Date: 20060410
Docket: IMM-3313-05
Citation: 2006 FC 402
BETWEEN:
JACQUELINE
ROBINSON
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
The
Applicant is a citizen of Jamaica. She arrived in Canada in November
of 1990, on a visitor’s visa which she never renewed. In 2003, she applied for
landing from within Canada on humanitarian and compassionate grounds.
That application was refused in February, 2004. Very shortly after she was
notified of the refusal, the Applicant filed a claim for Convention refugee
protection, or like protection in Canada. By a decision dated
the 10th of May, 2005, the Refugee Protection Division (the “Board”)
of the Immigration and Refugee Board rejected her claim. The Applicant sought
judicial review of that decision. These reasons follow the hearing of a
portion of that application for judicial review.
BACKGROUND
[2]
The
Applicant bases her claim to Convention refugee protection or like protection
in Canada on a fear of returning to Jamaica by reason of her
membership in a particular social group, victims of spousal abuse, based upon
abuse that she alleges she suffered in Jamaica between 1986
and 1990 when she was living in a common-law relationship. While the Applicant
sought aid from a neighbour who was a police officer, from the mother of her
partner and from members of her family, she never reported her plight to the
police, notwithstanding the fact that her neighbour and her father urged her to
do so. She testified as to the threats her common-law partner made against her
if she were to turn to the police.
THE DECISION UNDER
REVIEW
[3]
The
Board expressed its satisfaction that the Applicant “…is who she claims to be
and that she is a citizen of Jamaica.” It identified the
issues before it as the well-foundedness of the Applicant’s fear and the
availability of state protection.
[4]
The
Board found the Applicant not to have a subjective fear of persecution or
equivalent treatment in Jamaica based on her long delay
in claiming protection. The Board further found no objective basis to the
Applicant’s alleged fear. It noted that she had testified before it that,
during the long time she has been in Canada, she and her former
common law partner have not communicated. It found that the Applicant adduced
no evidence that her former common law partner might still be interested
committed to abusing her.
[5]
Finally,
the Board, while noting that domestic abuse of women is a serious and
widespread problem in Jamaica that is perpetuated by social and cultural
traditions, concluded that the Applicant had failed to rebut the presumption
that, in a democratic nation, and it found that Jamaica is such a
nation, state protection is available. By reference to the documentary
evidence that was before it, and the Board explained why it chose to prefer the
country conditions documentation that was before it over the testimony of the
Applicant. It noted that a legislative framework for protection is provided
that represents efforts made by the state of Jamaica “…to start
building a framework to deal with the problem”, that women’s organizations
in Jamaica
“…acknowledged that improvement is starting to show because police
attitudes towards cases of domestic violence are beginning to change.” Emphasis
has been added by me.
THE ISSUES
[6]
In
addition to procedural issues related to “reverse order questioning” or Chairperson’s
Guideline 7, which were heard by a different judge and will be the subject
matter of separate reasons and a separate decision, counsel for the Applicant
raised the following substantive issues: first, whether the Board mis-assessed
the evidence; and secondly, whether the Board erred in a reviewable manner in
its state protection analysis.
ANALYSIS
a) Standard
of Review
[7]
I
am satisfied that it is trite law that the appropriate standard of review of
the Board’s finding regard the Applicant’s credibility, and thus of the well-foundedness
of her fear, both
subjectively and objectively, is patent
unreasonableness.
[8]
Further,
I am satisfied that the standard of review relating to a finding of state
protection is reasonableness simplicter. My colleague Justice
Layden-Stevenson noted in Resulaj v. Canada (Minister of
Citizenship and Immigration):
In Chaves
v. Canada (Minister of
Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58 (F.C.), my
colleague Madam Justice Tremblay-Lamer conducted a pragmatic and functional
analysis to determine the applicable standard of review in relation to a
finding of state protection. I concur with her analysis and I adopt, as she
did, the standard of reasonableness simplicter as the appropriate
standard of review.
b) Well-foundedness
of the Applicant’s Fear
[9]
The
Board wrote on this issue:
I find that
the claimant does not have a subjective fear. If she had a subjective fear,
she would not have waited over 14 years before making a claim for refugee
protection.
While delay in claiming, and it cannot be
denied that there was here an extraordinarily long delay, is a relevant
consideration, the Applicant, judging from a review of the transcript of the
hearing before the Board, is not a particularly sophisticated person and she
explained that she determined after arriving in Canada to “lay low” based on
advice from those in Canada in whom she had confidence. In any event, delay in
claiming is generally considered not to be sufficient grounds to reject a claim
in and of itself.
[10]
After
noting the Applicant’s humanitarian and compassionate application, made almost
thirteen (13) years after her arrival in Canada, its
refusal, the resulting removal order and her failure to comply with that
removal order, the Board noted:
Days later
she made her claim for refugee protection, even though there is no evidence
that Brown [her former common law partner] might still be interested in
pursuing her.
[emphasis
added]
With great respect, that statement is just
plain wrong. Before the Board, the Applicant testified, in response to the
question: and what do you think would happen to you if you did return to Jamaica today?:
Oh my God!
Because I left and I didn’t tell him and I said things to my parents, anybody
comes down there, he tells them that “anytime you see Jacquie, tell her things
are not over. I’ll kill her…because no woman leaves me.
At pages 154 and 155 of the Tribunal
Record, there appears an undated letter to the Applicant, alleged on the basis
of a cancellation stamp on the related envelope to be of recent date,
notwithstanding that the Court’s copy of the envelope is indecipherable, from
Mr. Brown’s mother, who closes her letter with the words “Your ‘Mother” above
her signature, writes at page 155:
Jacqueline, I
don’t know if I will ever see you again but I am begging you, do not return to Jamaica. If Winston
[the Applicant’s former common law partner] ever knew where to find you he
would hunt you down and kill you. I am happy that he can’t reach you where you
are now.
[11]
Based
upon the foregoing, I can only conclude that the Board ignored cogent evidence
that was before it in concluding there was no credible subjective or objective
basis to the Applicant’s alleged fear of returning to Jamaica. In
committing this error, I am satisfied that the Board erred in a reviewable
manner against a standard of patent unreasonableness.
c) Country
Conditions
[12]
As
earlier indicated, the Board preferred to rely on documentary evidence before
it rather than on the evidence of the Applicant in regard to country conditions,
a course that, I am satisfied, was reasonably open to it. In relying on
documentation, and acknowledging that domestic abuse of women is a serious
problem in Jamaica and is widespread and perpetuated by social and cultural
traditions, the Board speaks of starting to build a framework through
legislation, of improvement starting to show and police attitudes beginning
to change. The same country conditions documentation speaks of high levels of
domestic abuse and rather horrendously inadequate responses where state protection
is sought.
[13]
In
Mitchell v. Canada (Minister of
Citizenship and Immigration), the reasons
for judgment in which were raised by the Court during the hearing of this
matter, my colleague Justice O’Reilly wrote at paragraph [10] of his reasons:
In my view,
the Board’s treatment of the issue of state protection did not evaluate Jamaica’s real
capacity to protect women in Ms. Mitchell’s situation. It merely noted Jamaica’s good
intentions to improve the situation through police training, but it did not
deal with the reality that faces women there, where domestic violence is the
second leading cause of homicide. The Board’s conclusion that state protection
was adequate was not supported by the evidence it relied on.
[emphasis
added]
I reach precisely the same conclusion on
the basis of the record before the Court in this matter. Against a standard of
review of reasonableness simpliciter, I am satisfied that the Board’s
state protection finding simply cannot be sustained.
CONCLUSION
[14]
In
the result, this application for judicial review will be allowed. The decision
under review will be set aside and the Applicant’s application for Convention
refugee status or like protection will be referred back to the Immigration and
Refugee Board for re-determination by a differently constituted panel. In
light of the fact that aspects of this application for judicial review are
being considered by another judge and that there will be two separate
decisions, the other of which is likely to go before the Court of Appeal, the
Court will direct that a further hearing of this matter before the Refugee Protection
Division be deferred until any appeal of the decision regarding other aspects
of this application for judicial review is disposed of in the Federal Court of
Appeal or the time in which a party may file a notice of appeal to that Court has
expired, whichever last occurs. Whether any further delay is directed is a
matter for the Federal Court of Appeal to determine.
[15]
Counsel
for the Respondent did not recommend certification of a question. Counsel for
the Applicant urged that the Court consider certification of a question
regarding standard of review of state protection findings, he being of the
opinion that a standard of review of patent unreasonableness is more
appropriate than that here adopted by the Court. I decline to certify a
question. Given my conclusion that the state protection finding herein is
reviewable on a standard of reasonableness simpliciter, a finding that
the appropriate standard of review is even more stringent than that I have
applied would not in any way affect the result on this application for judicial
review. Thus, certification of such a question would be more in the nature of
a reference than in the nature of a basis for appeal. I decline to certify a
question.
“Frederick E. Gibson”
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