Date: 20070514
Docket: IMM-3796-06
Citation: 2007 FC 512
Ottawa, Ontario, May 14, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CAVELL ALICIA HENRY and
KHALID OLIVER TARRICK HENRY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of the
decision of the Immigration and Refugee Board (Refugee Protection Division)
(the Board) dated June 16, 2006, which determined that the applicants were
neither Convention refugees nor persons in need of protection.
[2]
The
applicants requested that the decision be set aside and the matter referred for
redetermination by a differently constituted panel of the Board.
Background
[3]
The
applicants, Cavell Alicia Henry (the applicant), and her son, Khalid Oliver
Tarrick Henry, are citizens of Grenada. The applicant alleged
having a fear of persecution on the basis of her membership in two particular
social groups, namely, people threatened by criminals implicated in a crime,
and women who have been abused by their common-law spouses. She also claimed to
be a person in need of protection. Her son’s claim for protection was based
upon her own. The circumstances which led to the applicant’s claim for refugee
protection were set out in the narrative portion of her Personal Information
Form (PIF) and in her affidavit.
[4]
The
applicant was in a common-law relationship with Oliver Williams from 1997 until
April 2005. Their son was born in January 2000. In September 2002, Williams was
stopped at gun point and forced to drive a group of men somewhere. One of the
men was Sheldon Bain, a well-known criminal in Grenada. Williams
overheard the men discussing a murder, and he was told that his family would be
killed if he reported the crime. Despite the threat, Williams filed a police
report and Bain and three other men were captured. Williams also testified
against Bain at his trial. During the trial, the applicant and her son were
threatened by the men and their family members.
[5]
Bain
escaped from prison in April 2004 and Williams was placed in protective
custody. The applicant and her son were escorted by the police in order to live
with her mother, who was a police officer. The police informed the applicant
that she and her son were not safe in Grenada, since many people
wished to retaliate against them. The police helped them leave Grenada, and
provided them with official correspondence confirming the situation.
[6]
They
arrived in Canada on August
25, 2004, accompanied by Williams. The family claimed refugee protection on
September 10, 2004. While in Canada, Williams was informed that the three
other men arrested with Bain had also escaped from prison. Williams and the
applicant ended their relationship after several incidents of domestic
violence. Williams was convicted of assault and uttering death threats after
attacking the applicant on September 14, 2005. Williams was also convicted of
breaching a no-contact provision of his release.
[7]
The
applicant and her son’s claims for refugee status were separated from that of
Williams on January 20, 2006. Their refugee hearing took place on June 15,
2006, and the claim was denied by decision dated June 16, 2006. This is the
judicial review of the Board’s decision.
Board’s Reasons
[8]
The
Board determined that the applicant and her son were neither Convention
refugees, nor persons in need of protection, as there was no objective basis for
their claims. The Board noted its consideration of the Chairperson’s Gender
Guidelines.
[9]
The
applicant provided the Board with a letter from the police in Grenada which
confirmed her story. This evidence showed that the authorities provided them
with more assistance than was normally available in Grenada. The Board
found that while the protection available to them was not perfect, it was
adequate. In addition, the applicant was separated from Williams, who was the
target of Bain’s threat. The Board reasoned that it would be known in Grenada that she was
no longer connected to Williams, therefore the agents of persecution would no
longer be interested in harming her.
[10]
The
Board cited documentary evidence regarding the situation faced by abused women
in Grenada and
acknowledged that it was tenuous. There was legislation in place in Grenada allowing for
protection, occupation and tenancy orders. While violence against women was a
problem in Grenada, it was
being addressed and improved. The Board noted that the applicant’s mother was a
police officer, and could make arrangements to protect the applicant.
[11]
The
Board noted that both the Convention refugee definition and the grounds for establishing
a need for protection were forward looking. The Board found that the applicant
could avail herself of protection services in Grenada, if
required. The Board noted that nations are presumed capable of protecting their
citizens, and a claimant must approach his or her state for protection where it
would be forthcoming (see Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1). There was no more than a mere
possibility that the applicant and her son would be persecuted if they returned
to Grenada, nor were
they persons in need of protection.
Issues
[12]
The
applicant submitted the following issues for consideration:
1. Did the
Board err in concluding that there was adequate state protection in Grenada and
that the applicants were no longer at risk?
2. Did the
Board err by failing to properly review the evidence concerning state
protection and domestic violence?
[13]
I
would rephrase the issues identified by the applicants as follows:
Did the Board err in finding that
state protection was available to the applicants?
Applicants’ Submissions
[14]
The
applicant submitted that while the Board need not refer to every piece of
evidence before it, evidence in support of a claimant’s position must be
considered (see Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (F.C.T.D.)).
It was noted that the more important the evidence, the more likely it was that
the Board had erred in failing to consider it. The applicant submitted that the
Board should not selectively refer to evidence in support of its conclusion,
without also referring to evidence to the contrary (see Polgari v. Canada (Minister of
Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 263, 2001 FCT
626).
[15]
The
applicant submitted that where evidence relating to a central issue was submitted,
the Board’s burden of explanation increased if it was assigned little weight.
It was submitted that a general statement that all of the evidence was
considered was insufficient, especially if the omitted evidence contradicted
the Board’s conclusion (see Castillo v. Canada (Minister of
Citizenship and Immigration) (2004), 128 A.C.W.S. (3d) 782, 2004 FC
56). The applicant submitted that the most important piece of evidence in her
case was a letter from the Grenadian police. The Board accepted the authenticity
of the document, but found that state protection was adequate. The applicant
submitted that the Board’s conclusion disregarded the evidence.
[16]
The
applicant submitted that whether she and her son were granted more protection
than usual was irrelevant, since the level of protection was inadequate. The
applicant submitted that the letter established that the state was unable to
offer adequate protection. It was submitted that the Board’s finding that the
applicants did not face a continuing risk was perverse, given that the police
believed that they were still at risk.
[17]
The
applicant testified that the agents of persecution were not rational, and would
not care that she was no longer in a relationship with Williams. It was
submitted that the finding that the criminals no longer posed a risk because of
her separation from Williams was patently unreasonable. The applicant noted
that Bain, his criminal associates, and his family felt that the applicant was
personally responsible for his conviction and had threatened her.
[18]
The
applicant submitted that the Board selectively considered evidence regarding
the abuse of women in Grenada. The documentary
evidence indicated that there were serious problems with the enforcement of
domestic violence laws. The applicant submitted that the Board should have
assessed the actual ability of the state to protect its citizens. It was
submitted that the Board did not address the fact that despite efforts to
remedy the situation, the protection offered was inadequate. The applicant
submitted that the Board erred by selectively relying upon portions of the
evidence, while ignoring other statements in the same document.
Respondent’s Submissions
[19]
The
respondent submitted that the Board’s finding on state protection was reasonable.
It was submitted that states are presumed capable of protecting their citizens
unless there was evidence of a complete breakdown of the state (see Ward
above). The respondent noted that while there was evidence before the Board
that the Grenadian police had helped the applicant flee Grenada, the letter
did not rebut the presumption of state protection.
[20]
The
respondent submitted that the applicant bore the burden of showing that Grenada was
incapable or unwilling to protect them. It was submitted that the more
democratic a country’s institutions, the more a refugee claimant had to do to
exhaust all courses of action available (see Ward above). The respondent
submitted that a local failure to provide effective policing did not constitute
a lack of state protection, absent evidence of a broader state policy to not
extend protection to a targeted group. The applicant did not seek help beyond
contacting the local police, and it was submitted that the Board’s conclusion
was therefore reasonable (see Orban v. Canada (Minister of
Citizenship and Immigration) (2004), 130 A.C.W.S. (3d) 1190, 2004 FC
559).
[21]
The
respondent submitted that the Board considered all of the evidence in making
its state protection finding. The Board noted that there was evidence that the
Grenadian government was dealing with domestic violence and personal security
issues. The respondent submitted that the standard for state protection was
adequacy, not perfection (see Zalzali v. Canada (Minister of
Employment and Immigration), [1991] 3 F.C. 605, 14 Imm. L. R. (2d) 81 (C.A.)). It was
submitted that the Board was not required to mention every piece of evidence
before it, so long as it had considered all of the evidence (see Chowdhury v.
Canada (Minister of Citizenship and Immigration) (2003), 122 A.C.W.S.
(3d) 344, 2003 FCT 407).
[22]
The
Board found that Williams was the target of Bain’s threat, not the applicant
and her son. The police offered Williams full protection while the applicant
and her son were allowed to live with a relative. In addition, the applicant’s
separation from Williams served to minimize the threat she faced. The
respondent submitted that the fact that Grenada was a small
island meant that the community would be aware that the applicant was no longer
in a relationship with Williams. It was submitted that the mere possibility of
a threat was not sufficient to generate objective grounds for fearing
persecution or risk of torture, or cruel or unusual treatment.
Applicants’ Reply
[23]
The
applicant submitted that the Board’s state protection finding did not address
any local failure to provide protection. It was submitted that the respondent
had introduced this argument, and that the finding was patently unreasonable.
The applicant submitted that the Board did not make a determination that she
should have sought help beyond contacting the local police. It was submitted
that the respondent was again making arguments that were not based upon the
Board’s decision. In any event, it was submitted that the letter came from
police headquarters and was signed by the police commissioner, therefore it was
difficult to understand how the applicant could have sought help from a higher
police authority.
[24]
The
applicant conceded that the standard for state protection was adequacy. However,
it was submitted that the Board erred in failing to consider that the police
had admitted that it was unable to protect them. The applicant submitted that
the letter from the police post-dated her separation from Williams, which
constituted strong evidence that she was still at risk. It was noted that the
Board did not consider her son’s claim independently.
Analysis and Decision
Standard of Review
[25]
While
the underlying factual findings are subject to review on the standard of patent
unreasonableness, the Board's findings on the adequacy of state protection is a
question of mixed fact and law that is reviewable on a standard of
reasonableness (see M.P.C.R. v. Canada (Minister of Citizenship and
Immigration) (2005), 139 A.C.W.S. (3d) 1068, 2005 FC 772).
[26]
Issue
Did the Board err in finding
that state protection was available to the applicants?
There are two aspects to the Board’s
state protection finding. First, whether there was adequate state protection from
the convicted murderer, Bain, and his associates. Secondly, whether there was adequate
state protection from apprehended violence from the applicant’s former
common-law spouse.
[27]
I
will deal first with the adequacy of state protection from the convicted
murderer, Bain. The applicant’s former common-law husband, Oliver Williams, was
forced to drive Bain and others somewhere, and overheard them discuss the
murder of a woman. He was warned not to tell police or his family would be
murdered. Williams reported the matter to police, and Bain and three of his
associates were arrested. Williams testified against Bain, who was convicted of
murder. During the trial, Bain’s friends and family threatened the applicant
and her son. People called their house and threatened them.
[28]
On
April 9, 2004, Bain escaped from prison and Williams went into protective
custody. The applicant and her son were taken by the police to stay with the
applicant’s mother, who is a policewoman. The police advised the applicant and
her family to leave Grenada as it was not safe. The other three men
arrested with Bain also later escaped.
[29]
In
May 2006, the following letter was provided to the applicant by the Grenadian
police:
TO WHOM IT MAY CONCERN
This is to certify that Miss
Cavell HENRY and son Khalid HENRY were placed under protective care by the
Royal Grenada Police Force (R.G.P.F.). A team of officers was assigned to visit
them on a regular basis to check on their well being.
Mr. Oliver WILLIAMS the former
common-law spouse of Miss Henry and father of her son Khalid was the State witness
in a Murder trial involving Sheldon BAIN alias “Dutch”. He (Sheldon) was found
guilty and was awaiting sentence. On 9th April 2004 he unlawfully
escaped from Her Majesty’s Prison, at Richmond Hill, St. George’s, Grenada, and
went into hiding. He was considered to be armed and dangerous.
While under protective care it
was reported that Ms. HENRY received numerous death threats from Sheldon BAIN
(Dutch). As a result she quitted her job and removed her son from school. It
was at this juncture that the Police advised Ms. Henry and her family that in
the interest of their well being they should leave the State of Grenada.
Now that they are in Canada we
believe that this is the safest place for Miss Henry and her son Khalid HENRY
to be where there is adequate protection.
We advise that they be allowed to
stay in Canada.
Grateful for whatever assistance
that can be rendered to Ms. Henry and family in that regard.
“Raymond CHARLES”
Commissioner of Police (Ag.)
The Board received this letter and accepted
it to be authentic.
[30]
The
Board took note of the applicant’s testimony and stated that the evidence
illustrated that the authorities provided more support to she and her family
than would normally be available to people in Grenada.
[31]
The
Board further noted that the applicant was separated from Williams and
therefore she should no longer be a target of Bain’s threats, as he would know
about the separation. This, however, did not address the danger to their son.
[32]
The
letter from the police, which is dated after the separation, states that it is
safer for the applicant and her son in Canada where “there
is adequate protection”. This statement implies that there is inadequate
protection in Grenada.
[33]
The
Board mentioned the letter but did not explain why it failed to show that there
was inadequate state protection in Grenada for the applicant and
her son. The letter is the most current piece of evidence regarding state
protection. Since the letter relates to the central issue in this case, the
Board had to explain why it did not rely on or accept the evidence about state
protection. In my opinion, the issue is whether there was adequate state
protection for the applicant and her son, not whether the applicant was given
more state protection than was normally available to people in Grenada.
[34]
The
Board’s reasons contain no analysis concerning the police statement about state
protection. In my view, this evidence should have been weighed against the
other evidence on state protection. In failing to do so, the Board committed a
reviewable error.
[35]
Because
of my finding, I will not deal with the other aspect of state protection.
[36]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[37]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[38]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c.27.:
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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.
(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.
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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.
(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.
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