Date: 20090320
Docket: IMM-703-08
Citation: 2009 FC 282
Ottawa, Ontario, March 20, 2009
PRESENT: The Honourable Mr. Justice O’Reilly
BETWEEN:
NORLANDE SYLVANIE LEWIS AND
TAHJ RICHARD CAMBRIDGE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ms. Norlande Lewis (along with her son, Tahj)
seeks refugee protection in Canada based on her fear of her former common law spouse, who has been
convicted of assaulting her in Canada. She is afraid that if he is deported to St. Vincent, and if she is
also required to return there, he will continue to abuse her physically. She
maintains that authorities in St. Vincent will be unable to protect her from him.
[2]
Ms. Lewis presented her concerns to a panel of the
Immigration and Refugee Board, which concluded that state protection was
available to her in St. Vincent. Ms. Lewis argues that the Board failed to
consider important evidence showing an absence of state protection. She asks me
to order another panel to reconsider her application.
[3]
I agree that the Board failed to consider
important evidence and must, therefore, allow this application for judicial
review.
[4]
There is only one issue for me to decide: Did
the Board fail to consider important evidence in Ms. Lewis’s favour?
I. Factual
Background
[5]
In 1998, Ms. Lewis and Mr. Richard Cambridge
began living together in St. Vincent. In 2002, Mr. Cambridge left to find work in Canada. Ms. Lewis and Tahj joined him in Toronto later that year.
[6]
Mr. Cambridge abused Ms. Lewis physically
throughout their relationship. In 2006, he pled guilty to assault. Although he
was under an order not to contact her while he was on bail, Mr. Cambridge has
repeatedly violated that order. Ms. Lewis is worried that if she and Tahj have
to return to St. Vincent and Mr. Cambridge is deported there, he will seek
retribution against her for having brought about his criminal conviction and
removal from Canada.
II.
Did the Board Fail to Consider Important
Evidence in Ms. Lewis’s Favour?
[7]
I can overturn the Board’s decision only if I
find that it was unreasonable.
[8]
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.
[9]
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.
[10]
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.
III. Conclusion
and Disposition
[11]
The Board failed to weigh both the positive and
negative evidence relating to the availability of state protection in St.
Vincent. Accordingly, the Board’s decision that state protection was available
was unreasonable. Another panel of the Board should reconsider Ms. Lewis’s
application for refugee protection. Neither party proposed a question of
general importance for certification, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS that
1.
The
application for judicial review is allowed.
2.
The matter
is referred back to the Board for a new hearing before a different panel.
3.
No question
of general importance is stated.
“James
W. O’Reilly”
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