Date:
20110324
Docket:
IMM-3087-10
Citation:
2011 FC 366
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, March 24,
2011
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
|
|
TRACEYANN ELIZABETH SAMUELS
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), of a decision of the Refugee Protection Division of
the Immigration and Refugee Board (the panel) dated April 28, 2010,
determining that the applicant is not a Convention refugee or a person in need
of protection.
Factual background
[2]
The
applicant, Traceyann Elizabeth Samuels, is a citizen of Jamaica. She made a
refugee claim in Canada in 2006 because she said she was persecuted for
her political opinions and membership in a particular social group.
[3]
Ms. Samuels
was born in St-James, Jamaica. She is a chartered accountant and was apparently
employed by the Jamaican tax authorities from 1994 to 1999. In 1998, she apparently
discovered two cases of tax evasion in companies linked to then-Prime Minister
Edward Seaga.
[4]
When
she informed the company’s chief accountant, he allegedly asked if she was
afraid for her life. Before she was able to tell her superiors about this, she
was attacked by two individuals while strolling with a friend. Her mother
called the police to complain. Meanwhile, the tax evasion was made public.
[5]
Ms. Samuels
therefore changed jobs. She moved to Montego Bay to work at the Ritz Carlton. She
also apparently had a relationship with a man while she was visiting Canada and
gave birth to her daughter. Ms. Samuels was apparently the victim of
attacks until April 2006.
[6]
According
to Ms. Samuel, the agent of persecution during all those years was a
former security guard of one of the companies that allegedly defrauded the tax
authorities who had become a police officer.
[7]
On
May 23, 2006, Ms. Samuels decided to leave Jamaica. After spending almost
three months in the United States—without making a claim for asylum—she arrived
in Canada on August 13, 2006, and filed her refugee claim the same day.
Impugned decision
[8]
The
panel established that Ms. Samuels was not credible and that she had not provided
tangible or reliable evidence to support her allegations. Therefore, the panel rejected
her refugee claim.
[9]
Ms. Samuels
alleged before the panel that if she returned to Jamaica, she would be
personally subjected to a risk of torture and would be persecuted because of
the tax evasion she had discovered 11 years before.
[10]
The
panel noted that Ms. Samuels alleges that she fears an employee of one of
the companies where she discovered the tax evasion. The panel also noted that
she sometimes described that individual as a security guard and, at other
times, as a police officer. Therefore, the panel made a negative credibility
finding.
[11]
Moreover,
the panel pointed out that Ms. Samuels was unable to explain why this
individual, whose name she does not know and whose identity she did not attempt
to discover, would go out of his way to search for her after so many years and
after the tax evasion had been made public. The panel decided that it was implausible
that Ms. Samuels would be targeted since the tax evasion has been made
public.
[12]
The
panel pointed out that Ms. Samuels never sought state protection in the
past 11 years. Ms. Samuels alleged that her mother had called the police,
but that was only on one occasion and that she herself never complained. She
did not complain to her superiors either. When the panel questioned her about
this, Ms. Samuels answered that she did not file a complaint because she
did not know who she could trust given that there is a great deal of corruption
in her country.
[13]
Although
the panel acknowledged the problem of corruption in Jamaica, it found that the
documentary evidence shows that Jamaica is a parliamentary democracy with an
independent judiciary. The panel therefore determined that she had not met her
burden of proving her country was unable to protect her.
[14]
As
the second ground for her refugee claim, Ms. Samuels alleged that she
feared the father of her daughter, born in Montreal in May 2002, because
she asked for and obtained child support from him in 2003. However, the panel
did not find Ms. Samuels’ testimony credible since she admitted that in
2006 she approached her child’s father to ask him to marry her. The panel found
that Ms. Samuels’ conduct did not indicate a genuine fear.
[15]
Finally,
relying on the documentary evidence, the panel rejected Ms. Samuels’
allegation that she would be in danger because she is a woman.
[16]
Accordingly,
the panel rejected the applicant’s refugee claim on the ground that she had not
met her burden of proving a risk of persecution on one of the Convention
grounds. In the panel’s view, she also failed to demonstrate that, if she were
to return to Jamaica, she would be personally subject to a risk of torture or
to a risk to her life or to a risk of cruel and unusual treatment or
punishment.
Relevant statutory
provisions
[17]
The
following provisions of the Immigration and Refugee Protection Act are
relevant in this matter.
|
Convention
refugee
96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
Définition
de « réfugié »
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
|
Person
in need of protection
97.
(1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Personne
à protéger
97.
(1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
Issue
[18]
The
issue in this judicial review application is as follows:
Did the panel err in finding that state
protection was available to the applicant in Jamaica?
Standard of review
[19]
According
to the Supreme Court of Canada, at paragraph 53 of Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, when a tribunal is assessing
legal and factual issues that cannot be readily separated, the reviewing court
will show deference to the tribunal.
[20]
With
respect to state protection, it is well established that questions as to the
adequacy of state protection are questions of mixed fact and law (Hinzman v.
Canada (Minister of Citizenship and Immigration), 2007 FCA 171,
[2007] F.C.J. No. 584). Therefore, the applicable standard
of review is reasonableness.
Analysis
[21]
Ms. Samuels
submits that the panel erred in finding that the protection of authorities was
available in her case. She states that she fears influential people in Jamaica
because of her work in the tax department and that her allegations of
corruption in Jamaica are well supported by the documentary evidence.
[22]
The
Court notes that Ms. Samuels is not disputing the panel’s findings
regarding the credibility of her story. The Court’s analysis will therefore
deal with the panel’s findings as to the availability of state protection in
Jamaica.
[23]
The
Minister submits that the burden rests on the applicant to demonstrate, by
clear and convincing evidence, that her country is unable to protect her (see Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 DLR (4th)
1, Carrillo v. Canada (Minister of Citizenship and Immigration),
2008 FCA 94, [2008] 4 FCR 636).
[24]
The
Minister alleges that Ms. Samuels did not meet her burden of proof, since
she did not attempt to obtain her country’s protection. In support of his
claims, the Minister relied on Kadenko v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1376, 206 NR 272, at
para. 5:
[5] When the
state in question is a democratic state, as in the case at bar, the claimant
must do more than simply show that he or she went to see some members of the
police force and that his or her efforts were unsuccessful. The burden of proof
that rests on the claimant is, in a way, directly proportional to the level of democracy
in the state in question: the more democratic the state’s institutions, the
more the claimant must have done to exhaust all the courses of action open to
him or her.
[25]
Ms. Samuels never complained to police nor
reported anything to her superiors for a period of 11 years during which she
alleges that there were attempts to attack her several times for having
discovered the tax evasion. Furthermore, she stayed in a number of other
countries during this period—Spain in 2000, the United States until 2002 and
Canada in 1997, 2001 and 2002—and never filed a refugee claim.
[26]
In fact, she said that she feared an
unidentified individual. The Court is of the view that the panel rightly found
that Ms. Samuels’ failure to avail herself of her country’s protection
shows that she did not reverse the burden of proving that there was a lack of
state protection in Jamaica (Martinez v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1050, [2005] F.C.J. No. 1297). In
this case, that aspect is decisive.
[27]
Ms. Samuels argued that if she were to
return to Jamaica, she would be persecuted and her life would be at risk
because she is a woman. In support of her claims, Ms. Samuels submits
documentary evidence. The Court understands that the situation for women in
Jamaica is not perfect. The panel also admitted that fact (Certified Tribunal
Record, panel’s decision, at para. 8). The Court notes, however, that the
panel referred to the documentary evidence and made particular note that
Jamaica has an independent judiciary. Investigations on corruption have been
conducted and charges were laid (Certified Tribunal Record, panel’s decision,
at para. 7). It is also relevant to add that general documentary evidence
is not sufficient evidence in itself to substantiate a refugee claim (Alexibich
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 53, [2002]
F.C.J. No. 57) particularly in this case, since the panel questioned the
credibility of the applicant’s story because of her conduct.
[28]
Therefore, the applicant’s argument of
generalized violence against women in Jamaica must be rejected because the evidence
on file does not establish a connection between the general documentary
evidence and the applicant’s particular situation (Prophète v. Canada (Minister
of Citizenship and Immigration), 2008 FC 331, [2008] F.C.J. No. 415).
[29]
All
things considered, the panel’s decision is reasonable and the intervention of
the Court is not warranted. The application for judicial review is therefore
dismissed.
[30]
This matter does not raise a question of general
importance.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that this application for judicial review be
dismissed. No question is certified.
“Richard Boivin”
Certified true
translation
Catherine Jones,
Translator
Email this Content