Docket: IMM-4748-11
Citation: 2012 FC 320
Ottawa, Ontario, March 16,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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CONNIE JUDY KAY WRIGHT
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board) which found
that the applicant was not a Convention (United Nations’ Convention
Relating to the Status of Refugees, [1969] Can TS No 6) refugee nor a
person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow, the application is granted.
Facts
[2]
The
applicant is a citizen of Saint Vincent. She alleges fear of
persecution by her ex-husband, Alrick Wright. The applicant states that Alrick
began abusing her soon after they started living together. He was physically
violent to her and would sometimes lock her out of the house. The applicant
states that their relationship improved slightly after the birth of their first
child, at which point he convinced her to marry him, but the abuse resumed
after they were married.
[3]
The
applicant states that she tried to seek help from the police on multiple
occasions. Each time they would not arrest her husband but would talk to him
and tell him to treat the applicant better. On one occasion when her husband
severely injured her leg the police told her to go to the hospital. They did
not take her there nor lay charges.
[4]
The
applicant eventually fled the abuse and went to stay with her father. Her
husband came to the house and threatened to kill the applicant and her family.
The applicant decided to find work in the Grenadines and only returned home
each month to see her family. In 2005, after her husband saw her on the street
one day and attacked her, she decided she would never be safe and came to Canada in 2006.
She remained here for several years before a friend informed her that she could
make a refugee claim based on domestic violence. She made her claim in May
2010.
Decision Under Review
[5]
In
the reasons for its decision dated June 22, 2011, the Board found that the
determinative issue was state protection, finding that the applicant did not
rebut the presumption of state protection with clear and convincing evidence.
The Board noted the Court’s decision in James v Canada (Minister of
Citizenship and Immigration), 2010 FC 546, which canvassed documentary
evidence in respect of state protection for victims of domestic violence in
Saint Vincent. However, the Board found that the more recent evidence, namely
subsequent to James, was mixed rather than entirely negative.
[6]
In
support of this finding the Board quoted at length from two Responses to
Information Requests related to domestic violence in Saint Vincent, one from
2009 and one from 2008. The Board also quoted a long passage from the 2010 US
DOS Report on human rights in Saint Vincent, finding the evidence in respect of
state protection also to be mixed rather than entirely negative.
[7]
The
Board concluded that:
In my view, it would be too problematic
for the surrogate notion of refugee protection if grants of it were to occur in
the face of documentary state protection evidence this mixed and in
circumstances where the last clear chance the state was given to protect the
claimant from the agent of persecution occurred as long ago as in this case –
again, nearly 20 years ago, in the year 1992.
[8]
The
Board noted the applicant’s testimony about what she had heard recently about
police responses to domestic violence but found that this only added to a
“mixed factual record” and was insufficient to rebut the presumption of state
protection. The Board also found that the applicant’s attempts to seek
protection were not sufficient to prove an absence of state protection since
they were so long ago. The applicant’s claim was therefore rejected.
Standard of Review and
Issue
[9]
The
issue before the Court is whether the Board’s analysis of state protection was
reasonable. It is settled law that the question of whether state protection is
available is a question of mixed fact and law, to be reviewed on a standard of
reasonableness; James, para 16.
Analysis
[10]
In
James, Justice Robert Mainville set aside a decision of the Board for
selectively considering the evidence of state protection in Saint
Vincent
and failing to explain why the positive evidence outweighed the negative.
Justice Mainville provided several examples of documentary evidence that state
protection was not available and then stated the following:
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.
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).
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.
[Emphasis in original]
[11]
The
Board acknowledged the Court’s decision in James but found that the
documentary evidence was not precisely as it was when James was decided
and therefore concluded that the presumption of state protection had not been
rebutted.
[12]
The
thrust of the Board’s reasoning is that the decision in James was “some
time ago”, and at that time the documentary evidence regarding protection for
victims of domestic violence was “entirely negative”. The more recent evidence
was, in contrast, “mixed”, and therefore James could be distinguished.
I reject this reasoning: James was decided in May, 2010, and the
decision under review in James was made in September 2009. Furthermore,
the evidence considered by the Board in James was just as “mixed” as the
evidence before the Board in this case. In fact, the evidence was almost
identical in its substance to the evidence in James which is
unsurprising, given how little time had elapsed between the decisions.
[13]
Thus,
the Board is not permitted to rely on the passing of a year (May 18, 2010 to
June 22, 2011) to circumvent the reasoning in James; rather, the Board
was required to do what the Court instructed in that decision; consider the
evidence in the record, determine whether the positive evidence outweighs the
negative, and, importantly, explain the basis for that determination. I agree
with the applicant that it is insufficient to merely state that the evidence
“is mixed” and therefore the presumption of state protection has not been
rebutted.
[14]
In
the case before me, the Board fails to engage with the documentary evidence to
explain why it prefers the portions that indicate state protection is
available; rather, the Board states it would be “problematic” to grant
protection in the face of mixed evidence. Evidence regarding state protection
is rarely unequivocal. To require an evidentiary record that is “entirely
negative” is to place an impossible burden on claimants and is contrary to the
jurisprudence of this Court.
[15]
I
note that in Hooper v Canada (Minister of
Citizenship and Immigration), 2007 FC 1359, cited in the above passage
from James, Justice Yves de Montigny rejected the kind of reasoning
similar to that employed by the Board in this case:
The respondent argued that the Board did
turn its mind to the existence of contradictory evidence, as evidence by its
statement that the “documentary evidence is mixed” in the matter relating to
domestic violence. But this is not enough, for a number of reasons…
[16]
As
in previous cases of this Court regarding Saint Vincent, there was considerable
evidence before the Board that the state is unable to protect women from
domestic violence. In order for the Board’s decision to have the requisite
justification, intelligibility and transparency to be considered reasonable, it
needed to explain why the favourable evidence of state protection was preferred
over evidence that the state is unable to protect.
[17]
The
respondent submits that the mixed nature of the evidence was not itself
determinative; rather, it was considered together with the significant length
of time since the applicant last sought protection. The respondent submits
that since the evidence regarding protection for domestic violence victims is no
longer predominantly negative, it was reasonable to emphasize that many years
have passed since the applicant last sought protection. I agree that the
applicant’s attempts to seek protection are less probative because they
occurred so long ago; however, as already discussed, the current documentary
evidence is no less predominantly negative than it was in James. The
Board still needed to consider the current evidence of whether protection would
be reasonably forthcoming.
[18]
Furthermore,
the respondent’s reliance on J.N.J. v Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 1088, is
misplaced. The Court found in that case that the passage of time buttressed
the conclusion that the applicant was no longer at risk of abuse by her mother,
and not, as the respondent asserts, because state protection was available. In
that case, the applicant had never approached the state for protection and the
factual context of that case is far different from the one before the Court.
[19]
Finally,
I agree with the respondent that there were other errors in the Board’s
decision in James and therefore the Court’s conclusion was not based
solely on its findings regarding the treatment of the documentary evidence.
However, that does not detract from the import of the reasoning or the
relevance of those findings to this case. The error discussed by Justice
Mainville regarding the documentary evidence of state protection was the same
error committed by the Board in this case and there is no other basis for the Board’s
decision upon which it could be upheld. The application is therefore granted.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted. The matter is referred back to the Immigration Refugee
Board for reconsideration before a different member of the Board’s Refugee
Protection Division. No question for certification has been proposed and the
Court finds that none arises.
"Donald
J. Rennie"
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