Date: 20070517
Docket: IMM-3820-06
Citation: 2007 FC 529
Ottawa, Ontario, May 17,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
JOAN
ADAMS
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a claim for judicial review brought by the Applicant, Joan Adams, from a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board) rendered at Toronto on June 12, 2006. Ms. Adams challenges the
Board’s decision by which her claim to refugee protection was refused.
Background
[2]
Ms.
Adams is a citizen of Trinidad and Tobago (Trinidad) but she
entered Canada in late 2004 on a passport issued by St. Vincent and the
Grenadines
(St. Vincent).
[3]
Ms.
Adams first entered Canada from Trinidad as a visitor in 1982. She came
here with her four children to escape an abusive relationship and, for a time,
she lived with a sister in Toronto. Fearing that she
would be located by her former spouse, she then left for the United
States
and remained there for approximately 20 years without immigration status. In
2003, Ms. Adams was arrested in Florida on an outstanding
warrant for a charge of assault with a deadly weapon. Because of her lack of
immigration status in the United States, she was incarcerated
for several months and then deported back to Trinidad. Apparently the criminal
charges against her in the United States were not pursued.
[4]
After
deportation, Ms. Adams claimed to have hidden out in Trinidad for about
three weeks ostensibly because she remained fearful of her former spouse.
Because her mother had been a citizen of St. Vincent, she was able to quickly
obtain travel documents from that country. This allowed her to travel to St. Vincent where she
resided for about three months in late 2004. It was during that interval that
she formed a relationship with Kenroy Roberts.
[5]
Ms.
Adams returned to Canada as a visitor in December 2004. She was
followed by Mr. Roberts in June 2005. It was not until December 2005 that she
made a claim for refugee protection. This was apparently precipitated by an
assault perpetrated upon her by Mr. Roberts on December 9, 2005 leading to
criminal charges against Mr. Roberts. At the time of the Board hearing, Mr.
Roberts was being held on remand. Mr. Roberts also had no Canadian immigration
status and was at risk of deportation to St. Vincent.
[6]
It
was on the strength of Ms. Adams’ history of abuse both in Trinidad and, later,
in Canada that she
sought refugee protection. She claimed to have a continuing fear of her former
spouse in Trinidad and a fear of Mr. Roberts in the event that both of them
were returned to St. Vincent.
The Board Decision
[7]
The
Board rejected Ms. Adams’ claim to protection on the ground that she had failed
to rebut the presumption of state protection available in both Trinidad and St.
Vincent. Although the Board noted that Ms. Adams had failed to adequately
explain her failure to claim timely protection either during her 20 years in
the United
States
or, later, when she came to Canada, it is apparent that delay was not a
determining issue. It is also clear that the Board accepted that Ms. Adams had
been the victim of spousal abuse in Trinidad and, more recently, in Canada. It is at
least implicit in the decision that the Board accepted that she had a
subjective fear of harm at the hands of both her former Trinidadian spouse and
Mr. Roberts.
[8]
It
is quite clear from the transcript of the hearing that Ms. Adams offered very
little evidence to rebut the presumption of state protection. This failure is
not entirely surprising given that she was unrepresented and that, except for
very brief periods, she had not resided in Trinidad or St. Vincent since 1982.
Given her lack of familiarity with the prevailing risk situation in both of
those countries, she was understandably unable to offer any evidence about
current enforcement deficiencies. Nevertheless, she also failed to offer
evidence of the generalized risk situation for victims of spousal abuse in
either country. In the result, the Board was left to analyze country condition
evidence concerning the issues of risk from spousal abuse from its own
resources. It was from that review of the general country condition evidence
that the Board concluded that adequate state protection was available to Ms.
Adams in Trinidad and in St. Vincent. The Board went on to
find that she had failed to rebut the presumption of state protection as
required by the authorities: see Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 and Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 584, 2007 FCA 171.
[9]
With
respect to Trinidad, the Board
referenced a United States Department of State (DOS) report dated March 6, 2006
which noted that domestic violence was a significant problem. The Board went
on, however, to rely upon a further statement that confirmed the availability
of judicial mechanisms for protecting victims including fines and
imprisonment.
[10]
In
looking at St. Vincent, the Board considered a similar DOS report and its own
Response to Information Requests and it quoted extensively from those
documents. It then drew the following conclusion:
The panel is cognisant of the fact that
in St. Vincent
and the Grenadines
domestic violence still constitutes a serious problem. The panel finds that
the documentary evidence states that there have been significant steps taken to
alleviate the problem or domestic violence including the Domestic
Violence/Matrimonial Proceeding Act, the Domestic Violence Summary Proceedings
Act and the availability of protective orders. The panel finds therefore, that
Saint Vincent and
the Grenadines
has taken major steps in providing adequate state protection for woman.
[Quoted from original text]
Issues
[11]
(a) What is the appropriate
standard of review?
(b) Did the
Board commit any reviewable errors in its decision?
Analysis
[12]
All
of the issues raised on this application involve questions of mixed fact and
law applicable to the Board’s state protection conclusions. These are issues
which are reviewable on a standard of reasonableness: see Hinzman,
above, at para. 38.
[13]
Counsel
for Ms. Adams raised three issues in support of her claim to relief. The first
issue concerned the Board’s approach to the country condition evidence,
specifically, whether the Board erred either by ignoring material evidence or
by being unfairly selective in its adoption of evidence.
[14]
The
second issue raised concerned the Board’s handling of the Gender Guidelines. There
it was argued that the Board erred by failing to apply Ms. Adams’ gender
specific situation or personal circumstances to its state protection analysis.
In particular, it was asserted that the Board had a duty to examine the unique
psychological or personal impediments that may have caused Ms. Adams to be
hesitant to seek out police protection.
[15]
The
third issue raised by Ms. Adams was whether the Board erred by failing to
determine if the steps taken by Trinidad or St. Vincent to deal with
spousal abuse were actually working or were effective. Here, it was said, that
the Board erred by applying a “serious efforts” standard instead of the
required “effective steps” standard.
[16]
Notwithstanding
Mr. Wanyoike’s very able arguments, I am unable to find any reviewable errors
in the Board’s decision.
[17]
I
do not accept that the Board ignored material evidence or was unfairly
selective in its treatment of the country condition evidence that it relied
upon. It is important to appreciate that the only evidence the Board had to
work with came from its own documentary resources. Ms. Adams put virtually no
evidence to the Board with respect to the current adequacy of state protection
in St. Vincent or in Trinidad. Indeed, she had very little personal evidence
to offer in that regard having lived outside of those countries almost
continuously since 1982. This is not, then, a situation like Atwal v. Canada (Secretary
of State) (1994),
82 F.T.R. 73, [1994] F.C.J. No. 1113 at para. 10 where the Board ignored a
case-specific document which was relevant to a central issue determined by the
Board. With respect to the more general evidence of country conditions, it is
well accepted that the Board need not cite in its reasons all of the
documentary evidence taken into consideration: see Zhou v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 1087. It is also
open to the Board to prefer certain documentary evidence over other evidence,
both documentary and testimonial: see Zhou, above. It is only where
the Board fails to identify important contradictory evidence that it is open to
the Court to conclude that it ignored or misapprehended key evidence. As was
stated by the Federal Court of Appeal in Ozdemir v. Canada (Minister
of Citizenship and Immigration) (2001), 282 N.R. 394, [2001] F.C.J. No.
1646, 2001 FCA 331 much depends on the significance of the subject evidence
when measured against the other evidence upon which the decision was based.
[18]
In
this case, some of the references that Ms. Adams says were ignored actually
come from a Request for Information Report that had been replaced by a later
report. That later report did not include the passages that Ms. Adams now
relies upon including critical references to police effectiveness in St. Vincent. The more
recent report noted several initiatives which evidenced significant
improvements in that country in its handling of domestic abuse cases including
improvements in education and awareness, better police training and
sensitization, an improved police response and the creation of a new court for
serious offences including domestic violence cases. It was not unreasonable in
this case for the Board to prefer the most recent evidence to support its
conclusion and there was no need for it to refer to the earlier documentation:
see Brito v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 702, 2005 FC 562 at para.
10.
[19]
Although
counsel for Ms. Adams referred to a few other documentary references which
identified deficiencies in the response by both Trinidad and St. Vincent to
spousal abuse cases, none of that information could be considered so compelling
or material that it would undermine the validity of the information relied upon
by the Board. Indeed, it is apparent that the Board also failed to cite other
passages in the same reports which added further support to its state
protection conclusions. In short, the Board’s analysis of the country
condition evidence was reasonable and its conclusions were amply supported by
that evidence.
[20]
The
argument that the Board failed to properly apply the Gender Guidelines is also
unmeritorious. It is true that the Board referred only generally to those Guidelines
in its decision, but there was no rationale for doing more. Her credibility before
the Board was not in issue. Ms. Adams also gave no evidence
of any particular vulnerability (psychological or otherwise) which might make
her hesitant to come forward to the authorities with a complaint of abuse. In
fact, she testified about her satisfaction with the response by the Canadian police
to her complaint about Mr. Roberts which would tend to indicate that she would
not be reticent to seek assistance again if needed.
[21]
Ms.
Adams relied upon the following passage from the Gender Guidelines discussing
the relationship between the issues of gender-based persecution and state
protection:
In determining whether the state is
willing or able to provide protection to a woman fearing gender-related
persecution, decision-makers should consider the fact that the forms of
evidence which the claimant might normally provide as “clear and convincing
proof” of state inability to protect, will not always be either available or
useful in cases of gender-related persecution.
The Guidelines, however, go on to give
examples of the alternative forms of evidence that might be relied upon by a
claimant attempting to rebut the presumption of state protection. Those
further provisions state:
For example, where a gender-related claim
involves threats of or actual sexual violence at the hands of government
authorities (or at the hands of non-state agents of persecution, where the
state is either unwilling or unable to protect), the claimant may have
difficulty in substantiating her claim with any “statistical data” on the
incidence of sexual violence in her country.
In cases where the claimant cannot rely
on the more standard or typical forms of evidence as “clear and convincing
proof” of failure of state protection, reference may need to be made to
alternative forms of evidence to meet the “clear and convincing” test. Such
alternative forms of evidence might include the testimony of women in similar
situations where there was a failure of state protection, or the testimony of
the claimant herself regarding past personal incidents where state protection
did not materialize.
In this case there simply was no evidence
offered by Ms. Adams about the experiences of similarly situated women and, of
course, she had no recent experience with the authorities which would bear on
the current level of state protection in either St. Vincent or Trinidad. There
is, therefore, no evidentiary foundation to support the argument that the Board
erred in its treatment of the Gender Guidelines.
[22]
The
final argument advanced on behalf of Ms. Adams is that the Board failed to
examine the effectiveness of the available mechanisms for dealing with spousal
abuse in St. Vincent and in Trinidad. While I accept that
there is an authority which requires the Board to look beyond the protective
procedural or legislative framework in a country and to assess the de facto
capacity and willingness of the authorities to respond, I do not agree that the
Board made such an error in this case. Much of the evidence relied upon here
by the Board was directed expressly or implicitly at the issue of the adequacy
of the state response to domestic violence and the Board specifically referred
to that test in its reasons. By way of example, the Board referred to evidence
of an increased willingness by victims to report abuse and by the St. Vincent authorities
to prosecute it. The increase in public and police education was noted to have
led to a corresponding increase in police response and a new willingness to
view domestic violence as criminal behaviour. It is not the role of the Court
to re-weigh such evidence but only to determine if there was some evidence to
reasonably support the Board’s conclusion. Here there was.
[23]
In
conclusion, I do not agree that the Board’s decision in this case was
unreasonable and this application is, accordingly, dismissed.
[24]
Counsel
for the Applicant proposed the following question of general importance for
certification:
When a claimant is self-represented at
the proceedings of the Immigration and Refugee Board, does the decision maker
have a heightened responsibility to inquire into the evidence, given the
frailties and vulnerabilities of immigrants in general and refugee claimants in
particular?
[25]
The
Respondent argues against the certification of this question and did so convincingly
in the following passage from its supplementary Brief:
In the present case, it is respectfully
submitted that the question proposed by the Applicant is neither dispositive
nor of general importance.
The Applicant’s proposed question is not
dispositive because it contains complex factual assumptions which do not arise
(or have not been established) on the facts of this case – notably with respect
to “the frailties and vulnerability of immigrants in general and refugee
claimants in particular.” There is no evidence before the Court in this
regard.
The proposed question would also not be
determinative inasmuch as it deals with an issue that was not raised in the
Applicant’s Application for Leave and Judicial Review or Application
Record. It is not an issue upon which the Respondent has had an
opportunity to provide the Court with evidence or written submissions. In
other words, this is a case in which the corollary identified by Justice
Pelletier in Zazai applies.
The Applicant’s proposed question is also
not of general importance, because it deals with issues of well established law
– namely, whether self-represented claimants are owed a greater duty of
fairness in the assessment of their claims, or whether the onus on them to make
out their claims is lessened by virtue of the fact that they are
self-represented.
In two recent cases, the Court has
refused to certify questions on these issues.
In Agri v. M.C.I., 2007 FC 349,
the Applicants were self-represented in making their Pre-Removal Risk
Assessment (“PRRA”) application. They proposed the following question for
certification: Does an Immigration Officer owe a greater duty of fairness
to an unrepresented applicant to allow the applicant an opportunity to provide
all necessary evidence in order to satisfy a specific legal requirement?
Justice Harrington refused to certify
this question, noting that parties are entitled to be represented if they so
choose, but cannot expect that the Board will act both as a decision-maker and
as advocate should they choose not to retain counsel.
In Hassan v. M.C.I., 2006 FC 1183,
Justice Gibson refused to certify a question with respect to the onus on
refugee claimants in advancing their claims. As Gibson J. stated at para. 18:
18 With great respect to
the Applicant, I am satisfied that it is clear beyond question that, despite
what may transpire at the opening of a hearing when the range of issues before
the RPD is discussed, the legal duty or onus remains on a claimant to make
out his or her claim in clear and unmistakeable terms. […] As stated in
paragraph 11 of the reasons for decision in Ranganathan v. M.C.I.,
[2001] 2 F.C. 164 (C.A.) … A failure by a claimant to fulfill his
obligations and assume his burden of proof cannot be ... imputed to the Board
so as to make it a Board's failure.
I accept the Respondent’s views as stated
above and decline to certify the question proposed.
[26]
In
the result, this application for judicial review is dismissed.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
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