Date: 20110304
Docket: IMM-3705-10
Citation: 2011 FC 261
Ottawa, Ontario, March 4,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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HALL, ZITA
OCHOA, QUINCY VIRGIL
OCHOA, QUASI ROMARIO
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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]
The
applicants seek an order setting aside a May 31, 2010 decision of the Refugee
Protection Division of the Immigration Refugee Board (the Board), which found
them to be neither Convention refugees nor persons in need of protection under
sections 96 and 97 of Immigration and Refugee Protection Act, 2001, c. 27 (IRPA).
The applicant, Zita Hall, is the mother of Quincy Virgil Ochoa and Quasi Romario
Ochoa, the minor-applicants. For the following reasons the application for
judicial review is dismissed.
[2]
The
applicant advances three principal grounds in support of the argument that the
Board’s decision is unreasonable and should be set aside; the adequacy of the
reasons, the finding in respect of state protection, denial of a fair hearing
and failure to address key evidence.
[3]
The
first of these grounds is the adequacy of the Board’s reasons for its
decision. It is argued by the applicant that the reasons do not mention the
interests of the minor-applicants, nor do they reflect an independent analysis
of the claims advanced under section 97 of the IRPA. It is also
contended by the applicant that the reasons fail to serve the important
public policy objectives of maintaining public confidence in the administration
of justice, consistency and most importantly, explaining to the party why they
did not succeed. The applicant also argues that the reasons fail to meet the criteria
of justification, transparency and intelligibility as expressed in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[4]
On a
close reading of the record, this argument fails. The claims of the minor-applicants
are entirely dependent on those of their mother. Indeed, the Personal
Information Form (PIF) filed on behalf of the minor-applicants simply repeated
information found in the applicant’s PIF. In addition, the case law is
clear that the burden of proof for an IRPA section 97 claim is higher
than a section 96 claim and hence, should the section 96 claim fail, an
additional review of section 97 and its jurisprudence is not required: Brovina
v Canada (Minister of Citizenship and Immigration), 2004 FC 635 at paras
17-18. In any event the reasons, on their face, indicate that the Board did turn
its mind to, and did fully consider, the issues put forth by the applicant with
respect to the minor-applicants.
[5]
Counsel
for the applicant contends that, having regard to the Board’s review
of the evidence indicating shortcomings in the degree of state protection for
victims of domestic and spousal abuse in Trinidad, the findings with respect to state protection
are unreasonable. This argument fails as the Board, in a careful and balanced
analysis of the evidence before it, examined relevant evidence demonstrating,
in its view, the contrary. In the course of its review of the legal framework
governing the criminal law and the organization of law enforcement agencies,
the Board also considered the nature and extent of civilian oversight and
recourse mechanisms available to citizens aggrieved by the failure of state
authorities to act. The Board also reviewed the extent to which other
government agencies were available to assist victims of domestic abuse. As
noted by Barnes J. in Sanchez v Canada (Minister of Citizenship and Immigration),
2008 FC 134, the existence of state agencies that may offer assistance in
providing protection where the police response is inadequate is relevant in the
analysis of state protection. The Board’s analytical approach on the objective
standard to the effect that Trinidad offers “not perfect but adequate” state
protection is consistent with the Federal Court of Appeal’s decision in Carrillo
v Canada (Minister
of Citizenship and Immigration), 2008 FCA 94.
[6]
The
applicant also contends that the Board erred in concluding that she had not
discharged her obligation to seek out state protection. Counsel for the
applicant argues that there are two exceptions to the general proposition that
state protection must be diligently sought out: first, where no protection
would be forthcoming based on prior requests made personally, and second, where
others had sought protection and the request had been
ignored. On the facts before the Board, neither of these exceptions
is engaged. Relating to the second exception, the prior circumstance offered
by the applicant as objective evidence of futility was simply a vague
story of a friend of a friend who complained to the police and, understandably,
was never heard of again. No details of this account were offered other than a
first name. This evidence was rejected by the Board.
[7]
Relating
to the first exception, the circumstances pertaining to the applicant’s
personal requests for assistance failed on the evidence as the Board found that
the applicant had reported her abuser’s behaviour, which she described as
harassment, to the police only once, and on that occasion told the police that
she did not want them to investigate further as she wished to settle the matter
personally. The burden to provide clear and convincing evidence of the
failure of the state to provide protection, and the burden on the applicant to
make convincing efforts to seek protection, cannot be met on a single
complaint to the police about harassment, and where an insufficient amount
of time was allowed for the police to respond to the complaint: Gutierrez v
Canada (Minister of Citizenship and Immigration) 2008 FC 971 at para 19.
[8]
The Board’s
decision with respect to the applicant’s failure to seek state protection is also
informed by a number of negative credibility findings. The Board rejected
numerous aspects of the applicant’s testimony with respect to the nature and
extent to which she engaged the protection of the police. When questioned as
to why she did not report earlier abuse, the applicant stated that “... she
would have to file a formal complaint which she did not want to do because the
process would take too long.” The Board also noted the absence of a reference
in the existing police report to a threat made by the applicant’s alleged
abuser to kidnap her children and the threat he made with a gun on another
occasion. The applicant’s response as to why the police did not record these
matters was because “...they were corrupt and that they did not take down the
information correctly.” This explanation was rejected by the Board as not
credible. Moreover, the Board also noted that these very significant events
were also not included in the applicant’s PIF.
[9]
Thirdly,
the applicant argues that the she was deprived of the right to a fair
hearing. In the course of the hearing, the Board advised counsel and the
applicant that it accepted the allegation that the applicant was a victim of
abuse and that she had filed the police report in question. It is contended by
the applicant that, by these statements, the Board lured her into a false sense
of comfort and hence she did not know the case that she had to meet. This
argument fails. The transcript indicates, quite clearly, that the Board accepted
the authenticity of the police report, but nothing more. The
credibility of the applicant’s claim and her assertions as to what
precise elements of abuse she reported, to whom and when, remained
in issue throughout the course of the hearing. The transcript makes clear
that the applicant’s credibility, and in particular the material discrepancies
between her testimony and the narrative, and between her testimony as to what
she reported to the police and the content of the police report itself,
remained live issues throughout the hearing. To choose but one example, the
fact that the police report was accepted as authentic did not mean that the Board
was prepared to accept that the omission of these matters was due to the
corruption of the police.
[10]
It is also argued in the
context of the right to a fair hearing that the Board did not consider or take
into account the expert medical report of a psychologist, establishing
that the applicant was depressed, timid and confused as a result of the abuse
she suffered. The Board did, in fact, consider the report and accepted that it
helped in establishing the claimant’s subjective fear of returning to Trinidad,
thus satisfying the first of the two part subjective-objective test articulated
in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689. The Board also
situated its assessment of the applicant’s testimony in the context of
Guideline 4 issued by the Chair of the Board pertaining to Women
Refugee Claimants Fearing Gender-Related Persecution.
[11]
In
light of the reasons provided above, I find that based on the evidence before
it, the Board’s decision is within the possible, acceptable range of outcomes
defensible in respect of the facts and law: Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190. It is therefore my opinion that the decision is
reasonable.
[12]
As a
result, the application for judicial review is dismissed.
[13]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and the Court finds that none arises.
"Donald
J. Rennie"
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