Henry v. Canada (Minister of Citizenship and Immigration), 2006 FC 1060

 

 

 

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:

 

1. Did the Board err in its analysis of state protection?
2. 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