Lynch v. Canada (Citizenship and Immigration), 2007 FC 374

Date: 200704011

Docket: IMM-1425-06

Citation: 2007 FC 374

Ottawa, Ontario, April 11, 2007

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

JOANNE MARGARET LYNCH

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Ms. Lynch is a citizen of Trinidad and Tobago who based her refugee claim on the grounds of spousal abuse. The Immigration and Refugee Board (Board) rejected her claim principally on the grounds of the existence of state protection in her home country. This is the judicial review of that decision.

I.          BACKGROUND

[2]               The Applicant claimed that her husband abused her physically and sexually over a period of nine years. She reported the first incidence of abuse to the police who refused to help her. She did not report any other incidences until 1998 just before she left for Canada when the police again did nothing. She said that she was afraid to report events to the police because her husband would kill her and the police would do nothing.

[3]               Ms. Lynch came to Canada in 1998 but did not make her claim until 2004. She explained her delay as arising from an initial hope that she could resolve matters with her husband and legal advice that her claim would fail.

[4]               The Board rejected her claim for two reasons; firstly, that she had no subjective fear evidenced by her significant delay in claiming and her failure to claim in the U.S. when she took a trip to that country; secondly, because Trinidad and Tobago have an effective state protection of which the Applicant failed to take advantage.

III.       ANALYSIS

[5]               The Board’s finding of absence of subjective fear is seriously infirmed. The Board accepted that the Applicant had been physically and sexually abused twice a week for nine years. It is difficult to understand how, having accepted this fact, the Board could conclude that there is no subjective fear.

[6]               The Board drew adverse inferences which affected their subjective fear conclusion. The first is that of delay but the Board did not analyse the reasons for her delay, particularly that of the legal advice she received. The second adverse inference arose from her failure to claim in the United States where the Board suggests she went for a few days. It was, in fact, a day trip of shopping at a time when she admits that she had no intention of claiming refugee status because she hoped to resolve matters with her husband.

[7]               Although the Board’s finding on absence of subjective fear is difficult to sustain, this case turns on the Board’s finding of state protection. As held in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, the standard of review on a conclusion of state protection is reasonableness. Findings of specific facts are generally held to the standard of patent unreasonableness (Aguebor v. (Canada) Minister of Employment and Immigration (F.C.A.), [1993] F.C.J. No. 732 (QL))

[8]               While there was some evidence that Trinidad and Tobago had and still has some problems dealing with domestic violence, there was a significant amount of evidence that the country has an effective system of state protection. The evidence included recent U.S. DOS Reports and the Board’s own Response to Information Requests. The Board noted the country’s democratic and judicial institutions.

[9]               The Board also noted that the Applicant had only approached the police twice in nine years of abuse and made no efforts to go elsewhere or even to a shelter because it only offered short-term protection.

[10]           The Board did consider both the objective evidence of state protection and the personalized situation of whether that protection was reasonably available to the Applicant. The Board’s reasons were adequate – the Applicant could understand how the Board reached its conclusions. The Applicant’s real challenge is to the Board’s conclusions; not the adequacy of the reasons.

[11]           Reading the decision as a whole, the Board’s conclusion of state protection and its availability to the Applicant, particularly on a prospective basis, is reasonable. The infirmities of its conclusions on subjective fear do not appear to have influenced its analysis and conclusions on state protection.

[12]           Therefore, this judicial review will be dismissed. There is no question for certification.

JUDGMENT

            IT IS ORDERED THAT this application for judicial review will be dismissed.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-1425-06

STYLE OF CAUSE:                          JOANNE MARGARET LYNCH

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      March 19, 2007

REASONS FOR JUDGMENT

AND JUDGMENT:                          Phelan J.

DATED:                                             April 11, 2007

APPEARANCES:

SOLICITORS OF RECORD: