Date: 20040225
Docket: IMM-3102-03
Citation: 2004 FC 335
Vancouver, British Columbia, Wednesday, the 25th day of February, 2004
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JUVY LINAOGO
Applicant
- and -
SOLICITOR GENERAL OF CANADA
Respondent
[1] Ms. Juvy Linaogo, a citizen of the Philippines, came to Canada in1998 as a visitor. She applied to remain in Canada as a member of the live-in-caregiver class; this application was refused. She applied to the Immigration and Refugee Board (Refugee Division) ("IRB") to remain in Canada as a Convention refugee, alleging abuse by her husband. This claim was denied and leave to appeal to this Court dismissed. She then applied to remain in Canada as a member of the Post Determination Refugee Claimants in Canada ("PDRCC") class. On June 28, 2002, the Immigration and Refugee Protection Act ("IRPA") came into force and her PDRCC application was converted to an application for a pre-removal risk assessment ("PRAA").
[2] In her PRRA application, her claims of risk of persecution, risk to life and risk of cruel and unusual treatment or punishment are based on the same grounds as were considered and rejected by the IRB. Specifically, she alleges that her husband in the Philippines, Mr. Linaogo, physically abuses her and that state protection is not available to her. In support of her PRRA application, Ms. Linaogo submitted several new affidavits filed by family members, neighbours and state officials, all of which attest to the physical abuse that she has suffered.
[3] On April 14, 2003, the PRRA Officer denied her application. The main basis of the refusal was that state protection is available to Ms. Linaogo in the Philippines. Ms. Linaogo seeks judicial review of that decision.
Issues
[4] Although Ms. Linaogo raises a number of issues, there is one that is determinative of this matter. That issue is whether the PRRA Officer erred in concluding that state protection would be available to Ms. Linaogo.
Analysis
Standard of Review
[5] The parties disagree as to the appropriate standard of review to be applied to the PRRA Officer's decision. The Respondent argues that the appropriate standard is one of patent unreasonableness and Ms. Linaogo urges me to adopt a reasonableness simpliciter standard. To determine that question, it would be necessary to carry out a pragmatic and functional analysis. However, on the facts of this case, a pragmatic and functional analysis is not necessary as I reach the same conclusion, as discussed below, even if the standard of reasonableness simpliciter is applied. As set out in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 41, "when applying a standard of reasonableness simpliciter, the reviewing judge's view of the evidence is beside the point; rather, the reviewing judge should have asked whether the [tribunal's] conclusion on this point had some basis in the evidence."
Did the PRRA Officer err in her conclusion that state protection was available to Ms. Linaogo?
[6] The parties agree that the determinative issue in this case is the availability of state protection. Ms. Linaogo submits that the preponderance of evidence provided by both Ms. Linaogo and consulted and referred to by the PRRA Officer in her decision supports the conclusion that there is no effective state protection for victims of domestic violence in the Philippines. In Ms. Linaogo's view, the PRRA Officer was required to go beyond establishing the existence of a framework for protection of victims of domestic abuse. In support of these submissions, Ms. Linaogo points to the decision of Justice Tremblay-Lamer in Bobrik v. Canada (Minister of Citizenship and Immigration) [1994] F.C.J. No. 1364 (T.D.) at para. 11, 13, where she held that the Board erred by not addressing the state's ability to offer effective protection. In so holding, she stated that, "A state must actually provide protection, and not merely indicate a willingness to help". Also, as stated by Justice Gibson in Elcock v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1438 (TD), at para. 15, "Ability of a state must be seen to comprehend not only the existence of an effective legislative and procedural framework but the capacity and the [willingness] to effectively implement that framework".
[7] In this case, the question becomes whether there was evidence before the PRRA Officer that the state has the capacity and the willingness to effectively implement a framework to address violence against women. Having reviewed the record, I note the following evidence:
• on one hand:
· domestic violence remains a serious societal problem in the Philippines
· at present, there is no law directly covering domestic violence
• however, on the other hand:
· there are serious initiatives to enact legislation dealing with domestic violence
· the Philippine National Police and the Department of Social Welfare and Development both have invested resources to provide assistance to victims of domestic abuse
· the authorities have in place a system of mediation ("Barangay") to help resolve domestic disputes
· there is a large network of non-governmental agencies ("NGOs") able to provide support to victims
· NGOs have established women's desks in police stations
[8] Although there is a requirement to first submit a dispute to the Barangay, there is no indication in the evidence that the police will not lay criminal charges in respect of domestic violence.
[9] In my view, the documentary evidence before the PRRA Officer goes beyond a mere framework or statement of willingness to help. And, while I might have weighed the evidence differently, the conclusion of the PRRA Officer has a basis on the evidence before her. As a result, it cannot be said that her decision was unreasonable.
Conclusion
[10] For these reasons, the application will be dismissed.
[11] There was some discussion of whether I should certify a question on the standard of review for a PRRA Officer's decision. It was agreed that this question should only go forward if my decision turns on the applicable standard. Since it does not, no question will be certified.
[12] At the opening of the hearing, counsel for the Respondent requested that the style of cause be amended to reflect the Solicitor General of Canada as the Respondent. The Applicant did not object. The style of cause will be amended as requested.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
2. No question of general importance is certified.
3. The style of cause is amended to replace the Minister of Citizenship and Immigration with the Solicitor General of Canada.
(Sgd.) "Judith A. Snider"
Judge
| I HEREBY CERTIFY that the above document |
| is a true copy of the original filed of record in the Registry of the Federal Court on the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
David Joseph, Senior Registry Officer |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3102-03
STYLE OF CAUSE: JUVY LINAOGO
- and -
SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 24, 2004
REASONS FOR ORDER AND ORDER: SNIDER, J.
DATED: February 25, 2004
APPEARANCES:
Mr. Peter Golden FOR APPLICANT
Mr. Keith Reimer FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Peter Golden FOR APPLICANT
Barrister & Solicitor
Victoria, B.C.
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada