Date: 20061101
Docket: IMM-1315-06
Citation: 2006 FC 1320
Ottawa,
Ontario, November 1st, 2006
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
ELIZABETH
SYLVIA STAPLETON
DONETTE DESREE JOHN
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
2. Factual
background
[2]
The principal applicant, Ms. Stapleton, is a national
of Saint Vincent and the Grenadines and was born on April 19, 1974. The
co-applicant, Miss John, born on October 22, 1990, and also a Vincentian
national, is the principal applicant’s daughter.
[3]
The principal applicant was the victim of severe
sexual abuse and acts of physical and psychological violence from a young age,
specifically since she was ten years old. At that time the abuser was her
father, and she had a child by him whom she subsequently had to abandon. Very
shortly thereafter, she met a man by whom she became pregnant almost
immediately. She had a girl (the co-applicant) as well as another child whom
she eventually abandoned because her husband began abusing her.
[4]
In 1993, the police took action against her
husband. In addition, the applicant was awarded alimony in 1992 and obtained a
protection order against her husband in 1993.
[5]
The husband in question sexually abused the
applicant’s daughter, so she left him and came to Canada in 2001 only to be
deported. She returned to her country, the couple divorced and she went to live
with another man.
[6]
Everything was going well with her new partner
until one day when her daughter told her he had touched her breasts. As of that
point, things became complicated between the partner and the daughter.
[7]
In February 2004, the husband beat the daughter.
This led the applicant to leave the family home with her daughter. She called
the police and legal proceedings were undertaken against the husband, but the
prosecution was dropped when the applicant left for Canada. She claimed she was
scared that her husband would take vengeance against her and her daughter if
they returned to Saint Vincent because of the prosecution that was initiated
against him.
[8]
The principal applicant arrived in Canada on
March 16, 2004, her daughter on December 20, 2004. They sought the
protection of Canada on September 13, 2005.
[9]
The principal applicant alleges that she suffers
profound psychological after-effects to this day.
[10]
Both applicants claimed refugee status on
September 13, 2005 and founded their claims on the sexual abuse they suffered.
Applicant Stapleton was appointed as the designated representative of the
co-applicant, Miss John.
[11]
On January 16, 2006, in Montreal, their claim
was rejected in an oral decision of a Refugee Protection Division panel.
[12]
On March 10, 2006, the applicants filed an
application for leave and for judicial review.
3. Decision
appealed
[13]
First of all, in the panel decision, the Member
made the following findings of fact:
-
Every time the applicant came to Canada, she
left her daughter in Saint Vincent and the Grenadines, this despite her
contention that her daughter was in danger.
-
With the exception of February 2004, there was
never any physical violence against the applicants.
-
There was no refusal of state protection as
such.
-
Indeed, the police intervened on several
occasions at Ms. Stapleton’s request.
[14]
In support of its findings, the panel referred
to the Supreme Court of Canada’s decision in Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, wherein it was held that “[a]bsent a situation
of complete breakdown of state apparatus, it should be assumed that the state
is capable of protecting a claimant.” The panel then cited Szorenyi, Gabor
v. M.C.I. (F.C., no. IMM‑2817‑02); in that case, the Court
pointed out that there were numerous cases in which the Board would be
justified in requiring claimants not only to go to the police, but to exhaust
all options for obtaining state protection. Finally, the panel referred to Kadenko
v. Canada (Attorney General), (1995), 32 Imm. L.R. (2d) 275, which held
that failure by local authorities to provide adequate protection does not
amount to a lack of state protection unless the situation is more generalized
or the state is incapable of providing protection or unwilling to do so.
[15]
The panel then examined the documentary evidence
regarding the ability of Saint Vincent and the Grenadines to protect its
citizens. After considering the documentary evidence indicating that Saint
Vincent and the Grenadines has an effective police force and judicial system,
the panel stated that it could not find “that there is no state protection or
that that protection is ineffective in cases of spousal or domestic violence in
St. Vincent.” As to the applicant’s daughter, the panel found that
“nothing presented in the evidence proves that she would be at risk of
persecution and/or that her life would be in danger if she returned to her
country of origin.” Therefore, the Board rejected the claims for refugee
protection.
4. Issues
A. Did the Board err in failing to apply the Gender-Based
Persecution Guidelines?
B. Did the Board err in finding that the
applicants had not met their evidentiary burden of rebutting the presumption
that their country, the State of Saint Vincent and the Grenadines, was able to
protect them?
C. Did the Board err in failing to examine the
question of whether the applicants should have benefited from the exception
provided in subsection 108(4) of the Immigration and Refugee Protection Act (the
Act)?
D. Did the Board violate a principle of natural
justice because the panel rendered its decision from the bench?
5. Analysis
A.
Did the Board err in failing to apply the
Gender-Based Persecution Guidelines?
[16]
The applicants allege that the panel erred by
failing to apply the Gender-Based Persecution Guidelines (the
Guidelines): the panel thereby demonstrated a lack of knowledge, understanding
and sensitivity around issues of spousal violence. To support their
allegations, the applicants identified several instances of those flaws during
the course of the hearing. Below are some examples:
-
at page 17 of the transcript:
53
Q. What happened then, you became
pregnant?
A. Yes, I became pregnant.
54
Q. How many days or weeks after you
abandoned your child, how many days after that?
A. I got pregnant?
55
Q. Yes.
A. I got pregnant maybe one or two days
after.
56
Q. You got pregnant one or two
days after you abandoned your child?
A. Yes.
57
Q. Did you want to get pregnant?
A. No.
58
Q. Did you ever learn about
protection? Was there no protection over there?
A. I never learned. I never
had someone to talk to me.
59
Q. Okay, you didn’t know you could
have been protected?
A. No. [Applicants’
emphasis.]
-
at page 28 of the transcript:
126
Q. And you took him back every time? When
he came back you allowed him to come into the house?
A. But when he comes he don’t stay to my
room with me.
127
Q. He wouldn’t stay five minutes
with me, but you know – [Applicants’ emphasis.]
-
at page 33 of the transcript:
158
Q. What did you do then?
A. I waited until he left
the house and I take my stuff and leave
159
Q. About time, yes.
A. Yes.
160
Q. A good decision. […] [Applicants’
emphasis.]
-
at page 35 of the transcript:
169
Q. Did you go to the police then?
A. No, I didn’t.
170
Q. Why not?
A. Because I was ashamed.
171
Q. Ashamed of what?
A. Because when it gets to the people
hearing they are going to boo my daughter when she walks on the street. It is
not easy to walk knowing that your father had sex with you. It is very hard. It
is something that people would harass you every day. [Applicants’
emphasis.]
-
at page 43 of the transcript:
231
Q. And what happened with him?
A.
We – by December, in December of that same year, he had – when I met him we
went to rent an apartment, and then by December he had – we both had built a
wooden house, so we were living together” Everything was okay. I was doing
farming, he was going to the city to sell stuff, and one evening when I came
home from farming my daughter said that Claydon had touched her on her breasts.
232
Q. Here we go again. [Applicants’
emphasis.]
[17]
According to the case law, in determining the
credibility of a claimant alleging gender-based persecution, the Board must
demonstrate knowledge, understanding and sensitivity, as per the Guidelines. In
the instant case, the comments of the Member appear inappropriate at times;
however, on reading the hearing transcript as a whole, together with the
reasons for decision, I am satisfied that the Board did not fail in its duty to
apply the Guidelines. Both the reasons for decision and the transcript show
that the Board accepted that the applicants were basing their refugee claim on
acts of sexual violence. No doubt was cast on the applicants’ story. The Board
believed their account and considered it sad. The Member even appeared at times
to reassure the principal applicant, explaining to her that his role was not to
judge her behaviour. Notwithstanding the Member’s inappropriate comments shown
above, I am of the opinion that the Board’s decision was rendered in accordance
with the Guidelines and that this ground does not warrant the Court’s
intervention.
B. Did the Board err in finding that the applicants had
not met their evidentiary burden of rebutting the presumption that their
country, the State of Saint Vincent and the Grenadines, was able to protect
them?
[18]
The second issue involves the application of the
test developed by the Supreme Court in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689. It is a mixed question of fact and law since it involves
applying a legal standard (i.e., there must be clear and convincing evidence of
the state’s inability to protect) to a set of facts. In Chaves v. Canada
(Minister of Citizenship and Immigration), 2005 F.C. 193, at paragraphs 9
to 11, Madam Justice Danièle Tremblay-Lamer considered the contextual factors
in the framework of the pragmatic and functional approach for determining the
standard of review applicable to this issue. Her analysis led her to determine
that the appropriate standard of review is reasonableness simpliciter.
I agree with her analysis, and for the purposes of the present application,
therefore, I shall use this same standard to address the second issue.
[19]
The Supreme Court in Ward noted that
“[a]bsent some evidence, the claim should fail, as nations should be presumed
capable of protecting their citizens.” A claimant wishing to show that a state
is incapable of protecting its citizens must rebut the presumption developed in
Ward. The onus of proof, therefore, is on the claimant.
[20]
The applicants assert that the Board erred in
finding that the State of Saint Vincent and the Grenadines was capable of
protecting them. According to the applicants, such a finding could only be the
result of the Board’s piecemeal, incomplete and misguided reading of the
documentary evidence. The applicants further contend that they were denied a
personalized analysis of their situation and experience in the light of the
Guidelines.
[21]
I reject these arguments. With respect to the
subjective aspect of the Ward test, I am of the opinion that the Board
did in fact take the specific circumstances of the applicants into account. As
the respondent points out, the evidence shows that:
- The applicant did not report the incest her daughter
suffered to the police;
-
The principal applicant went to family court
twice concerning her alimony claims against her husband;
-
The principal applicant twice called the police,
in December 2003 and February 2004, as a result of her partner Claydon Lewis’
behaviour;
-
The first time, she refused to press charges;
-
She pressed charges the second time, but the
proceedings initiated by the police in 2004 ended with the charges being
dropped because the principal applicant was out of the country, in Canada, at
the time.
[22]
The evidence reveals that the police responded
to every call she made. They intervened and laid the appropriate charges.
Nothing in the evidence indicates that the State of Saint Vincent and the
Grenadines was unwilling to come to the assistance of the applicants in their
particular situations. Rather, the evidence shows that they did not press
charges in certain instances and, when charges were in fact laid, they left the
country and the charges were eventually dropped for want of evidence.
[23]
As to the objective aspect of the test, the
documentation on the situation in Saint Vincent and the Grenadines contains
evidence on which the Board could reasonably base its conclusion regarding the
ability of the state to protect its people. Although the evidence shows that
the situation is not perfect, the case law acknowledges that no democracy affirming
its respect for human rights can guarantee the protection of its citizens at
all times. See: Canada (Minister of Employment and Immigration) v.
Villafranca, [1992] F.C.J. no. 1189 (QL); and Canada (Minister of
Citizenship and Immigration) v. Kadenko, [1996] F.C.J. no. 1376 (F.C.A.)
(QL). Indeed, in its reasons for decision, the Board in this case did make
mention of the documentary evidence questioning the system in place for
protecting assaulted women in Saint Vincent and the Grenadines. Despite that
observation, the Board found that the State of Saint Vincent and the Grenadines
was capable of protecting its people.
[24]
On reading the documentary evidence, I am of the
opinion that the Board was entitled to rule that the applicants had failed to
discharge their burden of rebutting the presumption that their country was
capable of protecting them. That was not an unreasonable finding. I am
satisfied that the Board took all of the evidence into account and did not
demonstrate a lack of understanding as to the question of the dynamics of
domestic violence.
C. Did the Board err in failing to examine
the question of whether the applicants should have benefited from the exception
provided in subsection 108(4) of the Immigration and Refugee Protection Act
(the Act)?
[25]
Subsection 108(4) of the Act is drafted as
follows:
|
108. (1)
A claim for refugee protection shall be rejected, and a person is not a
Convention refugee or a person in need of protection, in any of the following
circumstances:
|
108. (1)
Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou
de personne à protéger dans tel des cas suivants :
|
|
…
|
[...]
|
|
(e)
the reasons for which the person sought refugee protection have ceased to
exist.
|
e) les raisons qui lui ont fait demander l’asile n’existent plus.
|
|
…
|
[…]
|
|
(4) Paragraph (1)(e) does not apply to a person who
establishes that there are compelling reasons arising out of previous
persecution, torture, treatment or punishment for refusing to avail
themselves of the protection of the country which they left, or outside of
which they remained, due to such previous persecution, torture, treatment or
punishment.
|
(4) L’alinéa (1)e) ne s’applique pas si le demandeur
prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la torture
ou à des traitements ou peines antérieurs, de refuser de se réclamer de la
protection du pays qu’il a quitté ou hors duquel il est demeuré.
|
[26]
The standard of review applicable when
compelling reasons are in issue as provided in subsection 108(4) of the Act was
defined by my colleague Mr. Justice Richard Mosley in Decka v. Canada
(Minister of Citizenship and Immigration), 2005 F.C. 822. In
paragraph 5 of his reasons, he wrote:
[…] that as the question requires the proper interpretation of the
statute, the appropriate standard of review when considering whether a Board
should have applied the compelling reasons analysis is correctness. Review of
the content of the analysis, had it occurred, would have been on the standard
of reasonableness simpliciter: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
[27]
For
the purposes of this application, I adopt my colleague’s reasoning and ruling
on the appropriate standard with respect to this third issue.
[28]
In Brovina v. Canada (Minister of Citizenship
and Immigration), 2004 F.C. 635, Madam Justice Carolyn Layden-Stevenson
held that subsection 108(4) of the Act applies only in certain circumstances:
in paragraph 5 of her reasons, she wrote:
[…] For the board to embark on a compelling reasons analysis, it must
first find that there was a valid refugee (or protected person) claim and that
the reasons for the claim have ceased to exist (due to changed country
conditions). It is only then that the Board should consider whether the nature
of the claimant’s experiences in the former country were so appalling that he
or she should not be expected to return and put himself or herself under the
protection of that state.
[29]
In the case at bar, the Board never conferred
refugee or protected person status on the applicants, so it cannot be found
that there was a valid refugee (or protected person) claim and that the reasons
for the claim have ceased to exist (due to changed country conditions).
Therefore, the Board did not have to embark on a compelling reasons analysis.
It follows that the Board did not err in its interpretation or application of
subsection 108(4) of the Act.
D. Did the Board violate a principle of natural justice
because the panel rendered its decision from the bench?
[30]
I reject the notion that the brevity of a
decision maker’s deliberations can establish per se that the decision
maker was biased prior to hearing the evidence and arguments of either party.
Having read the reasons for decision, I am satisfied that the Board duly
considered the applicants’ allegations and all of the evidence submitted.
Nothing in the evidence would allow me to hold that there was any violation of
the principles of natural justice in this case as a result of the brevity of
the deliberations.
6. Conclusion
[31]
For the reasons set out above, I am of the
opinion that in rendering its decision, the Board committed no error that would
warrant the intervention of this Court. Therefore, the application for judicial
review will be dismissed.
[32]
The parties did not propose certification of any
serious question of general importance as contemplated in paragraph 74(d)
of the Act. I am satisfied that no such question was raised in these
proceedings. No question will be certified.
ORDER
THE
COURT ORDERS that:
1. The
application for judicial review be dismissed.
2. No question be certified.
“Edmond P. Blanchard”
Certified true
translation
François Brunet,
LLB, BCL
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