Date: 20101125
Docket: IMM-4573-09
Citation: 2010 FC 1186
Ottawa, Ontario, November 25, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SHERLINE SAMANTHA GILBERT
SHERWIN GILBERT (MINOR)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated August 7, 2009, wherein the applicants were determined
not to be Convention refugee or persons in need of protection under sections 96
and 97 of the Act. This conclusion was based on the Board’s finding that state
protection was available to the applicants in St. Lucia.
[2]
The
applicants request that the decision of the Board be quashed and the claim
remitted for reconsideration by a differently constituted panel of the Board.
Background
[3]
The
applicants, Sherline Samantha Gilbert and her minor son, Sherwin Gilbert,
citizens of St.
Lucia,
entered Canada in 2004. The
principal applicant alleges that she fears for her life at the hands of her
ex-boyfriend, Shawn Octave, who she alleges repeatedly physically and sexually
assaulted her and has threatened to kill her.
[4]
The
principal applicant alleges that her ex-boyfriend, the father of her second
child, physically assaulted her on three occasions between September and
December 2001 and also sexually abused her and once threatened to kill her.
After the final assault, she went to the police but they told her they would
not get involved in love affairs business. The principal applicant moved out
but her ex-boyfriend continued to harass her and the police would not help. The
principal applicant moved back in with her ex-boyfriend but in March of 2002,
while drunk, he physically assaulted her saying, “your sister murdered my
brother, and you think you can go free?” (The applicant’s sister had in fact
killed Mr. Octave’s brother in March of 2001). After that assault, the
applicants moved in with the principal applicant’s mother and her ex-boyfriend
continued to harass them and beat the minor applicant. On two occasions, the
mother reported the ex-boyfriend to the police but they did nothing. Then the
ex-boyfriend seemed to disappear for a while and the applicant thought he had
left for good.
[5]
The
principal applicant came to Canada temporarily in May of 2004 to help a
friend recover from brain surgery. Once back in St. Lucia, the
ex-boyfriend returned and assaulted the applicant, pressing a gun to her and
ordering her to move back in with him within one week or be killed. The principal
applicant moved in with her mother and then some friends. She fled to Canada on December
12, 2004.
[6]
After
arriving in British Columbia, the principal applicant lived with a Canadian
friend she had met in St. Lucia who had offered to help
her obtain status. The friend did not help and then the principal applicant
moved to Toronto where she
has resided since. In November of 2007, she was introduced to a lawyer and
filed a claim for refugee protection.
Board’s Decision
[7]
The
Board considered the principal applicant’s delay in claiming asylum and her
counsel’s explanation for that delay. The Board concluded that the delay was
significant, three years, and undermined the principal applicant’s allegation
that she faces serious harm if she returns to St. Lucia. This,
however, was not a determinative factor for the Board.
[8]
The
Board felt that the principal applicant had ultimately failed to establish that
her fear was objectively well-founded. The primary considerations were whether
adequate state protection existed in St. Lucia and whether the principal
applicant had taken all reasonable steps to avail herself of that protection.
The Board looked at the documentary evidence and found that St. Lucia is a
democracy with an independent judiciary and a hierarchical police force. There
is a complaint and redress process for allegations of police misconduct or
ineffectiveness.
[9]
The
Board noted that violence against women remains a problem, but that increased
recognition of the problem has lead to better protection for victims. The Board
then discussed the various institutional resources available to victims and
recent improvements to the police force’s handling of domestic abuse. It was
acknowledged that problems with reporting continue, as many victims are often
reluctant to report or take other action or that they report abuse, but then
recant, and that police response is less effective on the next occasion. The
Board considered the principal applicant’s evidence that state protection was
inadequate, but noted that the articles submitted were either old or not dated
and in the end, preferred the Board’s own documentary evidence as being more
up-to-date and reliable.
[10]
The
Board then considered the principal applicant’s evidence of her attempts to
obtain protection. She had problems recalling some of the events and the Board
noted some inconsistencies. The Board also considered that the principal applicant
had not made any attempts to obtain any of the police reports made on her
account. Her explanation was that it would have cost too much, but the Board
found it an unreasonable explanation, given that she had counsel
representation. The Board also considered the advice in the Chairperson’s Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution (the Guidelines)
to be more accepting of these claims and to consider evidence of similarly
situated women. The principal applicant could not offer any such evidence. In
the end, the Board determined that the principal applicant had not rebutted the
presumption of state protection and rejected the applicants’ claims.
Issues
[11]
The
issues are as follows:
1. What is the standard
of review?
2. Did the Board breach
its duty of fairness with respect to the minor applicant by not rendering a
separate decision in his regard?
3. Did the Board err by
finding that the delay meant that the principal applicant lacked a subjective
fear?
4. Did the Board err by
ignoring vital evidence or making selective use of documentary evidence?
Applicants’ Written Submissions
[12]
The
applicants submit that it was a reviewable error for the Board not to devote
any analysis to the minor applicant’s specific claim. The minor applicant had a
different factual situation and made a separate claim.
[13]
On
the merits, the applicants submit that the Board did not give adequate reasons
for rejecting the principal applicant’s explanation for her delay in filing.
She did not know what to do when she arrived in Canada and was
completely reliant on others.
[14]
With
regard to state protection, the applicants submit that the Board failed to make
reference to documentary evidence from its own sources which indicate that
there is no effective protection for women victims of violence. The Board
settled for documentary evidence of the intentions to curb the problem, but
failed to consider whether such steps are yielding positive results. The Board
should have considered whether there was capacity at the St. Lucia women’s
shelter. The police were patronizing toward the principal applicant and did not
assist her. Protection was not forthcoming. Furthermore, the Board unreasonably
rejected the applicants’ documentary evidence. If it had concerns about the
date of an article, it could have brought that to the applicants’ attention.
The other documents were from 2006 or 2008, not 2002 or 2003 like the Board stated.
Finally, it was unreasonable for the Board to conclude that the principal applicant
should have obtained police reports. Her evidence was that she tried but could
not afford the cost. Moreover, the Guidelines advise the Board not to insist on
documentation to support the claims of abused women.
Respondent’s Written Submissions
[15]
The
respondent submits that the applicant’s and her minor son’s claims were based
on the same facts from a shared life in St. Lucia. The Board’s
rules require that such claims of family members be joined. Moreover, the minor
applicant did not submit any narrative with his PIF. The only evidence
regarding his situation that the applicants now raise comes from the principal
applicant’s own PIF and then it was only mentioned briefly. The Board did not
err in considering the claims together and in any event, the finding of state
protection applies equally to both applicants.
[16]
The
Board did not make a determinative finding with regard to the principal applicant’s
delay. The finding of state protection was the only determinative finding and
was fully determinative of the claim.
[17]
The
Board’s finding with regard to state protection was reasonable. The Board did
not ignore contradictory evidence and acknowledged that violence against women
remains a problem. The Board clearly recognized that there were some
inconsistencies among the sources of evidence. In order to ensure that it had
all relevant information, the Board asked the principal applicant if she was
aware of any women in a similar situation. It asked this question pursuant to
the Guidelines. Upon weighing the evidence before it, the Board found that
although not perfect, the preponderance of evidence suggested that there was
adequate protection.
Analysis and Decision
[18]
Issue
1
What is the standard of review?
Ultimate refugee determinations
of the Board are reviewable against the standard of reasonableness (see Kaleja
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 252 at paragraph 19 and Sagharichi
v. Canada (Minister of
Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.), [1993] F.C.J.
No. 796 at paragraph 3). As such, the reviewing court inquires into the
qualities that make a decision reasonable, concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. The court will also be concerned with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (see Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47).
[19]
With
respect to matters of procedural fairness, the standard of review is
correctness.
[20]
Issue
2
Did the Board breach its
duty of fairness with respect to the minor applicant by not rendering a
separate decision in his regard?
The applicants’ contention is
that the Board was required to render a separate decision and reasons for the
minor applicant’s refugee claim. Yet, the applicants do not contend that it was
improper for the Board to have joined the applicants’ claims.
[21]
Indeed,
the present case invoked the automatic joiner provision encapsulated in Rule 49
of the Refugee Protection Division Rules, SOR/2002-228.
[22]
The
Board was required to join the claims unless an application was made under Rule
50(2) to sever. No such application was made and the claims of the principal
applicant and her minor son which, after all, were both based on the same
alleged fear, were properly joined.
[23]
The
applicants have not brought forth any authority or rule to support an assertion
that the Board was required to render separate decisions and reasons with
respect to joined claims.
[24]
Nevertheless,
the applicants raise the somewhat technical argument that the cases needed to
be considered differently because while the principal applicant’s claim for protection
was based on being an abused woman, her son’s claim was based on child abuse. I
do not find this argument persuasive. At no time during the proceeding did the
principal applicant or her counsel make the submission that her son’s claim
should be treated as being substantially different on that ground.
[25]
I
also keep in mind that the applicants have raised this as a breach of
procedural fairness, but have not pointed to anything during the process which
was unfair. Certainly, the Board afforded the applicants every opportunity to
make their case prior to and during the hearing. Consequently, it can only be
characterized as a procedural matter to the extent that the reasons were
inadequate.
[26]
An
alleged inadequacy of reasons must be severe enough to occasion prejudice on an
applicant’s right to judicial review (see Za'Rour v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1281, 321 F.T.R. 120 (Eng.) at
paragraphs 19 and 20). In the present case, the Board’s reasons are clear
enough that there can be no confusion as to why the Board came to the
conclusion it did. The joined claims of the applicants were rejected on the
basis that state protection was available for them. It was not an error for the
Board to consider implicitly that the minor applicant would and could avail
himself of that same protection from the agent of persecution.
[27]
The
applicants note that the Board’s decision often referred to the claimant in the
singular. While this may have been an error or a typographical error, I cannot
hold that it amounts to a breach of procedural fairness. What is more, the
applicants clearly pinned their case on the strength of the principal
applicant’s testimony and only mentioned the minor applicant fleetingly. The
applicants did not present a separate identifiable case for protection with
respect to the minor applicant individually and it was clear that his case was dependent
on the principal applicant, whose claims, narrative and testimony were the sole
focus of the hearing. Moreover, during the hearing, counsel for the applicants
referred to the principal applicant as the claimant singular several times (see
certified tribunal record, pages 250 and 304). In the end, I cannot find any
mistreatment of the case or unfairness caused by the Board’s decision. I would
not grant judicial review on this ground.
[28]
Issue
3
Did the Board
err by finding that the delay meant that the applicants lacked a subjective
fear?
The applicants must fail on
this issue as the reasons for decision clearly reveal that the Board did not
make such a finding.
[29]
It
is well settled that the Board can and often should consider delay as a factor
which potentially undermines a refugee claimant’s alleged subjective fear (see Huerta
v. Canada (Minister of
Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.), [1993] F.C.J.
No. 271). The Board discussed and considered the delay, as well as the
principal applicant’s explanation for that delay. It was not entirely satisfied
that the delay was sufficiently explained and held that the delay thus
undermined the principal applicant’s allegation with respect to having a
subjective fear. This was not the same as a finding that the principal applicant
lacked subjective fear, which would have been in and of itself a determinative
finding negating a claim for asylum.
[30]
In
any event, the finding with respect to delay became moot. No final
determination was made with regard to the principal applicant’s subjective fear
and the determination was made on the basis that the applicants’ fear was not
objectively reasonable because adequate state protection existed.
[31]
Issue
4
Did the Board err by
ignoring vital evidence or making selective use of documentary evidence?
The assertion that vital evidence was ignored is
the only issue here.
[32]
An
allegation that the Board made selective use of the documentary evidence does
not amount to an error as the Board is indeed expected to use its expertise to
glean the most relevant aspects from the evidence and thus is expected to be
selective.
[33]
However,
where the Board fails to mention the substance of critical documentary evidence
which runs contrary to the conclusion it reaches, the reviewing court will be
more likely to infer that that conclusion was made without regard to the
evidence (see Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1993), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (F.C.T.D.) (QL)).
If the court finds that the substance of such contrary evidence was discussed
by the Board, this ground of review is not made out. The court will not
entertain requests to intervene when an applicant’s position merely amounts to
a disagreement with the manner in which the Board weighed the evidence.
[34]
It
is the substance of the contrary evidence on state protection which must have
been considered, not the particularities of any specific article. It is trite
law that the Board is presumed to have taken all of the evidence into
consideration and need not mention all pieces or even any specific piece of
evidence, provided that a review of the reasons suggests that the Board
considered the totality of the evidence (see Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.), Ortiz v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1163, Ali v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 242).
[35]
The
applicants refer to one of the Board’s own documents, “Shadow Report for St. Lucia on the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)”, a 2006 report which clearly takes the view that violence against
women is a critical issue. While the article stays focused on violence against
women, it is not directly focused on inadequate state response. The article
considers that perpetrators are often sent to prison, leaving their female
victims unable to provide for themselves with insufficient state assistance. It
also condemns police for failing to guarantee protection from domestic
perpetrators.
[36]
The
only other article raised by the applicants is a newspaper article regarding a
woman who was stabbed to death in her home.
[37]
I
cannot conclude that the substance of these articles relevant to the
determination of state protection was ignored by the Board. The Board undertook
a principled and balanced discussion of state protection for victims of
domestic abuse in St. Lucia. It did not omit discussion of negative aspects
and because its discussion of those negative aspects included substantially the
same topics raised by the articles and raised now by the applicants, I cannot
say that those articles or their substance was ignored. The Board was not
required to refer in its reasons to the specific articles raised now by the
applicants. The Board did acknowledge the substance of those articles when it
held that:
1. Violence against
women remains a problem (decision, paragraph 13);
2. Some police are
still at times reticent to intervene (decision, paragraph 13);
3. Victims withdrawing
claims or recantations may lead to less effective police response on the next
occasion (decision, paragraph 15); and
4. Domestic violence is
a serious issue in St. Lucia (decision, paragraph 17).
[38]
Again,
because the Board acknowledged these problems, I cannot intervene in the
decision on the ground submitted by the applicants, namely, that this evidence
was ignored. It was not ignored.
[39]
The
application for judicial review must therefore be dismissed.
[40]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[41]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(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,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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 :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
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,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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