Williams v. Canada (Minister of Citizenship and Immigration), 2005 FC 922

Date: 20050629

Docket: IMM-5553-04

Citation: 2005 FC 922

Toronto, Ontario, June 29^th, 2005

Present:           The Honourable Mr. Justice von Finckenstein                                

BETWEEN:

DELORIS WILLIAMS

ROBERTA AMY ANN PALMER ( a.k.a. ROBERTA AMY-ANN PALMER)

RODEL JHEALANI PALMER

                                                                                                                                           Applicants

                                                                           and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

(Delivered orally from the bench and subsequently written for precision and clarification)

[1]                Ms. Deloris Williams, the principal Applicant, and her children are Jamaican citizens. Ms. Williams fled Jamaica to escape her husband's abuse, and she makes her claim on the basis of the persecution and cruel and unusual treatment that she would face in Jamaica as a victim of domestic violence.

[2]                The Immigration and Refugee Board (the "Board") rejected her claim finding;

a)          that the Applicant lacked credibility, and

b)          had not proven the absence of state protection for crimes of domestic violence in Jamaica.

[3]                Its is undisputed that with respect to credibility findings, the applicable standard of review is patent unreasonableness (Umba v. Canada (Minister of Citizenship and Immigration, [2004] F.C.J. No. 17, while with respect to state protection, the appropriate standard of review is reasonableness simpliciter (Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232.   

[4]                The Board provided two examples for its finding of lack of credibility; the implausibility that she did not seek police protection a second time as the first time resulted in her husband being charged, and the lack of plausibility that her husband did not know she was eight months pregnant when she left Jamaica. However, neither example is supported by the Tribunal Record.

[5]              She testified that she had reported her husband once before for severely beating her. He was charged, brought before the court, admonished and released. She testified that she was beaten before reporting him, between reporting him and the court hearing and subsequent to the hearing. It is therefore far from implausible that she would not go through this procedure again, given the lack of success the first time and the resultant beatings (Tribunal Record at pp. 259, 261, 263).

[6]                As far as her husband's knowledge of pregnancy is concerned, the Applicant never testified that he did not know about her pregnancy. Rather, the pertinent exchange was:

Presiding Member:         So does your husband know you have a daughter?

Claimant:                      I don't know.

Presiding Member:         Did you speak to him after you arrived in Canada

Claimant:                       No, I did not.

(Tribunal Record at pp 270-1)

[7]                The Board, after reviewing Jamaican reforms, came to the conclusion that the government of Jamaica is taking serious steps with respect to police abuse. While protection may not be perfect, it is available.

[8]                The Applicant's issue, however, is domestic violence and the lack of enforcement of legislation in regard thereto. It is not an issue of police abuse.

[9]                While there may have been sufficient evidence before the Board to support its findings of both the lack of credibility of the Applicant and the availability of state protection, such evidence was not mentioned by the Board in its reasons. The reasons given for lack of credibility do not stand up to scrutiny and those regarding state protection deal with a point not in issue.

[10]            Accordingly, the Board's findings are not reasonable and this decision must be set aside.

                                               ORDER

THIS COURT ORDERS that this application be allowed.

"K. von Finckenstein"

                                                                                                                                                   J.F.C.                          

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                           IMM-5553-04   

STYLE OF CAUSE:                           DELORIS WILLIAMS, ROBERTA AMY ANN

                                    PALMER (a.k.a. ROBERTA AMY-ANN PALMER)

RODEL JHEALANI PALMER

                                                                                                                                            Applicants

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                          Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       JUNE 29, 2005            

REASONS FOR ORDER

AND ORDER BY:                             von FINKENSTEIN J.

DATED:                                               JUNE 29, 2005

APPEARANCES BY:            

Hilary Evans Cameron               FOR THE APPLICANTS

Tamrat Gebeyehu                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:   

VanderVennen Leher

Toronto, ON                                     FOR THE APPLICANTS

                               

John H. Sims, Q.C.

Deputy Attorney General of Canada FOR THE RESPONDENT