Date: 20041129
Docket: IMM-7653-03
Citation: 2004 FC 1670
Ottawa, Ontario, this 29th day of November, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
TIMEKA MARSHA CLYNE
(A.K.A. MARSHA TIMEKA CLYNE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] A panel of the Immigration and Refugee Board turned down Ms. Timeka Marsha Clyne's refugee claim even though it accepted that she had been the victim of a long series of assaults and rapes by her foster father and brother in Grenada. The Board concluded that Grenada could protect Ms. Clyne and, therefore, that she was not entitled to refugee protection in Canada.
[2] Ms. Clyne disputes the Board's conclusions and has asked me to order a new hearing. I agree that the Board erred. I will grant Ms. Clyne's application for judicial review.
I. Issue
Was the Board's conclusion that state protection was available in Grenada sustainable on the evidence?
[3] Ms. Clyne raised a second issue relating to the Board's decision not to admit documentary evidence that was filed late. In light of my conclusion on state protection, it is unnecessary for me to address that issue.
II. Analysis
[4] In 1998, Ms. Clyne complained to the police twice about her foster father's abuse. Both times, officers accepted his denial of any wrongdoing. They sent Ms. Clyne, then 16, home again. They told her not to come back. The abuse continued.
[5] When she was 19, Ms. Clyne fled to Canada. Here, she crossed paths with her foster brother, who assaulted her. He was charged and convicted of assault causing bodily harm.
[6] The Board did not question Ms. Clyne's credibility. However, it concluded that victims of sexual violence are adequately protected in Grenada. Police are being trained to handle domestic violence cases. New legislation proscribes sexual violence against women and children and provides restraining orders where necessary. Shelters for abused women have been built.
[7] In addition, the Board concluded that Ms. Clyne is capable of living separately from her former foster family so she does not need to return to the abusive household she grew up in. Further, the Canadian charges against her foster brother could support an application for a restraining order against him.
[8] In deciding whether adequate state protection is available, the Board must consider not only whether there are measures in place that could be used to protect a refugee claimant, but also whether those measures are likely to be effective: Elcock v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1438 (T.D.) (QL); Cho v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1371 (T.D.) (QL). There is no doubt that Grenada is beginning to take steps to address what appears to be a serious problem of violence against women and children. However, as I read the documentary evidence that was before the Board, these are merely incipient measures indicating a growing willingness to respond to these forms of violence. They fall far short of providing actual protection, except in a very small number of cases.
[9] Grenada's Domestic Violence Act was enacted in 2001 and police are now learning how to implement it. There were only three convictions for child abuse in the first year. The Royal Grenada Police Force Child Protection Division has a hot-line for abuse victims, but calls frequently go unanswered, especially outside business hours. Two shelters for abused women have been built, but only one of them is open. It is located in the northern part of the island and accommodates a maximum of 20 persons.
[10] I cannot dispute the Board's conclusion that Ms. Clyne is fully capable of living on her own. After all, she managed to get to Canada and find an apartment here. But Ms. Clyne's Canadian experience only underscores how difficult it would be to protect her. Her assailants have been persistent and retributive. They pose a clear, present and proximate danger to her, one to which the Grenadian police refused to respond.
[11] In my view, Ms. Clyne has rebutted the usual presumption that state protection is available. The Board's opposite conclusion is out of keeping with the evidence before it.
[12] I must, therefore, allow this application for judicial review and order a new hearing before a different panel of the Board. However, given that Ms. Clyne's credibility is not in question, the new hearing should be confined to the issue of state protection. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. A new hearing on the issue of state protection, before a different panel of the Board, is ordered;
3. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7653-03
STYLE OF CAUSE: CLYNE v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: November 22, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: November 29, 2004
APPEARANCES BY:
Judy Welikovitch FOR THE APPLICANT
Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
JUDY WELIKOVITCH FOR THE APPLICANT
West Toronto Community Legal Services
Toronto, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
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