Date: 20111221
Docket: IMM-3159-11
Citation: 2011 FC 1507
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, December 21, 2011
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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MICHELLE PATRICIA FRANCIS
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Applicant
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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 ORDER AND ORDER
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (Act), of a decision dated April
15, 2011, in which the Refugee Protection Division of the Immigration and
Refugee Board (panel) found that the applicant was not a Convention refugee or
a person in need of protection.
[2]
The
applicant is a citizen of Trinidad and Tobago. She left her country
to escape the sexual abuse inflicted on her on several occasions by her two
half-brothers.
[3]
The
applicant arrived in Canada in October 2000 on a visitor’s visa. Because
she was afraid of returning to her country, she filed an application for a visa
exemption on humanitarian and compassionate grounds, which was rejected in May
2008. Shortly afterwards and on the recommendation of a social worker, she
filed a refugee protection claim based on her fear of being the victim of
sexual abuse by her half-brothers.
[4]
The
panel found that it was satisfied that the applicant was the victim of this
abuse. It considered that the determinative issue was that of state protection.
[5]
The
panel noted that the applicant had made no effort to seek state protection,
despite her level of maturity and independence. Although failure to seek state
protection may be fatal to a refugee protection claim, the panel preferred
examining whether adequate protection would today be available to the
applicant.
[6]
The
panel acknowledged that there were serious problems; however, the documentary
evidence shows that the authorities continue to make considerable efforts to
fight violence against women, including passing legislation that would compel the
police to take action when complaints are filed. In fact, these efforts have
already paid off: the police underwent a reform to better manage cases of
domestic violence, the number of complaints increased between 2004 and 2008,
and the courts have begun to impose stiffer sentences. In addition, non-governmental
organizations have established several services to help women who are victims
of violence.
[7]
At
the hearing, the applicant mentioned that she had to take care of her son, of
Canadian nationality, who has special needs, which would require her to live in
her deceased mother’s home with her half-brothers. Consequently, the state
would be unable to protect her. The panel found that it was implausible that
the other family members who live in Trinidad and Tobago were unaware
of her situation, considering that her half-sister had allowed her to live with
her for several years in Canada. In any case, the applicant was able to
find a job in the past in order to support herself, and there are organizations
that offer shelter and services for women who are victims of violence.
[8]
Did
the panel err by finding that state protection was reasonably available to the
applicant?
[9]
In
summary, although the panel acknowledged that the protection of the authorities
was not perfect, it found that this protection was effective. In doing so, it
relied in particular on documentary evidence that referred to specific
legislation on spousal abuse, the possibility for magistrates to issue
protection orders, the creation of a hotline for women who are victims of
violence, and the existence of a few shelters for women, even though many of
these documents discussed the problems encountered by women victims of violence
and the ineffectiveness of the protection given them.
[10]
The
panel mainly referred to document P-7, “‘A critical analysis of the efficacity
of law as a tool to achieve gender equality and to address the problem of
domestic violence: the case of Trinidad and Tobago,’ by Nathalie Renée
Beulah Persadie, October 2007”.
[11]
However,
this same document contains a number of elements that are contrary to these
findings. Concerning the legislation, the document mentions that the law seems
to operate better [TRANSLATION] “in theory than in practice”. As for the
protection orders available for women victims of violence, it notes that “[t]his
piece of paper cannot in reality stop the abuser from abusing”, finding that
the institutional response is in fact very poor:
Institutionally, as mentioned previously,
the response seems equally poor. State institutions, such as the Magistracy and
the Police service, are poorly equipped and funded to deal with domestic
violence and this is a mere reflection of TT’s lack of concern with the
“softer” issues, such as protection of women. Government’s alleged commitment
to dealing with domestic violence is not reflected in the amount of funding
made available to state institutions to address the problem in a real way. The
necessary human resource training for those who deal directly with women
victims of domestic violence has been sporadic at best causing women to appear
to prefer the least possible personally interactive route to protection - applying
for a protection order. Insensitivity and apathy on the part of government
officials have been general response, however, this would be due to their experience
in dealing with family situations.
[12]
Thus,
the panel conducted only a partial review of the evidence, failing to mention
the contradictory elements that supported the applicant’s position that state
protection is ineffective, which constitutes an error that warrants the Court’s
intervention (Cepeda‑Gutierrez v. Canada (Minister of Citizenship and Immigration),
157 F.T.R. 35).
[13]
In
addition, regarding the possibility for the applicant to find adequate shelter,
I believe that it was unreasonable for the panel to speculate without
supporting evidence that the applicant’s family would agree to welcome a single
mother with her son who suffers from autistic disorders requiring specific care
or that she could find protection in a shelter when the evidence in the record
indicates that these shelters are subject to major restrictions concerning the
age and gender of the children who can be accepted there.
[14]
For
these reasons, the application for judicial review is allowed and the matter is
referred back for redetermination before a differently constituted panel.
ORDER
THE COURT
ORDERS that the application for judicial review be allowed and the matter
be referred back for redetermination before a differently constituted panel.
“Danièle
Tremblay-Lamer”
Certified
true translation
Susan
Deichert, LLB
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