Date: 20111213
Docket: IMM-1482-11
Citation: 2011 FC 1412
Ottawa, Ontario, this 13th
day of December 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Rebecca Kathleena WILLIAMS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an
application for judicial review of a decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, (the “Act”) by Rebecca Kathleena Williams (the “applicant”).
The Board determined that the applicant was neither a Convention refugee nor a person
in need of protection under sections 96 and 97 of the Act.
[2]
The
applicant was born on March 30, 1953 and is a citizen of Saint Vincent. She
left Saint Vincent and arrived in Canada on September 28, 2004. On October 28, 2009, the
applicant made a claim for refugee protection as a person in need of protection.
[3]
The applicant
fears returning to Saint
Vincent
because she believes that she will be hurt by Randolph Williams, her husband
whom she has been separated from since December 23, 2001. The two were married
on August 2, 1980.
[4]
The applicant’s
Personal Information Form (PIF) explains that after October 1980, Williams
began to physically, mentally and verbally abuse her and her children. She
details a litany of incidents when Williams severely beat her, several times
until she was unconscious, and sometimes with objects such as a 2x4 piece of
wood which has left her with permanent hearing loss.
[5]
In
October 2001, Williams viciously attacked the applicant and threatened her with
a knife. She escaped but was ultimately tracked down by Williams to several locations,
each time threatening to kill her and then himself.
[6]
In
April 2002, the applicant came to Canada and stayed with her son until
returning to Saint Vincent in May 2003 to attend
her mother’s funeral. Williams appeared at the funeral with a machete and knife
and threatened the applicant. Williams continued to track and threaten the applicant
until she left again for Canada in 2004.
[7]
The applicant
had contacted the police about the abuse but was not given any help. The most
recent report to the police was in or before 2004: the applicant was uncertain
of the date. The applicant did not receive help after filing her complaint. It
is unclear from the transcript how many times the applicant has contacted
police but there was at least one occasion in or before 2004.
* * * * * * *
*
[8]
The
Board accepted that the applicant had been abused for a long period of time and
credibility was not at issue. The Board noted that there was no information
before it to suggest that the applicant is suffering from post-traumatic stress
disorder.
[9]
The
determinative issue was state protection. The Board quoted a long portion of
the country documentation package for Saint Vincent. The quotation reveals nearly
entirely positive information on the handling of domestic violence by the
police, the justice system and in legislation.
[10]
Faced
with the mixed nature of the country documentation, the Board noted that it
would be problematic if refugee protection was granted in these circumstances.
It was also mentioned that Saint Vincent had not been given a chance to protect the applicant
in over six years.
[11]
The
Board noted that the applicant had shown the wherewithal to approach the police
on at least one occasion in the past. This led to the Board’s conclusion that
it is “not objectively unreasonable for me to find that the claimant is now
capable of complaining to the Saint Vincent police and would be capable of
complaining to them if she were to return there”.
[12]
The
Board concluded that the presumption that Saint Vincent authorities would be reasonably
forthcoming with serious efforts to protect the claimant if she were to return,
had not been rebutted by the applicant.
* * * * * * *
*
[13]
There
is one issue to be determined in this application, and the applicant presents
two arguments on this issue:
a.
Was the Board’s
decision on state protection reasonable?
i.
Did the Board err by
not explaining how positive evidence on the availability of state protection
outweighed the negative evidence?
ii.
Did the Board err in
emphasizing the length of time since the applicant had last sought state
protection?
[14]
Questions
as to the adequacy of state protection concern mixed facts and law and are
reviewable on the standard of reasonableness (Mendoza v. Minister of
Citizenship and Immigration, 2010 FC 119). Therefore, the Board’s
conclusions on this issue must fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and the law” (Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 at para 47).
* * * * * * *
*
i. Did the Board err
by not explaining how positive evidence on the availability of state protection
outweighed the negative evidence?
[15]
The applicant
argues that the Board in this case committed the same error as the decision
maker in James v. Minister of Citizenship and Immigration, 2010 FC 546 [James].
However, James can be distinguished from the case at hand. In James,
the Board ignored the evidence contained in the country documentation on the
unavailability of state protection in Saint Vincent. Also, particularly important
in James was the Court’s finding that it was “disturbing” for the
decision maker to have imposed an obligation on a child to seek state
protection during the period she was being sexually abused.
[16]
In
the case at bar, the Board was not selective and did not ignore the negative
evidence about the availability of state protection in Saint Vincent. In paragraph 8 of its
decision, the Board incorporates by reference the negative aspects which are
quoted in James, and at paragraph 9, the Board accepts these negative
aspects. It then states at paragraph 11 that the information is mixed.
Paragraph 12 evinces the Board’s reasoning:
In
my view, it is enormously problematic for the surrogate notion of refugee
protection if grants of it were to occur in the face of state protection
evidence this mixed and in circumstances where the last chance the state was
given to protect the claimant occurred such a long time ago – more than six
years ago.
[17]
The applicant
relies on Lewis v. Minister of Citizenship and Immigration, 2009 FC 282,
as quoted in James:
.
. . In my view, the Board was obliged to explain why it found that the
favourable elements contained in the evidence outweighed the negative parts. In
the absence of that assessment, I find that the Board’s decision was
unreasonable in the sense that it was not a defensible outcome in light of the
facts and law . . .
[18]
The
Board, at paragraph 12 of its decision, conducts such an analysis by
considering both the negative and positive evidence on the availability of state
protection. Since the applicant has not given the state a chance to protect her
in more than six years, there is insufficient evidence establishing that she
would not be protected upon her return to Saint Vincent. As the respondent
argues, the Board looked at the totality of the evidence and found that the applicant
had not rebutted the presumption that a state is capable of protecting its
citizens. The Board is saying (albeit in different words than James directs)
that it prefers the favourable elements because there is not sufficient
negative evidence to show that state protection would be unavailable to the applicant.
ii. Did the Board
err in emphasizing the length of time since the applicant had last sought state
protection?
[19]
The
applicant also submits that the Board was fixated on the length of time that
has passed since she last approached the police in Saint Vincent for protection.
[20]
In
my view, the Board made a reasonable finding in relation to the length of time
since the applicant had last sought protection. At paragraph 3 of its decision,
the Board does accept that the applicant had complained to the police in or
before 2004, but that she did not receive protection. This finding, however,
does not mean that the Board was suggesting that the applicant must
periodically seek protection from the police. Rather, at paragraph 12, the
Board is suggesting that this evidence, even if accepted, derives from so long
ago that it is not indicative of the current availability of state protection
in Saint Vincent. In other words, as the respondent argues, the Board found
that the applicant’s attempt at seeking protection from the state was inadequate.
* * * * * * *
*
[21]
On
the whole, the Board’s decision that state protection in Saint Vincent would be reasonably
forthcoming to the applicant was reasonable. The Board properly analyzed the
evidence before it, applied the relevant law and came to a reasonable
determination. The application for judicial review is therefore dismissed.
[22]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of a member of the Refugee Protection Division of the
Immigration and Refugee Board, determining that the applicant was neither a Convention
refugee nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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