Federal Court


Board failed to properly analyze children’s situation with respect to state protection availability

Application by refugee claimant for judicial review of decision that she and her children were neither Convention Refugees nor persons in need of protection. Refugee claimant was citizen of Mexico. Refugee claimant’s husband started to become abusive after birth of first child. Three years and four months later, refugee claimant filed for divorce and was granted sole custody of first child. Husband located refugee claimant and first child about one month later, forced them back home, and abused refugee claimant. Refugee claimant fled to Canada, met boyfriend, and became pregnant with second child. Refugee claimant returned to Mexico at her parents’ request. Husband assaulted refugee claimant but was only required to pay fine. Refugee claimant gave birth to second child in Mexico. Refugee claimant fled with children to Canada after husband threatened her and second child. Boyfriend abused refugee claimant and was at risk of being deported to Mexico. Refugee claimant unsuccessfully applied for refugee protection. Board found refugee claimant was not credible in certain respects and that state protection in Mexico was adequate. Application granted. Board’s credibility finding was reasonable but board erred in determining state protection was available to children in Mexico. Board had failed to properly analyze children’s situation with respect to availability of state protection in Mexico. Domestic violence was frequent in Mexico. Board should have conducted separate analysis of children’s situation. Each child’s fear was distinct and relied on different factual bases and circumstances that should have been assessed. It was not sufficient to merely rely on review of existing measures with respect to changes of address or existence of organizations to help victims of domestic violence. Evidence adduced with respect to situation of each child should have triggered separate analyses of risk, ability of Mexican state to protect children, and whether children could reasonably access such protection. Country conditions should have been contextualized in respect of each child’s respective situation.

Cruz v. Canada (Minister of Citizenship and Immigration)

(May 30, 2012, F.C., Scott J., File No. IMM-6527-11) 215 A.C.W.S. (3d) 189 (18 pp.).

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