Date: 20110531
Docket: IMM-1631-10
Citation: 2011
FC 630
Ottawa, Ontario,
May 31, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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VERNESSA JN BAPTISTE
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001 c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated March 2, 2010, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Vernessa
Jn Baptiste (the applicant) was born on May 1, 1981 and is a citizen of St. Lucia.
[4]
In
2000, the applicant began a relationship with a man 15 years older than her,
named Kenyatta James. The applicant was assaulted by Mr. James on several
occasions, beginning in 2001.
[5]
In
February 2004,
Mr. James was assaulting the applicant when a neighbour called the police. The
police said that it was a family affair and it did not concern them. The
applicant’s mother also called the police concerning this incident but the
police never arrived.
[6]
Mr.
James then disappeared for several months. When he returned in August 2004, the
applicant told him that she did not want him in her life. Mr. James stabbed the
applicant in her thigh. She was taken to the hospital for her injuries. The
applicant’s mother and father reported the incident to the police and were told
that Mr. James was well known to them and a friend of some of the police and
that they would not interfere in the applicant’s family life.
[7]
The
applicant left for Canada in August 2004.
[8]
In
Canada, the
applicant began living with a man from St. Lucia. He told her
that he would help with her immigration status. In July 2007, this man told the
applicant that he was returning to St. Lucia to his wife and
children. He said that if the applicant ever returned to St. Lucia, she should
consider herself “dead meat” and that he would “deal with” her.
[9]
When
this man returned to St. Lucia, he told Mr. James that
he had been with the applicant and Mr. James threatened to “deal with” the
applicant. The applicant’s mother contacted the police again but received no
response.
Board’s Decision
[10]
The
determinative issue for the Board was state protection.
[11]
The
Board highlighted that refugee protection is a surrogate protection and refugee
claimants are required to provide clear convincing proof that their own state
cannot protect them. The Board found that St. Lucia is a
parliamentary democracy with an independent judiciary. The Board acknowledged
that violence against women is a serious problem in St Lucia, but found that
the government is making serious efforts to address the problem which include
victim support services, the ability of judges of the Family Court to issue
protection orders and a vulnerable person team (VPT) launched by the police, as
well as an internal complaint system within the police.
[12]
The
Board noted the assaults that the applicant had experienced, but found that the
applicant had not rebutted the presumption of state protection. The Board found
that the applicant could have followed up on her mother’s complaints to the
police, she could get a protection order issued against her former partner and
if she does not get satisfaction from the police, she could report to the
police forces internal complaints unit.
Issues
[13]
The
applicant submitted the following issue for consideration:
Did the Board commit a
reviewable error by ignoring vital evidence and/or making selective use of
documentary evidence in its state protection analysis?
[14]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
its analysis of state protection?
Applicant’s Written Submissions
[15]
The
applicant submits that the Board’s decision is not based on the totality of the
evidence before it.
[16]
The
applicant was assaulted on numerous occasions by her ex-partner. The
applicant’s mother reported the incidents to the police but they did nothing.
The applicant had approached the state for protection and the protection was
not forthcoming. She was justified in seeking protection outside of St. Lucia.
[17]
In
addition, the applicant submits that the Board did not assess whether the
serious efforts of the state of St. Lucia to combat domestic
violence have yielded any positive results. The Board did not address the
reality for victims in St. Lucia. Similarly, the Board
erred by not addressing the documentary evidence which contradicted its
findings. The Board was obliged to explain why it preferred evidence which
supported its findings to those opposing its conclusions.
Respondent’s Written Submissions
[18]
The
respondent submits that the Board understood that the basis for the applicant’s
claim was membership in a particular social group; women subjected to threats
of violence.
[19]
The
respondent submits that the Board considered all of the evidence before it. The
Board need not mention every piece of documentary evidence, only that which is
contradictory to its findings.
[20]
The
onus was on the applicant to prove that she had exhausted all the possible
avenues of protection before seeking protection in Canada, however,
the applicant never approached the police herself. The Board reasonably found
that although there are shortcomings, state protection is adequate in St. Lucia. The Board
noted that the police response to domestic violence has improved significantly
and that Family Court Protection Orders and victim support services are
available.
Analysis and Decision
[21]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[22]
It
is established that assessments of the adequacy of state protection
raise questions of mixed fact and law and are reviewable against a standard of
reasonableness (see Hinzman, Re, 2007 FCA 171 at paragraph 38).
[23]
In
reviewing the Board's decision using a standard of reasonableness, the Court
should not intervene unless the Board has come to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47).
[24]
Issue
2
Did the Board
err in its analysis of state protection?
The Board’s state protection
analysis was reasonable in this case.
[25]
The
Board acknowledged that the applicant’s family and neighbour had gone to the
police on her behalf, but highlighted that the applicant never went to the
police herself.
[26]
The
applicant submits that the Board did not consider all of the documentary
evidence. The Board need not refer to every document before it, as long as its
conclusion acknowledges any contradictory evidence (see Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 (FCTD)).
[27]
The applicant states that the Board did not consider the document
“Shadow Report for St. Lucia on the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW)”, a 2006 report addressing the issue of violence against
women. The report notes that many incidents of violence are not effectively handled
by the police. It also highlights that the legislation in place is not being
effectively implemented.
[28]
I cannot conclude that the substance of this article was ignored
by the Board. The Board acknowledged that violence against women remains a
serious issue in St. Lucia. It noted that there has been corruption in the police in St. Lucia and that
there are delays in obtaining protection orders. However, the Board found that
in the past several years, there have been many positive changes in how domestic
violence is addressed. Specifically, the Board highlighted that the VPT has
resulted in increased police responsiveness by 24 percent to sexual crimes
involving women and children, the police response to domestic violence has
“improved significantly” as a result of sensitization training of police and
the VPT and that victims of domestic abuse can request orders from the
judiciary in the form of a Family Court Protection Order.
[29]
Furthermore,
it must be acknowledged that refugee protection is forward-looking. The
documentary evidence considered by the Board highlights that positive changes
have occurred in St. Lucia in the past several years and continue to
occur. The incidents of abuse that the applicant suffered were between 2001 to 2004.
As such, I find that the Board’s conclusion that adequate state protection
would be available to the applicant if she returned to St. Lucia today was
reasonable and within the range of acceptable possible outcomes defensible on
the facts and law (see Dunsmuir above at paragraph 47).
[30]
The
application for judicial review is dismissed.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001 c 27
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72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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.
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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.
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