Date: 20101125
Docket: IMM-6689-09
Citation: 2010 FC 1167
Ottawa, Ontario, this 25th
day of November 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
DANIELE DONETTE NELSON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Ms.
Daniele Donette Nelson (the “applicant”) is seeking judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”) under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. The Board concluded that the applicant
was not a Convention refugee or a person in need of protection.
* * * * * * *
*
[2]
The
applicant is a citizen of Saint Vincent who claims to be a victim of domestic
violence.
[3]
She
was a single mother to her son when she met Mr. Elroy Barnum in 2002. She
states that he was very kind to her and helped her provide for herself and her
son. Eventually, they became romantically involved, moved in together, and she
became pregnant with a daughter.
[4]
However,
the relationship quickly turned violent. She claims that he would frequently
hit her and call her names, control her movements, follow her, and stay home
just to watch her; he also raped her on at least one occasion.
[5]
In
December 2006, she was waiting for the bus to go home when she saw a crowd on
the street. When she went to see what was going on, she noticed the body of a
young woman. Her head was cut off. She states that witnesses told her that the
victim’s abusive boyfriend had killed her. It was then that the applicant says
that she decided to leave Saint Vincent.
[6]
She
contacted her mother, who began saving money to bring her to Canada. The applicant asked
her brother if he could take care of the children while she went to Canada, and he agreed. A
couple of days before she was scheduled to leave, she told Mr. Barnum that she
did not want to be with him anymore. She claims that he beat her severely and
threatened to kill her if she left him. She states that she left that night and
stayed with her brother until her flight. She also claims that Mr. Barnum
still calls her sister, asking if she knows where the applicant is and
repeating his threat to kill her.
[7]
The applicant
arrived in Canada on August 5, 2007, on a
six-month visitor visa, and submitted her refugee claim only on February 14,
2008.
* * * * * * * *
[8]
The
Board first considered the applicant’s credibility. Although the Board
ultimately concluded that her story was plausible, the Board expressed concern
over the delay between the applicant’s arrival in Canada and the submission of
her refugee claim. The Board noted that she waited approximately six months
before submitting her claim, and that she testified that the reason for the
delay was that she was not aware of the refugee protection program and that she
had come to Canada to relax and seek help.
The Board further noted that she first decided to come to Canada after
witnessing the murder of a young woman in Saint Vincent, and that the Immigration
Officer’s notes indicate that the applicant came to Canada out of fear. However,
the Board found that the applicant made no effort to find out about the options
available to her, and that her delay in claiming was not consistent with
someone who fears for her life. Although the Board concluded that the delay
affected the credibility of the applicant’s subjective fear, it found that this
was not a decisive factor.
[9]
The
Board’s primary reason for rejecting the applicant’s claim was because the applicant
had not discharged her burden of demonstrating that the state of Saint Vincent
is unable or unwilling to protect her. The Board noted that the applicant had
not made any attempt to seek help from the police prior to seeking protection
in Canada, her reason being that
Mr. Barnum was always watching her and that the police would not do anything.
The Board acknowledged that state protection in Saint Vincent is not perfect, but
found that the country does have a police force and that its government
apparatus had not completely broken down.
[10]
The
Board then discussed the documentary evidence indicating that the Domestic
Violence (Summary Proceedings) Act 1995 provides protection to victims of
spousal or common-law partner abuse. The Board further noted that the government
of Saint Vincent has been making serious efforts to fight violence and to
inform police officers and justice workers about domestic violence and to
encourage the application of the Domestic Violence Act. The Board also
noted evidence indicating that it was not futile to seek police protection
because:
…
From January to … October 2007, out of a total of 177 protection orders filed,
75 were granted, 70 were “struck out”, 13 were denied, 7 were dismissed and 5
were withdrawn …. For the same period, a total of 33 arrests for domestic
violence were registered, leading to 222 [sic] convictions, 7 dismissals
and 5 cases registered as “offer[ing] no evidence”….
(As
pointed out by counsel for the applicant, the number 222 in the above citation
appears to be the result of a clerical mistake as in fact the record shows that
the 33 arrests resulted in 22, not 222, convictions.)
[11]
The
Board cited jurisprudence indicating that “[d]oubting the effectiveness of
state protection when [the claimant] did not really test it does not rebut the
presumption of state protection”. As a result, the Board concluded that the applicant
did not discharge her burden of proof and demonstrate that state protection was
inadequate.
* * * * * * * *
[12]
The applicant
has raised the following issues:
A. Did the Board err in
concluding that the applicant lacked subjective fear?
B. Did
the Board err in concluding that there was state protection available to the applicant?
[13]
Regarding
the question of the Board’s analysis of the applicant’s subjective fear, Mr. Justice
Michael Kelen recently confirmed in Cornejo v. Minister of Citizenship and
Immigration, 2010 FC 261, that the applicable standard of review is
reasonableness. Regarding the Board’s analysis of the existence of state
protection, the Court of Appeal in Hinzman v. Minister of Citizenship and
Immigration, 2007 FCA 171, found that the applicable standard of review is
reasonableness.
* * * * * * * *
A. Did the
Board err in concluding that the applicant lacked subjective fear?
[14]
The applicant
submits that in concluding that the delay in submitting her refugee claim affected
the credibility of her subjective fear, the Board did not consider her
explanations. The applicant notes that she was in Canada legally for six months
and was at no risk of deportation. She also testified that she did not know
anything about the refugee process until shortly before the expiration of her
visitor’s visa. She submits that the failure to consider these explanations
renders the decision unreasonable.
[15]
As
noted by the respondent, the Board was certainly entitled to consider the applicant’s
delay in claiming when assessing her subjective fear of persecution. However,
delay is not normally determinative of a claim (Espinosa v. Minister of
Citizenship and Immigration, 2003 FC 1324). This is precisely what the
Board found in this case. While it did express concerns over the subjective
fear of the applicant based on her behaviour, the Board ultimately concluded
that the delay was not decisive, and still concluded that the applicant was
credible regarding her story. There is nothing unreasonable about the Board’s
conclusion on this matter.
B. Did
the Board err in concluding that there was state protection available to the
applicant?
[16]
The applicant
submits that the decision of the Board regarding the existence of state
protection is unreasonable because the Board ignored evidence indicating that
victims of domestic violence have little recourse available to them and that
police officers frequently treat victims as though they asked for such
treatment, as well as the applicant’s testimony indicating that her common-law
partner had threatened to kill her if she went to the police.
[17]
As
noted by the respondent, the applicant bears the burden of satisfying the
Board, with clear and convincing evidence, that state protection was not
available to her (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
While this evidence certainly provides support for the applicant’s position, I
am not convinced that this is “clear and convincing” evidence of the state’s
inability to provide protection.
[18]
Indeed,
there is serious evidence in support of the Board’s finding of availability of
state protection. Considering that the Board is presumed to have considered all
the evidence before it (Florea v. Canada (Minister of Citizenship and
Immigration), [1993] F.C.J. No. 598 (C.A.) (QL)) and it is under no
obligation to refer to every piece of evidence (Kumar v. Minister of
Citizenship and Immigration, 2009 FC 643), it would be inappropriate for
this Court to substitute its own appreciation of the facts to that made by the
Board. In this context, I am of the view that in essence the following comments
made by Madam Justice Marie-Josée Bédard in Rocque et al. v. The Minister of
Citizenship and Immigration Canada, 2010 FC 802, and by Mr. Justice Maurice
Lagacé in Dean v. The Minister of Citizenship and Immigration, 2009 FC
772, apply mutadis mutandis to the present case.
[19]
In Rocque
et al.:
[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]
In Dean:
[17] In
spite of the
allegations of threats and fear for the safety of her mother, brother and sister because of the influence her stepfather
purportedly enjoyed as a producer and dealer of drugs, the applicant never
filed a complaint with the authorities before leaving Saint Vincent and
the Grenadines to come to Canada to claim refugee protection.
[18] The granting of international
protection must only be an ancillary measure of last resort. Consequently, the
RPD was entitled to presume that a foreign state was capable of protecting its
citizens. The burden was on the applicant to establish, through clear and
convincing evidence, her country of origin’s inability to provide protection
for her. Except in situations where the state apparatus has broken down
completely, it should be presumed that it is capable of protecting its citizens
(Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 725-726; Mendivil
v. Canada (Secretary of State) (1994), 167 N.R. 91, 95 (F.C.A.); Roble
v. Minister of Employment and Immigration (1994), 169 N.R. 125, 130
(F.C.A.); Canada (Minister of Employment and Immigration) v. Villafranca,
[1992] F.C.J. No. 1189 (F.C.A.) (QL), at paragraphs 6-7).
[19] The RPD
weighed the documentary evidence before concluding that the protection provided
by the government of Saint
Vincent and the Grenadines
was adequate. It also examined the reasons why the applicant never filed a
complaint with the police regarding the assaults by her stepfather, but did not
find them to be satisfactory. The RPD found that the applicant’s explanations
did not constitute clear and convincing evidence of inadequate state
protection.
[20] When an
applicant comes from a democratic state such as Saint Vincent and the Grenadines, it is even more incumbent
upon them to seek the protection of that state first. Accordingly, the
applicant must show that he or she exhausted all reasonable courses of action
available in his or her country to obtain the necessary protection of the
national authorities, before contemplating seeking protection from a foreign
country (Kadenko v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 1376 (F.C.A.) (QL)). While the
applicant may very well cite incidents which occurred during her youth to
justify not having sought the protection of her country, nothing however
prevented her from claiming such protection when the incidents occurred after
she had reached adulthood, before she chose to leave for Canada.
[21] In this case, the applicant
did not establish the “complete breakdown of the state apparatus” in her
country of origin. As the RPD rightly noted, the applicant demonstrated only a
subjective reticence to file a complaint but did not show any denial or lack of
state protection.
[22] Moreover,
the RPD relied on objective documentary evidence indicating that the country
has an independent judiciary that enforces the law in cases of spousal violence
and violence against minors. It is not the Court’s place to substitute its
opinion for that of the RPD, a specialized administrative tribunal with
all the necessary expertise to analyze the evidence and make the appropriate
findings.
[21]
As I
find that none of the Board’s findings regarding state protection were
unreasonable and that, on the contrary, they fell “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190), the intervention of the Court is not warranted and the
application for judicial review is dismissed.
[22]
No
question is certified.
JUDGMENT
The application for judicial
review of the decision rendered on November 26, 2009 by the Refugee
Protection Division of the Immigration and Refugee Board is dismissed.
“Yvon
Pinard”
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