Ottawa, Ontario, March 6, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
VICTOR DANIEL AYALA VALLADARES
And
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated February 10, 2006, which found that the applicants were neither Convention refugees nor persons in need of protection.
[2] The applicants request that the Board’s decision be set aside and referred for redetermination by a differently constituted panel of the Board.
Background
[3] The principal applicant, Cinthya Valladeres Low and her son, Victor Valladeres (the minor applicant), are citizens of Mexico. The applicants alleged a fear of persecution at the hands of the principal applicant’s ex-husband, Victor Castellanos. The principal applicant sought refugee status on the basis of her membership in a particular social group, namely, as a woman subjected to domestic abuse. The minor applicant also sought refugee status as a member of a particular social group, namely, as a member of the principal applicant’s family.
[4] The principal applicant’s relationship with Mr. Castellanos began in 1996, when she was 16 years old. During their marriage, she was physically, verbally, and emotionally abused by her husband. The applicant was also violently sexually assaulted by him. He also physically assaulted the minor applicant. In September 2002, the principal applicant moved out of the family home. However, her husband used his access rights to their son in order to harass, threaten, and stalk her. She seriously feared for her own safety, as well as that of her son.
[5] In December 2002, the principal applicant sought help from the government’s Centre for the Attention of Intra-family Violence (CENAVI), and reported her husband’s behaviour. CENAVI staff advised her to seek help from the criminal justice system. The principal applicant claims that CENAVI staff also told her that the police would be unlikely to investigate unless she could show physical signs of having been seriously beaten by her husband. She did not go to the authorities, but sought a divorce from her husband in May 2003.
[6] The principal applicant continued to experience harassment, intimidation and threats from her ex-husband following their divorce. In August 2004, she met with him in order to collect child support payments. During this meeting, he physically assaulted her and uttered death threats against her and her new boyfriend. She then began to make arrangements to leave Mexico. On October 18, 2004, the principal applicant’s ex-husband accompanied her to a notary public’s office and signed an authorization document giving the minor applicant permission to travel to Canada. The applicants arrived in Canada on October 21, 2004.
[7] The applicants sought refugee status in December 2004. The hearing took place on December 2, 2005. The principal applicant was designated the representative of the minor applicant. Prior to the hearing, applicants’ counsel submitted a written motion requesting that reverse order questioning not be applied in the case. Counsel set out the principal applicant’s vulnerability and the problems she would experience while testifying, as a woman who had survived gender-related persecution. The Board refused the motion and proceeded to question her first. By decision dated February 10, 2006, the applicants’ claims were refused on the basis that they had not established an objective fear of persecution, and that they would be able to seek state protection.
Board’s Reasons
[8] The Board found the principal applicant’s testimony to be straightforward and unembellished. However, the Board found it implausible that her ex-husband wanted to possess and control the applicants, since he had signed a document which gave her permission to travel outside Mexico with the minor applicant, for an indefinite period of time. As a result, the Board found it implausible that the applicants had good grounds to fear persecution at the hands of the principal applicant’s ex-husband.
[9] The Board noted the principal applicant’s explanations as to why her ex-husband had signed the consent form. She explained that he was forced to sign the form, since the conditions of their divorce mandated shared custody. She had also assured him that their visit to Canada would be brief. Her ex-husband also stipulated that he should be informed as to where they were travelling and for how long. Counsel submitted that the principal applicant’s explanations should be given much weight, given the timing of the signature of the document. The Board countered this submission by noting that the consent form was signed after the August 2004 incident in which the principal applicant’s ex-husband had threatened her and expressed his desire to control her. In addition, the evidence did not show that her ex-husband was prevented from changing his mind and blocking the authorization that he had given. There was therefore no persuasive evidence that he was legally required to sign the consent form.
[10] The Board was not persuaded by counsel’s submission that her ex-husband may have merely signed a standard form, the implications of which he was unaware. The Board found that he was aware of what he was signing and that the principal applicant’s fear of her ex-husband lacked an objective basis.
[11] The Board also found that the applicants could seek state protection if returned to Mexico and that it was not objectively unreasonable to expect them to make efforts to do so. The Board cited Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, in which the Supreme Court of Canada held that states are presumed to be able to protect their citizens, and that convincing proof of a state’s inability to protect is required to rebut this presumption. The Board found that the principal applicant made no effort to seek state protection, although it noted her claim that her ex-husband’s threats prevented her from doing so, and that his parents were influential in Mexico. The Board noted that even when advised by CENAVI to seek help through the criminal justice system, she failed to do so.
[12] The Board noted documentary evidence and supporting affidavits with respect to the principal applicant’s allegations and psychological state. This evidence indicated that domestic violence was widespread in Mexico and that measures against it needed to be increased. Counsel argued that it was not unreasonable for the principal applicant not to have approached the Mexican state for protection. The Board cited contradictory documentary evidence which indicated that Mexico was a democracy, with laws in place to address domestic violence. The Board found that the principal applicant had recourse to legal counsel during child custody proceedings, and would be able to exercise this option should she return to Mexico.
[13] The Board noted its consideration of the Gender Guidelines, which stated that among the evidentiary matters to be considered in assessing the well-founded nature of a woman’s gender-related fear of persecution would be testimony of past personal incidents where state protection did not materialize. In addition, the Guidelines stated that an assessment must be made as to the adequacy of state protection as it relates to gender persecution. The principal applicant had not sought state protection, and there was no evidence that she had been offered inadequate state protection. Therefore, there was no evidence showing that the applicants had good grounds to fear persecution in Mexico. The Board concluded that the applicants were neither Convention refugees, nor persons in need of protection.
Issues
[14] The applicant submitted the following issues for consideration:
1. Did the Board’s denial of counsel’s motion to question first breach the rules of natural justice?
2. Did the Board err in law through ignoring evidence that supported the applicant’s testimony concerning the consent document, and was the resulting implausibility finding therefore flawed?
3. Did the Board err in failing to clearly analyze and articulate why it did not accept the principal applicant’s explanations as to why her ex-husband signed this consent document?
4. Did the Board err in failing to recognize the cycle of domestic violence?
5. Did the Board err in law in finding that state protection was available to the applicants by ignoring or misapprehending relevant evidence?
[15] I would rephrase the issues as follows:
1. Did the Board err in finding that state protection was available to the applicants?
2. Did the Board err in denying the well-founded nature of the applicants’ fear based upon implausibility findings related to the consent document?
3. Did the Board’s denial of counsel’s motion to question first breach the rules of natural justice?
Applicants’ Submissions
Reverse Order Questioning
[16] The applicants submitted that the Board unduly fettered its discretion and breached the rules of natural justice when it engaged in reverse order questioning (see Jin v. Canada (Minister of Citizenship and Immigration) (2006), 40 Admin. L.R. (4th) 266, 2006 FC 57). In the case at hand, the Board dismissed counsel’s motion to dispense with the application of Guideline 7, citing efficiency concerns. The Board failed to address the reasons given for the motion to dispense with reverse order questioning, including the principal applicant’s vulnerability, and problems in testifying as a victim of gender-related persecution.
Plausibility
[17] The Board doubted the plausibility of the objective basis of the applicants’ claim due to the circumstances surrounding the signing of the consent document. It was submitted that the Board misapprehended and ignored evidence including: an affidavit, a letter from a notary public in Mexico, and the applicants’ testimony, in coming to this finding. This evidence supported the principal applicant’s assertion that she and her ex-husband merely signed a standard form document which stipulated a period of one year or whatever time was necessary, which was a standard element of such documents in Mexico. The Federal Court has established that the Board errs if it considers evidence selectively by failing to refer to evidence that is contrary to its findings and supports the applicant’s claim (see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264).
[18] In Valtchev v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267, 107 A.C.W.S. (3d) 293, the Court held that tribunals must be careful in rendering decisions based upon a lack of plausibility, because refugee claimants come from diverse cultures, and actions which appear implausible from Canadian standards may be plausible when considered from the claimant’s milieu. It was submitted that the Board did not nourish its plausibility findings by reference to documentary evidence (see Fok v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 800 (F.C.A.) (QL)).
[19] The applicants submitted that the Board did not address the principal applicant’s explanations as to why her ex-husband signed the consent form, nor were reasons provided for the rejection of her evidence. She testified that the document was a standard form and that her ex-husband signed it in order to indulge their son. It was submitted that in the context of a divorce, such an explanation was plausible. She also testified that her ex-husband signed the form on the basis of many unwritten conditions, including where they would be going and the duration of the trip. She never testified that he was forced to sign the form, or that he had to do so in order to comply with the conditions of their divorce.
[20] The reasoning process of a decision-maker must be set out and must reflect consideration of the main factors in a case (see Via Rail Canada v. National Transportation Agency, [2001] 2 F.C. 25, (2000) 193 D.L.R. (4th) 357 (C.A.)). The Federal Court of Appeal has held that plausibility findings must be based upon reasonably drawn inferences, not speculation (see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.)). It was submitted that in finding that the principal applicant’s ex-husband likely had the ability to rescind his consent, given his shared custody of the minor applicant, the Board speculated as to what he could have done under Mexican family law. It was submitted that there was no documentary authority referred to in support of the speculation, nor was it put to the principal applicant in order for her to respond.
Cycle of Domestic Violence
[21] The applicants submitted that the Board erred in misunderstanding the cycle of domestic violence. In Griffith v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240, 904 A.C.W.S. (3d) 118, the Court held that the Board must give specific reasons for doubting the credibility of an applicant who alleges to have suffered domestic abuse. In Griffith, the Court relied upon the Supreme Court of Canada’s reasoning in R. v. Lavallee, [1990] 1 S.C.R. 852, in finding that the special knowledge needed to properly judge a case involving domestic violence could be acquired from expert testimony or sociological sources.
[22] The applicants submitted that the Board’s boilerplate reference to the Gender Guidelines did not indicate that it had assessed their situation with the required sensitivity (see Keleta v. Canada (Minister of Citizenship and Immigration) (2005), 49 Imm. L.R. (3d) 69, 2005 FC 56). It was submitted that the Board did not address the applicant’s testimony that: (1) she was scared that her husband would seek retribution against her if he found out that she had contacted the authorities; (2) her husband had threatened her if she did not sign a pardon document lifting reporting conditions upon him due to his failure to pay child support; (3) CENAVI had advised her that she would have to be seriously injured for the police to investigate her complaint and that upon this advice, she believed that the police would not help her. It was submitted that these factors were classic indicia of abusive relationships.
[23] The applicants submitted that the Board’s comments at the hearing support the argument that it misunderstood the nature of domestic violence. At one point, the Board described the principal applicant’s separation from her ex-husband as pleasant. Later, the Board interpreted a comment made by the principal applicant’s ex-husband regarding the unsafe nature of her car, as an expression of concern made during a pleasant conversation. However, she had made it clear that she felt threatened by the remark. The applicants submitted that the Board did not consider testimony or expert evidence regarding the principal applicant being stalked by her ex-husband. Finally, the Board did not address the fact that the applicant now had a baby, which the principal applicant testified would enrage her husband, should she return. It was submitted that the definition of persecution was forward-looking, and that this factor should have been addressed by the Board.
State Protection
[24] The applicants submitted that the Board ignored relevant evidence that corroborated the principal applicant’s testimony concerning the information about state protection that she received from CENAVI. The affidavit of Madeline Oquendo provided evidence that CENAVI referred abused women to the judicial system, and that their cases would only be seen to have merit should the woman be able to demonstrate serious physical harm. This evidence corroborated the principal applicant’s testimony that CENAVI referred her to the police, but indicated that the authorities would only find merit in her case if she showed evidence of serious physical abuse. It was submitted that the Board also ignored her testimony that she believed that the Mexican police would be ineffective in protecting her because they were corrupt. The applicants submitted that the Board’s failure to mention affidavit evidence which contradicted its finding on state protection, showed that it ignored evidence (see Cepeda-Gutierrez above).
[25] The applicants submitted that the Board failed to address several other documents regarding this issue. It was submitted that the Board selectively relied upon evidence to support its finding of state protection, while ignoring evidence that there was no effective state protection. It was submitted that the documentary evidence relied upon by the Board stated that legislation regarding violence against women was insufficient, that there was still a reluctance to punish offenders, and that reconciliation with abusive partners was often suggested by the authorities.
[26] The applicants submitted that the Board’s finding on the issue of state protection was unreasonable, as it ignored relevant evidence. It was submitted that the issue of state protection was reviewable on the standard of reasonableness (see Ramirez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1413). In Ward above, the Supreme Court of Canada held that only in situations in which state protection might reasonably have been forthcoming would a claimant’s failure to approach the state for protection defeat his claim. It was submitted that in deciding the issue of state protection, the Board must consider whether protection was effective, and whether the laws in place to counter domestic abuse were applied (see Bobrik v. Canada (Minister of Citizenship and Immigration) (1994) 85 F.T.R. 13, 50 A.C.W.S. (3d) 850).
[27] The Board found that the applicants failed to seek state protection. It was submitted that the Board misinterpreted the principal applicant’s testimony and deviated from the legal standard which stated that she need not put her life at risk by attempting to seek state protection where it was ineffective. The Board failed to appreciate her testimony that CENAVI indicated that in order for the police to investigate, she would have to have strong evidence of physical abuse. It was submitted that this error, when assessed in light of documentary evidence speaking to the ineffectiveness of state protection, rendered the Board’s state protection finding unreasonable. The applicants submitted that the Board’s unsupported assumption that the principal applicant had recourse to legal counsel during child custody proceedings implied that a family lawyer could ensure that the police would protect her, was unreasonable.
[28] The applicants noted that while the Board relied on certain documentary evidence which supported its finding of adequate state protection, there was a significant amount of documentary evidence indicating that the state response to domestic violence in Mexico was ineffective. The applicant submitted that the Board’s finding was patently unreasonable, as it did not address such documents.
Respondent’s Submissions
Reverse Order Questioning
[29] The respondent submitted that the applicants failed to establish that the proceeding did not comply with natural justice. The affidavit filed in support of their motion to vary the order of questioning did not state any reasons for deviating from Guideline 7 procedure, and did not mention that the principal applicant might be prejudiced by the usual order of questioning. It was therefore open to the Board to find that there were no exceptional circumstances warranting deviation from the usual procedure (see Kamiak v. Canada (Minister of Citizenship and Immigration) (2005), 145 A.C.W.S. (3d) 131, 2005 FC 1655).
[30] The respondent noted that in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 168, 2006 FC 16, , the Court found that Guideline 7 did not adversely affect the Board’s role in refugee determination proceedings. In addition, in Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107, 2006 FC 461, the Court found that the Board’s procedure did not require the right to an examination-in-chief, but rather required that the hearing be conducted fairly. The respondent noted that there were no allegations in the applicant’s affidavit of unfairness in the hearing.
Standard of Review, Onus upon the Applicants
[31] The respondent submitted that the Court should not intervene unless the Board based its decision upon an erroneous finding of fact, made in a perverse or capricious manner, or without regard to the material before it. It was submitted that the applicants must support their claim with credible evidence. It was submitted that the applicants failed to discharge this onus, as their evidence was implausible, and adequate state protection was available in Mexico (see Ndbombele v. Canada (Minister of Citizenship and Immigration) (2001), 110 A.C.W.S. (3d) 154; see Ward above). It was therefore open to the Board to find that the applicants did not have good grounds for fearing persecution. It was submitted that the Board’s reasons, when read as a whole, demonstrated that the facts of the claim were understood and that the evidence in support of the claim was insufficient to support a positive determination (see Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81, 40 A.C.W.S. (3d) 947).
Plausibility
[32] The respondent submitted that as the primary finder of fact, the Board was entitled to reject even uncontradicted evidence, so long as it was not consistent with the probabilities affecting the case as a whole (see Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)). It was submitted that the Board may make an adverse credibility finding based upon the implausibility of the applicants’ story alone. It was therefore open to the Board to find it implausible that the principal applicant’s ex-husband wanted to possess and control the applicants, when he allowed them to leave Mexico for an indefinite period. It was also open to the Board to find that the evidence did not show that the principal applicant’s ex-husband was prevented from changing his mind and blocking the travel authorization, nor that he was legally required to sign the consent form.
[33] The respondent submitted that the Board did not ignore evidence that the travel authorization signed by the principal applicant’s ex-husband was a standard form document. Rather, the Board was not persuaded by the applicants’ argument that as a result of the fact that the document was in standard form, he was unaware of what he was signing. As he did not appear to have been legally obligated to sign the form, nor was he prevented from changing his mind, the Board found that he knew what he was signing. It was therefore irrelevant whether the form was standardized, since this would not vitiate the fact that the principal applicant’s ex-husband could have refused to sign it. It was therefore the Board’s responsibility to determine the amount of weight to attribute to the Mexican notary public’s letter.
State Protection
[34] The respondent submitted that as part of a claim for refugee status, applicants must establish that they are unwilling or unable to avail themselves of state protection in their home country. Since the applicant had not reported her alleged abuse to the police, it was open to the Board to conclude that she had not established that state protection was unavailable. The Board considered documentary evidence with respect to Mexico’s protection of abused women, and concluded that state protection was adequate (see Szucs v. Canada (Minister of Citizenship and Immigration) (2000), 100 A.C.W.S. (3d) 650). It was therefore open to the Board to conclude that the applicants’ failure to seek state protection was unreasonable, and that they had not clearly established that state protection was unavailable to them.
Analysis and Decision
Standard of Review
[35] The standard of review applicable to a breach of procedural fairness is correctness. The Board’s findings regarding the objective basis of the applicants’ fear of persecution are reviewable on the standard of patent unreasonableness (see Nyachieo v. Canada (Minister of Citizenship and Immigration) (2006) 149 A.C.W.S. (3d) 1101, 2006 FC 869 at paragraph 20).
[36] With respect to the standard of review applicable to state protection findings, the underlying factual findings are subject to the standard of patent unreasonableness, while the Board’s findings on the adequacy of state protection is a question of mixed fact and law that is reviewable on a standard of reasonableness simpliciter (see Machedon v. Canada (Minister of Citizenship and Immigration) (2004), 256 F.T.R. 211, 2004 FC 1104).
[37] Issue 1
Did the Board err in finding that state protection was available to the applicants?
The applicants submitted that the Board member erred by selectively relying upon sections of the documentary evidence which supported its finding of adequate state protection. It was submitted that other documentary evidence contradicted the finding, including the very document cited by the Board. The respondent submitted that it was open to the Board to conclude that state protection was adequate on the basis of its consideration of the documentary evidence.
[38] The Board’s analysis of the documentary evidence is found at pages 8 to 10 of its reasons:
Counsel has pointed out some documentary evidence, and supporting affidavits with respect to the claimants’ allegations and her current psychological state. From these documents, it is evident that domestic and gender violence continue to be a serious problem in Mexico. [. . .]
I have noted the references as pointed out by Counsel. However, in my opinion, the principal claimant has not met her obligation of making reasonable efforts to obtain national protection in Mexico, given other documentary evidence, where it is indicated that Mexico is a democracy, with laws, and legal and administrative measures in place to address gender and domestic violence. It is stated that:
… Mexico has enacted domestic laws addressing violence against women (OAS 13 Oct. 2004; see also UN 2 Mar. 2005a) and ratified two international conventions; the Convention on the elimination of All Forms of Discrimination against Women (CEDAW) in 1981, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, also known as the Belem Do Para Convention, ratified in 1996 (ibid.; CIMAC July 2003).
In 1997, the Federal District Legislative Assembly (Asamblea Legislativa del Distrito Federal, ALDF) created domestic violence offences within the Federal District’s penal code, with penalties ranging from a minimum of four months to six years in prison (ibid.; OAS 13 Oct. 2004). As of October 2004, the federal government reported that 25 of the 31 states had some form of prevention and assistance laws relating to domestic violence (ibid.). However, the government further noted that the mechanisms provided by these very heterogeneous (muy heterogeneas) laws varied across the country: from conciliation, arbitration and administrative proceedings in some states, to filing of official criminal complaints (denuncias) in others (ibid.)
In addition, a national policy on domestic violence, known as the NOM-190, is in effect since March 2000 and requires all health centres to report cases of domestic violence (CIMAC 24 Nov. 2003; ibid. July 2003 …
The federal government listed a number of its efforts to address violence against women, including the training of 1000 community workers in 236 municipalities in 31 states under the rubric of the National Program for Life Without Violence (Programa Nacional por una Vida sin Violencia) in 2003 (Mexico Mar. 2004 …)
I have considered that the document also quotes some sources who express the view that, despite the legislative, police, judicial and community-based measures, domestic violence remains widespread, that the measures need to be increased, and that there is need to improve the effectiveness of the implementation of the measures. …
… It is evidence that the government of Mexico is making serious efforts at providing national protection in the area of domestic violence, and it meets its obligations of providing adequate though not necessarily perfect protection to its citizens.
(See Mexico: State Protection (December 2003 – March 2005) – May 2005)
[39] The same document includes the following statements:
News and human rights sources reported in 2003 and 2004 that violence against women remained a serious problem, despite government efforts to remedy the situation …
…
According to the president of INMUJERES, Patricia Espinosa Torres, ten years after Mexico signed the Belem do Para Convention, the country’s legislation with regard to violence against women was insufficient…and, in five states, ineffective … Participants at a June 2004 seminar entitled The Needs of Victims of Domestic Violence…stated that Mexico’s domestic violence laws and protective institutions for assisting victims of violence were [translation] “ambivalent”…According to Julia Lopez, a legal defence specialist, there is a reluctance to punish male perpetrators because domestic violence is still considered a private issue with no witnesses …
In reference to reforming the penal code for domestic violence offences, the President of the Human Rights Commission of the ALDF and PRD legislator, Julio Cesar Moreno Rivera, noted that many domestic violence victims receive little support from the Public Ministry. …According to Barbara Yllan, Deputy Prosecutor of the Victims and Community Services unit of the Federal District Attorney General’s office…MP officials commonly question a victim’s complaint, even suggesting that the victim attempt to reconcile with an abusive partner …
Marta Torres, professor and researcher at the Interdisciplinary Program of Women’s Studies…observed that there were not enough shelters, and those in operation had lengthy waiting lists ... Moreover, the shelters reportedly provide lodging for only 15 days and after this period many women return to their abusive partners (Torres 3 Apr. 2005).
…
In preliminary findings of her February 2005 visit to Mexico, Yakin Erturk, the UN Special Rapporteur on violence against women, noted her concern for “the lack of responsiveness of the police or the prosecutors when receiving a complaint and their reluctance to take action and to follow-up to the complaints related to violence against women (2 Mar. 2005b). According to Marta Torres, women generally distrust the police and are hesitant to report an abusive partner (3 Apr. 2005). …
[40] In the present case, the Board acknowledged that there was contradictory evidence but did not say why it preferred one piece of evidence over the other. The Board failed to properly address the negative evidence relating to the availability of state protection. There is no doubt that the Board can prefer one piece of documentary evidence over the other, but it must state why it did so. In my view, the Board’s failure to address this negative evidence with respect to state protection is a reviewable error, as I have no way of knowing whether the Board would have come to the same conclusion on state protection had it addressed this evidence.
[41] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[42] Because of my finding on this issue, I need not deal with the other issues.
[43] Neither party wished to submit a serious question of general importance for my consideration for certification.
JUDGMENT
[44] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Immigration and Refugee Protection Act, S.C. 2001, c. 27.:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97.(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
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Chairperson’s Guideline 7 (Concerning Preparation and Conduct of Hearing in the Refugee Protection Division):
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1169-06
STYLE OF CAUSE: CINTHYA VALLADARES LOW
VICTOR DANIEL AYALA VALLADARES
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 6, 2006
APPEARANCES:
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Kristin Marshall
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Asha Gafar
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SOLICITORS OF RECORD:
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Refugee Law Office Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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