Date: 20040316
Docket: IMM-1844-03
Citation: 2004 FC 399
Halifax, Nova Scotia, March 16, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
BRIDGET MCDIARMED
(a.k.a. Bridget Kenyatt McDiarmed)
BRANDIE MCDIARMED-CHARMON
(a.k.a. Brandie Britne Charmon)
MARTINA MCDIARMED
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
LAYDEN-STEVENSON, J (orally)
1. The applicants, a family of women from Castries, St. Lucia, span three generations. Martina (born in 1961) is the mother of Bridget (born in 1983) who, in turn, is the mother of Brandie (born in 2000). They claimed to be Convention refugees or persons in need of protection because of gender and specifically, fear of domestic abuse at the hands of Julius Francis, Martina's boyfriend. The Immigration and Refugee Board, Refugee Protection Division (RPD) denied their claims.
2. The claimants alleged that Mr. Francis moved into Martina's apartment with Martina and Bridget in September, 1998. After losing his job in November, he began drinking heavily and physically abusing Martina. On one occasion, she lost two teeth after being hit in the mouth. In November, 1999, Martina and Bridget moved to Gros Inlet (approximately thirty minutes away by bus) and Mr. Francis remained in the apartment. A decision was later made to allow Bridget to live with Mr. Francis so that she could finish her schooling at home. Bridget typically spent weekends staying with friends or with her boyfriend. In March, 2000, Bridget stayed at the apartment on the weekend and alleges that Mr. Francis came home drunk and sexually assaulted her. He blamed Bridget for the assault and threatened to kill her if she told anyone. Bridget returned to her mother's home, but did not reveal the assault until after she learned that she was pregnant.
3. Two weeks after Brandie's birth, Mr. Francis came to Gross Inlet demanding to see the baby. He broke the door to enter the house and assaulted both Martina and Bridget. Two weeks later, Martina and Brandie came to Canada on a six-month visitor's visa (later renewed) to stay with Martina's sister. Bridget remained in St. Lucia, residing with relatives about twenty minutes from Castries. She did not see Mr. Francis until November, 2001, when he approached her on the street and wanted to know where her mother and daughter were. Believing Brandie to be his child, Mr. Francis threatened to kill them all if they did not return to him. Bridget reported this incident to her mother who arranged for her to come to Canada two weeks later.
Shortly thereafter, they claimed refugee status.
4. The RPD found parts of the claimants' stories to be credible, but also found that there were exaggerations and areas of testimony that were not credible. The applicants allege that the board erred in its assessment of credibility and applied the wrong test for well-founded fear of persecution. They also say that the board erred in its finding of state protection. At the hearing, counsel acknowledged that unless the board erred in its finding with respect to state protection, which did not turn on credibility, the applicants could not succeed.
5. Despite the capable and articulate submissions of the applicants' counsel, I am not persuaded that the RPD erred in its finding that the applicants had not rebutted the presumption of state protection.
6. The issue is one of mixed fact and law and the applicable standard of review is reasonableness. A claimant must provide clear and convincing proof of a state's inability to protect its citizens. The burden is not easily satisfied and it is for the claimant to show that he or she is physically prevented from seeking protection or that the state is in some way prevented from giving it. The protection need not be perfect.
7. In this case, the RPD examined the documentary evidence that indicated state protection, although not perfect, would be forthcoming. The board found that Martina called the police in November, 1999, to no avail. She approached the police on one other occasion in December, 2000. The board did not find her evidence regarding the second complaint to be credible, but determined that, even if it accepted the evidence as given, Martina had not told the police about her relationship to Mr. Francis, about the assaults, or about the threats. The sexual assault regarding Bridget was never reported. Although aware of the existence of the Women's Crisis Centre, neither Martina nor Bridget approached it. The documentary evidence also indicated that access to protection was a problem due to inadequate legal aid, but Martina and Bridget were both employed and did not suggest that they required legal aid.
8. Having carefully reviewed the record and the board's decision, I cannot find that the decision of the RPD was unreasonable. Although there was one occasion in one locality when the police did not respond, it cannot fairly be said that the applicants sought the protection of the state. The conclusion that state protection was available was not inconsistent with the whole of the evidence. Since this conclusion is dispositive, the application for judicial review must be dismissed.
9. No question for certification was suggested. This matter raises no serious question of general importance.
THIS COURT ORDERS that:
The application for judicial review is dismissed.
No question is certified.
"Carolyn Layden-Stevenson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1844-03
STYLE OF CAUSE: Bridget McDiarmed et al v. the Minister of Citizenship
and Immigration
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: March 16, 2004
REASONS FOR ORDER AND ORDER: Layden-Stevenson, J.
DATED: March 16, 2004
APPEARANCES:
Kelvin Gilpin for Applicants
Melissa Cameron for Respondent
SOLICITORS OF RECORD:
Kelvin Gilpin for Applicants
Morris Rosenberg
Deputy Attorney General of Canada for Respondent
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