Toronto, Ontario, March 8th, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
IRMA ELIZABETH CASTANEDA COVARRUBIAS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] At the time of the Applicant's presentation of her claim for protection before the Refugee Protection Division ("RPD") the Applicant was 26 years old. The substance of her claim is that, from the age of seven, she suffered, emotional, physical and sexual abuse at the hands of her father, including rapes which began when she was eighteen. The Applicant's evidence with respect to the abuse she suffered was accepted by the RPD.
[2] With respect to the physical abuse she suffered, the Applicant twice went to the police, but on both occasions the police refused to take a report. The Applicant did not report the rapes to the police.
[3] In its decision, the RPD made the following critical findings:
However, the determinative issue is the availability of adequate state protection for the claimant in Mexico today. A claimant is expected to make diligent efforts to seek state protection in her country of origin prior to seeking asylum abroad. [...] The claimant never reported any sexual assault or rape to the authorities and neither did the claimant's mother who had been aware of the incest since early 2000. I find that the claimant to report in 1997 and 1998, do not show a diligent effort on the part of the claimant to seek state protection as she failed to provide the authorities with the extent of the abuse she was suffering. She did not report the incest and sexual abuse of her father at any time although it continued until mid-2003 when the claimant travelled to Canada for the third time.
(Decision, pp. 4-5)
[4] In the decision under review, the RPD states that the Chairperson's Gender Guidelines were taken into consideration. However, I find that the reasoning of the RPD with respect to the Applicant's failure to report her father's sexual assaults does not conform to the expectations created by the Guidelines. The Guidelines require that sensitive consideration be given to the evidence of sexual assault victims in order to understand why certain actions were either taken or not taken.
[5] In the present case, it is readily apparent that the RPD found it difficult to understand why the Applicant did not report the rapes by her father. In her evidence, the Applicant clearly stated that, the fact that she was rebuffed by the police on two occasions had an effect on her willingness to report the sexual assaults. The Applicant explained that she was embarrassed to do so, and did not want the authorities to know about her father's conduct (Tribunal Record, pp. 207-210).
[6] I find that a sensitive application of the Guidelines to the Applicant's evidence should have resulted in an acknowledgement of the reasons given, and a rationale being stated as to why the reasons could not be accepted as valid. No such analysis appears in the decision under review.
[7] As a result, I find that the RPD's decision is patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination on the following direction: on the redetermination, the facts set out on page three of the RPD's decision presently under review are to be accepted as true, but this does not preclude the RPD on the redetermination from making findings on other issues.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2090-05
STYLE OF CAUSE: IRMA ELIZABETH CASTANEDA COVARRUBIAS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 7, 2006
REASONS FOR ORDER: CAMPBELL J.
AND ORDER
APPEARANCES:
Lorne Waldman
Gordon Lee
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.