[1995] 2 F.C. 55
IMM-3660-94
Cecilia Narvaez, Miguel Alexandro Narvaez and Daniel Antonio Narvaez (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Narvaez v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, McKeown J.—Toronto, January 20 and February 9, 1995.
Citizenship and Immigration — Status in Canada — Convention Refugees — Judicial review of CRDD decision applicant, children, not Convention refugees — Applicant from Ecuador — Abused, raped by husband during marriage, separation — Record of only complaint to police deleted from register when police bribed by husband — CRDD holding applicant victim of personal violence, not member of particular social group — Women in Ecuador subject to domestic violence belong to particular social group — CRDD misinterpreting own guidelines on gender-related persecution — Failing to consider all documentary evidence in deciding state’s ability, willingness to protect applicant — Claimant need not risk further abuse by seeking ineffective state protection.
This was an application for judicial review of a CRDD decision that the applicants, a divorced mother and her two children from Ecuador, were not Convention refugees. The female applicant had suffered consistent verbal and physical abuse, including rape, by her husband during the marriage and even after their separation. She had sought police assistance on one occasion but her complaint was erased from the record book upon payment of a bribe by her husband. Just after her arrival in Canada, the applicant received a court order granting divorce. The applicant claimed Convention refugee status, based on membership in a particular social group, by reason of which she fears persecution in Ecuador from her former spouse, from whose actions the state is unwilling or unable to protect her. The Board held that the applicant was a victim of personal violence, not a member of a particular social group.
The issues were whether women subject to domestic violence in Ecuador are members of a particular social group; and whether the Board had considered whether the individual, as a result of membership in a particular social group, had a well-founded fear of persecution.
Held, the application should be allowed.
The Board did not deal properly with the question of membership in a particular social group. Women in Ecuador subject to domestic violence belong to a particular social group. The Board did not follow its own guidelines on gender-related fear of persecution which, while not law, are authorized by Immigration Act, subsection 65(3), and are intended to be followed unless circumstances are such that a different analysis is appropriate.
Because the Board did not accept that the female applicant was a member of a particular social group, it failed to examine the documentary evidence relating to the treatment of women subject to domestic violence in Ecuador. The evidence was that the police did not respond in a serious or timely manner to these matters and that charges of assault and battery or rape could not be laid against a woman’s husband in Ecuador. Accordingly, there would be no reason for the applicant to attempt to have charges laid against her husband.
The failure to recognize the applicant as a member of a particular social group resulted in a faulty analysis of whether the state was unable or unwilling to protect her. Even the one piece of documentary evidence quoted by the Board stated that while violence against women, including within marriage, was illegal, it was a common practice, and the Government has done little if anything to address the issue. The Board should have reviewed the documentary evidence in its entirety and decided whether the state had demonstrated an inability or unwillingness to protect women subject to domestic violence, and as a result would inadequately protect the female applicant. The Board did not consider whether it would defeat the purpose of the international protection of refugees if a claimant in applicant’s position were required to continue to call the police only to put herself at risk of further beatings, just to demonstrate the ineffectiveness of the state in protecting her. That the applicant is now divorced would have no significant impact on the level of police protection.
The following questions should be certified: (1) Are women subject to domestic violence in a particular country members of a particular social group? (2) If so, must the Board then consider whether the applicant as a result of membership in a particular social group, has suffered persecution? In particular, must the Board consider the documentary evidence in determining the reason of the applicant’s action or lack thereof in seeking the protection of the state?
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 65(3) (as am. by S.C. 1992, c. 49, s. 55), 69(4) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321; Rodionova v. Minister of Employment and Immigration (1993), 66 F.T.R. 66 (F.C.T.D.).
REFERRED TO:
Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (1993), 19 Imm. L.R. (2d) 81 (C.A.); C. (X.N.) (Re), [1993] C.R.D.D. No. 27 (QL).
AUTHORS CITED
Country Reports on Human Rights Practices for 1993: Report submitted to the Committee on Foreign Relations U.S. Senate and the Committee on Foreign Affairs House of Representatives by the Department of State. Washington: U.S. Government Printing Office, 1994.
APPLICATION for judicial review of a CRDD decision that the applicant, an Ecuadorian woman who had been a victim of repeated domestic violence was not a member of a particular social group and therefore she and her children were not Convention refugees. Application allowed.
COUNSEL:
Shirley E. Levitan for applicants.
T. Viresh Fernando for respondent.
SOLICITORS:
Shirley E. Levitan, Toronto, for applicants.
Deputy Attorney General for respondent.
The following are the reasons for order rendered in English by
McKeown J.: The applicants seek judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated July 14, 1994, wherein it was determined that the applicants were not Convention refugees. The issues are:
1) whether women subject to domestic violence in that particular country, are members of a particular social group; and
2) whether the Board considered if the individual, as a result of membership in a particular social group has a well-founded fear of persecution.
FACTS
The applicant is a 27-year old divorced female citizen of Ecuador. Her two children, Miguel and Daniel, are also both male citizens of Ecuador, and are seven and two years old respectively. All three arrived in Canada on August 27, 1993. The applicant claims to be a Convention refugee because of having a well-founded fear of persecution based on her membership in a particular social group. The two minor children are represented by the claimant mother pursuant to subsection 69(4) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18)] (the Act).
The applicant fears violence at the hands of her former husband whom she has been separated from since 1990, and divorced from since 1993. The applicant was married in 1986 and gave birth to her first son in that same year. It was after the birth of the son in 1986 that the abuse began. Throughout the relationship that followed, the applicant was subjected to consistent abuse from her husband.
The applicant was abused through verbal and physical attacks including rape. Her husband often slapped her, punched her and on one occasion threatened to kill her. The abuse was never obvious to others around however, as she was generally beaten on her body as opposed to her face or head, so that the signs of abuse would not be visible. The applicant stayed with her husband despite the beatings until November 1990 when she moved out of the matrimonial home and went to live with her sister. Her husband continued to follow her wherever she went, and continued to threaten her. In March 1992, her husband tracked her down and raped her. The applicant states that the rape resulted in the birth of her second son. When her husband found out that she was pregnant, he forced her to live with him again. Out of fear the applicant stayed with her husband until after the birth of their second son in 1992, and then left again.
On only one occasion in seven years did the applicant call the police. This was after she moved out in 1990. Her husband had come in a drunken state to the apartment where she was staying and demanded to be let in. The applicant let him in, and once inside he began to hit her. She called the police. After kicking her and insulting her, her husband left. The applicant then waited for the police, who did not arrive until some time later, after the applicant had fallen asleep. The applicant was told by her grandmother that she had seen the police arrive, get out of their car, look around, and leave.
During their separation the applicant went to see a lawyer about getting a divorce. While there, the lawyer suggested that she confirm her complaint about her husband with the police. She went to the central police office in Quito but was unable to find her complaint in the record book. A mutual friend of her and her husband told her that her husband knew certain police officers who guarded the bank that he worked at, and paid them off to have the complaint wiped off the register. The applicant never sought the help of the police again.
Just prior to leaving Ecuador in August of 1993, the applicant obtained a divorce from her husband. The applicant stated that she had to get permission from her husband to remove the children from the country, and that in exchange for such permission she had to release him from all child support obligations. On November 15, 1993, four months after coming to Canada, the applicant received a court order granting their divorce.
ANALYSIS
Subsection 2(1) [as am. idem, s. 1] of the Act limits the grounds for Convention refugees’ well-founded fear of persecution to five possibilities: “race, religion, nationality, membership in a particular social group, or political opinion.” The female applicant in this case justified her claim on the basis of “membership in a particular social group” and by reason of which she fears persecution in Ecuador from her spouse, now former spouse, and from whose actions the state is unwilling or unable to adequately protect. The Board did not deal properly with membership in a particular social group. The Board stated, at pages 11-12:
No evidence was adduced to suggest or to establish that the claimant had a well-founded fear of persecution by her husband by reason of her nationality, race, religion, or political opinion. Her fear of persecution is based solely on the fact that she has been the victim of domestic violence perpetrated by her husband who had raped her, and subjected her to physical violence.
However, no evidence was adduced to establish that she was raped by her husband in March 1992, following their separation in November 1990, because of her membership in a particular social group, rather than because of her person. The rape was carried out as a random act of violence, and the particular circumstances of her claim do not distinguish her from the situation of the general population, or from other women.
With regard to the rape experienced by the claimant, any fear arising from that experience can be characterized as a fear of private violence committed by her estranged husband for his own lustful and repugnant purpose. Such fear does not amount to persecution within the Convention refugee definition, nor can it be related to any of the grounds therein.
If women subject to domestic violence are a particular social group, the reasoning of the Board cannot stand. The abuse will always be carried out by a domestic partner and not by any particular group. If an abused domestic partner is not a member of a particular social group, the abused domestic partner cannot have a well-founded fear of persecution by reason of one of the five grounds in the Convention refugee definition. In my view, women in Ecuador subject to domestic violence belong to a particular social group. Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 extensively reviewed the question of particular social group. He pointed out, at page 733:
Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:
considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.
… Hathaway, supra, at p. 108, thus explains the impact of this general tone of the treaty on refugee law:
The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systematic denial of core human rights is the appropriate standard.
La Forest J. continues, at pages 735-736:
The manner in which groups are distinguished for the purposes of discrimination law can thus appropriately be imported into this area of refugee law.
This theme of international concern for discrimination and human rights seems to underlie the recent trend in the jurisprudence of the Federal Court of Appeal. In Mayers v. Canada (Minister of Employment and Immigration), supra, the court reviewed the decision of a credible basis panel. Pursuant to this decision, it was found that there was some evidence upon which the Refugee Division might determine the applicant to be a Convention refugee in her claim to fear persecution on the basis of membership in the particular social group of “Trinidadian women subject to wife abuse”. Although not strictly necessary to this review, Mahoney J.A. addressed the question of whether this group could meet the definition of Convention refugee. In doing so, he articulated the following test, at p. 737, proposed by counsel for the applicant:
… a particular social group means: (1) a natural or non- natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity, or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it.
In Cheung v. Minister of Employment and Immigration, supra, the court was more directly confronted with the question of the test for “particular social group”, in deciding whether women in China who have more than one child and are faced with forced sterilization constitute such a group. In order to make this evaluation, Linden J.A. adopted the test proposed in Mayers v. Canada (Minister of Employment and Immigration), supra. In applying the test to the facts before him, Linden J.A. held:
It is clear that women in China who have one child and are faced with forced sterilization satisfy enough of the above criteria to be considered a particular social group. These people comprise a group sharing similar social status and hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman’s reproductive liberty is a basic right “ranking high in our scale of values” (E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388).
In this way, the focus of the inquiry was on the basic right of reproductive control.
La Forest J. then concludes his discussion on this subject with a good working rule, at page 739:
The meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one’s past is an immutable part of the person.
The Board also misinterpreted the guidelines issued by the Chairperson of the Immigration and Refugee Board which talk of gender-related fear of persecution. In my view it should be referred to in light of membership in a particular social group. However, in either event the Board did not follow its own guidelines. While the guidelines are not law, they are authorized by subsection 65(3) [as am. by S.C. 1992, c. 49, s. 55] of the Act, and intended to be followed unless circumstances are such that a different analysis is appropriate. The Board stated:
According to the guidelines, where a woman claims to have a gender-related fear of persecution, the central issue requiring determination is the linkage between gender, the feared persecution and one or more of the grounds set out in the Convention refugee definition.
The guidelines, at p. 7, state:
The fact that violence, including sexual and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender-specific crimes constitute forms of persecution. The real issues are whether the violence—experienced or feared—is a serious violation of a fundamental human right for a Convention ground and in what circumstances can the risk of that violence be said to result from a failure of state protection.
The guidelines specifically state, at p. 8, that in assessing a woman’s claim of gender-related fear of persecution, the evidence must show that what the claimant genuinely fears is persecution for a Convention reason as distinguished from random violence or random criminal activity perpetrated against her as an individual.
The guidelines further state, at p. 8, that evaluation of the claimant’s whole evidence as to weight and credibility ought to be conducted in light of the following considerations, among others:
A gender-related claim cannot be rejected simply because the claimant comes from a country where women face generalized oppression and violence and the claimant’s fear of persecution is not identifiable to her on the basis of an individualized set of facts. This so-called “particularized evidence rule” was rejected by the Federal Court of Appeal in Salibian v. M.E.I., and other decisions.
Where a gender-related claim involves threats of or actual sexual violence at the hands of authorities (or private citizens not susceptible to state control), the claimant may have difficulties in substantiating her claim with any “statistical data” on the incidence of sexual violence in her country of origin.
Decision-makers should consider evidence indicating a failure of state protection in that governing institutions and/or their agents in the claimant’s country of origin may have condoned the instances of sexual violence if they had been aware of them or did nothing to prevent them.
On the evidence, the claimant’s fear of persecution is based solely on the personal abuse and violence to which she was subjected at the hands of her former husband from the time of their marriage in 1986, and the birth of their son in September of that year, until August 1993 when she left Ecuador, as more particularly described in her PIF. However, while there were numerous instances of abuse and violence by her husband against her during that period of time, the claimant only contacted the police on one occasion, in 1991, to report that she was being physically assaulted by her husband, and to seek their protection. The police responded to the claimant’s call for help, however they did not arrive at her apartment where her estranged husband had come to beat her up, until after her husband, from whom she was then separated, had left the premises, and she had gone to sleep. She testified that she never went subsequently to the police, nor did she ever ask her lawyer to go to the police, for the purpose of having formal charges of assault and battery or rape laid against her husband.
The claimant testified that her husband was acquainted with a group of police officers who did off-duty work for the bank where he worked, by reason of which he was allegedly able to exercise his influence to have the record of the claimant’s telephone call removed from the police records.
However, no evidence was adduced to suggest or to establish that the whole police force in Quito did off-duty work for the bank where he was employed, or that the whole of the Quito police force was under the influence of her husband. [Footnote omitted.]
Because the Board did not accept the female applicant as a member of a particular social group, it failed to examine the documentary evidence relating to the treatment of women subject to domestic violence in Ecuador. The Board looked at the one time when the claimant contacted the police and decided that this was strictly an act of personal violence. However, if the Board had analyzed this incident in light of the documentary evidence, the Board might well have decided that she feared persecution by her domestic partner, on grounds of membership in a particular social group. There was certainly documentary evidence available which indicated that the police did not seriously respond to these matters and the length of time involved in their response in this case would seem to be in line with the normal response, if any. Furthermore, there was documentary evidence which indicated that charges of assault and battery or rape could not be laid against the person’s husband in Ecuador. Accordingly, there would be no reason for her to ask her lawyer to go to the police to have charges laid against the husband.
My view that women subject to domestic violence in Ecuador constitute members of a particular social group is also supported by Rodionova v. Minister of Employment and Immigration (1993), 66 F.T.R. 66 (F.C.T.D.). In that case the applicant sought to have the panel’s ruling overturned [at page 68]:
… in deciding that as a “Russian woman subject to family violence” the applicant could not belong to a “particular social group” within the meaning of the definition.
Justice Strayer stated, at pages 68-69:
Thus, it is argued, because the panel did not find this threshold test to be met it did not consider whether, in fact, there was a legitimate fear of persecution. It appears to me that this is the proper characterization of the decision of the panel and it raises a debatable issue.
Careful reading of the most relevant jurisprudence of the Federal Court of Appeal as provided by counsel does not leave the matter entirely free from doubt. I have come to the conclusion, however, that the most probable interpretation of this jurisprudence is that a woman can belong to a “particular social group” by being in danger of domestic violence without regard to whether the state permits, condones, acquiesces in, or fails to prevent such violence. This is simply a threshold test for establishing refugee status. If a claimant meets that test she must still show that she fears persecution approved, permitted, or not effectively combatted, by the state in her country of origin. This latter question was not specifically addressed by the panel in the present case even though it gives some indication of findings of fact which might have led to the conclusion that there was no reasonable fear of persecution.
In reaching these conclusions I have considered in particular two recent decisions of the Federal Court of Appeal. The first is Minister of Employment and Immigration v. Mayers (1992), 150 N.R. 60. In this case the Court was only considering whether a credible basis panel erred in law in concluding that the Refugee Division might find “Trinidadian women subject to wife abuse” to be a particular social group. The Court held that such a finding could not be said to be erroneous in law even though the court did not, of course, conclude that on the facts of that case the claimant was a member of a “particular social group” so defined. All members of the panel agreed that it was not an error in law
“to find ‘Trinidadian women subject to wife abuse’ to be a particular social group and fear of that abuse, given the indifference of the authorities, to be persecution.”
It will be noted that the court seemingly distinguished between the definition of the group as women subject to wife abuse (a menace of a private origin) from the determination of whether that abuse, because of the unwillingness of the state to prevent it, would constitute “persecution”. It must be recognized, however, that the Court did not purport to make a ruling as to whether women so identified did in fact constitute a particular social group.
He also reviewed Cheung [Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314(C.A.)].
The Board then considered the test for determining fear of persecution and relied on the test set out by La Forest J. in Ward, supra, at page 726 where he states:
In summary, I find that state complicity is not a necessary component of persecution, either under the “unwilling” or under the “unable” branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state’s inability to protect must be advanced.
The Board continues, at page 13 of its reasons to deal with the dual element of persecution and state complicity and sets out three basic findings of La Forest J.:
Firstly, at p. 712 of his judgement, he turns to the Convention refugee definition as set out in the Immigration Act for the purpose of establishing that consideration must first be given to a claimant’s fear of persecution. LaForest J. [sic] states:
The section appears to focus the inquiry on whether there is a “well-founded fear”. This is the first point the claimant must establish. All that follows must be “by reason of” that fear. The first category requires the claimant to be outside the country of nationality by reason of that fear and unable to avail him- or herself of its protection. The second requires that the claimant be both outside the country of nationality and unwilling to avail him- or herself of its protection by reason of that fear. Thus, regardless of the category under which the claimant falls the focus is on establishing whether the fear is “well-founded”. It is at this stage that the state’s inability to protect should be considered. The test is in part objective; if a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded. Beyond this point, I see nothing in the text that requires the state to be complicit in, or be the source of, the persecution in question.
Secondly, at p. 723 of his judgement, LaForest J. [sic] affirms the test for establishing the “well-foundedness” of a fear of persecution as determined in the earlier federal Court of Appeal decision of Rajudeen v. M.E.I. when he states:
More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.
Thirdly, in analysing whether a claimant has established a fear of persecution, LaForest J. [sic] considers the state’s inability to protect. At p. 722 of his judgement, LaForest J. [sic] states:
It is clear that the lynch-pin of the analysis is the state’s inability to protect: it is a crucial element in determining whether the claimant’s fear is well-founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.
At p. 724 of his judgement, LaForest J. [sic] further states:
Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
It is within the context of all of the above that the panel members have assessed the subjective fear of persecution expressed by the claimant while making an evaluation of the particular circumstances of this claim within the broader consideration of country conditions that exist within the claimant’s country of nationality.
The Country Reports on Human Rights Practices for 1993 states, in part, as follows:
Ecuador is a constitutional republic with a president and a 77-member unicameral legislature chosen in free elections. In 1992 national elections saw the peaceful transfer of power from a center-left government to a center-right government, with a realignment of power within the National Assembly as well. Members of the Supreme Court preside over a judiciary that is constitutionally independent but susceptible to political pressure.
The military has maintained a low profile in domestic politics since the return to constitutional rule in 1979. The National Police, responsible for domestic law enforcement and maintenance of internal order, falls under the civilian Ministry of Government and Police.
Although the Constitution prohibits discrimination based on race, religion, sex, or social status, discrimination against women is pervasive in society, particularly with respect to educational and economic opportunity. The women’s movement blames culture and tradition for inhibiting achievement of full equality for women. There are fewer women in the professions or working as skilled laborers than men, and salary discrimination is common. Although violence against women, including within marriage, is prohibited by law, it is a common practice. Many rapes go unreported because of the victims’ reluctance to confront the perpetrator. To date the Government has not addressed this question as a serious public policy issue.
The panel members are of the opinion that the experiences of the claimant, and the fear arising from those experiences, relate to previous acts of private violence and criminality against her by her husband, or to her fear of future acts of such private violence and criminality being perpetrated against her as an individual by her former husband. We are of the opinion that her past experiences, and her related fears cannot be characterized as persecution within the meaning of the Convention refugee definition, nor can they be related to any of the grounds therein.
On the evidence, the panel members are of the opinion that there is no nexus between the claimant’s personal experiences in Ecuador and her claim of having a well-founded fear of persecution based on her membership in a particular social group, or on any of the other grounds set out in the Convention refugee definition.
While a victim of domestic violence over a period of seven years, the claimant did not seek the protection of the state, save on one occasion, when the police did respond to her telephone call for assistance.
Therefore, the panel members are of the opinion that the claimant’s expressed fear of persecution does not meet the test of persecution as set out in the Ward decision, and as such, is not well-founded. [Footnotes omitted.]
It can be seen from the foregoing that the Board’s analysis fails to take into account the female applicant’s membership in a particular social group, i.e. women who are subject to domestic violence in Ecuador. If this is the group, a person who suffers personal abuse at the hands of her husband is not suffering random violence perpetrated against her as an individual but is suffering violence perpetrated against her as a woman with an abusive husband. The Board however seems to be saying that every woman who is subject to personal individualized violence by a domestic partner is not a member of a particular social group but merely an individual with no commonalities to others in the same situation. As I have stated above, I cannot agree with this view of the matter. The failure to recognize her as a member of a particular social group results in a faulty analysis of whether the state was unable or unwilling to protect her. Even the one piece of documentary evidence quoted by the Board, i.e. the Country Reports on Human Rights Practices for 1993 states that while violence against women, including within marriages is illegal, it is a common practice and the Government has done little if anything to address the issue. There was other documentary evidence which strongly indicated that Ecuador was a patriarchal society. However, it is up to the Board to review the documentary evidence in total and decide whether the state of Ecuador has demonstrated an inability or unwillingness to protect women subject to domestic violence and as a result would inadequately protect the female applicant.
The Board only quoted a portion of what Justice La Forest had to say on seeking the protection of the state. It is important to set out all relevant portions of Justice La Forest’s statement about the necessity of a claimant approaching the state. He stated, at page 724:
Most states would be willing to attempt to protect when an objective assessment established that they are not able to do this effectively. Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection.
In Ward, supra, the state authorities had conceded their inability to protect Mr. Ward but La Forest J. went on to say [at pages 724-725]:
Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens.
In the case before me there was documentary evidence showing that the Ecuadorian authorities show little if any interest in domestic violence as well as further material which states that women are generally blamed for the abuse. Thus, there was evidence before the Board that showed women in situations similar to that of the applicant did not receive state protection when solicited. In addition to the documentary evidence, there was the female applicant’s personal testimony. Her credibility was not questioned by the Board, and this evidence indicated when she did call the police, not only did they not arrive shortly after the call, but when they finally did arrive, they did nothing. Furthermore, her complaint was struck off the police record because of a bribe her husband made, and he beat her immediately after she made the call. The Board did not include her as a member of a particular social group, it did not consider the evidence within the test set out in Ward, supra, and also did not consider whether “it would defeat the purpose of international protection if she were expected or required to continue to call the police only to put herself at risk of further beatings, just to demonstrate the ineffectiveness of the state in protecting her.” Although CRDD Decision U92-08714 dated March 11, 1993 [C. (X.N.) (Re), [1993] C.R.D.D. No. 27 (QL)], which involved an Ecuadorian woman is not binding on either another board or this Court, the reasoning there is to be commended. The Board in that case stated:
If a wife is subjected to violence repeatedly then in our assessment, she stands in no different situation than a person who has been arrested, detained and beaten on a number of occasions because of his political opinion. As a matter of fact, such a person suffers to a lesser degree over a period of time, because after each detention he is release[d] and enjoys his freedom. The wife on the other hand has no respite from her agony of torture and grief. She must endure these misfortunes continuously. The law should not sit idly by while those who seek relief lose hope, and those who abuse it are emboldened by its failure to provide sanctions. Unless penal measures are effectively implemented to punish those guilty of wife abuse, the situation of the abused wife in Ecuador will continue. Social organizations and womens’ committees merely provide solace to those who suffer. They do not mete out sanction to wife abusers for their inhumanity toward their spouses.
The Board went on to say that:
We find that women who are subjected to domestic violence and abuse share a similar background and should be categorized as a particular social group.
Although the female applicant is now divorced from her husband, I note that only four months after the divorce became final, and just one month prior to the hearing before the Board, he informed the female applicant that if she came back to Ecuador “she would be dead.” It is difficult to understand the assumption by the Board that the applicant’s divorce would make a difference. It is speculation both that her husband would stop beating her, or that the police would suddenly take an interest in her complaints because they were no longer based on domestic violence, and does not appear to be justified on the evidence before the Board. The applicant had stated that being “divorced from her husband would make no difference because even though they are divorced, he thinks of her as his property, not as his wife.” The applicant’s evidence was that there were serious incidents of abuse both before and after the parties’ physical separation and the separation did not make a difference. I also note that the one time the applicant did call the police the parties were already separated, yet this did not have any impact on the effectiveness of police protection nor did it prevent the applicant’s complaint from being struck from the police record. The fact that the applicant is now divorced, in my opinion, would not have a significant impact on the level of police protection.
The application for judicial review is allowed and the decision of the Board dated July 14, 1994, is set aside. The matter is sent back to the Board for re-hearing and redetermination by a differently constituted Board in a manner not inconsistent with these reasons.
I was asked to certify the following two questions:
1) Are women subject to domestic violence in a particular country, members of a particular social group?
2) If the answer is yes, must the Board then consider whether the applicant, as a result of membership in a particular social group, has suffered persecution? In particular on this second question, must the Board consider the documentary evidence in determining the reason of the applicant’s action or lack thereof in seeking the protection of the state. I am satisfied that these two questions are of general public importance and should be certified.