Date: 20110308
Docket: IMM-3722-10
Citation: 2011 FC 269
Ottawa, Ontario, March 8,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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SHAMIKA SHONETTE RYAN
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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 JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks an order setting aside a May 5, 2010 decision of the Refugee
Protection Division of the Immigration Refugee Board (the Board), which found
the applicant to be neither a Convention refugee nor a person in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA). The application is
brought pursuant to subsection 72(1) of the IRPA. For the
reasons that follow, the application for judicial review is dismissed.
[2]
The
applicant fled to Canada from St. Vincent and the Grenadines in 2008
allegedly because of her violent ex-boyfriend, who was a police officer and was
jealous of her other male friends. The applicant arrived in Canada on July 8,
2008 and made her refugee claim on July 29, 2009, over a year later. When the
applicant entered Canada she did not declare herself as a refugee; she merely
told the port authorities that she was entering Canada for a vacation.
[3]
The
applicant claimed she could not return to St. Vincent because her
ex-boyfriend remained a threat to her. Her claim was heard on April 29, 2010
and denied on May 5, 2010, with the finding that she was neither a Convention
Refugee nor a person in need of protection.
[4]
The
Board rejected the applicant’s claim for refugee protection for three reasons:
she lacked subjective fear since she took over one year to claim refugee
protection; her allegation that she was still being pursued by her ex-boyfriend
was not believable; and there was adequate state protection in St. Vincent for
victims of domestic violence. Each of these findings was in issue before this
Court on review.
[5]
The
Board accepted that the applicant was abused by her ex-boyfriend for a period
of several months in 2008 and that the abuse took the form of sexual assault
towards the end of the relationship on three occasions. However, the Board did
not believe that the applicant’s ex-boyfriend continues to pursue her at
present.
[6]
The
Board noted that the applicant omitted several facts from her Personal
Information Form (PIF), all of which she advanced to explain the delay in
making her claim. The PIF was silent on key aspects of her testimony before
the Board; the applicant’s mother called her in June 2009 to tell her that her
ex-boyfriend continues to pursue her; that her ex-boyfriend regularly makes
visits to demand funds and to ask for the whereabouts of the applicant; and
that when her mother refuses to pay during these monthly visits, he beats her
up. Finally, while the telephone call was the determinative event which
triggered her claim for status, neither the telephone call, the beating of the
mother and the monthly demands for money by her former boyfriend appear in the
narrative.
[7]
The
applicant was asked by the Board to explain their omission. The exchange
between the Board and the applicant was as follows:
MEMBER: You said earlier that Curtis was always beating up your mother. Why is
this not in the PIF?
CLAIMANT:
Since I go to Canada he was beating up my Mom cause he think she was telling
lies, but not all the time. Like once a month he comes for money and sometimes
she don’t give him she start like being violent towards her.
MEMBER:
Why is this not in your PIF?
CLAIMANT:
I wanted to say it – like I don’t want to write everything in the PIF. I
wanted to like ---
MEMBER:
Why not?
CLAIMANT:
Cause I just like want to say more to you.
[8]
It
was reasonable for the Board to reject this explanation. The Board weighed the
evidence before it, and based on the testimony, such conclusion was open to it
on the record.
[9]
The
applicant also contends that the Board misconstrued her evidence. While
several examples of this are offered, I will deal only with three of the most
serious examples of alleged misunderstanding of the evidence. The applicant
alleges that she never testified that she acted cautiously so as not to come to
the attention of the police or the Immigration Authorities. However, the
transcript confirms that the applicant in fact made such a statement and that
the Board did not misstate her testimony. The Board also found that the applicant
did not provide a clear explanation as to why she stayed in Canada for over a
year without regularizing her status. The applicant takes issue with the Board’s
findings at paragraph 11 of the decision: “in assessing subjective fear, the
panel stated, at paragraph 11 of its decision, that the applicant testified
that she acted cautiously so as not to come to the attention of the police or
the Immigration Authorities.” Counsel argues that the applicant never made this
assertion and the panel’s reference to this fact amounts to a material
misstatement of facts. Ms. Ryan very clearly made such an assertion as
evidenced by the transcript of the hearing:
MEMBER: At first. When did you realize you were illegal?
CLAIMANT:
Well, after I see I was going to school, getting school, and then after at the
school board they give me something and from there I saw it was not legal.
MEMBER:
It was your what?
CLAIMANT:
When I go into school
MEMBER:
Yes.
CLAIMANT:
---they give you your form like---
MEMBER:
Yes.
CLAIMANT:
---and from there I saw I was illegal.
MEMBER:
And who put that down?
CLAIMANT:
The school cause —
MEMBER:
The school?
CLAIMANT:
Yeah.
MEMBER:
So they knew you were illegal?
CLAIMANT:
Yeah.
MEMBER:
Did the school take any action?
CLAIMANT:
No.
MEMBER:
Did you come to the attention of immigration?
DESIGNATED
REPRESENTATJVE: No.
CLAIMANT:
No.
MEMBER:
Did you realize you could have been deported?
CLAIMANT:
I know I could have been deported, but I tried to keep it on the down low.
MEMBER:
Tried to keep it what?
CLAIMANT:
I tried to keep it on the down low, like don’t get in violence and stuff
like that, cause that’s what you get when like if the police got to find out
you can get deported.
MEMBER:
So you tried to keep
DESIGNATED
REPRESENTATIVE: Behave herself.
CLAIMANT:
I behave myself.
MEMBER:
You what?
CLAIMANT:
I tried to behave myself and don’t get anything.
MEMBER:
Don’t get into any trouble?
CLAIMANT:
Yeah
[Emphasis added]
[10]
It
is clear that, as the Board found, “the applicant testified that she acted
cautiously so as not to come to the attention of the police or the Immigration
Authorities.”
[11]
It
is well established that the Board, in assessing a subjective fear of
persecution, can take into account the claimant’s behaviour, and delay is an
important factor. While not a determinative factor, in the absence of any
credible explanation, it may assume a decisive role. The Board had before it
evidence that the applicant was aware that she could be deported, but took no
steps to make a claim. The record was also clear that even after the important
telephone call, she waited one month before making a claim. No reviewable
error arises from the conclusions drawn by the Board as to the applicant’s
explanation.
[12]
I
will turn to the second alleged material misstatement of the evidence. Counsel
for the applicant argues that the Board made an error at paragraph 16 of its
decision where it states that the “claimant asked her parents not to approach
state authorities.” Ms. Ryan did make such a statement but it was only in
reference to her mother:
CLAIMANT: Yeah, I tell my family. And my
Mom wanted to like report it to his boss but I tell --I beg my Mom “Please
don’t do it because you’re going to cause me more danger than what he’s doing
to me”. Because my Mom wanted to go and tell his boss “Oh, you need to throw
him out of the force because he’s not good and stuff’ but I beg my Mom “Please
don’t go.”
[13]
The
applicant clearly states that she begged her mother not to report her
ex-boyfriend to his boss, presumably a more superior police officer. But she
did not say “parents.” The applicant said “Mom.” Ms. Ryan testified that she
did not speak to her father, that he was a vagrant and that he had never been
in her life. The use of the word “parents” would thus appear to be an error
but it is, on any reading of the decision, immaterial.
[14]
Finally,
counsel for the applicant also takes issue with the finding of the Board at
paragraph 20 of the decision, which states:
[t]here is no corroborative evidence from
the claimant’s mother nor [sic] any supportive evidence from the claimant that
she has been sending money to provide to her perpetrator via her mother.
Therefore, we do not find this portion of the claimant’s testimony to be
credible.”
[15]
Counsel
argues that the applicant never stated that she had been sending money to her
mother to provide funds for the perpetrator. The applicant’s testimony was
that her assailant continued to search for her, under the guise of recovering
all the money he gave the applicant during the time she was with him. However,
the text of a letter tendered in evidence by the applicant was:
Mama ask me to beg you to please send us
anything you can before the end of September. Curtis says he is coming to
collect money from us by the end of September and if we don’t have anything for
him, he will cause us problem.
[16]
The
Board’s conclusion is a reasonable inference to be drawn from this letter, and
as such cannot be revisited even though a different interpretation may be
offered.
[17]
The
crux of the applicant’s second argument is that the Board made a material error
in its assessment of the evidence. The applicant contends that this error
vitiates the Board’s finding with respect to both delay and subjective fear.
The central error is found in paragraph 10, where the Board states:
However, according to the claimant, in June 2008 she received a phone call from
her mother indicating continuing pursuit on the part of the perpetrator because
he had heard she had returned to St. Vincent. It was as a result of this phone
call that the claimant decided to make a refugee claim.
[18]
The
applicant was not in Canada in June 2008. She left for Canada in July
2009. The Board was clearly in error. That said, if the decision must be read
as whole, as it must, it is clear that the Board did not misunderstand the
evidence before it and that the error, was immaterial to the Board’s
disposition of the matter. At many points throughout the reasons, the Board
indicates that it clearly understood the call to have been made in June 2009.
See for example, Reasons for Decision, paragraphs 3, 4, 9 and 16. While there
is an error in the date, there is no error in the chronology of events
expressed and understood by the Board.
[19]
The
Board continued to examine the issue of state protection, and concluded that:
Similarly, in this case, the panel does
not find that the police and judicial system of St. Vincent are so ineffective as to be inadequate,
and that for that reason it should find that state protection is not
available. Moreover, there are cases from the Federal Court that have upheld
the Board’s decisions on the availability of state protection in St. Vincent
for victims of gender-based violence. [Dean, Gilda Oustrid v M.C.I.
(F.D., no. IMM-155-09), Lagacé, July 31; 2009 FC 772; Samuel, Roxie Mulassa
v M.C.I. (F.C., no. IMM-3505-08), Barnes, Feb. 24, 2009; 2009 FC 198; Young,
Cecile v M.C.I., (F.C. no. IMM-4933-07), Lagacé, May 21, 2008; 2008 FC 637;
Adams, Joan v M.C.I. (FC, No. IMM-3820-06), Barnes, May 17, 2007; 2007
FC 529.] It is noted in Samuel, that evidence was adduced that the
authorities were in fact taking appropriate action, despite the presence of
family members of her persecutor on the police force and acknowledging domestic
violence as being a serious problem. The preponderance of the objective
evidence regarding current country conditions suggest that, although not
perfect, there is adequate state protection in St. Vincent for victims of domestic violence.
[20]
In
this case the Board concluded that state protection was not so ineffective as
to be inadequate. In reaching this conclusion the Board undertook a thorough
and balanced review of the evidence, acknowledging both the serious nature of
domestic abuse in St. Vincent and the limitations on the state to assist. In
any event, given the facts as found by the Board, there is no evidentiary basis
on which the presumption of state protection could be rebutted. In light of
the standard of review, the Board’s decision in this regard cannot be assailed.
[21]
The
application for judicial review is therefore dismissed.
[22]
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 none arises.
"Donald
J. Rennie"
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