Date: 20100518
Docket: IMM-5039-09
Citation: 2010 FC 546
Ottawa, Ontario, May 18, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
SHERICA
SHERILON JAMES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
concerns an application brought pursuant to sections 72 and following, of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) by Sherica
Sherilon James (the “Applicant”) whereby she is seeking judicial review of a
decision of a panel of the Refugee Protection Division of the Immigration and
Refugee Board (the “Panel”) dated September 15, 2009 and bearing file number
TA7-02639, rejecting the Applicant’s refugee protection claims under section 96
and subsection 97(1) of the Act.
[2]
This
application is granted for the reasons set out below. In a nutshell, the
Panel’s decision was based on findings concerning the availability of state
protection in Saint
Vincent and the Grenadines which were selective and unreasonable in the particular
circumstances of this case.
Background
[3]
The
Applicant is a female citizen of Saint Vincent and the Grenadines born on September 29,
1986. She formerly resided with her mother and her mother’s common-law spouse
on Union Island, a small island south
of the archipelago. She has no immediate family members other than her mother.
Her mother’s common law spouse (referred to herein as the “stepfather”) was an
abusive alcoholic.
[4]
When
the Applicant was 12 years old, her stepfather sexually assaulted her. He
continued abusing her sexually until her departure from Union Island when she was 17. The
Applicant’s mother found out about this abuse and attempted to stop it, but the
stepfather threatened to kill both the Applicant and her mother if any of them
said anything to anyone about the abuse. The Applicant’s mother thus arranged
for the Applicant to come to Canada in order to escape this abuse. Canada was the only foreign
country where the Applicant’s mother knew someone who could take care of the
Applicant outside of Saint
Vincent and the Grenadines.
[5]
The
Applicant thus arrived in Canada on August 18, 2003 at the age of 17, sent here by her
mother to avoid the continued sexual abuse at the hands of her stepfather. She
had to leave school to come to Canada and has only completed part of her secondary education. She
hid with her mother’s friend for a few years and supported herself by
babysitting.
[6]
The
Applicant was initially unaware of the possibility of claiming refugee status
since her mother’s friend was herself unaware of the intricacies of Canada’s immigration and
refugee protection laws. The Applicant subsequently became pregnant and gave
birth to her child. Since she could no longer stay with her mother’s friend,
she had to go to a shelter with her child on February 11, 2007. Learning of her
story, the shelter workers informed her she could claim protection in Canada. She thus voluntarily
reported to immigration authorities on February 19, 2007 to make a refugee claim.
The impugned decision
[7]
The
Panel did not directly dispute the Applicant’s story, but had some credibility
concerns relating to the Applicant’s assertions that she had not had any direct
contact with her mother since her arrival in Canada and that she was unaware of the
availability of refugee protection until informed of such by the shelter
workers. These concerns were however not central to the Applicant’s claim.
[8]
Consequently,
the Panel rejected the refugee claim on the basis of the availability of state
protection for the Applicant in Saint Vincent and the Grenadines. The Panel’s decision
on the availability of state protection will be more fully reviewed below.
Suffice it to note that the Panel considered that the Applicant (then a minor)
had made insufficient efforts to obtain state protection when she was subject
to sexual abuse from her stepfather. Further, the Panel found that now that the
Applicant was an adult, she could safely return to Saint-Vincent and the
Grenadines. Though the Panel recognized that violence against women is a
serious problem in that country, it found that existing and proposed laws
provided protection against gender-based abuse and rape.
Position of the Applicant
[9]
The
Applicant strongly objects to the credibility concerns of the Panel, but notes
that these concerns were not central to her claim. The thrust of the
Applicant’s challenge is thus based on the Panel’s deficient analysis of the
availability of state protection in the particular circumstances in which the
Applicant finds herself.
[10]
The
Applicant submits that for a state protection analysis to be deemed reasonable,
the Panel has to acknowledge and explain why negative evidence on the
availability of such protection in gender claims is rejected or deemed
irrelevant. The Panel here failed to carry out such an analysis. On the
contrary, the Panel was exceedingly selective and ignored strong evidence of
the unavailability of state protection. The Applicant’s counsel provided this
Court with many cogent examples of selectiveness and deficient analysis of
which more shall be said below.
[11]
The
Applicant also argues that the Panel completely disregarded her personal
circumstances in the state protection analysis. She is an only child who has
little or no prospect of employment in Saint Vincent and the Grenadines and who must care for
her young daughter. If she is returned to Saint Vincent and the Grenadines, there is a very strong
likelihood that her only option will be to return to live with her mother and
her abusive stepfather, thus placing her and her own daughter at risk of abuse.
The Applicant asserts that the Panel unreasonably ignored these circumstances
in reaching its decision.
Position of the Respondent
[12]
The
Respondent acknowledges that the determinative element of the Panel’s decision
is its finding concerning the availability of state protection. The Panel
properly noted that the Applicant had not sought state protection in Saint Vincent when she was being
abused by her stepfather, and thus did not provide clear and convincing
evidence that the authorities were unable or unwilling to protect her at that
time. This was a reasonable finding according to the Respondent.
[13]
Moreover,
the Respondent asserts that the Panel reasonably found that adequate state
protection is currently available to the Applicant. The Panel reasonably found
that given her current age, the Applicant should not have to live with and
depend on her mother and stepfather if she were to return to Saint Vincent.
Accordingly, the Panel found that the Applicant could approach authorities on
her own and receive adequate protection. The test for the availability of state
protection is adequacy and not effectiveness.
Pertinent legislative provisions
[14]
The
pertinent provision of the Act for the purposes of this judicial review is
subparagraph 97(1)(b)(i) which reads as follows:
|
97. (1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
[…]
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
[…]
|
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
[…]
b) soit à
une menace à sa vie ou au risque de traitements ou peines cruels et inusités
dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
[…]
|
Standard of
review
[15]
As
noted by the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”) at
paras. 54, 57 and 62, the first step in ascertaining the appropriate standard
of review is to ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular category of question.
[16]
In Hinzman v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413, [2007]
F.C.J. No. 584 (QL), at para. 38, the Federal Court of Appeal confirmed “that questions as to the adequacy of state protection are
questions of mixed fact and law ordinarily reviewable against a standard of
reasonableness”; see also Chaves v. Canada (Minister
of Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R.
(3d) 58, [2005] F.C.J. No. 232 (QL), at paras. 9 to 11; Nunez
v. Canada (Minister of Citizenship and Immigration),
2005 FC 1661, [2005] F.C.J. No. 2067 (QL), at para. 10; Franklyn
v. Canada (Minister of Citizenship and Immigration),
2005 FC 1249, [2005] F.C.J. No. 1508 (QL), at paras. 15 to17; Capitaine
v. Canada (Minister
of Citizenship and Immigration), 2008 FC 98, [2008] F.C.J. No.
181 (QL), at para. 10; Mendoza v. Canada (Minister of Citizenship and Immigration), 2010 FC 119,
[2010] F.C.J. No. 132 (QL), at paras. 25 to 27.
[17]
The standard of review applicable to the decision of the Panel
concerning the availability of state protection is thus reasonableness.
Analysis
[18]
The
Panel found that the unavailability of state protection had not been
demonstrated by the Applicant because she did not seek protection from the
authorities in Saint Vincent after being sexually assaulted by her stepfather
when she was twelve years old and subsequently during the period when she was
an abused minor. This was, in my considered opinion, unreasonable. To impose on
a sexually molested child an obligation to seek protection from state
authorities where her mother herself does not is, to say the least, disturbing.
Consequently, I find no merit in the Panel’s decision imposing such a burden on
the Applicant in order to refute the presumption of the availability of state
protection.
[19]
Concerning
the Panel’s conclusion on the availability of state protection now that the
Applicant is an adult, I find that the evidence considered by the Panel was
selective and inadequately analyzed, leading to the conclusion that the Panel’s
finding on the availability of state protection in this specific case was
unreasonable. A few examples are in order to explain my conclusion in this
regard.
[20]
At
paragraph 19 of its decision, the Panel notes, based on “Response to
Information Request VCT102962.E”, that “police officers in Saint Vincent and the
Grenadines
are trained to handle cases of domestic violence. An emphasis is placed on
filing a report and initiating court proceedings if there is sufficient
evidence.” However, this same document VCT102962.E adds the following with
respect to the effectiveness of the police in handling cases of domestic
violence (at page 59 of the certified tribunal record):
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 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. […]
The Panel makes no mention of this in its
decision and never explains why it has not taken this information into account
or otherwise discarded it.
[21]
The
Panel further asserts at paragraph 19 of its decision that “[u]nder subsection
5(2) of the 1995 Domestic Violence Act when a protection order is in force, a
police officer may arrest without a warrant a person whom he has reasonable
cause to suspect of having committed a breach of the order”. The Panel bases
this finding on “Response to Information Request VCT102939.E”. Yet that same
document also contains the following information which is not referred to or
explained by the Panel (at page 62 of the certified tribunal record):
In
its 2008 Freedom in the World report, Freedom House states that violence
against women is a “major problem” in Saint
Vincent and the Grenadines
(Freedom House 2008). According to statistics cited by the United Nations (UN) Office
on Drugs and Crime (UNODC) in a March 2007 report, Saint Vincent and the
Grenadines has the third highest rate of reported incidents of rape in the
world (UN / World Bank Mar. 2007, 12). The data, which were gathered by UNODC
from a survey of police statistics in 102 countries, indicate a recorded rate
of 112 incidents of rape per 100,000 people in Saint Vincent and the Grenadines (ibid.). The average rate among all 102
countries surveyed was 15 recorded incidents of rape per 100,000 people
(ibid.).
The United States (US) Country Reports
on Human Rights Practices for 2007 reports that the police in Saint Vincent and the
Grenadines
investigated 47 cases of rape and 8 of attempted rape, but only 18 of these
cases were brought to trial (US 11 Mar. 2008, Sec. 5).
[22]
At
paragraph 20 of its decision, the Panel notes, based on “Response to
Information Request VCT102939.E” that “The Marion House, an NGO, offers social
programs, health and education services, and counseling to residents of Saint Vincent and the
Grenadines
in Kingstown and Georgetown.” However, the Panel
fails to add that in the same paragraph from which this information is taken in
document VCT102939.E (at page 63 of the certified tribunal record), it is noted
that available information on The Marion House “does not specify if its
services include support for victims of sexual violence”. The Applicant here is
a victim of sexual violence.
[23]
At
paragraph 22 of its decision, the Panel notes, based on “Response to
information Request VCT100481.FE” that “the authorities recently purchased a
building that, once renovated, will serve as a shelter for battered women”
without explaining how a shelter which does not yet exist would be of any use
to the Applicant. This is not the first time that a shelter for women has been
promised in Saint
Vincent
but never acted upon. In Alexander v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1305, [2009] F.C.J. No. 1682 (QL) at
para. 11, the following observation is made:
Reference
was made to the fact that there is no women's shelter in Kingstown. Had the Panel been following country conditions, and the
decisions of this Court, it would surely would have picked up on what I said in
Myle, 2007 FC 1073. It
would have noted that earlier documentary evidence was to the effect that the
Government had purchased a women's shelter which was being renovated in 2004. A
year later it was assumed that the shelter was operational. The latest
information indicates that there is no such shelter. How does this fit in with
the serious efforts attributed to the Government?
[24]
Examples
such as these can be found abundantly throughout the Panel’s decision. Though
it is clear that the Panel’s decision on the availability of state protection
must be given deference, such deference is not absolute. As noted by Justice
O’Reilly in Lewis v. Canada (Minister of Citizenship and Immigration), 2009 FC 282, [2009]
F.C.J. No. 347 (QL) at paras. 8 to 10 [emphasis added]:
The Board
found that the documentary evidence established adequate sources of state
protection in St. Vincent for women in Ms. Lewis's circumstances. For example,
the Board cited a report describing the role of the St. Vincent Family Court in
protecting women from domestic violence. The Board also referred to laws aimed
at protecting victims of family violence. However, Ms. Lewis claims that the
Board failed to refer to the evidence showing the limited capacity of the
Family Court to enforce its orders, the reluctance of police officers to take
action in domestic violence cases, and the infrequency with which the laws that
are supposed to protect women are enforced.
The
Minister argues that the Board is presumed to have considered all the evidence
before it, even if the Board does not specifically cite it. I agree. However,
here, the very documents relied on by the Board to find a presence of adequate
state protection in St. Vincent also question the sufficiency of that protection. In my
view, the Board was obliged to explain why it found that the favourable
elements contained in the evidence outweighed the negative parts. In the
absence of that assessment, I find that the Board's decision was unreasonable
in the sense that it was not a defensible outcome in light of the facts and law:
Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47.
I note that
Justices Yves de Montigny and John O'Keefe came to similar conclusions about
the Board's treatment of evidence relating to state protection in St. Vincent
in Hooper v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1359, [2007] F.C.J. No. 1744 (QL)
and King v. Canada (Minister of
Citizenship and Immigration), 2005 FC 774, [2005] F.C.J. No. 979 (QL),
respectively.
[25]
I
agree with Justice O’Reilly on this matter, as well as with Justices de
Montigny and O’Keefe in the two decisions referred to above, namely Hooper v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1359, [2007] F.C.J. No. 1744 (QL)
and King v. Canada
(Minister of Citizenship and Immigration), 2005 FC 774, [2005] F.C.J.
No. 979 (QL). I add that this Court has come to similar conclusions on
numerous occasions, notably, to name but a few, in Alexander v. Canada
(Minister of Citizenship and Immigration), supra (Justice
Harrington); Jessamy v. Canada (Minister of Citizenship and Immigration),
2009 FC 20, 342 F.T.R. 250, [2009] F.C.J. No. 47 (QL) (Justice Russell); Myle
v. Canada (Minister of Citizenship and Immigration), 2006 FC 871, [2006]
F.C.J. No. 1127 (QL) (Justice Shore); and Codogan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 739, [2006] F.C.J. N0. 1032 (QL)
(Justice Teitelbaum).
[26]
Here
the Panel was obligated to explain why it found that the favorable elements
contained in the country documentation outweighed the negative parts. Having
failed to carry out such an analysis, I have no hesitation finding that the
Panel’s decision was unreasonable.
[27]
I
add that here the Panel further failed to take into account the unique
circumstances of the Applicant who has no other family in Saint Vincent and the
Grenadines other than her mother who is living with her abusive stepfather. The
Panel assumes the Applicant will be in a position to establish herself
independently should she return, but this is unlikely in light of the evidence
presented, notably the Applicant’s lack of education and her responsibilities
towards her young daughter. The Panel had a duty to consider these particular
circumstances and failed to do so.
[28]
I
also do not find applicable to the circumstances of this case any of the case
law referred to by the Respondent concerning Saint Vincent and the
Grenadines.
In Dean c. Canada (Minisre de la Citoyenneté et de l’Immigration), 2009
CF 772, [2009] A.C.F. no 925 (QL), the claimant in that case had many brothers
and sisters to whom she could turn to re-establish herself in Saint
Vincent.
This is not the case for the Applicant here, who has no family to return to
except her mother and abusive stepfather. In Hutchins v. Canada (Minister of
Citizenship and Immigration), 2006 FC 367, [2006] F.C.J. No. 462 (QL), the
persecutor in that case was incarcerated and facing attempted murder charges
which placed him in an unlikely position to harm the claimant. In Richardson
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1009, [2007]
F.C.J. No. 1288 (QL) the claimant failed to challenge the finding regarding the
availability of state protection and rather limited her argument to credibility
issues. In Young v. Canada (Minister of
Citizenship and Immigration), 2008 FC 637, [2008] F.C.J. No. 809 the
persecutor was in jail for 15 years and thus in an unlikely position to harm
the claimant in that case. Consequently, none of the case law referred to by
the Respondent is of assistance in this case.
[29]
The
parties raised no important question warranting certification under paragraph
74(d) of the Act, and no such question shall be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is granted;
2. The Panel’s
decision is set aside;
3. The matter is
referred back to the Immigration and Refugee Board for a fresh determination on
the basis of the reasons stated herein by a new and differently constituted
Panel of the Refugee Protection Division.
"Robert
M. Mainville"
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