Date: 20071107
Docket: IMM-3470-07
Citation: 2007
FC 1158
Toronto, Ontario, November 7, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
CAMILLE PRESCOTT
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Camille
Prescott (the applicant), a citizen of St. Vincent and the Grenadines (St. Vincent), seeks a stay
of her removal from Canada scheduled for tomorrow pending the determination of
her leave application from the August 9th, 2007 decision of a Pre-Removal
Risk Assessment (PRRA) officer who found her not at risk under section 96 and
97 of the Immigration and Refugee Protection Act (the “Act”).
[2]
The
applicant arrived in Canada on October 5th,
2004, making a refugee claim two weeks
later. She named as her agent of persecution, her ex-boyfriend
Greg Gabriel (Gabriel) with whom she cohabitated during fourteen months. She
claimed Gabriel physically abused her.
[3]
On October
26, 2005, the Refugee Protection Division (the “RPD”) rejected her claim finding
the applicant credible but failing to convince it adequate state protection for
victims of domestic violence did not exist in St. Vincent. The RPD based its
finding on the jurisprudence and on the fact, when she reported the only two
instances of abuse in March and May of 2000, the police responded to her calls
by taking written reports, coming to see her and searching for Gabriel
unsuccessfully. The RPD noted she was not represented by legal counsel at the
refugee hearing and that after leaving Gabriel during four and one half years
she relocated regularly and had no further contact with Gabriel or the police.
[4]
The
applicant did not seek leave to the Federal Court in order to challenge the
RPD’s decision.
[5]
Her PRRA
application was filed on February 28, 2007 with extensive submissions made by
legal counsel on her behalf made on March 16, 2007. In support of her PRRA,
she submitted an affidavit dated March 13, 2007 which on its face is
significantly at variance with the RPD decision,
and differs from her affidavit in support of this stay
motion on the May 6, 2006 event referred to below involving another boyfriend.
In her March 13, 2007 affidavit, she identified a new and second agent of
persecution, Orlando Edwards (Orlando), a citizen of St. Vincent who came to Canada making a refugee claim which
was refused. They met in December 2004 but broke up in April 2006 when she
discovered Orlando was seeing another woman.
She disposes he became very angry leading to an altercation on May 6, 2006 as a
result of which the police were called in and led to charges being laid against
the applicant (but stayed by the Crown to facilitate removal) and the discovery
of Orlando’s lack of status in Canada, which apparently led to his removal to
St. Vincent for which he blames the applicant and has threatened her children
in St. Vincent and attempted an apparent kidnapping of her daughter.
[6]
As noted
on August 9th, 2007, the PRRA officer rejected her PRRA application
for which leave is now being sought in this Court. Applicant’s and
Respondent’s records have been filed along with the Applicant’s reply. The
file is ready for consideration by a Judge as to whether leave will be granted.
[7]
In coming
to his conclusion, the PRRA officer states he thoroughly reviewed and considered
her PRRA application and submission as well as conducting independent research
in St. Vincent’s current country conditions as they relate to the applicant.
It particular, he mentioned in his decision:
·
The RPD’s
finding of adequate protection stating the RPD panel was cognizant of the fact
that “violence again women still constitutes a serious problem in St. Vincent”
but that the panel had found that there had been “significant steps had been
taken to alleviate this problem”.
·
That in
her PRRA submissions, the applicant “has essentially restated the same
incidents which she articulated before the RPD as well as the new risk with
Orlando Edwards”.
·
Refers to
her affidavit of March 13, 2007 to detail her relationship with Orlando and the genesis of her fear
of him.
·
Refers to
the documentary evidence submitted by applicant’s counsel and concludes that
the documents that post-date the RPD’s decision “are generalized in nature and
do not address the concerns noted by the RPD nor do they indicate that country’s
conditions in St. Vincent have worsened since the RPD’s decision”.
·
The PRRA
officer continued his analysis stating:
”I have nevertheless read and considered
them in the context of an assessment of current country conditions. I find
that the applicant has presented insufficient evidence to persuade me to come
to a conclusion different than that of the RPD panel. I also find that country
conditions have not worsened significantly in St. Vincent since the RPD decision. In these
submissions, counsel has provided three affidavits from Pamela Cross who is
presently a private legal consultant working with violence against women
agencies and organizations across Ontario.
While I find her qualifications and work history admirable, I do not find that
she is an expert in country conditions in St. Vincent. The information that
she provides in her affidavits is generalized material which related to the
legislation and insight of domestic violence which existed at the time of the
applicant’s hearing.”
·
The PRRA
officer then described the independent review of current country conditions in St. Vincent, he had performed. He
concluded the current country conditions there “had not worsened significantly
since the applicant’s RPD rejection”. He conceded:
”I acknowledge that violence against
women remained a serious problem in St. Vincent however it is an issue that the
government is aware of and is attempting remedy. A careful consideration of
the documentary material does indicate that state protection is available to
the applicant while Canadian jurisprudence in Zalzali establishes the premise
that “protection may be adequate though no necessarily perfect”.
·
The PRRA
officer then referred to the USDOS-2005 report on St.Vincent in support of his
view on the efforts undertaken by the Government of that Island: recognition domestic
violence was a serious problem; the signing of international conventions on the
prevention, punishment and eradication of violence against women; the enactment
of legislation, the increased number of cases filed in Family Court recognizing
that many cases of domestic violence remain unpunished because victims did not
approach the police or want to prosecute offenders hence the Human Rights
Commission of the country seminars of awareness on abused women’s rights. The
USDOS refers to additional police training in the area of domestic violence and
the need to bring charges if the evidence is sufficient.
·
The PRRA
officer then quoted the Federal Court of Appeal’s decision in Villafranca to
the effect that the mere fact that state protection is not always successful
will not justify not seeking that protection.
·
The PRRA
officer concluded based on her case before the RPD, the applicant would be able
to obtain state protection from her agents of persecution; she got it in the
case of Gabriel and could obtain it in respect of Orlando. In the case of Orlando, he characterized his fear of
his criminal behaviour which the police and government do not condone. It
added St. Vincent provides its citizens with a
social network (the police, judiciary, human rights groups (government and
non-government) that can assist her.
[8]
In her
written memorandum, counsel for the applicant raised the following points as
serious issues noting the test to be met is whether they are at the threshold
of being frivolous and vexatious:
·
The PRRA
officer used the wrong legal test of state protection: serious efforts to
deliver state protection rather than the existence of actual and effective
state protection.
·
The
failure of the PRRA officer to deal with contradictory evidence on state
protection in that he failed to mention let alone analyse evidence which was
relevant and contradicted the finding on state protection. In particular, the
PRRA officer failed to address the October 31, 2006 Response to Information
Request (RIR) as well as the RIR of October 27th, 2005. He also
discarded the affidavit evidence of Pamela Cross.
·
The PRRA
officer failed to provide adequate reasons.
[9]
With
respect, I am unable to agree with counsel for the applicant that the PRRA
officer decision raises any serious issue she identified.
[10]
First, I
agree with her that the test for state protection is the ability of a state to
deliver adequate (effective) state protection; serious efforts in attempting to
deliver state protection does not suffice.
[11]
The
conclusion of the PRRA officer on this point is essentially based on the
finding of the RPD. The RPD determined that the applicant actually received
state protection from St. Vincent when she approached the State. In these
circumstances, it is objectively unreasonable for the applicant not to be
willing to approach the State for protective processes which may be available.
In other words, her personal situation shows state protection was effective in
her case.
[12]
Her
affidavit contradicts the finding of the RPD in her particular case. She says
in one case, the police refused to take her complaint. I am not prepared to
rely on this evidence as it would constitute a collateral attack on the RPD’s
formal decision.
[13]
Second, I
find no merit to the argument the PRRA officer ignored the evidence before
him. The RIR of October 27, 2005 is corroborative of the PRRA officer’s
finding of adequate or effective state protection. Its source is a
governmental and a police official in St. Vincent.
The governmental official describes in particular the efficacy of how the Domestic
Violence Act is applied and how the Family Court’s Protection and Occupational
Orders function. The government official recognizes that “sometimes” the
police effectiveness is not consistent or is inadequate. The standard of
perfection is not required in terms of state protection in refugee law. The
police official comments on the usefulness of protective orders.
[14]
The RIR of
October 31st, 2006, does not assist the applicant in her quest to establish no effective
state protection. The comments of an immigration officer at the Canadian High
Commission in Trinidad on the effectiveness of the Family Court system in St.
Vincent as well as the effectiveness of its processes could not be corroborated
by The Research Directorate of the IRB (see Applicant’s record, pg. 98, first
full paragraph). At the hearing, counsel for the applicant did not argue the
PRRA officer erred in not attaching weight to the Pamela Cross affidavits. The
balance of that RIR does not establish inadequate state protection in St. Vincent.
[15]
In terms
of lack of adequate reasons, I find no serious issue on the basis of Justice
Snider’s decision in Cupid v. Minister of Citizenship and Immigration, 2007,
F.C. 176 at paragraphs 6 to 13.
[16]
For
irreparable harm, counsel for the applicant relied on the principle established
in Figuardo v. Canada (Minister of Citizenship and
Immigration),
2005, 4 F.C.R. 387 at paragraph 45. Figuardo is premised on the
existence of a serious issue which is not the case here. Irreparable harm has
not been established.
[17]
In the
circumstances, the balance of convenience favours the Minister.
ORDER
THIS COURT ORDERS that this stay application is
dismissed.
“François Lemieux”
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