Date: 20110224
Docket: IMM-3823-10
Citation: 2011 FC 225
Toronto, Ontario, February 24,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ESTANIEL DESIR
DESTROY DESIR
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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
[1]
In
this application for judicial review of a decision by the Refugee Protection
Division (“RPD”) of the Immigration and Refugee Board, counsel for the
applicants, Mr. Sina Ogunleye, signed and filed a Memorandum of Argument
alleging the arrest, beating and torture of the principal applicant by the
Nigerian police. In the further memorandum of argument which Mr. Ogunleye
signed and filed with the Court, the identical allegations are made against the
St.
Lucia
police. As acknowledged by Mr. Ogunleye at the hearing of this application,
these allegations bear no resemblance to the facts of the case considered by
the Board. The effect was to mislead the Court as to the grounds for granting
leave on this application.
[2]
The
principal applicant claimed protection from his ex-wife and her family in St. Lucia. After their
separation, he was subjected to various forms of harassment by the ex-wife and
her family. The Board refused his claim on the
grounds that there was no nexus between the claim and the Convention grounds
under s.96 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (“IRPA”) and, with respect to the claim for protection under s.97, that the
applicant had failed to rebut the presumption of state protection.
[3]
In
the scant written arguments filed by Mr. Ogunleye on behalf of the applicants
it is stated that the “Board relied heavily on inferences drawn by it from the
applicant’s emotional effects during his oral testimony at the hearing and
based its adverse credibility finding on it”. There is no support for this
statement in the record before me.
[4]
On
the hearing of this application, Mr. Ogunleye submitted that the sole issue was
whether the Board had erred in finding that there was no nexus between the
applicants’ claim and any Convention refugee ground. He argued that the Board
erred in failing to find that the principal applicant belonged to an
identifiable social group, that being males abused by their former female spouses.
The respondent objected to this argument being put forward at the hearing as it
had not been advanced in the applicants’ Notice of Application or Memoranda of
Argument. I agree with the respondent that there is nothing in the materials
filed by the applicants in these proceedings that would give the opposing party
reasonable notice that this issue would be raised and will not address it.
[5]
I
have considered whether the Board erred in finding that there was no nexus to a
Convention ground. Notwithstanding that it was not addressed in the applicants’
Memoranda of Argument, I have also considered whether the Board erred in its
finding that the applicants had failed to rebut the presumption of state
protection.
[6]
In
considering these issues I have applied the standard of reasonableness which
has been found to apply to similar refugee determinations by the Board: Gilbert v. Canada (Minister of Citizenship and Immigration), 2010 FC 1186 at para. 18; Kaleja v. Canada (Minister of Citizenship and Immigration), 2010 FC 252 at paragraph 19; Sagharichi v. Canada
(Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.) at para. 3. The
Court is concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.
Did the Board
err in finding there was no nexus to a Convention ground?
[7]
Proving
refugee status requires evidence of a clear link between a refugee claimant and
one of the five enumerated grounds in the Convention refugee definition: Kang
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1128 at para. 9; Starcevic v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1370 at paras. 10 and 12. Being
a victim of crime or of a personal vendetta, as in this case, cannot generally
establish a link between fear of persecution and Convention reasons: Kang,
above, at para. 10.
[8]
As in Kang,
where the applicant based her refugee claim on a death threat from her uncle,
or in Starcevic, where the applicant’s alleged fear was at the
hands of his ex-wife’s husband, in the case at bar, the principal
applicant claims to have been the target of various criminal acts by his ex-wife
and her family. Although unfortunate occurrences, they do not form the basis
for making a refugee claim as outlined by s.96 of the IRPA. As such, the Board correctly
concluded that in the applicants’ situation, there was no nexus to a Convention
ground.
Did the Board err in finding that
the applicants had failed to rebut the presumption of state protection?
[9]
It is presumed that the
state is in a position to provide adequate protection to its citizens: Canada (Attorney General v. Ward), [1993] 2 S.C.R. 689 at para. 50. The burden of rebutting this presumption
rests with the individual seeking protection in Canada: Flores Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636 at
paras. 17-19. This burden is directly proportional to the level of democracy in
the state in question: Kadenko v. Canada (Minister of Citizenship and Immigration) (1996) (FCA), 143 D.LR. (4th)
532, 206 N.R. 272 at para. 5. If it is argued that state protection is not
able to provide such protection, clear and convincing evidence of its inability to do so must be
provided: Ward, above, at para. 50.
[10]
In this
case, the Board considered
the documentary evidence relating to state protection in St. Lucia noting that there are reports which suggest the rise in
crime rates and police corruption. At the same time, it found that St. Lucia has a functioning, independent judicial system and has been
making efforts to bolster its criminal law system, including training the police
force. St. Lucia was also noted to be a parliamentary
democracy with free and fair elections.
[11]
Here, the principal
applicant’s evidence demonstrated a certain level of state protection. After
he was attacked by his ex-wife’s brother and cousin, he went to the police
station to report the incident. The police left immediately to investigate.
Although the police did not find the assailants, the Board reasonably concluded
that the police were engaged.
[12]
Part of the Board’s
finding that the principal applicant had not rebutted the presumption of state
protection was based on the fact that no copies of police reports were filed
with his application. When asked about this at the hearing, the principal
applicant explained that he gave money to a lawyer in St. Lucia so that he could be sent the necessary reports. He said he
sent the money via Western
Union. There is a Western
Union receipt on record but, as rightly noted by the Board, it does not confirm
why the money was sent or that the individual to whom it was sent is a lawyer.
The Board reasonably concluded that there were other means of ensuring he had
the necessary documentation to support his claim. It was open to the Board to draw an adverse inference
from the principal applicant’s
failure to produce police
reports.
[13]
I am satisfied that the
Board’s findings are reasonable and that this decision falls within the range
of acceptable and defensible outcomes in respect of the facts and the law. The
application is dismissed. No serious questions of general importance were proposed
and none will be certified.
[14]
In closing, I wish to
note that apart from the egregious factual errors referred to at the outset, the
quality of the representation that the applicants received in this matter fell
short of what the Court or a client should expect from a member of the Law
Society of Upper Canada. Mr. Ogunleye’s attempt to justify the inadequacy
of the record filed with the Court on the ground that he was filing many
applications for leave at the time this one was prepared is unacceptable. This
was not a case where counsel unfamiliar with the history of the matter
inadvertently made a minor error. Mr. Ogunleye was counsel for the applicants
at the RPD hearing. He had a responsibility to his clients and to the Court to
ensure that the memoranda of fact and law he filed were accurate.
JUDGMENT
THIS COURT’S JUDGMENT
is
that the application for judicial review is
dismissed. There are no certified questions.
“Richard
G. Mosley”
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