Date: 20060906
Docket: IMM-546-06
Citation: 2006 FC 1060
OTTAWA, Ontario, September 6,
2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
MONICA
SANDRA HENRY
Applicant
and
THE
MINISTER OF CITIZENSHIPAND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated January 3, 2006, which determined that the applicant
is neither a Convention refugee nor a person in need of protection.
[2]
The
applicant is a citizen of St. Vincent and the Grenadines. She came to Canada in March 2005 and
claimed refugee protection on the basis of her membership in a particular
social group, namely, abused women in St. Vincent. The applicant also claimed
refugee protection based on a risk to life and a risk of cruel and unusual
treatment or punishment.
[3]
The
applicant started a relationship with a man named Mr. Battis in January 2004.
She soon discovered that he was an alcoholic and a drug addict. The applicant
stated in the narrative section of her Personal Information Form (PIF) that he
beat and raped her on several occasions. She described one incident in which
he arrived home intoxicated and severely beat her until she suffered from
internal bleeding. He also forced her to engage in prostitution in order to
support his drug habit.
[4]
Mr.
Battis intimidated and controlled the applicant. She stated that she genuinely
believed that he would fulfill his threat to kill her should she abandon him.
[5]
The
applicant stated that she twice contacted the local St. Vincent police after being
attacked, but no report of her claim was taken, nor was any action pursued.
The applicant stopped reporting these attacks to the police because of their
failure to respond. The applicant explained that she did not tell the police
she had been raped or forced into prostitution because of the shame she felt
about the situation.
[6]
The
applicant left Mr. Battis after he beat her and threatened her with death in
February 2005.
She went to live with her aunt, who gave her money to buy a plane ticket to Canada. The
applicant arrived in Canada on March 14, 2005 and claimed refugee
protection on May 30, 2005.
[7]
The
applicant’s claim was heard on December 5, 2005. The Board rejected the
claim on January 3, 2006, finding that the applicant lacked credibility with
respect to her fear of persecution and that there was adequate state protection
in St. Vincent. This is the decision under review.
[8]
First,
the Board questioned the credibility of the applicant, specifically:
-
The lack
of detail on the formation of the applicant’s relationship with Mr. Battis cast
doubt upon its legitimacy. When asked how their relationship began, the
applicant stated that they met at her aunt’s shop and he said he loved her.
-
The
applicant’s inability to explain to the Board’s satisfaction why she had
endured the abusive relationship, even though she had previously ended
relationships with former boyfriends when they had been unfaithful.
-
The
applicant’s inability to provide evidence of her contact with the police. The
Board was also concerned about the applicant’s statement that she only asked
the police to speak with her boyfriend following his attacks upon her, rather
than asking the police to press charges.
[9]
Second,
the Board considered the issue of state protection. The Board was of the
opinion that the applicant had not shown clear and convincing evidence of an
absence of state protection. The Board found that she did not request specific
assistance from the police in order to prosecute Mr. Battis. The Board noted
that domestic violence is an issue in St. Vincent, but it is a democratic
state with laws and institutions capable of dealing with the problem.
[10]
Finally,
the Board considered the applicant’s delay in seeking protection and found that
her behaviour was inconsistent with that of a person fleeing persecution. The
applicant was in possession of a St. Vincent passport throughout her relationship
with Mr. Battis and thus she could have left at any time. The applicant
explained that she was waiting for her aunt to make travel arrangements. The
Board also noted that the applicant did not claim refugee protection until two
months after her arrival in Canada. The applicant stated that she was not
initially aware of the possibility of claiming refugee status and was informed
of the procedure by a friend. The Board pointed out that two months is a long
delay and that the applicant had not informed immigration officials that she
intended to stay in Canada permanently.
[11]
The
applicant submits the following issues for consideration:
- Did the Board err in its
analysis of state protection?
- Did the Board err by
making adverse findings of credibility in a perverse and capricious
manner, on irrelevant considerations, or without regard to the totality of
the evidence before it?
[12]
The
applicant submits that the Board erred in ignoring relevant documentary
evidence with respect to state protection in St. Vincent.
[13]
On
the issue of credibility, the applicant submits that the Board erred in stating
that she was vague regarding how she began her relationship with Mr. Battis. It
is submitted that this finding ignored the applicant’s testimony that they
became friends as he often came to her aunt’s shop where she was working.
[14]
The
applicant argues that the Board neglected the applicant’s culture. It is
reasonable that a woman in St. Vincent would meet a man and start living with
him after having known him for only two months. She submits that she provided a
reasonable explanation as to why she only asked the police to speak to her
boyfriend. She testified that she feared laying any charges as she knew he would
be released; that the Board ignored her reasonable explanation for not being
able to leave St.
Vincent
earlier than she did. She wrote in her PIF narrative that her aunt got together
the money to pay for her ticket.
[15]
Finally,
the applicant alleges that the Board also ignored her reasonable explanation
for waiting two months after her arrival in Canada to claim
refugee status. She testified that she had no knowledge of the refugee process
when she first entered Canada, and she took the necessary steps after
she found out about the process from a friend. She submits that the Board erred
in failing to consider the special circumstances and pressures in assessing
delay, such as her psychological condition or the vulnerable circumstances of
abused women.
[16]
The
respondent contends that the accuracy of the Board’s analysis of state
protection and its account of the prevailing country conditions in St. Vincent
are confirmed by the decision of Justice Beaudry in C.P.H. v. Canada
(Minister of Citizenship and Immigration), 2006 FC 367 at paragraphs 27 to
30. Justice Beaudry stated that while St. Vincent had a spotty record of
enforcement of legislation designed to protect battered women, it was a fully
functional democratic state. The documentary evidence also showed that
situations for battered women had greatly improved since 1999.
[17]
The
respondent submits that it is well established jurisprudence that the
protection by the state need not be perfect (see Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th)
334 at 337) and that the evidence needed by the applicant to rebut the
presumption of state protection would have to be extremely convincing, given
that St. Vincent is a democratic country where remedies are available to
deal with domestic abuse and police misconduct, and to help victims of domestic
abuse.
[18]
On
the question of delay, it is argued that the Board properly took these delays
into account as one of the factors negating the applicant’s credibility and
subjective fear of persecution, but they were not determinative of her claim.
[19]
It
is well settled that the Board’s findings on credibility are findings of fact
which are reviewable on a standard of patent unreasonableness (see, for
example, Myle v. Canada (Minister of Citizenship and Immigration), 2006 FC 871, per
Justice Shore at paragraph 11).
[20]
As
for the Board’s finding on state protection, Justice Tremblay-Lamer engaged in
a pragmatic and functional analysis in Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58 and
concluded that the issue of state protection is a question of mixed fact and
law that is reviewable on a standard of reasonableness simpliciter.
[21]
The
Board considered several factors which, in its view, negated the applicant’s
credibility. These included the applicant’s vagueness in describing her
relationship with her abuser; the applicant’s inability to explain why she
had endured the abusive relationship, although she had previously ended
relationships with former boyfriends who had been unfaithful; and the
applicant’s inability to explain why she only asked the police to speak to her
abuser, rather than to lay charges. The Board also considered the applicant’s
delay in leaving St. Vincent (she could have left earlier as she was in
possession of a valid passport throughout her abusive 14 month relationship),
and her delay in claiming refugee protection (she filed her claim about two and
a half months after arriving in Canada). The Board found that these delays were
inconsistent with the conduct of a person having a subjective fear of
persecution.
[22]
In
my opinion, the conclusions drawn by the Board were insensitive to the
traumatic experiences of women in abusive relationships and failed to
acknowledge that the applicant was suffering from post-traumatic stress
disorder and major depressive disorder stemming from the abuse at the hands of
her boyfriend. A psychological evaluation was submitted to the Board,
describing the applicant as having symptoms of post-traumatic stress disorder,
including:
C. Persistent avoidance of
stimuli associated with the trauma and numbing of general responsiveness:
- efforts to avoid thoughts,
feelings and conversations associated with the trauma
- feelings of detachment and
estrangement from others
- markedly diminished interest
and participation in significant activities
[23]
The
applicant’s “efforts to avoid thoughts, feelings and conversations associated
with the trauma” may have affected her ability to recall details of the
conversations she had with her boyfriend during the initial stage of their
relationship. She did testify that they talked about love and children. The
Board found this description to be overly vague, but the Board did not take the
applicant’s condition into account in weighing her testimony.
[24]
The
Board was also insensitive to the applicant’s painful experience as a battered
woman when it cited, as factors casting doubt on her credibility, her inability
to explain why she endured an abusive relationship and why she only asked the
police to speak to her boyfriend. It is well known that women in abusive
relationships have extreme difficulties leaving their controlling partner.
Hence, the fact that the applicant spent 14 months in the relationship before
fleeing St.
Vincent
is not inconsistent with her fear of her abusive boyfriend. Moreover, it is not
unusual for women in abusive relationships to ask the police to talk to their
spouse. The applicant’s testimony indicated that she feared retaliation if she
were to have him sent to jail. Page 118 of the tribunal record reveals the
following exchange at the hearing:
Q. But I don’t know what you mean when
you say you go to the police and ask them to come and talk to him, what, why,
what do you think that that’s going to do?
A. So that he might have cooled down.
Q. You didn’t think it may be better if
you say that this fellow is assaulting me I need to get away from him and have
him charged with a crime?
A. I think if whether it would have been
better if I did but I did not.
Q. Because it is a little unusual just to ask the police to come talk to him.
So why would you not have asked, why would not have asked that a charge be laid
against him especially after the first occasion when they weren’t willing to
come and talk to him?
A. Because I know if they like charge him
for that stuff, I wasn’t planning on… don’t know whether if I would have get
out of St. Vincent right. So they would have charge him, maybe he got a hearing
and maybe he had to just maybe pay some money and then he would have still come
out back, and I would have been there still.
[25]
For
the foregoing reasons, I am of the view that the Board’s adverse credibility
finding was patently unreasonable.
[26]
The
applicant testified that she approached the police on two occasions to ask them
to talk to her boyfriend. The police did not respond on either occasion, which
is why she did not go back to the police (see pages 94 and 117 of the tribunal
record). The Board’s state protection analysis did not appear to take these
facts into account. The Board simply stated, “The claimant alleges that the
authorities would not be able to help her in Saint Vincent. Yet it is
also clear that she did not request specific assistance from the authorities in
order to prosecute Mr. Battis”. In my view, the Board’s finding on state
protection was unreasonable as it did not consider that she had unsuccessfully
asked the police to come talk to her boyfriend to get him to calm down. The
Board only seemed to be concerned with the fact that the applicant did not ask
the police to press charges. As well, the Board did not take into account that
the applicant was in a highly abusive relationship with an extremely
intimidating and controlling partner, and therefore, in those circumstances,
asking for charges may not have been a reasonable option for her.
[27]
State
protection in St. Vincent was thoroughly analyzed by Justice Shore in a
decision released July 13, 2006, Myle v. Minister of Citizenship and
Immigration, 2006 FC 871. He wrote:
[27] The conclusion of the Board that the
authorities in St. Vincent make a serious effort to offer state protection to
victims of domestic violence is just not supported by the available
documentation. Reports of groups analyzing the situation of women in question
and the U.S. State Department reports produced on file clearly state that the
protection available is insufficient and is, in fact, often unavailable for the
victims. His has also been a stated position of the jurisprudence of the
Federal Court, the most recent of which was submitted to the Board in this
case. Recognizing each case is a case unto itself, (un cas d’espèce).
[28] The U.S. Department of State Country
Report on Human Rights Practices – 2004, in its section on Women (Tribunal
Record, at page 63), states that violence against women is still a problem in
St. Vincent because the victims do not seek help from the authorities who
are unwilling to help them. Training is taking place, however, in order to
eventually educate the parties involved and attempt to change the situation:
Violence against women remained a serious
problem. During the year, the police received 66 reports of rape. Of these, 22
cases were in court, 42 were under investigation, and 2 were dropped for lack
of evidence. In 2003, women made over 1,000 reports of physical, sexual,
emotional, and other domestic violence.
The Domestic Violence/Matrimonial
Proceedings Act prohibits domestic violence. The SVGHRA [St. Vincent and the
Grenadines Human
Rights Association] reported that, in many instances, domestic violence went
unpunished due to a culture in which victims learn not to seek assistance from
the police or the prosecution of offenders.
The SVGHRA conducted numerous seminars
and workshops throughout the country to familiarize women with their rights.
Development banks provided funding through the Caribbean Association for Family
Research and Action for a program of Domestic Violence Prevention, Training,
and Intervention. Police received training on domestic abuse, emphasizing the
need to file reports and, if there was sufficient evidence, to initiate court
proceedings. To counter the social pressure on victims to drop charges, some
courts imposed fines against persons who brought charges but did not testify.
[28]
I
concur with these findings.
[29]
Accordingly,
the application for judicial review is allowed and the matter is to be returned
for redetermination by a differently constituted panel.
JUDGMENT
The application for judicial
review is allowed and the matter is to be returned for redetermination by a
differently constituted panel.
"Paul U.C. Rouleau"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-546-06
STYLE OF CAUSE: MONICA
SANDRA HENRY v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Qc
DATE OF HEARING: August 29, 2006
REASONS FOR JUDGMENT: ROULEAU
D.J.
DATED: September 6, 2006
APPEARANCES:
Mr. Stewart Istvanffy
|
FOR THE APPLICANT
|
Ms. Lynne Lazaroff
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Stewart Istvanffy
Avocat
|
FOR THE APPLICANT
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|