Docket: IMM-3154-03
Ottawa, Ontario, May 18, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
LEONARDO GONZALEZ SANCHEZ
CARMEN NAYIBE PENA MORALES
(a.k.a. Carmen Nayibe M. Pena)
LUIS DAVID ZAMBRANO PENA
(a.k.a. Zambrano Pena)
LEONARDO ENRIQUE GONZALEZ PENA
(a.k.a. Leonardo Enriqu Gonzalez Pena)
JOSE MANUEL GONZALEZ PENA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are a family from Venezuela, whose claim for refugee protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board. The Board accepted that the applicants had been the victims of repeated acts of serious physical and sexual violence at the hands of Ms. Pena's ex-husband and his police associates. Nevertheless, the Board found that the applicants failed to provide sufficient clear and convincing evidence to displace the presumption that state protection would be available to them in Venezuela.
[2] The applicants contend that the Board erred in concluding that adequate state protection was available to them in Venezuela, and that, as a result, the Board's decision should be set aside.
Background
[3] Ms. Pena was married to Luis Roman Zambrano. Mr. Zambrano was employed as a secret service detail officer for the governor in Tachira State, and was well-connected to many officials in the police and in the political arena.
[4] According to Ms. Pena, the marriage was marked by regular verbal, physical and sexual abuse. The first significant incident of violence occurred in 1989, when Ms. Pena was raped by Mr. Zambrano. She testified that she went to the police for assistance, but the police simply laughed at her, and told her to leave.
[5] After several years of marriage, and one child, Ms. Pena and Mr. Zambrano separated. Although the couple were living apart, Mr. Zambrano did not leave Ms. Pena and her child alone. He used his connections to get Ms. Pena fired from her job, and continued to come to her home and to beat her. Mr. Zambrano also threatened to drown the couple's child, and to harm members of Ms. Pena's family. Ms. Pena says that she reported these incidents to the police in Tachira, but was told that she should return to her husband.
[6] Ms. Pena met the male applicant, Leonardo Gonzalez Sanchez, in April of 1996 and they moved in together three months later. Mr. Sanchez was born in Colombia, but had renounced his Colombian citizenship.
[7] Ms. Pena and Mr. Sanchez each described ongoing problems with Mr. Zambrano, including threats and demands that Mr. Sanchez and Ms. Pena end their relationship. Mr. Sanchez alleges that on several occasions in 1996 and 1997, he was detained, arrested and beaten by men identifying themselves as state police, who told him to get away from Mr. Zambrano's wife. On one occasion, Mr. Sanchez was arrested by state police and was driven to the Colombian border, where his documents were seized. Mr. Sanchez says that he reported this incident to the police, but was told that he should get out of Venezuela.
[8] On another occasion, Mr. Sanchez was allegedly detained by the state police for three days, during which time he was beaten and held incommunicado. Mr. Sanchez' mother was told that he was being held because he had beaten a police officer, however, Mr. Sanchez was later told that Mr. Zambrano had made a complaint against him.
[9] Mr. Sanchez testified that the family had threatening encounters with Mr. Zambrano in 1998 and 1999. The family moved several times - from Caracas to San Cristobal to Tariba and then to Maturin - to try to escape from Mr. Zambrano, but to no avail. In 1998, the family was living in Maturin, in the State of Monagas. In September of that year, five men identifying themselves as police officers came to their home. Mr. Sanchez was beaten, and Ms. Pena was raped by one of the men. Mr. Sanchez says that he sought medical attention for Ms. Pena, and attempted to file a complaint with the Monagas State police. Mr. Sanchez says that the police would not prepare a report with respect to his complaint because they did not believe him, saying that the state police would not act that way.
[10] In October of 1999, just after the birth of their second son, the applicants allege that Mr. Zambrano again threatened their children. The applicants decided to leave Venezuela, and to come to Canada, where they made their claims for refugee protection. Since coming to Canada, family members in Venezuela have told the applicants that Mr. Zambrano continues to make inquiries as to their whereabouts.
[11] Both Mr. Sanchez and Ms. Pena allege that Mr. Zambrano's influence with the police and government officials means that they cannot get state protection in Venezuela.
The Board's Decision
[12] The Board made no adverse findings with respect to the credibility of either Ms. Pena or Mr. Sanchez, and appears to have accepted that what they say happened to them in Venezuela actually took place. Rather, the Board's principle focus was on the issue of state protection.
[13] In coming to its conclusion that the applicants had not rebutted the presumption that the state is capable of protecting its citizens, the Board considered the fact that Venezuela is a democratic republic. While plagued by corruption in the judiciary, and extra-judicial killings committed by security forces, the Board found that Venezuela had nonetheless made efforts to combat the problem of domestic violence.
[14] In 1998, the country enacted a Law on Violence Against Women and Family, which criminalizes domestic violence and sexual harassment. This legislation is aimed at preventing, controlling, sanctioning and eradicating violence against women and children, and at protecting the dignity and physical, psychological and sexual integrity of the family and each of its members.
[15] The Judicial Technical Police have been mandated to establish a special office to handle complaints of domestic violence, and the Law guarantees that domestic violence trials "will be free of charge, held immediately and conducted speedily...".
[16] The Board also found that Venezuela is making serious efforts to deal with domestic violence issues through the establishment of women's centres, as well as legal aid and educational programs. The Foundation for the Prevention of Domestic Violence Against Women also provides psychological assistance to women victims of domestic violence.
[17] The Board concluded that the applicants had not discharged the onus on them to provide clear and convincing evidence that the state was unable to protect them. There was no credible evidence, the Board says, that the state would not have been able to protect the applicants from what the Board referred to as the "harassment" instigated by Mr. Zambrano, had the applicants complained to the "appropriate authorities".
[18] Quoting the decision of the Trial Division in the Kadenko case (N.K. v. Canada (Solicitor General) (1995), 32 Imm. L.R. (2d) 275), the Board stated that "[t]he claimant must do more than simply show that he filed a complaint and that his efforts were unsuccessful".
[19] As the children's claims were based on the claims of their mother and stepfather, there was nothing to justify a different finding in their case, and their claims were rejected as well.
Issue
[20] The sole issue on this application is whether the Board erred in finding that state protection was available to the applicants.
Analysis
[21] The Board accepted that the applicants were victims of repeated violent acts perpetrated by Ms. Pena's former husband and his police associates, and that they had sought the protection of the state. Indeed, the Board found that the applicants had sought police assistance on at least four separate occasions, in at least two different States. On each occasion, they were turned away.
[22] I am satisfied that the applicants have succeeded in demonstrating that the Board applied the wrong test in determining whether state protection was available to them in Venezuela. A review of the Board's reasons, its choice of language and its references to the evidence suggest that the Board may have required that the applicants exhaust absolutely all avenues of protection instead of taking all steps reasonable in the circumstances. This amounts to a reviewable error: Jane Doe v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1579 and Peralta v. Canada (Minister of Citizenship and Immigration), 2002 FCT 989.
[23] I am also satisfied that the Board was unduly selective in its treatment of the evidence as it related to the efficacy of the steps that have been taken by Venezuelan authorities to combat domestic violence. Although certain institutions have been established to assist victims of domestic violence, there was evidence before the Board that these efforts have been largely unsuccessful. For example, the 2002 Department of State Report prepared by the American government makes reference to the enactment of the Law on Violence Against Women and Family, but also observes that several years after the Law was enacted, the police remain "generally unwilling to intervene to prevent domestic violence, and the courts rarely prosecute those accused of such abuse ...".
[24] There is no obligation on a tribunal to mention every piece of evidence before it: Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102. In this case, the Board did cite the report as authority for the proposition that Venezuela is a democratic state. No mention is made, however, of the sections of the report that document the unwillingness of police and judicial institutions to protect victims of domestic violence. It was open to the Board to weigh and reject this evidence, but given that it was corroborative of the applicants' own experience, and central to their claim, it was not open to the Board to disregard it without giving reasons for doing so:Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[25] For these reasons, the application for judicial review is allowed.
Certification
Neither party proposed a question for certification, and none arises here.
O R D E R
1. For the reasons set out above, this application is allowed, and the applicants' refugee claims are remitted to a differently constituted panel for a redetermination of the issue of the availability of state protection.
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3154-03
STYLE OF CAUSE:
LEONARDO GONZALEZ SANCHEZ
CARMEN NAYIBE PENA MORALES
(a.k.a. Carmen Nayibe M. Pena)
LUIS DAVID ZAMBRANO PENA
(a.k.a. Zambrano Pena)
LEONARDO ENRIQUE GONZALEZ PENA
(a.k.a. Leonardo Enriqu Gonzalez Pena)
JOSE MANUEL GONZALEZ PENA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto
DATE OF HEARING: May 11, 2004
REASONS FOR ORDER AND ORDER: Madam Justice Mactavish
DATED: May 18, 2004
APPEARANCES:
M. Byron M. Thomas M.A. , LL.B FOR PLAINTIFF / APPLICANT
Ms. Sally Thomas FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. J. Byron M. Thomas FOR PLAINTIFF/APPLICANT
Barrister & Solicitor
Toronto
Morris Rosenberg FOR DEFENDANT/
Deputy Attorney General of Canada RESPONDENT
Department of Justice
Toronto