Date: 20071003
Docket: IMM-2913-06
Citation: 2007 FC 1009
Ottawa, Ontario, October 3,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JADINE VALDANA RICHARDSON
VALDINE RICHARDSON
(A.K.A. VALDINE SHADONN RICHARDSON)
JAELDINE ELSA RICHARDSON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated May 3, 2006,
finding that the principal applicant (the applicant) was not credible, and
therefore was neither a Convention refugee nor a person in need of protection. The
applicant’s two minor children base their claims on that of their mother.
ISSUES
[2]
Two
issues are raised by the present application:
a) Did
the Board err by ignoring evidence or failing to give reasons for rejecting the
applicant’s
explanation for the delay in making a refugee claim?
b) Did the Board err
with respect to its findings on state protection?
[3]
For
the reasons that follow, the answer to the two questions is negative.
Therefore the application for judicial review shall be dismissed.
FACTUAL BACKGROUND
[4]
The
applicant, Jadine Valdana Richardson, was born on May 28, 1977 and is a citizen
of Saint
Vincent and the Grenadines.
[5]
From
a very young age, the applicant was raised by her mother and stepfather. When
she was approximately ten years of age, the applicant began to suffer verbal,
and eventually, physical and sexual abuse at the hands of her stepfather. The
abuse and the threats to her life eventually precipitated her escape in October
2003.
[6]
The
applicant recounts several incidents of abuse. The first instance of sexual
abuse occurred when she was approximately 12 or 13 years old; her stepfather
tried to make her watch an X-rated movie while he rubbed his legs against her
breast. She reported this incident to her mother who confronted the stepfather
but she became afraid and turned to social services instead. A social services
representative turned them away, saying the applicant’s unruly behaviour was
the cause of the incident.
[7]
The
applicant reports many incidents of rape, beginning at the age of 15 and
carrying on into adulthood. Her stepfather would rape her when her mother was
not around.
[8]
On
one particular occasion, the applicant’s mother spoke of the ongoing abuse to
the pastor, who then came to speak with the stepfather. The stepfather was
angered by the pastor’s interference and threatened the applicant with a
cutlass, saying that he would kill her if she spoke of the abuse to anyone in
the future. The applicant ran to the police station to make a complaint. The
police said they would come to the house speak to her stepfather, but they
never did.
[9]
At
the hearing, the applicant alleged several other visits to the police to report
abuse, each time with the same result; the police would inform her that someone
would come to speak with her stepfather, and never came.
[10]
On
October 24, 2003, the applicant fled to Canada where she
stayed with her stepmother. She stayed as a visitor for the first six months,
and then illegally. She made no claim for refugee protection until she
spoke with a counsellor at Robertson House Shelter in Toronto, some 15
months after she had lost her status as a visitor, at which time she was
informed for the first time of the possibility of making a claim for asylum.
[11]
The
two minor children joined their mother in Canada in February 2006.
DECISION UNDER REVIEW
[12]
The
Board determined that the claimants were not Convention refugees or persons in
need of protection. The Board further concluded that there were no subjective
or objective bases to the claims. The Board based its decision on the
following reasons:
a) The
applicant’s failure to remove herself from her stepfather’s home, even when she
was an adult with an income and two minor children reflected negatively on her
credibility.
b) The applicant
lived in Canada for over 15
months illegally without making a claim for refugee status, thereby risking
deportation to the very country where she claimed to have a well-founded fear
of persecution or need for protection. The Board determined that the delay in
making the claim was indicative of an absence of subjective fear, which
detracted from the applicant’s credibility.
c) The Board
drew an adverse credibility inference based on the applicant’s inconsistent
evidence regarding the number of times she approached the authorities for
protection. Only one occasion is alleged in her PIF, and at the hearing she
claimed to have sought assistance on as many as five other occasions.
d) The Board
found that the response received by the applicant from social services
(referred to as Marion House by the Board, and referred to as the Child Welfare
Department by the applicant), that her unruly behaviour was the cause of the
abuse, was inconsistent with the documentary evidence about the support available
to victims of violence in Saint Vincent currently. The Board concluded that
the applicant had not availed herself of the protection of the state, and that
the presumption of state protection was not rebutted.
ANALYSIS
Issue
1: Did the Board err by ignoring evidence or failing to give reasons for
rejecting the applicant’s explanation for the delay in making a refugee claim?
[13]
The
applicant submits that the Board erred by failing to give reasons for rejecting
her explanation regarding her delay in making a refugee claim. The Federal Court
of Appeal decided in Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 at paragraph 4, that
issues of the applicant’s credibility are reviewable on a standard of patent
unreasonableness. The applicant argues that the Board commits a
reviewable error when it makes no comment on the explanations provided by the
applicant and why they should be rejected. The respondent argues that any
explanation provided would not take away from the Board’s finding that, in 15
months, she did not take any steps to regularize her status in Canada. The Board’s
conclusion regarding the lack of subjective fear is not contradicted by the
applicant’s explanations, and cannot be said to be unsupported by the
evidence. It is my opinion that the Board did not commit a reviewable error by
failing to explicitly refer to the applicant’s explanations.
Issue 2: Did the Board
err with respect to its findings on state protection?
[14]
In
relation to state protection, the Board rejected the claim on two grounds: the
first being that the applicant’s credibility was undermined by the inconsistent
evidence offered regarding the number of times she approached the authorities
for help, the second being whether Saint Vincent can offer protection to the
applicant. As mentioned above, the Board’s findings of credibility are
reviewed on the standard of patent unreasonableness. The availability of state
protection, however, is reviewable on the standard of reasonableness simpliciter
(Chaves v. Canada
(Minister of Citizenship and Immigration), 2005 FC 193, [2006] F.C.J. No. 232 (QL) at paragraphs
9-11; Turna v. Canada (Minister of Citizenship and Immigration), 2006 FC 202, [2006] F.C.J. No. 265 (QL) at
paragraph 7; C.P.H. v. Canada (Minister of Citizenship and Immigration), 2006 FC 367,
[2006] F.C.J. No. 462 (QL), at paragraph 26 (Hutchins)).
[15]
The
applicant failed to challenge the Board’s finding regarding the availability of
state protection. She limited her argument to the negative credibility findings
and the Board’s erroneous reference to her visit to Marion House. The
applicant says that this negatively tainted the whole of the decision. A review
of the transcripts of the hearings suggests that the Board did wrongly
refer to the services sought by the applicant and her mother at Marion House.
This error has no bearing on the outcome of the decision.
[16]
I
also accept the respondent’s argument that the applicant has failed to
discharge her onus of establishing that she cannot benefit from state
protection in the future. No argument was presented to challenge the Board’s
determination that:
[…] while the system provided of
protection for abused women is still flawed, the documents are clear that the
situation continues to improve due to serious and concerted effort being made
by the government to address the issue of gender violence, a premise which has
been endorsed by the Court in Hutchins. The protection available does
not have to be perfect but adequate, as enunciated in Zalzali.
Given the documentary evidence above, the
panel finds the claimant must first avail herself of the protection of her
country, before seeking Canada’s protection. As stated in Ward,
the claimant is required to adduce clear and convincing evidence to rebut the
presumption that the state had the ability to protect her. The panel finds the
presumption of state protection in this case has not been rebutted. The mere
fact that the system has some insufficiencies is not enough to exempt the
claimant from the requirement of seeking protection. […]
[17]
The
fact that Saint
Vincent
can offer her state protection is determinative.
[18]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review be dismissed. No
question is certified.
“Michel
Beaudry”
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