Date: 20100804
Docket: IMM-6333-09
Citation: 2010 FC 802
Ottawa,
Ontario, August 04, 2010,
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
SYDNEY HAROLD ROCQUE
MARENE ELVINA STAPLETON
SYDNISHA OMESIA ROCQUE
RASHIDE ENRIKAI ROCQUE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review submitted pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”)
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”), dated November 23, 2009, where it determined that the
Applicants were neither Convention refugees within the meaning of section 96 of
the Act nor persons in need of protection as defined by section 97 of
the Act.
CONTEXT
[2]
The
principal Applicant claimed refugee status along with his spouse and their two
minor children. He and his family are from Saint Vincent and the Grenadines (Saint
Vincent).
The Applicants based their claim on the following allegations: In August 2007,
their minor daughter was assaulted and raped by a neighbour (W.) who was a
well-known gang member and drug dealer. The Applicants made a complaint to the
authorities and W. was arrested and charged with assault. Shortly after, the
family began to receive threats from W., his family and his gang member
associates, who pressured them to drop the charges. The Applicants allegedly
made a report of the threats to the police and to the prosecutor, but to no
avail. At the trial, the Applicant’s daughter refused to give evidence against W.
and the case was dismissed.
[3]
The
Applicants claim that the acts of intimidation and the threats continued even though
the criminal case had been dismissed because they were perceived as “informers”.
They further alleged that they reported the threats to the police, again to no
avail. Feeling unsafe and unable to get the authorities to arrest the
perpetrators, the plaintiffs left Saint Vincent for Canada July 30,
2009, and they claimed refugee protection on August 18, 2008. They based their
claim on their fear of persecution based on their membership in a particular
group and on the risk of cruel and unusual treatment or punishment or danger of
torture posed by W. and his associates should they return to Saint Vincent.
THE DECISION
UNDER REVIEW
[4]
The
Board concluded that the claimants were neither Convention refugees nor persons
in need of protection.
[5]
With
respect to the claim for Convention refugee status, the Board concluded that it
was not covered by any of the grounds provided for by the Convention. In
addition, the Board dismissed the Applicants’ claim that they were “persons in
need of protection” on the basis of two main findings: first, the Board found
that the Applicants had not provided credible, plausible and consistent
evidence to support their claim about the risk to their life. Second, the Board
found that the Applicants had not rebutted the presumption of availability of state
protection.
ISSUES
[6]
The
Applicants contend that the Board made an unreasonable assessment of the
evidence and of their credibility and that, therefore, it erred in concluding that
they had not proven the basis of their claim and that they had not rebutted the
presumption of availability of state protection.
[7]
This
case raises two issues: that of credibility and that of availability of state
protection. The Applicants’ credibility came into play with respect to the
facts on which they based their refugee claim but it also came into play, to a
certain point, with respect to the issue of availability of state protection.
[8]
The
issue of state protection is determinative in this case (Rodriguez v. Canada
(Citizenship and Immigration), 2005 FC 153; Sran v. Canada (Citizenship
and Immigration), 2007 FC 145; Munoz v. Canada (Citizenship and
Immigration), 2008 FC 648; Houshan v. Canada (Citizenship and Canada),
2010 FC 650; Carillo v. Canada (Minister of Citizenship and Immigration),
2008 FCA 94, I will not discuss the other issue. Since I have concluded, for
the reasons that follow, that there is no reviewable error in the Board’s
conclusion on state protection, there is no need to address the other issue.
STANDARD OF
REVIEW
[9]
The
jurisprudence has made it clear that questions about the adequacy of state
protection is a mixed question of fact and law and is to be reviewed according
to a standard of reasonableness (Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171. The same standard applies
to the assessment of evidence and credibility (Dunsmuir v. New-Brunswick,
2008 SCC 9; Ndam v. Canada (Citizenship and
Immigration), 2010 FC 513; Martinez v. Canada (Minister of
Citizenship and Immigration), 2009 FC 798. The Court must not
substitute its own view even if an alternative outcome appears preferable, nor
is it its role to reweigh the evidence.
ANALYSIS
[10]
The
Board concluded that the Applicants had not rebutted the presumption of availability
of state protection. The Board articulated its finding in the following manner:
[23] Finally, there is the
issue of state protection. States are presumed to be able to protect their
citizens. Saint-Vincent is a parliamentary democracy with a functioning
judiciary (8). There are very clear laws to protect individuals such
as the principal claimant and members of his family against assaults (9).
The protection need not be perfect, and even if the claimants had difficulty
with respect to one police authority in one police station, it does not mean
that the entire police department nationwide is corrupt. Given that the panel
has already determined to be a lack of credibility with respect to the
documentation produced and the documentation not produced, it does not believe
that the claimants have rebutted, with clear and convincing evidence, an
absence of state protection. They are not “persons in need of protection”.
[11]
In
my view, the Board’s conclusion was not unreasonable.
[12]
First,
the Board applied the correct principles.
[13]
In
Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, Justice La Forest explained as
follows the underlying philosophy of the refuge protection regime, and the
central importance of the presumption that the home state provides protection
to its citizens:
At the outset, it is useful
to explore the rationale underlying the international refugee protection
regime, for this permeates the interpretation of the various terms requiring
examination. International refugee law was formulated to serve as a
back-up to the protection one expects from the state of which an individual is
a national. It was meant to come into play only in situations when
that protection is unavailable, and then only in certain situations. The
international community intended that persecuted individuals be required to
approach their home state for protection before the responsibility of other
states becomes engaged. For this reason, James Hathaway refers to the
refugee scheme as "surrogate or substitute protection", activated
only upon failure of national protection; see The Law of Refugee Status
(1991), at p. 135. With this in mind, I shall now turn to the particular
elements of the definition of "Convention refugee" that we are called
upon to interpret. (page 709) [emphasis added].
[14]
There
is a presumption that a state is capable of protecting its citizens (Ward;
Hinzman) and an individual has a duty to seek protection from his or her
country of origin before seeking asylum in Canada. The presumption
of availability of state protection can only be rebutted where the claimant demonstrates
that his or her country of origin is unwilling or unable to protect its
citizens or that his or her attempt to seek protection was useless (Sran v. Canada (Minister of
Citizenship and Immigration), 2007 FC 145).
[15]
In
order to rebut that presumption, “clear and convincing confirmation of a
state’s inability to protect must be provided” (Ward, above, at page
724).
[16]
In
Hinzman, above, the Federal Court of appeal reiterated the principle
that it had enunciated in Kadenko v. Canada (Sollicitor General) (1996),
143 D.L.R. (4th) 532: “the more democratic a country, the more the
claimant must have done to seek out the protection of his or her home state” (Hinzman
at paragraph 45). In such a case, claimants “required to prove that they
exhausted all domestic avenues available to them without success before
claiming refugee status in Canada” (Hinzman at paragraph 46)
[emphasis added].
[17]
It
has also been said on several occasions by the Court that the fact that problems
have been encountered with one representative or a small group of
representatives from law enforcement does not necessarily mean that state
protection is not available; thus, that will not automatically lead to a
conclusion that the entire police force or other state authorities are
unwilling to offer support. (Martinez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 343; Luthra v. Canada (Citizenship
and Immigration), 2008 FC 1053).
[18]
In
Kadenko, above, Justice Decary, discussed the extent to which an
Applicant must attempt to seek protection from his or her country in order to
rebut the presumption:
3 In our view, the
question as worded must be answered in the negative. Once it is assumed that
the state (Israel in this case) has political and judicial
institutions capable of protecting its citizens, it is clear that the refusal
of certain police officers to take action cannot in itself make the state
incapable of doing so. The answer might have been different if the question had
related, for example, to the refusal by the police as an institution or to a
more or less general refusal by the police force to provide the protection
conferred by the country's political and judicial institutions.
4 In short, the situation
implied by the question under consideration recalls the following comments by
Hugessen J.A. in Minister of Employment and Immigration v. Villafranca:1
No government that makes any claim to democratic values or protection of
human rights can guarantee the protection of all its citizens at all times.
Thus, it is not enough for a claimant merely to show that his government has
not always been effective at protecting persons in his particular situation. .
. .
5 When the state in
question is a democratic state, as in the case at bar, the claimant must do more
than simply show that he or she went to see some members of the police force
and that his or her efforts were unsuccessful. The burden of proof that rests
on the claimant is, in a way, directly proportional to the level of democracy
in the state in question: the more democratic the state's institutions, the
more the claimant must have done to exhaust all the courses of action open to
him or her.2
[19]
In
this case, the Board concluded that Saint Vincent is a parliamentary democracy
with an effective judiciary and that there are in force in that jurisdiction clear
laws protecting persons such as the Applicants from assault. This conclusion was
based on the evidence, among which were included the Saint Vincent and the
Grenadines National Documentation Package and the Country Reports on Human
Rights Practices for 2008. Having read all the documentary evidence presented
to the Board regarding the country conditions, I am of the view that the
Board’s finding was not unreasonable and that it did not make this finding without
regard to the evidence.
[20]
The
Board also discussed the sufficiency of the Applicants’ attempts to seek
protection from the police. Despite its negative credibility findings, the
Board’s comment about the Applicants’ attempts to obtain protection is expressed
in such a way as to suggest that it addressed this point without questioning the
truthfulness of the Applicants’ story. The comment reads as follows: “The
protection need not be perfect, and even if the claimants had difficulty with
respect to one police authority in one police station, it does not mean that
the entire police department nationwide is corrupt.” I find nothing
unreasonable in that conclusion considering the evidence about the country
conditions and about the Applicants’alleged attempts to seek protection in
their home state.
[21]
No
question was proposed for certification under paragraph 74(d) of the Act,
and no such question will be certified.
JUDGMENT
THIS COURT ORDERS AS
FOLLOWS:
The
application for judicial review is dismissed.
“Marie-Josée
Bédard”
Email this Content