Docket: IMM-5528-11
Citation: 2012 FC 535
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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AGNES PAULINA MATTHEWS
NICOLI EZEKIEL MATTHEWS
JANNET MATTHEWS
NICOLEEN EUGENA MATTHEWS
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Applicants
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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
I. Introduction
[1]
This
is an application by Agnes Paulina Matthews and her three children, Jannet
Matthews 29, Nicoli Ezekiel Matthews 19 and Nicoleen Eugena Matthews 17 (all
together the Applicants), pursuant to section 72(1) of the Immigration and
refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of
the decision of the Immigration and refugee Board (the Board), rendered on
July 25, 2011, where the Board concluded that the Applicants are neither
Convention refugees nor persons in need of protection as contemplated by
sections 96 and 97 of the IRPA.
[2]
Ms.
Agnes Paulina Matthews is the designated representative for her minor daughter,
Nicoleen Eugena Matthews.
[3]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[4]
Ms.
Matthews is a 57-year-old woman from St-Vincent and the Grenadines.
[5]
In
1976, she met George Crook. Together, they had one child. In 1978, Ms. Matthews
ended their relationship after almost 3 years of partnership. Two days after
their break-up, Mr. Crook stabbed Ms. Matthews 5 times in her arm, neck and
back. She was hospitalized for 10 days.
[6]
Shortly
after the incident, Mr. Crook committed suicide.
[7]
In
June 1996, Ms. Matthews met Simon Durrant who moved with her and her eight
children. After a few months, Ms. Matthews realized that Mr. Durrant was
possessive and jealous. He would often physically abuse her.
[8]
Ms.
Matthews never complained to the police, thinking it was useless.
[9]
She
left St-Vincent for Canada in September 1997. She lived with her cousin in
Montreal.
[10]
In
June 1998, Mr. Durrant arrived in Montreal. Ms Matthews allowed
Mr. Durrant to live with her but told him that she would call the police if he
ever abused her again.
[11]
Three
months later, she found Mr. Durrant masturbating in front of her daughter’s
picture. She expelled Mr. Durrant who left the house without complaining.
[12]
Ms.
Matthews stayed in Canada looking for a sponsorship. Her friend advised
her to apply for refugee protection but she refused, thinking she would not be
eligible. She brought her children Jannet, Nicoli and Nicoleen to Canada. However,
she could not enrol her two youngest children in school. Consequently, she
returned to St-Vincent.
[13]
Before
she left for St-Vincent, Ms. Matthews heard that Mr. Durrant had raped a woman
in Montreal and that he
would be deported.
[14]
In
2007, while in St-Vincent, Mr. Durrant asked Ms. Matthews out again but she
categorically refused.
[15]
In
December 2007, Ms. Matthews and her children discovered that Mr. Durrant had
killed their cousin, Orlando Ricardo Louie. He was convicted and
institutionalized in a psychiatric institution. This was Mr. Durrant’s second
criminal conviction. Fearing that he would be released again in a short period
of time, Ms. Matthews flew back to Canada on February 28, 2008.
Her three children followed shortly thereafter.
[16]
In
March 2010, Ms. Matthews’ son, Nicoli, was apprehended by a Montreal police officer.
The Officer discovered that the Nicoli had no status in Canada. The
Applicants subsequently decided to file a refugee claim.
[17]
The
Board concluded that the Applicants were neither Convention refugee nor persons
in need of protection under sections 96 and 97 of the IRPA. It found
that the Applicants would not be at risk in St-Vincent and that state
protection was available.
III. Legislation
[18]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une menace à
sa vie ou au risque de traitements ou peines cruels et inusités dans le cas
suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(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,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person in need of protection
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Personne à protéger
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(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.
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(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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IV. Issues and standard of review
A. Issues
[19]
The
Court must answer the following questions:
1. Did the Board
err in concluding that the Applicants were not persons in need of protection
under sections 96 and 97 of the IRPA?
2. Did the Board
err in determining that state protection in St-Vincent was available to the
Applicants?
B. Standard of review
[20]
Questions
of state protection involve determinations of fact and mixed fact and law. They
concern the relative weight assigned to evidence, the interpretation and
assessment of such evidence, and whether the Board had proper regard to all of
the evidence presented in reaching a decision (Hippolyte v
Canada (Minister of Citizenship and Immigration), 2011 FC 82).
[21]
The standard
of review applicable to the Board's determination of the applicants' objective
and subjective fear is reasonableness (see Moreno v Canada
(Minister of Citizenship and Immigration), 2011 FC 841 at para
7).
[22]
The
Supreme Court of Canada, at paragraph 47 of Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] SCJ No 9,
specified that reasonableness “is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”.
V. Parties’ submissions
A. Ms. Matthews’ submissions
[23]
Ms.
Matthews affirms that her testimony is deemed to have been accepted by the
Board since it did not question her credibility (see Moreno v Canada (Minister of
Citizenship and Immigration), 2010 FC 993).
[24]
As
the Board states in its decision, the Applicants must prove that there is a
serious possibility or more than a mere possibility that they face a
prospective risk of persecution (see Adjei v Canada (Minister of Employment
and Immigration),
[1989] 2 FC 680 [Adjei]).
[25]
The
Board wrote: “[t]he panel finds that in the unlikely event that Simon Durrant
would be released from the institution where he is currently living, the
claimants would not be at any more risk of harm than other members of the
community of Rose Bank” (see the Board’s decision at para 26).
[26]
Ms.
Matthews alleges that this conclusion is unreasonable because Mr. Durrant is a
very dangerous individual. The Board considered the letter from Mr. Charles
Matthews, Justice of the Peace of Rose Bank. In assessing the letter, the Board,
according to Ms. Matthews, failed to consider that Mr. Durrant “vowed to kill
her because he felt that she has abandoned him” (see letter of Charles
Matthews, Justice of the Peace at page 81 of the Applicants’ record). Ms
Matthews affirms that this statement is central to her claim and runs contrary
to the Board’s conclusion. The Board failed to take in consideration Mr.
Durrant’s dangerous profile (see Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425).
[27]
Furthermore,
the Board determined that the letter was speculative in nature. However, Ms Ms.
Matthews claims that the Board dismissed her statement with speculation of its
own and determined that Mr. Durrant would not be released because of his
criminal history. Ms. Matthews submits that there was no evidence adduced
before the Board to justify such speculation. There was equally absence of
evidence introduced as to what measures would be undertaken should Mr. Durrant
be released. The Board erred in making such speculations (see Zhang v Canada (Minister of
Citizenship and Immigration), 2008 FC 533).
[28]
Ms.
Matthews also alleges that the Board applied the wrong legal test to state
protection by failing to address whether the state of St-Vincent and the
Grenadines could provide them with effective protection (see Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 at page 724). Under the
particular circumstances of this case, the Board should have considered the
effectiveness of restraining orders in St-Vincent according to Ms. Matthews who
relies on Alexander v Canada (Minister of Citizenship and Immigration),
2009 FC 1305 at para 13, where Justice Harrington stated “I find absolutely
astonishing that the IRB publishes information on country conditions but fails
to mention that the Consul General has admitted that the state cannot guarantee
the effectiveness of a restraining order”.
[29]
Therefore,
Ms. Matthews submits that the Board’s conclusion on the issue of state
protection is unreasonable and not based on relevant evidence given the present
circumstances of the case.
B. Respondent’s submissions
[30]
The
Respondent alleges that the lack of subjective fear in this case is sufficient
to reject this refugee claim. Mr. Durrant did not bother Ms. Matthews for at
least 14 years. He is presently institutionalized and there is no evidence to
show that his release is imminent. Therefore, the Board’s conclusion on Ms
Matthews’ lack of subjective fear is reasonable.
[31]
The
Respondent asserts that Ms Matthews has failed to establish that the Board did
not consider Mr. Durrant’s death threat towards Ms. Matthews. The Respondent
underlines that the Board is presumed to have considered all the evidence (see Florea
v Canada (Minister of Employment
and Immigration),
[1993] FCJ No 598 at para 1 [Florea]).
[32]
The
Federal Court has recognized that St-Vincent is “a democratic country that is
willing and able to protect its citizens, even if this protection is not always
perfect” (see S.H.R v Canada (Minister of Citizenship and Immigration),
2010 FC 802 at para 19-20; G.O.A.D. v Canada (Minister of
Citizenship and Immigration), 2009 FC 772 at para 20).
[33]
The Board,
according to the Respondent, correctly assessed the documentary evidence. The
state of St-Vincent has shown in the past that it is willing and capable of
protecting its citizens against Mr. Durrant. He was arrested twice and
sentenced to prison after committing crimes against its citizens. The
Respondent also notes that Ms Matthews never filed a complaint with the police.
[34]
The
Respondent reiterates that the Board is presumed to have considered all the
evidence. It is further alleged that the documentary evidence adduced before
the Board about domestic violence is irrelevant to the case because Ms.
Matthews’ relationship with Mr. Durrant ended 14 years ago. Therefore, Ms
Matthews has failed to adduce any evidence to prove that the state of St-Vincent
and the Grenadines is unable and unwilling
to protect her and her children.
VI. Analysis
[35]
In Adjei cited above at paras 7 and 8, the Federal Court of Appeal wrote the
following:
[7] We would adopt that phrasing, which appears to us to be
equivalent to that employed by Pratte J.A. in Seifu v Immigration Appeal
Board [1983] FCJ No 34
(A-277-82, dated January 12, 1983):
... [I]n order to support a finding that an applicant is a
Convention refugee, the evidence must not necessarily show that he "has
suffered or would suffer persecution"; what the evidence must show is that
the applicant has good grounds for fearing persecution for one of the reasons
specified in the Act.
[8] What is evidently indicated by phrases such as "good
grounds" or "reasonable chance" is, on the one hand, that there
need not be more than a 50% chance (i.e., a probability), and on the other hand
that there must be more than a minimal possibility. We believe this can also be
expressed as a "reasonable" or even a "serious
possibility", as opposed to a mere possibility.
[36]
The
Board determined that the Applicants failed to demonstrate a well-founded fear
of harm in St-Vincent. It found that Mr. Durrant poses a danger to the
community at large but is unlikely to be released in the near future. And, in
the event of his release, the psychiatric facility would take necessary
measures to ensure the safety of the community.
[37]
It
was reasonable for the Board to determine that Justice of the Peace Matthews’
letter is mere speculation. However, the Board cannot reject documentary
evidence with speculation of its own. In Ukleina v Canada (Minister of
Citizenship and Immigration), 2009 FC 1292, [2009] FCJ No 1651 at para 8,
the Court held that “It has been long established,
however, that findings of fact based on speculation are inherently
unreasonable. The key facts found in this case fall within the realm of
speculation. They were not reasonable inferences drawn from established facts”.
The Court agrees with Ms. Matthews that the Board’s inferences were not based
on established fact or evidence.
[38]
However,
these speculations are not determinative of the present case because the Board
also found that Ms. Matthews’ relationship with Mr. Durrant had ended long ago
and that between 2002 and 2007, Simon Durrant had not harmed or posed a threat
to Ms. Matthews while in St-Vincent. This conclusion, in the Court’s view, is
central to the case and inextricably linked with the issue of state protection.
2. Did
the Board err in determining that state protection in St-Vincent was available
to the Applicants?
[39]
The
Applicants argue that the Board failed to consider the ineffectiveness of
restraining orders in St-Vincent. They also allege that the Board wrongfully
applied the legal test of state protection.
[40]
In Kaleja
v Canada (Minister of Citizenship and Immigration), 2011 FC 668, [2011] FCJ
No 840 at para 26, the Court held that “[t]he Board is not obliged to prove
that [a state] can offer the Applicant effective state protection, rather, the Applicant bears the legal
burden of rebutting the presumption that adequate state protection exists by adducing clear and
convincing evidence which satisfies the Board on a balance of probabilities.
The quality of the evidence will be proportional to the level of democracy of
the state”.
[41]
The
Board wrote, in paragraph 27 of its decision, that “Saint Vincent and the
Grenadines
is a multiparty, parliamentary democracy with a population of approximately
118, 000. The Royal Saint Vincent and the Grenadines Police, is the only
security force in the country. There are approximately 850 members of this
police force. The law requires judicial authority to issue arrest warrants.
Police apprehended persons openly, and detainees may seek judicial
determinations of their status after 48 hours if not already provided . . ..”.
It determined that state protection in St-Vincent and the Grenadines was
available and that it took necessary steps to arrest Mr. Durrant on two
separate occasions.
[42]
Ms.
Matthews alleged that the Board ignored contrary evidence found in the record.
It is trite law that the Board is presumed to have considered all of the
evidence on file and is not obliged to comment on every piece of evidence
contrary to its findings (see Florea, cited above).
[43]
Furthermore,
Ms. Matthews never went to the police to file a complaint. In Leon v Canada (Minister of
Citizenship and Immigration), 2011 FC 34, [2011] FCJ No 57 at paras 21, 22
and 23, the Court made the following remark:
[21] In general, a person must seek assistance
from the authorities before concluding that the state is not able to provide
adequate protection, but that is not necessary in all cases. As the Supreme
Court stated in Ward, at paragraph 48:
... A
refugee may establish a well-founded fear of persecution when the official
authorities are not persecuting him if they refuse or are unable to offer him
adequate protection from his persecutors ... however, he must show that he
sought their protection when he is convinced, as he is in the case at bar, that
the official authorities -- when accessible -- had no involvement -- direct or
indirect, official or unofficial -- in the persecution against him.
This is not true in all cases. Most states
would be willing to attempt to protect when an objective assessment established
that they are not able to do this effectively. Moreover, it would seem to
defeat the purpose of international protection if a claimant would be required
to risk his or her life seeking ineffective protection of a state, merely to
demonstrate that ineffectiveness.
[22] However, the onus
is on the applicant to establish that it was not reasonable to require that he
or she seek the protection of his or her country in order to justify his or her
failure to do so.
[23] In Kadenko v Canada (Minister of Citizenship
and Immigration), [1996] FCJ No 1376, 143 DLR (4th) 532, (FCA), Décary J.A. stated that the burden of proof rested
on the applicant and was proportional to the level of democracy in the country in
question.
[44]
In
the present case, Ms. Matthews never sought state protection. There was also no
evidence to establish that she would be at risk while seeking state protection.
The Board further considered the fact that authorities had, on two occasions,
arrested and condemned Mr. Durrant for his crimes.
[45]
In
the case at hand, it was reasonable for the Board to conclude that state
protection in St-Vincent was adequate. The onus was on the Applicants to
establish that is was unreasonable to seek state protection in St-Vincent. They
did not adduce sufficient evidence in that regard.
VII. Conclusion
[46]
Given
that several years have passed since Ms. Matthews’ last encounter with Mr.
Durrant and the adequacy of state protection in St-Vincent, the Board
reasonably concluded that the Applicants were neither Convention refugees nor
persons in need of protection. This application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
This
application for judicial review is dismissed; and
2.
There
is no question of general importance to certify.
"André
F.J. Scott"
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