilling to report it due to the shame of being raped. The Appellant depends upon the Chairperson Guidelines10 and the jurisprudence in the case of Hindawi11 to support these submissions. [26] For the following reasons, the RAD is not persuaded by the Appellant's submissions. [27] The RAD has considered independent documentary evidence regarding the situation in Ecuador with respect to protection for abused women. [28] The Department of State report of April 2016 provides the following information: 12 Domestic violence is punishable with penalties ranging from four days to seven years in prison. The law provides penalties for physical violence, psychological violence, and sexual violence. According to the law, a prosecutor must investigate the victim's complaint of domestic abuse before issuing a restraining order. There were reports that in some cases victims waited 10 days or more for a response from the Prosecutor's Office. On August 11, media reports indicated that from August 2014 to March 2015, courts issued only 30 sentences against perpetrators in more than 2,848 cases involving physical violence. According to the law, domestic violence may be punished with a fine for "damages, pain, and suffering" ranging from $354 to $5,310, depending on the severity of the crime. The law also gives family courts the power to remove an abusive spouse from the home if continued cohabitation creates a risk to the victim of abuse. The law requires public hospitals to provide "first reception halls" to handle cases of sexual violence and domestic violence. The specialized halls--under the supervision of the Ministry of Health and staffed by physicians, psychologists, and social workers--offer immediate attention to the victim. The Ministry of Social and Economic Inclusion also provides psychosocial services to victims of sexual and domestic violence through the shelters and other initiatives it funds. Based on 2013 statistics, there were 30 judicial units with 82 judges specialized in domestic violence problems. The judicial units have responsibility for collecting complaints and assisting victims, and have the authority to order arrest warrants for up to 30 days of detention against the aggressor. The units forward serious abuse cases to prosecutors for criminal prosecution. [29] A report from the Organisation for Economic Co-operation and Development states the following: 13 In 2007, 4,405 prison sentences were meted out in cases of domestic violence and, in 2011, 6,807 domestic violence cases were dealt with through the Center for the Protection of Rights, an alternative to the judicial system set up under the Ministry of Economic and Social Inclusion. The Penal Code criminalises rape and provides penalties of up to 12 years in prison. The existence of family ties or relationship is considered to be an aggravating factor in cases of rape or sexual assault, which also criminalises spousal rape, under the family code. Although it is unclear whether Ecuador considers death during or after rape to be considered "femicide," the penalty for rape where death occurs increases from 12 to 16 years' imprisonment. According to the US Department of State, in 2012 the National Police received 2,067 reports of rape and detained 789 individuals. [30] As the RPD noted in its decision, on the occasions where the Appellant sought assistance from the police, the police reacted immediately, by providing her with what the RAD understands were restraining orders. The RAD notes that according to evidence provided by the Appellant for her hearing before the RPD, in 2014 the Appellant made a complaint against her husband to the judge of the Judicial Unit of Violence Against Women and the Family, in XXXX.14 The court first ordered that an investigation be made within eight days of the complaint.15 The court subsequently acknowledged the Appellant's complaint and set protection measures in place for the Appellant which included the following: * prohibiting her husband from attending certain meetings and attending certain places; * prohibiting her husband from approaching the Appellant and harassing or intimidating her or her family members, by himself or through a third party; * extending a never expiring Help Certificate for the Appellant which provides assistance and protection from any National Police agent if and when the Appellant's husband committed acts that inflicted her physical, mental or sexual harm; * issuing a removal order for the Appellant's husband to leave her home; * ensuring that police officers proceed to ensure the compliance with the protection measures ordered in favour of the Appellant and against her husband; * notifying the local Community Police that the Appellant would be registered and have access to an Emergency alarm or Panic Button.16 [31] The RAD appreciates that the Appellant's husband has, more than once, threatened her life, and she fears that he will kill her. However, as the jurisprudence has found, the adequacy of state protection cannot rest on the subjective fear of the claimant. A finding of adequate state protection is premised on an objective assessment that must be made independently of whether the claimant possesses a subjective fear. 17 18 19 The RAD notes that the Appellant provided no evidence nor has she alleged that her husband disobeyed either of the restraining orders made against him. [32] The RAD also notes that the Appellant could immediately rely upon the never expiring Help Certificate to report her husband's recent threats which have caused her mental harm. [33] With regard to the Appellant's submissions regarding possible interference of the mayor of XXXX if the Appellant's actions with the authorities led to serious charges against the Appellant's husband, the RAD finds that the Appellant is speculating and has no persuasive evidence that this would be the case. [34] The RAD understands the Appellant's unwillingness to report an act of rape against her person to the Ecuadorian authorities due to shame. The Appellant's own evidence and the documentary evidence supports her submission in this regard. [35] According to the Appellant's BOC she stated that when her doctor advised her to report the rape to the Ecuadorian police, she did not do so because of the humiliation of a required internal examination by a police doctor.20 According to one of the two psychiatric reports provided by the Appellant for her hearing, the Appellant indicated to the psychiatrist that she did not report any rape by her husband because, aside from the deep sense of shame she felt, the Ecuadorian society is very patriarchal and conservative and women who have been sexually assaulted are often held responsible for the assaults and they do not get the justice or support they need and deserve.21 A recent report from Human Rights Watch22 indicates that there is a high rate of violence against women and girls, including sexual violence. A 2011 government-conducted nationwide survey of almost 19,000 households in all of Ecuador's 24 provinces found that 60 percent of Ecuadoran women respondents had experienced some type of gender-based violence in their lifetimes. According to government estimates based on its analysis of data from the survey, one out of every four women in Ecuador has suffered sexual violence in her lifetime. Of women who reported sexual violence in the survey, 53.3 percent said their partner or ex-partner was the perpetrator, while 46.5 percent reported that the perpetrator was someone other than a partner or ex-partner. The DOS indicates that according to local experts, reporting rapes and other forms of violence continued to be a traumatic process, particularly for female minors. For example, a rape victim must file a complaint at the Public Prosecutor's Office, and the victim must submit to several gynecological evaluations. Many individuals did not report many cases of rape and sexual assault because of the victims' fear of retribution from the perpetrator or social stigma. [36] The Chairperson Guideline indicates that the decision-maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the Appellant finds herself. The Guideline indicates that if a claimant can demonstrate that it would be objectionably unreasonable for her to seek protection from the state, such as being ostracized by the community as a result of being raped, the decision-maker should consider this information. [37] While the Appellant may choose not to report a sexual assault, the RAD finds that this would not preclude the Appellant from reporting physical or psychological abuse to the authorities. As indicated above, in 2016 when the Appellant's doctor advised her to report the rape by her husband, the Appellant chose to report her husband's physical abuse but did not reveal to the police that she had been raped. In this instance the police immediately followed up on the Appellant's report and the Appellant's husband was barred from entering her home. The police also referred the Appellant to a psychologist; she met with the psychologist 15 days after having made her report to the police. [38] With regard to the case of Hindawi¸23 while some the facts are similar to the case at hand, the RAD finds that this authority is distinguishable from significant facts of the Appellant's case. The claimant in the Hindawi case was an Arab Muslim woman and citizen of Israel who claimed refugee protection on the basis of her fear of persecution at the hands of her abusive husband and her risk faced upon return of becoming victim of an "honour killing" by members of her extended family. Similar to the Appellant, Ms. Hindawi's credibility was not at issue and she was found to be suffering from "battered women's syndrome" (BWS). The RPD found that Ms. Hindawi's subjective reluctance in seeking state protection was insufficient to rebut the presumption of state protection. The RPD also found that there was no evidence to suggest that there was a serious possibility of an honour killing should Ms. Hindawi return to Israel. The Court noted that Ms. Hindawi was as a woman who has suffered cycles of abuse, with limited freedom and mobility in her village community resulting from living in an abusive and controlling relationship with her husband. The Court found that the RPD was required to look above and beyond the efforts made by the state to protect its citizens and, because of Ms. Hindawi's particular circumstances, the RPD was to canvass whether it was reasonable for her to seek such protection from the police outside her village. The Court found the RPD's reasoning with regard to the possibility of an honour killing to have been problematic, in light of the evidentiary record which demonstrated that Ms. Hindawi's husband and family members had threatened her with death and reprisals, directly or indirectly. In the case at hand, the Appellant fears that if she returns to Ecuador her husband will kill her. However, the husband's threat to kill the Appellant was evidence the Appellant provided when she made her claim for protection and which the RPD considered when it found adequate state protection was availalbe. In the case at hand, unlike Ms. Hindawi who was reluctant to approach the police, the Appellant did approach the police on two separate occasions and on each occasion the police responded immediately. While the Appellant may not wish to disclose sexual abuse it is open to her to report physical and psychological abuse. In this case the RPD based its finding of adequate state protection on the Appellant's own evidence as well as the independent documentary evidence, not the Appellant's reluctance to seek protection. [39] The RAD, thus, finds that the Appellant has not established that were she to return to Ecuador, protection would not be reasonably forthcoming. As indicated above, the Appellant could immediately rely upon the Help Certificate. The Appellant has provided no evidence as to whether her niece, XXXX XXXX XXXX XXXX, has reported her husband, XXXX, recent threats. Psychiatric Reports [40] For her hearing before the RPD, the Appellant provided a psychiatric report from Dr. XXXX XXXX XXXX, who found that the Appellant suffers from severe posttraumatic stress disorder (PTSD) due to her experiences of severe domestic violence. Dr. XXXX indicates that this syndrome is sometimes referred to as BWS.24 The Appellant provided a psychiatric report from Dr. XXXX XXXX who provided a similar diagnosis of PTSD and BWS.25 [41] The RPD acknowledged the two psychiatric reports. The RPD found that the Appellant was a very capable woman who had been a very successful business woman in Ecuador and had displayed a resolute conviction to deal with her abusive spouse in Ecuador by seeking the advice of her lawyer and approaching authorities to seek and obtain protection, by initiating divorce proceedings against her husband, and taking steps to employ a Power of Attorney to deal with some of her financial matters. The RPD considered the Appellant's psychiatric symptoms which indicate that they will worsen and her risk of suicide will increase if she returns to Ecuador. The RPD found that facilities exist in Ecuador to deal with the Appellant's mental health issues and pointed out that in 2014 the Ecuadorian court specifically ordered that the Appellant receive medical and psychological examinations and a visit with a social worker. [42] The Appellant submits that the RPD failed to consider how state protection would be sufficient to combat her suicidal ideation which was reported by both Dr. XXXX and Dr. XXXX. The Appellant depends upon the case of Danyi,26 involving a removal order, in which the Court found that the Officer did not reasonably consider or adequately assess the fact that removal itself would trigger or cause psychological damage to the applicant. [43] The RAD is not persuaded by the Appellant's submissions. [44] The considerations of the Appellant's psychological state are outside the RAD's jurisdiction when considering state protection. They are best considered under Humanitarian and Compassionate Considerations or, as the case of Danyi, under a Pre-removal Risk Assessment (PRRA) application. Summary [45] Based on a review of the totality of the evidence, the RAD finds that the Appellant has not rebutted the presumption of state protection. DISPOSITION [46] Based on the analysis above, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection, as per section 111(1)(a) of the IRPA. (signed) "Lesley Mason" Lesley Mason June 28, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, pp. 11-13.. 3 Exhibit P-2, Appellant's Record, pp. 14-23; Exhibit P-3, Translations of new evidence, pp. 2-7. 4 Exhibit P-2, Appellant's Record, pp. 25-29; Exhibit P-3, Translations of new evidence, p. 8. 5 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 7 Exhibit P-2, Appellant's Record, pp. 11. 8 Exhibit RPD-1, RPD's Record, pp. 12-38. 9 M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 133. The Federal Court has held that Villafranca is not inconsistent with Ward. See Velarde-Alvarez, Jorge Luis v. S.S.C. (F.C.T.D., no. IMM-194-94), McKeown, February 9, 1995. Reported: Velarde-Alvarez v. Canada (Secretary of State) (1995), 27 Imm. L.R. (2d) 88 (F.C.T.D.); Boston, Edwin v. M.C.I. (F.C., no. IMM-6554-06), Snider, December 4, 2007, 2007 FC 1271. For a contrary view see Garcia, Debora De Araujo v. M.C.I. (F.C., no. IMM-5987-05), Campbell, January 24, 2007, 2007 FC 79. Reported: Garcia v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 385 (F.C.); the Federal Court declined to follow Garcia in Tellez Alvarez, Jaime Alejandro v. M.C.I. (F.C., no. IMM-301-08), Mactavish, August 6, 2008, 2008 FC 933. Moreover, Justice Campbell's view that the presumption of state protection can be rebutted if the claimant produces "some clear and convincing evidence" that the state has failed to effectively respond to requests for protection is inconsistent with the holding of the Federal Court of Appeal in Flores Carrillo which held that a heavier evidentiary onus is required to rebut the presumption. 10 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, 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. 11 Hindawi Manal v. M.C.I. (F.C., no. IMM-4337-14), Shore, May 6, 2015, 2015 FC 589. 12 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Ecuador (May 13, 2016), item 2.1. 13 Exhibit RPD-1, RPD Record, NDP for Ecuador (May 13, 2016), item 5.1. 14 Exhibit RPD-1, RPD's Record, pp. 105-110. 15 Ibid., pp. 112-113. 16 Ibid., pp. 114-140. 17 Martinez, Dunnia Patricia Suarez v. M.C.I. (F.C., no. IMM-7329-04), Phelan, July 29, 2005, 2005 FC 1050. 18 Gallo Farias, Gisela v. M.C.I. (F.C., no. IMM-4020-07), Kelen, May 6, 2008, 2008 FC 578. Psychological and medical evidence is not relevant with respect to the issue of state protection and the issue of whether the fear is objectively well founded. See also, to this effect: Navarro Conseco, Diana Elizabeth v. M.C.I. (F.C., no. IMM-1567-06), Layden-Stevenson, January 24, 2007, 2007 FC 73; Contreras Martinez, Luis Amado v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006, 2006 FC 343. The Federal Court also held in Gallo Farias that the Gender Guidelines are not relevant to the issue of state protection. In Navarro Conseco, the Federal Court held that the Gender Guidelines do not necessarily absolve claimants from seeking the protection of the state. 19 Torales Bolanos, Magaly v. M.C.I. (F.C., no. IMM-2482-10), Russell, March 30, 2011, 2011 FC 388. The Court stated that the adequacy of state protection cannot be assessed on the basis of the claimant's reluctance or failure to seek it. The claimant cannot argue that state protection is inadequate in Mexico because, as a vulnerable woman, she is reluctant to seek it. She may well have subjective fears in this regard, but if the state can, objectively speaking, provide adequate protection for women in her position then she has not rebutted the presumption of state protection. 20 Exhibit RPD-1, RPD's Record, p. 31. 21 Exhibit RPD-1, RPD's Record, Report of Dr. Paul Agarwal, p. 168. 22 Exhibit RPD-1, RPD's Record, NDP for Ecuador (May 13, 2016), item 5.2. 23 Hindawi, supra, footnote 11. 24 Exhibit RPD-1, RPD's Record, Report of Dr. XXXX XXXX XXXXX, pp. 163-165. 25 Ibid., Report of Dr. Parul Agarwal, pp. 166-171. 26 Danyi, Zoltan v.M.P.S.E.P. (F.C., no. IMM-2696-16), Boswell, January 30, 2017, 2017 FC 112. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-03698