Date: 20070615
Docket: IMM-3707-06
Citation: 2007
FC 646
Ottawa, Ontario, June 15, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ALBERT JAMES JACOBS
(a.k.a. James Albert Jacobs)
KERHEN HARBOCH JACOBS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. and
Mrs. Jacobs are citizens of St.
Vincent and the Grenadines.
Their daughter was much abused by her husband; so much so that she fled to England. Their son-in-law then began
threatening and harassing them with a view to learning her whereabouts. They
were overcome by their fear, felt that the police would not protect them and so
have sought protection in Canada.
[2]
The member
of the Refugee Protection Division of the Immigration and Refugee Board who
heard the matter found them to be credible, but that they had not rebutted the
presumption that state protection was available to them in St. Vincent. He dismissed their claim.
This is a judicial review of that decision.
ISSUES
[3]
During
argument, counsel for the Jacobses raised two main issues. The first was that
they were self-represented, uneducated and did not get a fair hearing. More
particularly, there was no refugee protection officer to ask questions, and the
Board member did not ask the questions which should have been asked to elicit
the appropriate information. The Minister objected because this point had not
been raised in the application for leave and for judicial review. In any event,
a reading of the transcript amply demonstrates that the applicants were given a
full and fair hearing.
[4]
The second
issue was that the Board member made patently unreasonable findings of fact
with respect to the evidence which was before him and on the issue of state
protection as applicable to the Jacobses.
DISCUSSION
[5]
Quite
apart from the fact that the point was only raised at the last minute, there is
no merit in the submission that the Jacobses were not given a full and fair
hearing. The reporter’s notes indicated that a refugee protection officer was
present. Be that as it may, she certainly did not participate.
[6]
Although
the Chairperson’s Guideline 7 was not specifically mentioned, the Guideline
provides that the standard practice is for the refugee protection officer to
start questioning the claimant. If there is no refugee protection officer
participating in the hearing, the member will begin. That is what happened
here. There is nothing inherently unfair about this procedure as held by the
Federal Court of Appeal in Canada (Minister of Citizenship and
Immigration) v. Thamotharem,
2007 FCA 198.
[7]
The member
went through the material most conscientiously, and pointed out to Mr. and Mrs.
Jacobs that it was up to them to make their case. They were given every
opportunity. What counsel is suggesting is that if she had been present, the
result may have been different. The Jacobses had the right to represent
themselves and can be in no better position because they did not have a lawyer.
I recently reviewed this issue in Birkett v. Canada (Human Rights Commission), 2007 FC 428.
[8]
The record
also shows that when the Jacobses’ daughter laid a complaint with the police,
her husband was jailed and required to post a bond to keep the peace. The
Jacobses admitted that his behaviour improved.
[9]
After
their daughter left for England, their evidence of
intimidation by their son-in-law was accepted. Although they called the police,
they never laid a formal charge. The Court was invited to leap to conclusions
about a remark the police made. They said they were tired of the son-in-law.
Was the only inference to be drawn that the police would not act on complaints?
On the other hand, as suggested by the Minister, perhaps an inference could be
drawn that if a formal complaint were laid, the police would take strong
measures? Both suggestions are in the realm of speculation and conjecture,
rather than inference.
[10]
The member
carefully reviewed country conditions in St. Vincent, as applicable to the
Jacobses, and found that as adequate state protection was available there was
no more than a mere possibility they would be seriously harmed in St. Vincent.
[11]
That
conclusion was not unreasonable, much less patently unreasonable, and so the
application must be dismissed.
ORDER
THIS COURT ORDERS that:
1.
The matter
is dismissed.
2.
There is no
question of general importance to certify.
“Sean Harrington”
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