Friday, February 11, 2011

The Court set aside a finding that an abused women would be able to access state protection. The tribunal erred in concluding the applicant ought to have gone to the police when she had gone once and protection had been denied and erred in selectively reviewing the documentary evidence:

[23] Jurisprudence has questioned what purpose would be served in requiring abused women to return to the police if the first time is not successful: Pereyra Aguilar v Canada (Minister of Citizenship and Immigration), 2010 FC 216, at para. 36. Here, there arises the issue of further harm to the Applicant by her abuser if she tries to report to the police, and it must be addressed.

[24] The RPD considered it significant that, after the Applicant left, the Applicant’s mother filed a denunciation about Mr. Garcia with the authorities because of his continued attempts to locate the Applicant by harassing the mother. The RPD fails to make any distinction between the differing circumstances of the Applicant’s mother and the Applicant. The Applicant is the focused target by Mr. Garcia whose abuse and harassment is an indication of his controlling obsession, whereas the mother is not.

[25] While deference is to be given to the RPD in its findings of state protection, the RPD’s analysis of the documentary evidence regarding available state protection is problematic. The RPD chose to assign “a greater probative value to the documentary evidence than to the claimant’s opinion with respect to the adequacy of state protection.” It is an error to discount the Applicant’s evidence merely because of her interest in the outcome; the RPD must give reasons for discounting her evidence: Torres Sanchez v Canada (Minister of Citizenship and Immigration), 2008 FC 1336 at para. 56.

[26] More significantly, the RPD must address contradictory evidence that state protection is not adequate: Toriz Gilvaja v Canada (Minister of Citizenship and Immigration), 2009 FC 598 at para. 38. This is especially important in light of the Applicant’s evidence the police had apparently leaked to Mr. Garcia information about her attempt to report him. While the RPD did acknowledge there was contradictory evidence, it did not explain why it chose to discount contradictory evidence, included in an IRB’s Research Directorate and a 50-page Amnesty International report.

2011 FC 173