Date: 20100610
Docket: IMM-5559-09
Citation: 2010 FC 616
Ottawa, Ontario, June 10,
2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
CELESTINA
MARIL BACCHUS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act) of a decision dated September 30, 2009, by the Refugee
Protection Division of the Immigration and Refugee Board (the Board), wherein
the Board found the applicant was not a Convention refugee or a person in need
of protection pursuant to subsections 96 and 97(1) of the Act.
Factual
Background
[2]
The
applicant is a 49 year-old citizen of both Saint Vincent and the
Grenadines
(Saint Vincent) and Trinidad and Tobago (Trinidad), who claims
refugee protection status as a Convention refugee. She has seven children, all
of whom reside in Trinidad.
[3]
In
2004, the applicant entered into a common-law relationship with Mr. Desmond
Peters, a former police officer in Trinidad. Mr. Peters, like the
applicant, is also a citizen of Saint Vincent. Over time the relationship is
said to have become very violent as Mr. Peters apparently abused and threatened
the applicant. In 2005, the applicant ended the relationship but Mr. Peters
remained in the home in which they lived in and the applicant did not retrieve
her possessions.
[4]
Despite
the beatings, the applicant never made a report to the authorities because Mr.
Peters himself was a former police officer.
[5]
In
2006, the applicant traveled to Saint Vincent, where she was
apparently followed by Mr. Peters and harassed by him. Thereafter, the
applicant returned to Trinidad to take care of her mother until her passing. Throughout
this time, Mr. Peters apparently continued to threaten the applicant.
[6]
In
May 2008, the applicant ultimately quit her job due to Mr. Peters’ continued harassment.
On June 1, 2008, the applicant arrived in Canada, where she
has relatives. On June 30, 2010 the applicant filed her refugee application.
[7]
In
addition, the applicant also claimed to fear for her safety at the hands of her
stepbrother, Noel Sylvester, with whom she has been engaged in a dispute over
her mother’s estate.
The impugned decision
[8]
The
Board found that the applicant had not discharged her burden regarding all the
components of the definition of a "Convention refugee" or a
"person in need of protection".
[9]
With
respect to her ex-boyfriend, Mr. Peters, the Board concluded that the applicant
had not established an absence of state protection. The Board noted that the
applicant had not made a single police report during the four years of the
violent relationship nor at anytime thereafter.
[10]
With
respect to the applicant’s stepbrother, the Board held that because he is a
citizen of Trinidad and not a citizen of Saint Vincent, there was no
well-founded fear of persecution or a risk of serious harm to the applicant in
the event she returned to Saint Vincent.
Issue
[11]
At
the outcome of the hearing, it emerged that the central issue in this matter is
whether the decision of the Board, rejecting the applicant’s claim on the basis
of the applicant’s failure to rebut the presumption of state protection with
clear and convincing evidence in regards to her ex-boyfriend, is
reasonable.
Standard of Review
[12]
In
connection with the applicable standard of review, the Court recalls that in Dunsmuir
v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 53,
it was held that “[W]here
the question is one of fact, discretion or policy, deference will usually apply
automatically (Mossop, at pp. 599-600; Dr. Q, at para. 29;
Suresh, at paras. 29-30). We believe that the same standard must apply
to the review of questions where the legal and factual issues are intertwined
with and cannot be readily separated”. In Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at
para. 59, the Supreme Court of Canada added that “[W]here the reasonableness
standard applies, it requires deference. Reviewing courts cannot substitute
their own appreciation of the appropriate solution, but must rather determine
if the outcome falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para. 47)".
[13]
In
addition, in the recent decision Paguada v. Canada (Minister of
Citizenship and Immigration), 2009 FC 351, [2009] F.C.J. No. 401, at para. 19, this Court established
that:
The question of state
protection is therefore precisely what remains. It is clearly a question of
mixed fact and law and, as such, must be considered by this Court on a standard
of reasonableness: see, inter alia, Mendez v. M.C.I., 2008
FC 584; Da Mota v. M.C.I., 2008 FC 386; Obeid v. M.C.I.,
2009 FC 503; Naumets v. M.C.I., 2008 FC 522; Woods v. M.C.I.,
2008 FC 446.
[14]
Thus,
the standard of review applicable to the decision of the Board at issue concerning
the availability of state protection is reasonableness.
Analysis
[15]
The Board found that the applicant did not
provide clear and convincing evidence of an absence of state protection in both
Trinidad and Saint Vincent and relied heavily on the fact that the applicant
did not seek state protection in the circumstances:
[…] The
claimant, despite being a victim of abuse and threats at the hands of Mr.
Peters over four years, would have never made a single police report. When
questioned by the panel, the claimant stated that, being a former police
officer in Trinidad and Tobago, the
claimant did not believe that she would be able to get protection and she was
fearful of him. The panel notes that Trinidad and Tobago is a parliamentary democracy with a judiciary and police forces. The fact
that the claimant never even attempted to ask for state protection here weighs
against her credibility. However, more so is the case of Saint Vincent. Even if the panel were to accept the
claimant’s assertions of an inability to get the authorities to protect her in
her own country of residence, Trinidad and Tobago, as a result of her
persecutor being a former police officer, the same cannot be said with respect
to Saint Vincent and the Grenadines. Saint Vincent and the Grenadines is also an independent
country with a parliamentary democracy and again an independent judiciary.
There are laws on the books of Saint Vincent in order
to protect individuals such as the claimant. Even if the panel were to accept
the claimant’s assertion of an inability to the state protection in Trinidad,
Mr. Peters was not a police officer and not even a resident of Saint Vincent. […]
The documentary evidence does speak of difficulties that women have in domestic
abuse cases to get the authorities to take their cases seriously. Yet, there
are still laws on the books and mechanisms that the claimant could have
attempted. In the current context, the claimant was not even in a domestic
relationship with Mr. Peters at the time of her stay in Saint Vincent. Taken all together, the panel does not
believe that this claimant has established with clear and convincing evidence
an absence of state protection in her claim.
(Tribunal’s
Record, pp. 5-6)
[16]
Based on its review of the evidence, the Court considers that
the Board's conclusion with respect to the availability of state protection was
selective, inadequate and, as a result, unreasonable. In particular, the Board
failed to consider and address the testimony of the applicant and the totality
of the evidence in respect of the lack of protection from the authorities.
[17]
Indeed, the applicant testified that her ex-boyfriend, a
former member of the police force is also a citizen of both Trinidad and
Saint-Vincent. In October 2005, in Trinidad, her ex-boyfriend allegedly was beating the applicant when
the police officers appeared at the scene. Upon realizing who her ex-boyfriend
was i.e. a former police officer – the police did not intervene and allegedly left
the applicant in the hands of her abuser: “Mr. Peters, only because it’s you we
will let this go, but please take madam and try and make up this.” (Tribunal’s
Record at pp. 244-247).
[18]
With respect to the availability of state protection in
Saint Vincent, while the evidence demonstrates that the applicant did not seek
such protection, she nonetheless testified that there is a lack of protection.
She also testified that her cousin, who was also involved in a violent
relationship, was unable to obtain any protection from the Saint
Vincent
police despite the fact that she had requested such assistance (Tribunal’s Record at p. 252).
[19]
In
terms of the most recent documentary evidence regarding
both St-Vincent and Trinidad - dated 2008 - it demonstrates that the situation towards
women is still an issue in both countries. The Board had an obligation to
address this important contradictory evidence. In the words of Justice Evans in
Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
157 F.T.R. 35, [1998] F.C.J. No. 1425 at paragraph 17:
However, the more important the
evidence that is not mentioned specifically and analyzed in the agency’s
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact “without regard to the evidence”: ‘Bains
v. Canada (Minister of Employment and Immigration) (1993),
63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
Thus, a blanket statement that the agency has considered all the evidence
will not suffice when the evidence omitted form any discussion in the reasons
appears squarely to contradict the agency’s finding of fact. Moreover, when
the agency refers in some detail to evidence supporting its finding, but is
silent on evidence pointing to the opposite conclusion, it may be easier to
infer that the agency overlooked the contradictory evidence when making its
finding of fact.
[Emphasis
added.]
[20]
More particularly, in the case at bar, document no. VCT102962.E,
dated 18 November 2008, states the following with regard to the effectiveness
of police protection in Saint Vincent (Application’s Record at pp. 38-40):
With respect to the
effectiveness of the police in handling of cases of domestic violence in
Saint-Vincent and the Grenadines, a representative of the Saint Vincent and the
Grenadines Human Rights Association (SVGHRA) provided the following information
in 7 November 2008 correspondence to the Research Directorate:
Most police officers
have limited knowledge and skills on domestic and family violence, inclusive of
procedures, but a selective few treat the issue with seriousness. Trained
officers receive general training in policing which they apply in domestic and
family violence incidences and which lead to complications for the victim, who
feels further victimized.
In addition, when
female victims go to make reports, they are served by gross, disrespectful,
chauvinistic, young male officers who feel that the victim asked for what she
received. There are no specialized kits either. In most cases, the male police
officers become impatient if the victim is hesitant in responding to questions.
Generally, the
attitude of police officers, the open area for questioning and the overall
ineffectiveness of the police and court, make the victim reluctant to testify.
Although a limited
number of sensitive police officers try their utmost to facilitate and make the
victim comfortable, when the matter gets to the court, the victim often
withdraws as she is in most cases dependent on the perpetrator. The lengthy court
process too also frustrates the victim.
If there is a
protection order, the victim often feels unprotected as the absence of shelters
makes the document merely an empty academic order. There are instances where
the police is the perpetrator, therefore there is need to ensure that these
officers or their friends do not deal with such cases as they tend to
trivialize them. […]
[21]
Further, the evidence submitted with respect to Trinidad (Application’s
Record at pp. 41-46) and more particularly the IRB Information No. TTO102810.E,
dated 20 May 2008, is to the same effect regarding the situation of women and
the protection offered to them:
A United Kingdom (UK)
Foreign and Commonwealth Office document released on 29 January 2008 states
that Trinidad and Tobago has a “high level of domestic violence,” while human
rights reports covering 2007 describe the problem of domestic violence in
Trinidad and Tobago as “significant” (Freedom House 2007; US 11 Mar. 2008, Sec.
5). Women’s groups estimate that twenty to twenty-five percent of all women in
the country have suffered abuse (ibid.; Nation News 16 Mar. 2008)
although the United States (US) Department of State’s Country Reports on
Human Rights Practices for 2007 indicates that reliable national statistics
are unavailable (US 11 Mar. 2008, Sec. 5). Nevertheless, a Court of Appeal
judge is quoted in Trinidad and Tobago’s Newsday, as saying that
domestic violence in the country has reached “epidemic proportions” (5 Mar.
2008).
An article in the Trinidad
Guardian notes that although a protection order is intended to act as a
safety barrier for victims of domestic abuse, it is not a “fence made of steel”
(26 Nov. 2006). Cases involving women who were killed by former partners after
seeking a protection order have been reported in the Trinidadian media (Trinidad
and Tobago’s Newsday 27 Nov. 2005; ibid. 4 Nov. 2006). In
November 2006, a woman was stabbed to death after fleeing an abusive
relationship and filing a protection order against her former partner (ibid.).
In another case in
2005, a woman was murdered outside her new place of residence even though she
had reported several previous attacks by her estranged husband and had tried to
obtain a protection order (Trinidad and Tobago’s Newsday 27 Nov.
2005). Furthermore, a report compiled by local non-governmental organizations
(NGOs) indicated that enforcement of protection orders may be difficult due to
unwillingness on the part of police to intervene in domestic matters (Trinidad
and Tobago’s Newsday 27 Nov. 2005).
Police Response
Despite the powers
granted to law enforcement officials by the Act, sources report that police
enforcement is “lax” (Nation News 16 Mar. 2008; US 11 Mar. 2008, Sec.
5). An article that appeared in the Trinidad and Tobago Express on 4
December 2005 refers to reports of insensitivity and inadequacy on the part of
police, and gives details of one victim’s experience of police inaction despite
several complaints, including an incident in which she was jailed for half a
day following a confrontation with her husband.
[22]
In the present circumstances, the Board had an obligation
to refer to pertinent and contradictory evidence such as the above but failed
to do so (Cepeda-Gutierrez). While it might have been an option for the
Board not to give much weight to these reports in light of the overall
evidence, the fact of the matter remains that given the situation in Saint
Vincent and Trinidad with respect to protecting women from domestic violence, the
Court considers that it was not open to the Board, in these circumstances, to
ignore the most current reports. The Court is therefore of the view that the Board
conducted its analysis in a vacuum without addressing the relevant documentary
evidence in connection with the applicant’s testimony. It is simply not enough
for the Board to merely state that Trinidad and Saint Vincent are independent countries and parliamentary democracies
with an independent judiciary. Rather, the Board had a duty to explain why the
quoted evidence was not taken into consideration. At the very least, the Board
was required to provide reasons for discarding such evidence. In failing to do so,
the Board expressed a preference, used specific portion of evidence in
isolation, conducted an incomplete and fragmentary assessment of the evidence
and, in so doing, committed a serious error. (King v. Canada (Minister of Citizenship and
Immigration), 2005 FC 774, [2005] F.C.J. No. 979 (QL).
[23]
The Court finds that, due to lack of discussion with respect
to the documentary evidence, the Board is not in a position to reach the
conclusion it did without further substantiation (see Myle v. Canada
(Minister of Citizenship and Immigration), 2006 FC 871, 2006 F.C.J. No.
1127 (QL) (Justice Shore). See also Rosita Vascilca Myle v. Canada (Minister
of Citizenship and Immigration) 2007 FC 1073, [2007] F.C.J. No. 1389 (Justice
Harrington) and Sherica Sherilon James v. Canada (Minister of Citizenship and Immigration),
2010 FC 546 (Justice Mainville).
[24]
In
conclusion, the Board did not conduct a full assessment of the evidence,
including the applicant’s testimony and the totality of the documentary
evidence on file. The Board’s decision was not reasonable in the circumstances
and the Court’s intervention is justified. The application for judicial review
is therefore allowed.
[25]
No
question was proposed for certification and there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The Board’s
decision is set aside;
2. The matter is
referred back to the Immigration and Refugee Board to be determined by a new
and different constituted Board;
3. No question
of general importance is certified.
“Richard
Boivin”
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