Date: 20050208
Docket: IMM-10076-03
Citation: 2005 FC 197
BETWEEN:
ROSEMARY BALSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
[1] These reasons concern an application by Rosemary Balson (the "Applicant") for judicial review of a negative decision of the Immigration and Refugee Protection Board (the "Board") dated November 28, 2003.
[2] The Applicant is a 33 year old female citizen of Dominica. She fears her uncle who sexually abused her as a child. She was raped at age 13. Her uncle had influence with the local authorities and political power as a local leader of the Dominica Freedom Party which was in power at the time. This meant that, when she eventually told her mother of the abuse and the matter became public, the police did nothing in response to a report, her father turned against her and her uncle threatened to kill her. She fled to Canada in July 1990 and made her refugee claim twelve years later on August 26, 2002.
[3] The following steps preceded the hearing of her refugee claim:
· August 24, 2002 The Applicant received a notice explaining the refugee claim process. It stated, inter alia,
If your counsel is unable to proceed on the hearing date that is set, you or she/he will have to find another counsel who is able to proceed. If not, you may have to proceed without counsel.
· September 3, 2002 - The Applicant sent the respondent its form entitled Notification of Counsel. It identified her counsel as Dr. Julius Ehikwe.
· July 31, 2003 - The Applicant and her counsel were served with the respondent's form entitled "Notice to Appear". It asked the Applicant to be present on August 27, 2003 to set a hearing date and asked her to bring a letter from her counsel confirming that he was still retained and providing suggested hearing dates. (The Tribunal record does not include such a letter.)
· August 27, 2003 - The Applicant attended to set a hearing date and signed the respondent's form entitled "Notice to Appear". It advised that her refugee claim would be heard on November 12, 2003 at 1:30 pm.
· September 30, 2003 - The Applicant and her counsel were sent a letter entitled "Re: Claimant's confirmation of Readiness". It asked that the Applicant sign and return the form to confirm her readiness to proceed on November 12, 2003 (the "Form"). The Applicant had moved without advising the Board of her new address so her copy of the Form was returned to the Respondent. There was no evidence about counsel's receipt of and/or response to the Form.
· October 23, 2003 - It is not clear how the Form reached the Applicant but she advised the Board of her new address, signed the Form and faxed it to the Board.
· November 11, 2003 - (this was the day before the hearing and Government offices were closed for Remembrance Day) Applicant's counsel faxed the Board the following letter (the "Letter"):
Request for Adjournment
Dear Sir/Madame,
We are writing to request an adjournment in respect of the above named Refugee Claimant's heraring.
Meanwhile, there is a clash of hearing dates and times between the above named client and Tony Skaria whose hearing is also scheduled for the same day at 12:59 p.m. at 74 Victoria St.
It would be appreciated if this case could be adjourned to any of the following dates:
February 11, 2004
February 19, 2004
February 25, 2004
Enclosed herewith, are the hearing date notifications from your office, indicating the clashing schedules. Thank you for your assistance with this matter.
Truly yours,
Dr. Julius Ehikwe
· November 12, 2003 - The hearing opened, counsel did not appear but arranged to have an agent deliver the Letter. The Agent was questioned by the Board but could not elaborate on the Letter and was not prepared to represent the Applicant at the hearing. The adjournment was denied. The Applicant then made a separate request for an adjournment so that she could retain new counsel and this request was also denied.
[4] The situation can be summarized as follows. The Applicant promptly retained counsel and clearly intended to be represented at her refugee hearing. She was represented, albeit inadequately, at the opening of the hearing through her Counsel's Letter. However, she was not represented when she asked for time to retain new counsel. On the other hand, the Applicant failed to tell the Board when she first learned of her counsel's inability to attend. This allows me to infer that she knew sometime before the hearing that she would be without counsel but took no steps to replace him.
[5] In these unusual circumstances, in which it was made very clear to the Applicant that her case would proceed on the date set with or without counsel, I have concluded that it was open to the Board to exercise its discretion to refuse the adjournments requested by counsel in the Letter and by the Applicant in person.
OTHER ISSUES
[6] In mid-hearing before me, Applicant's counsel withdrew the submissions he had been making about the Applicant's inability to represent herself at her refugee hearing. In the end, no prejudice was alleged by reason of the refusal of the adjournments. Counsel did, however, maintain his submissions that the Board erred when it found that the Applicant had not rebutted the presumption of state protection and when it concluded that, because of the twelve-year delay, she had no subjective fear.
[7] In my view, neither of these submissions were persuasive. With regard to the Applicant's uncle, there was no evidence about his age or current political status. There was no evidence about whether his political party was still in power. There was no basis for a conclusion that he was in a position to influence police behaviour or harm the Applicant if she returned to Dominica.
[8] Further, as the Board noted, circumstances in Dominica have changed. The Department of State Report of March 4, 2002 covering the year 2001 reads in part:
Domestic violence cases are common, and there is no family court to deal specifically with domestic violence issues. Statistics from the Complaints and Reports Hot Line stated that there were 128 acts of violence reportedly committed against women in 2000, compared with 114 acts in 1999. Women can bring charges against husbands for battery, and both the police and the courts prosecute cases of rape and sexual assault, but there are no specific spousal abuse laws. However, in 1998 a new Sexual Offences Act went into effect to replace the previous act, which required medical evidence or witness corroboration for indictment. As a matter of policy, all rape cases are handled solely by female police officers. The Department of Labor recruited a permanent counselor and established a crisis response mechanism to assist women who are victims of domestic violence. The Welfare Department assists victims of abuse by finding temporary shelter, providing counseling [sic] to both parties, or recommending police action. The Welfare Department reports all cases of abuse to the police. The courts may issue protective orders, but the police do not enforce them consistently. The Dominica National Council of Women, a nongovernmental [sic] organization, teaches preventive education about domestic violence and maintains a shelter where counseling [sic] and mediation services for men and women are available daily. The organization permits persons to stay at the shelter for 3 weeks at a time.
[my emphasis]
[9] The absence of any evidence about the uncle's current ability to influence the police together with evidence about an improvement in the treatment of cases involving sexual violence lead me to conclude that the Board did not err in its treatment of the issue of state protection.
[10] Finally, the twelve-year delay before she made her claim was unexplained and suggests that the Applicant never seriously considered herself to be at risk of persecution or other harm.
[11] For all these reasons, this application will be dismissed.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
February 8, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10076-03
STYLE OF CAUSE: ROSEMARY BALSON v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: JANUARY 18, 2005
REASONS FOR ORDER: SIMPSON J.
DATED: FEBRUARY 8, 2005
APPEARANCES: Bola Adetunji
FOR THE APPLICANT
Mary Matthews
FOR THE RESPONDENT
SOLICITORS OF RECORD: Bola Adejtunji
Toronto, ON
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT
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