Date: 20090731
Docket: IMM-155-09
Citation: 2009 FC 772
Montréal, Quebec, July 31,
2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
GILDA OUSTRID A DEAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The applicant is seeking, under subsection 72(1)
of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), judicial review of a decision dated December 4, 2008, by the Refugee Protection Division (RPD) of the Immigration and Refugee Board, finding that the applicant was neither a ‘‘refugee’’ nor a ‘‘person in need of
protection’’, and consequently denying her claim for refugee protection
on the principal ground that the applicant had failed to show that the protection
available in her country of origin was inadequate.
II. Facts
[2]
A
citizen of Saint
Vincent and the Grenadines, the applicant alleges having been raped and
sexually abused by her stepfather three times between December 1996 and January
1997.
[3]
She
claims to have tried, without success, to tell her mother about the abuse she
had suffered at the hands of her stepfather, before finally, in May 1997, confiding
to a nun who was principal of the school she attended.
[4]
The
applicant stated that she went back to live with her mother in December 2002.
After having been beaten by her stepfather, and on the advice of her mother,
the applicant left to live with a friend in a neighbouring village. The
applicant was apparently threatened five or six times by her stepfather, after
requesting the help of the pastor of her church to try and resolve the family’s
problems.
[5]
After
having worked at several jobs and still fearing her stepfather, the applicant
left her country on September 11, 2004, to join a friend’s sister in Canada. She applied
for refugee protection in Canada on November 29, 2006.
III. Impugned
decision
[6]
Given the
presumption that the state is able to protect its citizens, the RPD found that
the applicant ‘‘ha[d] not provided clear and convincing evidence, based on a preponderance
of probabilities, of the inadequacy of state protection, and that,
consequently, she is not a Convention refugee or a person in need of
protection.’’
IV. Issue
[7]
Was
the RPD’s decision concerning state protection unreasonable? Was its decision
based on erroneous findings of law or on findings of fact made in a perverse or
capricious manner without regard for the evidence before it?
V. Analysis
Standard of judicial review
[8]
The
panel’s decision is based on the presumed ability of the government of Saint
Vincent and the Grenadines
to provide the applicant with the necessary protection; according to the RPD,
she failed to provide sufficiently clear and convincing evidence that would
rebut this.
[9]
This
proceeding raises questions of mixed fact and law; therefore, the applicable
standard is reasonableness, as defined in Dunsmuir v. New Brunswick, 2008 SCC 9
(Dunsmuir). The RPD has expertise in the area within its jurisdiction; accordingly, the Court must show deference with regard to
its decision and avoid intervening without just cause (Dunsmuir,
above; Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12).
[10]
Given
this standard, the Court, in the context of this application for judicial
review, cannot intervene in the manner sought by the applicant: in effect, Ms. Dean
is asking this Court to re-examine the evidence and thus accept her argument. The
Court must limit itself to verifying whether the impugned decision appears
reasonable, with regard to the facts revealed by the evidence and the pertinent
law.
The
RPD’s reasons concerning state protection were not unreasonable
[11]
The
applicant contends that the RPD committed a reviewable error in its assessment
of the situation with regard to protection provided by the state. She noted that
the RPD should have considered the reasons why she had not sought the
protection of her country.
[12]
The
applicant stated that she had never filed a complaint with the authorities in
her country because of the agreement not to do so between her parents and her
school’s principal; furthermore, having been threatened with death by her
stepfather, she feared how he would react and did not want to endanger her
mother, especially since, according to her, filing a complaint would yield no
results.
[13]
The
RPD noted that, for the applicant, ‘‘in light of the documentary evidence, it
would [have] be[en] objectively
reasonable … to ask for state protection’’ and ‘‘that the reasons given … for
not filing a complaint [did] not constitute clear and convincing evidence of the
inadequacy of state protection. Rather, they demonstrate[d] a subjective
reticence to file a complaint’’.
[14]
At
the time these incidents occurred, the applicant was thirteen years old. Her
stepfather had threatened her with death if she reported him; and, when she
found the courage to tell her mother about it, her mother did not believe her
and did not help her. The only person in a position to help her, namely, her
school principal, did not encourage her to file a complaint; on the contrary, she
had promised the applicant’s parents that she would keep quiet in exchange for
her agreeing to have de facto guardianship of the applicant.
[15]
In
such a context, and considering the applicant’s young age when the incidents of
1996-1997 occurred, it might have been unreasonable to conclude, at the time,
that she should have filed a complaint against her stepfather, especially since
he had threatened her with death and that her mother still lived with him and
still suffered his abuse.
[16]
However,
the applicant has grown up since then. When she finished her studies in 2002 and
returned to live with her mother and stepfather, she was no longer the young
girl she once had been, but was now a young woman capable of making her own
decisions. Thus, following new advances and threats from her stepfather, and on
her mother’s advice, she decided to move in with a friend, where she would live
until she left for Canada in September 2004.
[17]
In
spite of the allegations of threats and fear for the safety of her mother, brother and sister because of the influence her
stepfather purportedly enjoyed as a producer and dealer of drugs, the applicant
never filed a complaint with the authorities before leaving Saint
Vincent and the Grenadines to come to Canada
to claim refugee protection.
[18]
The
granting of international protection must only be an ancillary measure of last
resort. Consequently, the RPD was entitled to presume that a foreign state was
capable of protecting its citizens. The burden was on the applicant to
establish, through clear and convincing evidence, her country of origin’s
inability to provide protection for her. Except in situations where the state
apparatus has broken down completely, it should be presumed that it is capable
of protecting its citizens (Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, 725-726; Mendivil v. Canada (Secretary of State) (1994),
167 N.R. 91, 95 (F.C.A.); Roble v. Minister of Employment and Immigration (1994),
169 N.R. 125, 130 (F.C.A.); Canada (Minister of Employment and Immigration)
v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.) (QL), at
paragraphs 6-7).
[19]
The
RPD weighed the documentary evidence before concluding that the protection
provided by the government of Saint Vincent and the Grenadines was adequate.
It also examined the reasons why the applicant never filed a complaint with the
police regarding the assaults by her stepfather, but did not find them to be
satisfactory. The RPD found that the applicant’s explanations did not
constitute clear and convincing evidence of inadequate state protection.
[20]
When an applicant
comes from a democratic state such as Saint Vincent and the Grenadines, it is even more incumbent
upon them to seek the protection of that state first. Accordingly, the applicant
must show that he or she exhausted all reasonable courses of action available
in his or her country to obtain the necessary protection of the national
authorities, before contemplating seeking protection from a foreign country (Kadenko
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No.
1376 (F.C.A.) (QL)). While the applicant may very well
cite incidents which occurred during her youth to justify not having sought the
protection of her country, nothing, however, prevented her from claiming
such protection when the incidents occurred after she had reached adulthood,
before she chose to leave for Canada.
[21]
In
this case, the applicant did not establish the ‘‘complete breakdown of the
state apparatus’’ in her country of origin. As the RPD rightly noted, the
applicant demonstrated only a subjective reticence to file a complaint but did
not show any denial or lack of state protection.
[22]
Moreover,
the RPD relied on objective documentary evidence indicating that the country has
an independent judiciary that enforces the law in cases of spousal violence and
violence against minors. It is not the Court’s place to substitute its opinion
for that of the RPD, a specialized administrative tribunal with all the
necessary expertise to analyze the evidence and make the appropriate findings.
[23]
Under
the circumstances, it was not unreasonable for the RPD to find that the
applicant had failed to establish, even though it was incumbent on her to do
so, that she would not be protected by Saint Vincent and the Grenadines if she were
to return there. The exception under subsection 108(4) of the Act that
she refers to in her memorandum does not bolster her argument, as the applicant
could have claimed and can still claim the protection of her country.
[24]
The
fact that the applicant may have difficulty finding a place to live cannot
justify intervention by the Court. In fact, the applicant has several brothers
and sisters still living in Saint Vincent and the Grenadines, not to mention
her friends and family who could help her in the event she were to return.
[25]
The
RPD was entitled to assign greater weight to the documentary evidence to which
it referred in its decision than to the applicant’s less objective testimony
and to state whether the applicant’s testimony was satisfactory (Zhou v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (F.C.A.)
(QL); Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J.
No. 114 (F.C.A.) (QL)).
VI. Conclusion
[26]
The
applicant has therefore not succeeded in persuading the Court that the RPD based
its decision on erroneous findings of law or on findings of fact made in a perverse
or capricious manner, without regard for the evidence submitted by the
applicant. The RPD’s decision is entirely reasonable, both in terms of the
facts and law.
[27]
No serious
question of general importance was proposed or merits being proposed.
Accordingly, no question will be certified.
JUDGMENT
FOR THESE REASONS, THE COURT DISMISSES the application for judicial
review.
‘‘Maurice E. Lagacé’’
Certified true
translation
Sebastian Desbarats,
Translator
Email this Content