Date:
20121010
Docket:
IMM-5427-11
Citation:
2012 FC 1181
Ottawa, Ontario,
October 10, 2012
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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ASRIEL ASHER BELLE
DORIEL NELSON
BRENDA LAVERNE
NELSON-BELLE
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
Applicants apply for judicial review of the July 26, 2011 decision of the
Immigration and Refugee Board, Refugee Protection Division (RPD) in which the
RPD determined that the Applicants are not Convention Refugees and not persons
in need of protection.
[2]
The
Applicants are Brenda Laverne Nelson-Belle (Principal Applicant), Asriel Asher
Belle (the male Applicant) and Doriel Nelson (the minor female Applicant). All
three are citizens of Saint Vincent and the Grenadines. The male Applicant is
also a citizen of Grenada.
[3]
In
April, 2007, the Principal Applicant’s non-accompanying son Jariel was shot by
a Bee Hive Crew gang member following an argument when Jariel refused to join
the gang. When Jariel could not be located by the gang members, the Applicant
family members were targeted. The male Applicant and his cousin were assaulted
by gang members. The cousin’s brother was subsequently murdered. After the
assault, the Principal Applicant took the male Applicant to Barbados to hide. While they were in Barbados, the minor female Applicant was sexually
assaulted by one of the gang members; she was thirteen at the time. After the
sexual assault was reported to the police, the minor Applicant was threatened
with rape and murder if the charge was pursued.
[4]
After
several incidents marked by gang members efforts to locate the male Applicant,
the Applicants came to Canada, arriving separately during the period December
2009 to March 2010. Their refugee claims were joined and heard on June 7, 2011.
The RPD refused the Applicants’ refugee claims on July 26, 2011.
[5]
The
RPD focused its analysis on whether the harm the Applicants feared was related
to a Convention ground and whether the Applicants had rebutted the presumption
of state protection.
[6]
The
standard of review for decisions of the RPD is reasonableness. Dunsmuir v
New Brunswick 2008 SCC 9, Morales Gonzalez v Canada (Minister of
Citizenship & Immigration), 2010 FC 991 at para 8 Determinations of
state protection are matters of fact and mixed fact and law which are also
reviewed on a reasonableness standard. Hinzman v Canada (Minister of
Citizenship & Immigration), 2007 FCA 171, 282 DLR (4th) 413 at para 38.
[7]
The
determinative issues are whether the RPD reasonably concluded the section 96
harm feared by the minor female Applicant was not founded on a Convention
ground and whether the section 97(1) risk faced by the Applicants was addressed
in an individualized inquiry.
[8]
The
RPD held that the Principal Applicant and the male Applicant’s fears of the Bee
Hive Crew were clearly not related to a Convention refugee ground. The RPD also
found that the sexual assault upon the minor Applicant had no domestic or
relationship aspect to it; it was not domestic violence. The RPD considered the
sexual assault as a crime perpetrated pursuant to criminal gang retaliation,
and as a form of harm, it was distinctly separate from and unrelated to gender
violence occurring within the context of domestic relationships. The RPD held
the minor Applicant’s fear, under a Convention refugee analysis, was the same
as that of the other two Applicants and it therefore had no nexus to the
Convention refugee definitions.
[9]
In
the alternative, the RPD considered whether adequate state protection would be
available in Saint Vincent and Grenada.
[10]
The
RPD again considered the prospective harm faced by the minor female Applicant
separate from and unrelated to gender violence occurring within domestic
relationships. The RPD held that state protection for her must be analyzed in
exactly the same way as for the other two Applicants, that is, based on the
police response to gang crime and not based on the police response to domestic
violence evidence.
[11]
The
RPD did refer to the Chairperson’s Guideline 4: Women Refugee Claimants Fearing
Gender Related persecution. However, I am of the view the RPD did not properly
consider the Guidelines. The Supreme Court of Canada has stated that “sexual
assault is in the vast majority of cases gender based. It is an assault upon
human dignity and constitutes a denial of any concept of equality for women” R
v Osolin [1993] 4 S.C.R. 595 at 669.
[12]
In
Spencer v Canada (Minister of Citizenship & Immigration), 2011 FC
397 Justice Campbell approved of the applicants’ submission that:
In Canada (Attorney General) v. Ward,
the Supreme Court of Canada explicitly recognized that gender can provide the
basis for a “social group.” Since the principal applicant claimed that she
feared that as a woman she would be targeted for rape in Jamaica, the Board is expected to have considered the evidence with respect to her membership in a
particular social group, namely women in Jamaica or more specifically, Jamaican
women targeted for rape by gang members. The failure to evaluate the evidence
in this way constitutes a reviewable error (Canada (AG) v. Ward, [1993]
2 S.C.R. 689 at para 70; Bastien supra at para 12; Dezameau v. Canada
(MCI), 2010 FC 559 at para 19).
The same may be said of the RPD’s
assessment of the minor female Applicant’s claim.
[13]
The
minor Applicant is a female who was targeted for retaliation by the Bee Hive
gang members. Females in Saint Vincent and the Grenadines are more vulnerable
to sexual violence. In the Response to Information Request VCT102939.E (RIR)
the writers noted the prevalence of sexual violence in Saint Vincent and the
Grenadines indicate a recorded rate of 112 incidents of rape per 100,000 people
as compared to the average rate of 15 recorded incidents of rape per 100,000
among all 102 countries surveyed.
[13]
[14]
The
RPD failed to consider this evidence in deciding the minor female’s claim could
not succeed on a Convention ground on the basis of being a member of a female
group vulnerable to sexual assault by criminal gang members.
[15]
I
consider the RPD to have erred in concluding the sexual assault inflicted on
the 13 year old female Applicant was not gender violence simply because it was
retaliation by a gang member not inflicted within the context of a domestic
relationship.
[16]
The
RPD also decided the Applicants had failed to rebut the presumption of state
protection.
[17]
Absent
a situation of complete breakdown of state apparatus, it is assumed the state
is capable of protecting its citizens. To rebut the presumption, an applicant
must produce clear and convincing evidence of a state’s ability to protect. Hinzman
at paras 43-44.
[18]
The
Respondent submits the principal Applicant, the mother, withdrew the complaint
of sexual assault on the 13 year old minor Applicant, a factor that weighs against
the Applicants’ claim of inadequate state protection. While the RPD makes no
reference to this withdrawal, the RPD did accept the minor female Applicant
suffered psychological trauma. The psychological report supports that finding.
It records the minor female Applicant saying she was threatened with further
rape and death if she followed through with the charge and she begged her
mother not to pursue the charge.
[19]
I
am of the view that, having regard to the circumstances, the RPD properly chose
not to weigh the withdrawal of the sexual assault charge as a factor weighing
against the principal Applicant and the minor female Applicant in its state
protection analysis.
[20]
However,
I do consider the RPD to have erred in not conducting an individualized inquiry
into the particular risk to the minor female Applicant in its section 97(1)
analysis. The above RIR information indicated higher risk of sexual assault to
females in Saint Vincent and the Grenadines than in other countries. The minor
female Applicant was singled out for retaliation by members of a criminal gang.
In considering the question of state protection, the RPD should conduct an
individualized inquiry as to whether state protection is available given the
minor female Applicant’s dire situation. Prophète v Canada (Minister of Citizenship and Immigration), 2009 FCA 31 at para 7. A factor to
include in that individualized inquiry is the minor Applicant’s report of a
death threat if the investigation into the sexual assault proceeded. The RPD
failed to conduct the necessary individualized inquiry.
[21]
Finally,
the RPD conflated the claim of the minor female Applicant with the claims of
other two Applicants. The RPD wrote:
State protection for her must therefore be analyzed
in exactly the same way as it is for the other two claimants – i.e. based on
the police response to gang violence, and not based on the police
response to domestic violence evidence.
[emphasis added]
[22]
The
RPD decided the police in Saint Vincent and the Grenadines and in Grenada are making serious efforts to fight drugs, gangs, and crime. The RPD went on to
conclude the Applicants, having some assistance from the police, are capable of
seeking further protection from the authorities if they were to return. The RPD
found the Applicants did not rebut the presumption of state protection with
clear and convincing evidence.
[23]
There
are two questions to be addressed. First, did the Applicants rebut the
presumption of state protection? Second, is the state protection available to
the Applicants’ adequate?
[24]
The
RPD does not review the Applicants’ efforts to evade harm and their approaches
to the police beyond the observation that the male Applicant was provided with
witness protection in Trinidad (on another matter) and did not seek police
protection in Grenada. The Applicants’ evidence is that the principal Applicant
approached the Prime Minister of St. Vincent and the Grenadines and the male
Applicant went to see the Police Commissioner. It is for the RPD to assess
whether these and other efforts are sufficient to rebut the presumption of
state protection and, if so, to assess whether operational protection is
adequate. The RPD did not.
[25]
The
RPD statement that the Applicants did not rebut the presumption of state
protection is a conclusion without analysis of the Applicant’s evidence of the
efforts they did make to secure state protection. As such it is a reviewable
error.
[26]
Moreover,
in Jaroslav et al v Canada (Minister of Citizenship and Immigration),
2011 FC 634 at para 75, Justice Kelen wrote:
Serious efforts by the state to provide protection
are relevant to, but not determinative of, the question of whether protection
is adequate. No standard of perfection is required. In Beharry v. Canada
(Minister of Citizenship and Immigration), 2011 FC 111 Madam Justice Mactavish
held at paragraph 9 with respect to state protection that the proper focus is
not on the efforts made by the government to combat crime, but the efforts
which have “actually translated into adequate state protection”. Similarly, Mr.
Justice O’Keefe held in Toriz Gilvaja v. Canada (Minister of Citizenship and
Immigration) 2009 FC 598 at paragraph 39 that the Board ought not to look at
whether serious efforts have been made to protect the citizens, but whether at
the operational level the protection has been applied.
[27]
The
RPD failed to consider whether the police protection actually translated into
state protection in an individualized section 97(1) inquiry with respect to the
present or prospective risk for the male Applicant. The RPD failure to conduct
an individualized assessment of the section 97(1) claim is a reviewable error.
[28]
The
application for judicial review succeeds.
[29]
Neither
party has submitted a serious question of general importance for certification.
ORDER
THIS
COURT ORDERS that:
1. The
application for judicial review is granted.
2. The
matter is referred to a differently constituted panel for redetermination.
3. No
question is certified.
“Leonard S. Mandamin”
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