Date: 20101213
Docket: IMM-2259-10
Citation: 2010 FC 1279
BETWEEN:
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SONJA JENEFER DA SOUZA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT
LEMIEUX J.
[1]
On
Tuesday, December 7th, 2010, I granted Ms. Da Souza’s judicial
review application from the March 19th, 2010 decision of a PRRA
Officer who rejected her application for protection based on his finding:
“that adequate state protection would be
available for the applicant if required. It is my finding that the authorities
would be reasonably forthcoming with serious efforts to protect the applicant,
if she were to return to St. Vincent and approach the state for protection”.
[2]
The
availability of adequate state protection is the only issue in this proceeding.
[3]
Sonja
Jenefer Da Souza, a citizen of St. Vincent and the Grenadines (St. Vincent),
fled that country based on her fear of her ex-partner Brian Charles who abused
her throughout their on and off relationship which began in the late 1980’s.
She came to Canada making a
refugee claim which was dismissed on July 8, 2009. The Refugee
Protection Division (RPD) has expressed some credibility concerns about her
evidence in support of her allegations of abuse. She submitted new evidence to
the PRRA Officer who was satisfied, as a matter of fact, she had been abused by
Brian Charles in St. Vincent.
[4]
The
PRRA Officer indicated in his reasons, based on the evidence before him,
because Ms. Da Souza had been away from St. Vincent for almost nine years,
there was insufficient evidence to indicate her ex-partner is still interested
in harming her. He accepted the evidence that Brian Charles in 2009 had
inquired of Ms. Da Souza’s whereabouts from the applicant’s cousin who was
visiting the Island. He was not
satisfied this showed he was interested in targeting her.
[5]
Be
that as it may, the PRRA Officer later on in his decision wrote:
After a careful analysis of the evidence
before me, it is my finding that even if Brian Charles is still interested
in targeting the applicant upon return to Saint Vincent and the Grenadines, based on the objective
evidence, I find that adequate protection would be available for the applicant
if required.
[My emphasis]
[6]
It
has been said often by judges of this Court that a determination of state
protection often turns on the specific fact circumstances which call for case
by case assessment.
[7]
The
crux of the PRRA Officer’s state protection analysis turns on the fact Ms. Da
Souza never sought the protection of the State by filing a complaint with the
police in St. Vincent.
[8]
The
PRRA Officer had before him a letter from Alex Phillips, Sergeant of Police in St. Vincent. That letter
is dated December 22nd, 2009. I quote it in it’s entirety:
To whom it may concern,
I am writing on behalf of Sonja Da Souza
formerly of Overland, St.
Vincent. She is
also called Sonia. I am with the knowledge that she is currently residing in Canada.
I have known her for about fifteen years.
As a police officer, I would have settled several disputes between Sonja and
her common-law husband, Brian Charles. However, Sonja has never made any
official report at any police station to my knowledge. She always settled the
matter. The matters that I dealt with are matters where Brian would physically
abuse her. I would have spoken to them on these occasions and sometimes advised
her to report the matter to the police but she always make it up before she
does so. Sad to say in our country, we only arrest for these offences if the
person who is abused report the matter, or if the police was present when such
an assault took place.
Since Sonja went to Canada, during her
absence the house she owned was destroyed by fire so therefore she has no home
now in St.
Vincent. She would
have to depend on family to live with, should she return to St. Vincent.
I must add that she is a hard working
person and a mother of eight children of which she is the bread winner (the one
who provides for them).
[My emphasis]
[9]
After
referring to this letter and accepting the fact that Ms. Da Souza had been
abused by her ex-husband/boyfriend, the PRRA Officer wrote:
[…] I also note that she did not make any
effort to avail herself of the state protection available in St. Vincent. Based on the evidence before
me, the applicant was familiar with Alex Phillips, who is with the police force and hence,
it would be reasonable for the applicant to have attempted, with his
assistance, to seek protection from the authorities if required. I find that it
is unreasonable for the applicant not to have made a greater effort to seek
police protection or the protection of any state authority in the circumstances
of this case. The applicant is required to show that she has exhausted all
avenues of protection. In this case, the applicant did not take sufficient
reasonable steps to rebut the presumption of state protection.
[My emphasis]
[10]
As
is well known, the leading case in matters of refugee law in Canada is the
Supreme Court of Canada’s decision in Canada (Attorney General) v Ward, [1993]
2 S.C.R. 689. Justice La Forest writing for
the Court.
[11]
From
Ward, I take the following propositions from his reasons:
45 It is clear that the lynch-pin
of the analysis [for determining fear of persecution] is the state's inability
to protect: it is a crucial element in determining whether the
claimant's fear is well-founded, and thereby the objective reasonableness
of his or her unwillingness to seek the protection of his or her state of
nationality.
[…]
Having
established that the claimant has a fear, the Board is, in my view, entitled to presume that
persecution will be likely, and the fear well-founded, if there is an absence
of state protection. The presumption goes to the heart of the inquiry,
which is whether there is a likelihood of persecution. But I see nothing wrong
with this, if the Board is satisfied that there is a legitimate fear, and an
established inability of the state to assuage those fears through effective
protection. […]
47 More generally, what exactly must
a claimant do to establish fear of persecution? As has been alluded to
above, the test is bipartite: (1) the claimant must subjectively fear
persecution; and (2) this fear must be well-founded in an objective sense.
[…]
[My
emphasis]
[12]
After
stating the issue in the case before him Justice La Forest then posed the following question and answered
it.
48 Does the plaintiff first have to seek the
protection of the state,
when he is claiming under the "unwilling" branch in cases of state
inability to protect? The Immigration Appeal Board has found that, where there
is no proof of state complicity, the mere appearance of state
ineffectiveness will not suffice to ground a claim. As Professor Hathaway,
supra, puts it, at p. 130:
Obviously, there cannot be said to be a failure of
state protection where a government has not been given an opportunity to
respond to a form of harm in circumstances where protection might reasonably
have been forthcoming:
A refugee may establish a well-founded
fear of persecution when the official authorities are not persecuting him if
they refuse or are unable to offer him adequate protection from his persecutors
... however, he must show that he sought their protection when he is
convinced, as he is in the case at bar, that the official authorities -- when
accessible -- had no involvement -- direct or indirect, official or unofficial
-- in the persecution against him. (José Maria da Silva Moreira,
Immigration Appeal Board Decision T86-10370, April 8, 1987, at 4, per V. Fatsis.)
[My emphasis]
[13]
Justice La Forest qualified
Professor’s Hathaway’s views:
48 […] This was not true in all cases. Most states would be willing
to attempt to protect when an objective assessment established that they are not
able to do this effectively.
[My
emphasis]
[14]
He
added:
[…]
Moreover, it would seem to defeat the purpose of international protection if
a claimant would be required to risk his or her life seeking ineffective
protection of a state, merely to demonstrate that ineffectiveness.
[My emphasis]
[15]
He
formulated this aspect of the test for fear of persecution as follows:
49 […] Only situations in which state
protection "might reasonably have been forthcoming", will the
claimant's failure to approach the state for protection defeat his claim. Put
another way, the claimant will not meet the definition of "Convention
refugee" where it is objectively unreasonable for the claimant not to have
sought the protection of his home authorities; otherwise, the claimant need not
literally approach the state. [My emphasis]
[16]
Justice La Forest then said:
50 The
issue that arises, then, is how, in a practical sense, a claimant makes proof
of a state's inability to protect its nationals as well as the reasonable
nature of the claimant's refusal actually to seek out this protection.
[My
emphasis]
[17]
He
answered it this way:
50 […]
On the facts of this
case, proof on this point was unnecessary, as representatives of the state authorities conceded their
inability to protect Ward. Where such an admission is not available,
however, clear and convincing confirmation of a state's inability to protect
must be provided. For example, a claimant might advance testimony of similarly
situated individuals let down by the state [page725] protection arrangement
or the claimant's testimony of past personal incidents in which state
protection did not materialize. Absent some evidence, the claim should
fail, as nations should be presumed capable of protecting their citizens.
Security of nationals is, after all, the essence of sovereignty. Absent a
situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable
of protecting a claimant.
[My
emphasis]
[18]
It
is clear from Ward, above, that the fact a claimant did not approach the
state for protection will not automatically defeat a claim. An objective
assessment must be undertaken to establish if the state is able to protect
effectively. In other words, the test is whether effective state protection may
be reasonably forthcoming. What has to be determined, in each case is whether
it was objectively unreasonable for the claimant not to have sought the
protection. If it was not objectively unreasonable for Ms. Da Souza not to have
sought state protection, she need not have approached the police in St.
Vincent. The answer to this question is a matter of the evidence produced on
the point.
[19]
The
fundamental error the PRRA Officer made in this case is that he did not engage
in any analysis to answer that question. The PRRA Officer acknowledges violence
against women remains a serious problem in St.Vincent. He did not confront the
contrary evidence found in the two Country reports concerning St. Vincent he relied
on. He ignored other relevant documentation. More particularly, he ignored the
numerous decisions of this Court which have determined no state protection was
available to women subject to domestic violence in St. Vincent in the
particular circumstances of the facts in those cases. I rely on my colleague
Justice Sean Harrington decision in Alexander v Canada (The
Minister of Citizenship and Immigration), 2009 FC 1305 and the
cases he cites at paragraph 7 of his reasons.
[20]
It
is for these reasons that the judicial review application by Ms. Da Sousa was
allowed.
“François
Lemieux”
Ottawa,
Ontario
December
13, 2010
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