Federal Court Decisions

     IMM-933-96

BETWEEN:

     PATRICIA GONZALES-CAMBANA and JEAN PAUL GONZALEZ

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

     This is an application for an order setting aside the decision of the Immigration and Refugee Board ("the Board") dated February 29, 1996, that the Applicant is not a Convention refugee.

     The Applicant was born in Lima, Peru, on May 18, 1964. She was divorced from her husband on December 18, 1993 and came to Canada with her eight year old minor son on December 20, 1993, where she claimed refugee status. The claim is based on her belonging to a particular social group, namely women victims of domestic violence in Peru.

     The events on which her claim is based are set out in response to question 37 of her PIF and read as follows:

I am basing my refugee claim on my particular social group which is a battered women. On May 19, 1988, I married Paul Garrido-Lecca. In October of 1988, while I was pregnant, my husband began beating me. He would frequently become drunk and then beat me. In addition, on several occasions, my husband would get drunk, and force me to have sex with him. I went to the police on several occasions, but they did not intervene. They simply advised me to solve my problems at home. It became obvious, that the police were not concerned with issues of domestic violence.

In March of 1990, my husband came home drunk and forced me to have sex. He punched me in the face. I reported this incident to the police, but they refused to get involved. Later the same month, I attempted to leave my husband. I went to stay with my aunt. He threatened that I would never see my son again if I did not come home. I did not know of any women's shelters where I could go for protection. I went to consult a lawyer. He advised me that given the brief period of time in which I was married, I should attempt to resolve things with my husband.

In early May 1990, after suffering another beating from my husband, I ordered him to leave our home. Later the same day, he returned and took my son. Three days later, he returned with the baby, and threatened to kill me if I ever attempted to separate from him again. He continue to beat me on an ongoing basis.

In July of 1993, I finished my University degree. My husband was extremely jealous. He came home one evening and began to punch my face and head. After severely beating me, he forced me to have anal sex with him. I never experienced such horror. My entire body was bruised, and I was bleeding profusely. I immediately went to see a doctor for medical attention. I was afraid for my life. My husband threatened to kill me if I ever left with our child. I knew that I could not obtain any protection from the police whatsoever. I, therefore, made arrangements to leave Peru with a smuggler. I paid him $6000.00. He travelled with me to Canada.

I am afraid for my life if I had to return to Peru. I believe my husband would follow through on his numerous threats to kill me if I had to return to Peru. The police in Peru do not intervene in cases of spousal abuse. This became evident after they refused to arrest my husband following my previous reports.

     The hearing before the Board took place in Toronto on March 2 and 4, 1995 and continued on May 25, 1995. The applicant claimed to be a victim of repeated brutal sexual assaults and physical beatings by her husband. The panel did not question the applicant's credibility, nor did it take issue with her accounts of persecution at the hands of her husband. In fact, the Board concluded the applicant had been assaulted over a period of several years, and that despite her repeated attemps to seek state protection, it was consistently denied due to prevailing social attitudes in Peru.¹

     The Board noted, however, that before a claimant can seek international protection, he or she is expected to accept a reasonable and safe internal flight alternative (IFA). In Rasaratnam v. M.E.I.², the Federal Court of Appeal set out a two-part test to determine whether there exists an IFA:

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there3.

It follows that before the applicant can be declared a Convention refugee, she bears the onus of showing that no IFA is available to her in Peru.

     When questioned on the issue of the IFA, the applicant adduced evidence that her husband had a connection with Peru's Shining Path. She testified to her belief that he could find her anywhere in Peru whether or not he was connected to the Shining Path. She was even afraid of him in Canada and has moved several times in the Toronto area to protect herself from being discovered.

     The Board limited its analysis of the IFA issue to the diminishing strength of the Sining Path in Peru. It reasoned that because the organization was in disarray, there was "no more than a mere possibility that the Shining Path could assist her husband, nor that a person with close links to the Shining Path would seek assistance for military connections, nor that her husband would be able to locate her should she live in a city other than her home city in Peru". In addition, the Board found it reasonable for the applicant to seek an IFA within Peru, since she was an educated woman with teaching experience. Accordingly, it did not believe that "such clear and convincing confirmation of the state's inability to protect" had been demonstrated as required by the case Attorney General of Canada v. Ward ⁴, and concluded that the applicant was not a Convention refugee. In making this finding, the Board relied on two previously found facts:

There is no more than a mere possibility that Shining Path could assist her husband. The panel also determines that there is no more than a mere possibility that a person with close links to the Shining Path would seek assistance from military connections.

     There are no further supporting reasons for the conclusion. The Board focussed on the applicant's husband's connection with the Shining Path and the fact that this group no longer held a place of power in Peru and ignored all other aspects relating to the applicant's fear of her husband's ability to find her, even outside Lima. In so doing, it failed to address the applicant's evidence that the applicant's husband is a sophisticated, vindictive and obsessed individual and that, based on his past conduct, he would be able to track down the applicant anywhere in Peru, even without his political connections.

     Inter alia, the Board suggested that a reasonable IFA existed outside Lima, as the applicant could find employment as a teacher. However, it did not deal with the submission that the applicant's husband could trace her through the Ministry of Education. Further, despite finding state protection had been refused in the past, the Board offered no substantive reason to justify that the applicant would be safe outside Lima. In my view, these omissions amount to a failure to consider relevant facts.

     Accordingly, the application is granted and the matter is referred back to a newly constituted Board for redetermination.

JUDGE

OTTAWA, Ontario

January 24, 1997

__________________

     ¹      Board's Reasons, p. 2.

     ²      [1992] 1 F.C. 706 (F.C.A.).

     ³      Ibid. at p. 711.

     ⁴      [1993] 2 S.C.R. 689.