Date: 20091222
Docket: IMM-2815-09
Citation: 2009 FC 1305
Ottawa, Ontario, December 22, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JAMILAH ALEXANDER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
There
is something very wrong in the relationship between men and women in St. Vincent
and the Grenadines. Year after year, woman after woman washes up on our shores
seeking protection from abusive, violent husbands or boyfriends. In fact, last
year 495 refugee claims were filed by citizens of that country. Only ten other
countries were the source of more claimants. In 10th place, with 551
claimants, was India. Considering India has a
population of 1.2 billion and St. Vincent and the Grenadines 118,000,
one has to wonder. If the cases which come to this Court by way of judicial
review or stay applications are any indication, nearly all the claimants are
women who assert domestic abuse.
[2]
In
this case, the Refugee Protection Panel accepted that Ms. Alexander had been
beaten up by her boyfriend, that she had taken refuge with her aunt on one of
the Grenadine Islands, that the
boyfriend had threatened to burn down her mother’s house if she did not return
to Kingstown, and that he
continued to make terrifying threats by telephone.
[3]
The
only issue was that of state protection. The Panel found that St. Vincent and
the Grenadines was a democracy and that Ms. Alexander did not “take all
reasonable steps in the circumstances of this case to pursue the available
state protection”, and that “[she] did not provide any persuasive evidence of
similarly-situated individuals let down by the state protection arrangements.”
The conclusion was that she had failed to rebut the presumption of state
protection with clear and convincing evidence.
[4]
Ms.
Alexander only made a report to the police once. They ignored her because the
complaint was made a few days after she was beaten up. Her answer to that was
that her boyfriend had kept her locked up and she could not complain beforehand.
Given the continuing threatening phone calls, the Panel thought she should have
made further complaints.
[5]
Taken
at its face value, the decision appears to be reasonable. This Court is
supposed to show deference to the RPD panels who allegedly have greater
expertise in country conditions than the Court itself. However there comes a
time when it becomes obvious that deference should be earned, particularly when
the Panel apparently pays no attention to the cases coming out of this Court
which specifically deal with St. Vincent and the Grenadines. The
analysis of country conditions was clearly a pro-forma one, or what Madam
Justice Snider called in Alvandi v. Canada (Minister of
Citizenship and Immigration), 2009 FC 790, a “cookie-cutter analysis.”
[6]
This
Court does not sit in a de novo appeal and so cannot do its own country
analysis. A Refugee Appeal Division would be in position to hear an appeal on a
question of fact as per sections 110 and 111 of the Immigration and Refugee
Protection Act. However, those sections have not been proclaimed in force.
[7]
Since
the Court is called upon to review the work of others, some judicial reviews
are granted and others are not, depending on the rationale of the underlying
decision. Nevertheless there are a great number of cases where judicial review
has been granted on the basis that findings that there is state protection in
St. Vincent and Grenadines were unreasonable. Without putting too fine a line
on it, many of the women appear to have been in generally similar situations.
See for instance: Jessamy v. Canada (Minister of Citizenship and
Immigration), 2009 FC 20; Myle v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1073; Myle v. Canada (Minister of Citizenship and
Immigration), 2006 FC 871; Codogan v. Canada (Minister of Citizenship
and Immigration), 2006 FC 739; Franklyn v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1249; Fraser v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1154; King v. Canada (Minister
of Citizenship and Immigration), 2005 FC 774; Griffith v. Canada
(Minister of Citizenship and Immigration) (1999), 171 F.T.R.240.
[8]
Although
the standard of review is reasonableness (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339) and
although there may be more than one reasonable decision, either there is state
protection available for persons in Ms. Alexander’s situation or there is not.
In Siddiqui v. Canada (Minister of Citizenship and Immigration), 2007 FC
6, Mr. Justice Phelan was reviewing a decision in which the MQM-A of Pakistan was found to
be a terrorist organization. There had been earlier decisions to the contrary.
I fully subscribe to what he said at paragraphs 17 and 18:
[17] There is no strict legal requirement
that the Board members must follow the factual findings of another member. This
is particularly so where there is one of the “reasonableness” standards in play
– reasonable people can reasonably disagree.
[18] What undermines the Board’s decision
is the failure to address the contradictory finding in the Memon
decision. It may well be that the member disagreed with the findings in Memon
and may have had good sustainable reasons for so doing. However, the Applicant
is entitled, as a matter of fairness and the rendering of a full decision, to
an explanation of why this particular member, reviewing the same documents on
the same issue, could reach a different conclusion.
[9]
On
the documentation before it, the Panel’s reference to the Domestic Violence
Act 1995 is irrelevant, as it does not reply to the relationship Ms.
Alexander was in, which in local parlance was termed a “visiting” relationship.
[10]
Although
it was acknowledged that there are serious problems in St. Vincent and the
Grenadines,
and that the situation is improving, I cannot escape the conclusion that this
is a “good news” analysis. In the Board’s own Response to Information Request
of 18 November 2008, it quotes a representative of the St. Vincent and the
Grenadines Human Rights Association to the effect that when female victims go
to make reports they are served by gross, disrespectful, chauvinistic, young
male police officers who feel that the victim asked for the treatment she
received.
[11]
Reference
was made to the fact that there is no women’s shelter in Kingstown. Had the
Panel been following country conditions, and the decisions of this Court, it
would surely would have picked up on what I said in Myle, 2007 FC 1073.
It would have noted that earlier documentary evidence was to the effect that
the Government had purchased a women’s shelter which was being renovated in
2004. A year later it was assumed that the shelter was operational. The latest
information indicates that there is no such shelter. How does this fit in with
the serious efforts attributed to the Government?
[12]
Even
more disturbing is the recent decision in Trimmingham v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1059. While that case was
rendered after the Panel’s decision in this case, the evidence shows that the Consul
General of St. Vincent and the Grenadines wrote in May 2008 to in
effect say the police were unable to protect the applicant. This is exactly the
same situation as in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, in
which the Republic of Ireland
admitted that it was unable to protect Mr. Ward. The Supreme Court referred
that matter back because Mr. Ward also had United Kingdom citizenship
and had to take all reasonable efforts in all the countries which had a duty to
protect him.
[13]
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. That would be
relevant information in any assessment as would an analysis of the types of
threats Ms. Trimmingham received as opposed to those received by Ms. Alexander.
[14]
In
the light of the above, no further analysis need be made of the finding that
Ms. Alexander did not try hard enough to seek state protection. As Mr. Justice
Urie noted in the Federal Court of Appeal in Ward, above, the inability
of a state to protect may be because it turns a “blind eye” to the situation.
Good intentions, if they are good intentions, are simply not enough. Why were there
reports five years ago that the Government was renovating a women’s shelter,
while the latest reports indicate that there is no shelter at all?
[15]
Although
obviously written in a different context, consider the following words of
Andrew Marvell, “The grave’s a fine and private place, but none, I think, do
there embrace”. Small comfort to the family of those whose loved ones have been
murdered that the perpetrator has been dealt with in accordance with law, after
the fact. Speaking in that vein, whatever happened to the case where the police
ignored a woman’s complaints that her boyfriend was harassing her? Her head was
lobbed off at a bus stop in broad daylight. This incident is to be found in the
case law (Myle, 2007 FC 1073, at para. 23) from this Court dealing with St. Vincent
and the Grenadines.
ORDER
THIS COURT
ORDERS that:
1.
This
application for judicial review is granted.
2.
The
Board’s decision is set aside.
3.
The matter
is referred back to the Immigration and Refugee Protection Board for a fresh
determination by a new Panel on the basis of the reasons states herein.
4.
There is
no serious question of general importance to certify.
“Sean Harrington”
Email this Content