Date: 20060811
Docket: IMM-5326-05
Citation: 2006
FC 970
Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ALICIA
SHEDENE SIMPSON
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
APPLICATION
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board), dated August 11, 2005
(Decision), in which the Applicant was deemed to be neither a Convention refugee
nor a person in need of protection.
BACKGROUND
[2]
The Applicant,
Alicia Shedene Simpson, is a citizen of Jamaica and is currently 22 years of age. Her refugee
claim is based on her membership in a particular social group, namely, women in
Jamaica subjected to domestic
violence.
[3]
Ms.
Simpson asserts that she was sexually abused by her stepfather from the age of
eleven to the age of nineteen (which was 2001). When she was 19 she finally
told her mother about the abuse and her mother confronted her stepfather. The
stepfather allegedly threw out the belongings of the Applicant and her mother
and threatened to kill the Applicant. Both women went to live with the
Applicant’s grandmother.
[4]
The Applicant
states in her affidavit that the stepfather killed the cat she slept with, and
left a note saying that if he didn’t get her by will he would get her by force.
[5]
After
this incident, the Applicant says she went to the police to make a report but
the police never did anything and did not even investigate.
[6]
Two
days after this, the stepfather allegedly came to their house and asked the
mother to come back. When she refused, he again threatened to kill both women.
The Applicant says her mother went to the police again and reported that the
stepfather was threatening to kill them, but the police said there was no one
in the office at that time and as soon as an officer returned they would send
him out to them. However, no one ever came.
[7]
The
Applicant says she and her mother went back to the police a third time and
asked if the stepfather would be charged for the sexual abuse. On this occasion,
the officer said there was nothing the police could do. When asked why, the
officer allegedly stated that it was a domestic affair and a civil matter and
that the Applicant and her mother would have to go to the Criminal
Investigations Division (CID) who would advise them what to do.
[8]
They
went to the CID and were again told there was nothing the police could do
because there was no evidence that her stepfather had forced himself on the
Applicant. The CID even suggested that she had allowed it to happen. They were
told to go home and forget about it.
[9]
That
same day, the Applicant says they went to a lawyer to inquire about taking the
stepfather to court for sexual abuse. When the lawyer learned that they had
already been to the police and that the stepfather had not been arrested, he
stated that there was nothing he could do unless the stepfather was arrested.
[10]
The Applicant
says the stepfather continued to make threats against her and her mother,
constantly coming to their house and banging on the door at all hours. She says
she had no choice but to leave Jamaica; she was afraid to even leave her house to go to the store
for food.
[11]
She
came to Canada on October 2, 2003
under a student visa, issued by the Canadian Embassy in Jamaica, which expired May 30,
2004. She filed a request to extend her student visa, but was refused. She
made her refugee claim on December 1, 2004. She says that she fears returning
to Jamaica because her stepfather
is still interested in her and there is no state protection available.
DECISION OF THE BOARD
[12]
The
Board held that the Applicant was a credible and trustworthy witness and found
that she was indeed a citizen of Jamaica. The determinative issue in this claim was
state protection.
[13]
The
Board said it was not convinced, within the preponderance of probabilities,
that the state of Jamaica would not be reasonably
forthcoming with serious efforts to protect the Applicant if she were to return.
[14]
The
Board found that the Applicant and her mother did complain to the police on
three occasions in 2001. The Board appears to have accepted that they twice
contacted the Clarkstown police station, who referred them to the CID office.
The Board further notes that the Applicant testified that, when she contacted
the CID office, she was told there was insufficient evidence to pursue the
matter. When asked by the Board why she did not speak to a supervisor on duty
at the police station, or contact police headquarters in Kingston, she said
that she did not believe it would be any different had she gone to Kingston. Had
she done so, she would not, in any event, have been permitted to speak to the
Commissioner.
[15]
The
Board then cites Zhuravlvev v. Canada (Minister of Citizenship and
Immigration), [2000] 4 F.C. 3 at para. 31, in which the Court held as
follows:
Local failures
to provide effective policing do not amount to lack of state protection….A
local refusal to provide protection is not a state refusal in the absence of a
broader state policy to not extend state protection to the target group
[16]
The
Board also cites the documentary evidence which states that Jamaica is a democracy and has
a police force in place.
[17]
The
Board went on to find that, except in situations of complete breakdown, a state
must be presumed to be capable of protection. This presumption can be rebutted
by “clear and convincing” evidence of the state’s inability to protect. The
Board concluded that the Applicant had failed to discharge this onus.
[18]
The
Board also noted that the Applicant testified that the last contact she had
with her stepfather was in 2001, and that she had no further contact with him
while she continued to remain in Jamaica until October 2003. This meant she had no
contact with her stepfather for four years.
[19]
The
Board concluded that, having considered the totality of the evidence, counsel’s
submissions, the Chairperson’s Gender Guidelines, and the relevant statutory
provisions and jurisprudence, the claim for protection should be denied.
ISSUES
[20]
The
Applicant raises two related issues:
1. Did the Board fail to
consider evidence before it regarding the widespread violence against women in Jamaica?
2. Did the Board err in its
assessment of the availability of state protection?
STANDARD OF REVIEW
[21]
The
parties disagree concerning the standard of review applicable to the present
case. Relying upon Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232,
the Applicant argues that the standard of review for the state protection issue
is reasonableness simpliciter. The Respondent, however, cites the recent
decision of Justice Phelan in Velazquez v. Canada (Minister of Citizenship
and Immigration), [2006] F.C.J. No. 663, 2006 FC 532 as authority for
applying a patently unreasonable standard. Justice Phelan stated the following
at para. 5:
On the issue of state protection,
the onus is on the Applicant to rebut the presumption in favour of state
protection. The standard of review on this issue has been held, depending on
the particular aspect of state protection which may be in issue, to be patent
unreasonableness or reasonableness simpliciter [See Note 1 below]. While
it is not necessary in this case to resolve what may seem to be divergent
standards, it appears that patent unreasonableness is the applicable standard
where the question is the existence of state protection and that reasonableness
simpliciter is applicable where the issue is whether an applicant
adequately availed him or herself of state protection.
Note 1: Nawaz v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1584 (QL), 2003
FC 1255; Ali v. Canada (Minister of Citizenship and Immigration), [2004]
F.C.J. No. 1755 (QL), 2004 FC 1449; Nosakhare v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1120 (QL), 2001
FCT 772; Umuhoza v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1374 (QL); Larenas v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 218, 2006 FC 159; Chaves v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 232 (QL), 2005
FC 193; Danquah v. Canada (Minister of Citizenship and Immigration), [2004]
F.C.J. No. 1331 (QL), 2004 FC 1104.
[22]
The
Decision before me involves the finding that state protection exists for the
Applicant in Jamaica and that she failed to
adequately avail herself of the available state protection. However,
irrespective of the standard I apply, my conclusion is that the Decision cannot
stand and must be returned for reconsideration.
SUBMISSIONS
Applicant
Failure to
consider evidence
[23]
The Applicant
submits that the Board erred in law by disregarding documented evidence
regarding violence against women in Jamaica and the unavailability of state protection. She
says that police officers in Jamaica do not protect the people and leave it to individuals to
protect themselves. The Applicant notes that the police will wait until
someone dies before making an arrest. While the police are required to make
reports when called to the scene of a crime, such reports are never compiled. She
also says that the police in Jamaica have no regard for anyone, and that there is documented
evidence of corruption among police officers in times of emergency (specific
reference is made to the aftermath of Hurricane Ivan in 2004).
State Protection
[24]
The Applicant
submits that while Jamaica is indeed a democratic
country, and there is a police force, when the police and the government refuse
to enforce the law, there is a breakdown in state protection. She says the
Board refused to consider this when determining her claim and, instead, simply
relied on the fact that there are laws in place without considering whether
those laws are being implemented by the authorities.
Respondent
State
Protection
[25]
The Respondent submits that the burden on the Applicant to prove a want
of state protection is a heavy one as Jamaica is a democracy with effective
political and judicial systems. The Respondent notes that domestic abuse is
illegal in Jamaica and that efforts are being made on several levels to address
the issue of abused women, including efforts to offer sanctions and remedies.
[26]
The Respondent also argues that the Applicant’s experience with the
police was a localized incident and did not involve Jamaican state policy.
Furthermore, it was open to the Board to draw conclusions about the
availability of state protection with reference to organizations other than the
police or judiciary as there is an active community of women’s rights groups
whose major concerns include the protection of victims of sexual abuse. There
was no evidence that the Applicant sought assistance from any of these
organizations.
[27]
The Respondent submits that the Board’s conclusions on the issue of
state protection were reasonably open to it on the record before it.
Fear not well-founded
[28]
The Respondent also submits that the Applicant’s fear of her step-father
is not well-founded. First, it is noted that the Applicant resided in Jamaica
for two years, during which time she testified to seeing her step-father, but she
says he did not harm her. Furthermore, at the time of the hearing in August
2005, the Respondent notes that it had been two years since the Applicant had
had any contact with her step-father, and at least four years since she last
resided with him. The Respondent says it is, therefore, unlikely that he will
harm her in the future.
[29]
The Respondent submits that the Board’s conclusion was open to it
based on the evidence before it.
ANALYSIS
[30]
Generally
speaking, this is a highly unsatisfactory Decision in that it fails to engage
in any meaningful analysis of the points raised by the Applicant and material
aspects of the evidence.
[31]
The
Decision itself says that the “determinative issue in this claim was state
protection.” Counsel for the Respondent, however, says that the Board also
found that the Applicant faced no future risk if returned to Jamaica and that this finding
was not patently unreasonable.
[32]
The
Board’s comments on future risk appear as an afterthought at the end of the
Decision:
The
claimant testified that the last contact she had with her stepfather was in
2001. She had no further contact with him while she continued to remain in
Jamaica until October 2002, when she left to come to Canada. The claimant is now 22 years of age and has had no contact
with her stepfather for four years.
[33]
It
is not clear what significance these comments have in a Decision where the
Board tells us that the “determinative issue” was state protection. The Shorter
Oxford English Dictionary defines “determinative” as meaning “serving or
tending to determine, decide or fix.” In my view, the “determinative issue” is
the issue that resolves or decides the claim and if the Board had also based
its Decision upon the alternative ground of future risk, then that would also
be a determinative issue. If the Board made the Decision upon alternative
grounds, it should have said so.
[34]
In
any event, even assuming that the Board intended to make future risk an
alternative basis for the Decision, its analysis of that issue is patently
unreasonable. The Applicant’s evidence was that, although she had managed to
avoid actual contact with her stepfather for some time, he nevertheless came to
the house and threatened her and banged on the door. She also said he told
people he was going to kill her. And this was a man who had molested her from a
very young age. The Board said of the Applicant that she was “a credible and
trustworthy witness.” So there was no reason to doubt the threats and actions
of the stepfather; yet the Board dismisses the whole issue with a perfunctory
assertion that there was no contact for a period of time.
[35]
If
the Board had wanted to make the absence of future risk a ground for denying
the claim, it had an obligation to make clear in its reasons that this was what
it was doing. Furthermore, it also had an obligation to deal with the actual
evidence given by the Applicant on this issue. The Board’s failure to do either
of these things was patently unreasonable.
[36]
In
dealing with the determinative issue of state protection, the Board concluded
that because the Applicant had not sought to speak with the police Commissioner,
the efforts undertaken by her and her mother were insufficient to rebut the
presumption of state protection. Case law is clear that state protection need
not be perfect, but it has also been held that an Applicant need only make
reasonable efforts considering the circumstances in order to overcome the
presumption he or she need not exhaust all avenues: See e.g. L.G.S. v.
Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 874,
2004 FC 731 at para. 22; Peralta v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 1331, 2002 FCT 989 at para. 18. In
the present case, it is accepted that the Applicant, or her mother, went to the
police at least three times. Furthermore, when told that they needed to go to
the CID, they did, and were still told there was nothing that could be done.
When asked why she did not seek to speak to the Commissioner, or go to the
Headquarters in Kingston, the Applicant
indicated that there was no way she would have been permitted to see the
Commissioner. It would have been a useless quest for someone in her position.
The Respondent’s counsel conceded at the hearing of this matter before me that
there was nothing in the record to suggest that the Applicant’s evidence on
this issue was wrong or doubtful in any way. The Board merely asserts for no
reason that she should have gone to the Commissioner. There was nothing to
suggest that, had she done so, this would have done any good.
[37]
As was held
in Franklyn v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1508, 2005 FC 1249 at para. 23,
when past experiences with the police prove to be ineffective and the country
documentation is clearly to the effect that domestic violence is met with
insensitivity and inaction by the police, “it seems to me that the threshold to
establish the incapacity of the state to protect its citizens should be lower.”
The Court, in Franklyn, went on to hold that “the mere fact that the
government took steps to eradicate the problem of domestic violence does not
mean that the fate of battered women has improved.”
[38]
Specifically in relation to the situation in Jamaica, it was recently
held in Mitchell v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 185, 2006 FC 133 at para. 10, that Jamaica’s
“real capacity to protect women” must be considered. The Court held that it
was not sufficient to merely note Jamaica’s “good intentions to improve the
situation through police training”; the reality that faces women there, where
domestic violence is the second leading cause of homicide, must be
addressed.
[39]
In adopting this same conclusion, the Court in Robinson v.
Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 588,
2006 FC 402 at paras. 12-13, held that the same documentation that speaks of Jamaica
starting to build a legal framework, of improvement starting to show, and of
police attitudes beginning to change, speaks of “high levels of domestic abuse
and rather horrendously inadequate responses where state protection is sought.”
[40]
The
documentary evidence submitted by the Applicant to the Board in the present
case seems to support the view that, while efforts are being made in Jamaica to discourage domestic
violence, the “traditional attitudes” held by police towards women have not
changed:
According
to the Canadian IRB, although the laws to protect women exist they are not
enforced. This is mainly attributed to the “traditional attitudes” held by the
police towards women.
[41]
The
same evidence goes on to state that the manner in which the police will handle
a case will vary depending on the severity, but that ultimately they simply
refer the women to the Women Inc Crisis Centre for Women for counseling.
[42]
The
reality in the present case is that the Applicant tried four times to obtain
assistance and was told there was nothing that could be done. She also sought
the assistance of a lawyer, but to no avail. It was not unreasonable for her
not to go to the Commissioner, especially when the CID said it couldn’t help
her.
[43]
Furthermore,
the evidence before the Board also indicates that domestic violence is still
widespread in Jamaica and accounts for a
large number of hospital admissions.
[44]
While
it is true that there is a presumption
that the Board considered all the evidence, and there is no need to mention all
the documentary evidence that was before it, where there is important material evidence
on the record that contradicts the factual finding of the Board, a blanket statement in
the Decision that the Board considered all of the evidence will not be
sufficient. The Board must provide reasons why the contradictory evidence was
not considered relevant or trustworthy: See Florea v. Canada (Minister of Employment
& Immigration),
[1993] F.C.J. No. 598 (F.C.A.) and Cepeda-Gutierrez v.
Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425
(F.T.D.). In this case, the Board did not do this. It simply relies in its
Decision on the statement that Jamaica is a democracy with a police force and so must be presumed
capable of providing protection and that no clear and convincing evidence was
presented by the Applicant to rebut the presumption of state protection. The
contradictory evidence noted above and the specific circumstances of this case,
however, were not addressed. The Applicant presented compelling evidence that
in Jamaica the state does not
provide protection to women like the Applicant who are consistently at risk and
without effective protection. This was more than a local failure. The Applicant
did provide clear and convincing evidence that the reality was otherwise and,
while I do not say that the Board was obliged to accept the Applicant’s
evidence, it was certainly obliged to deal with it and provide adequate reasons
for rejecting what she had to say about her own position and the state’s
inability to protect women from domestic violence in Jamaica.
[45]
For
these reasons, I think the Board erred in its assessment of the availability of
state protection and failed to properly consider the evidence before it. This
was patently unreasonable. The matter should be sent back for redetermination
in front of a differently constituted panel.
ORDER
THIS COURT ORDERS THAT:
1.
The
Application for judicial review is allowed and the matter is referred back for
reconsideration by a different Board;
2.
There is
no question for certification.
“James
Russell”
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