Docket: IMM-1579-11
Citation: 2011 FC 1378
Ottawa, Ontario, November 29,
2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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SHELIA LEWIS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Shelia
Lewis (the applicant) brings this application for judicial review of the
decision of member Joel Bousfield (the member) of the Refugee Protection
Division, Immigration and Refugee Board (the Board). In that decision, dated
January 28, 2011, the Board determines that the applicant is neither a
convention refugee section 96 nor a person in need of protection under section
97 of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA].
[2]
For
the reasons that follow, this application for judicial review is dismissed.
II. Facts
[3]
The
applicant was born on January 19, 1950, in Mustique, St. Vincent. She fled
her home country and arrived in Canada on July 13, 2005. In
2010, the applicant applied for refugee protection.
[4]
The
applicant fears returning to St. Vincent where her abusive ex-common law spouse,
Ed Johnson, remains. In her Personal Information Form [PIF], she states that
during their relationship, Johnson would punch and slap her in front of her
children and threaten to kill her if she did not follow instructions. The
applicant also mentions that she could not stand up for her rights without
being beaten. At the hearing before the Board, the applicant stated that
Johnson continues to inquire from her relatives when she will be returning to
that country as he wishes to hurt her.
[5]
The
last time the applicant attempted to contact the police for help was in 2003,
about two years before she fled for Canada. At the hearing, the
applicant stated that she could contact the police for protection in St. Vincent, but that in
the past, when she had done so, the police would simply attempt to pacify the
situation. After the police intervention, the abuse would continue.
III. Legislation
[6]
Sections
96, 97, 108(1)(e) and 108(4) of the IRPA provide as follows:
Convention
refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a particular social group
or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person
in need of protection
97. (1) A
person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture;
or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or punishment
if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate health
or medical care.
Person in need of protection
(2) A person in Canada
who is a member of a class of persons prescribed by the regulations as being in
need of protection is also a person in need of protection.
Cessation
of Refugee Protection
108. (1) A claim for refugee protection
shall be rejected, and a person is not a Convention refugee or a person in need
of protection, in any of the following circumstances:
…
(e) the reasons for which the
person sought refugee protection have ceased to exist.
…
(4) Paragraph (1)(e) does not apply to a person who
establishes that there are compelling reasons arising out of previous
persecution, torture, treatment or punishment for refusing to avail themselves
of the protection of the country which they left, or outside of which they
remained, due to such previous persecution, torture, treatment or punishment.
IV. Issues and
standard of review
A. Issues
1.
Did the Board err in determining that there is
adequate state protection available to the applicant?
2.
Did the Board err by considering the delay in
claiming without a section 108(4) exemption?
B. Standard of
review
[7]
Questions
of state protection involve determinations of fact and mixed fact and law. They
concern the relative weight assigned to evidence, the interpretation and
assessment of such evidence, and whether the Board had proper regard to all of
the evidence presented in reaching a decision (Hippolyte v Canada
(Minister of Citizenship and Immigration), 2011 FC 82).
[8]
Similarly,
questions related to the application of section 108(1)(e) and 108(4) are
determinations of mixed fact and law (S. A. v Canada (Minister of
Citizenship and Immigration), 2010 FC 344 at para 22).
[9]
Issues
of fact and issues of mixed fact and law are reviewable on the standard of
reasonableness (Dunsmuir v New-Brunswick, 2008 SCC 9; Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12).
V. Parties’
submissions
A. Applicant’s
submissions
[10]
The
applicant raises several arguments under the Guideline 4: Women Refugee
Claimants fearing Gender-Related Persecution (hereinafter the Gender
Guidelines), as they relate to the state protection analysis. She also takes
issue with several findings in the decision.
[11]
Finally,
the applicant argues that the Board failed to consider the requirements under
section 108(4) of the IRPA.
[12]
The
applicant relies on Rose v Canada (Minister of Citizenship and Immigration), 2004 FC 537 [Rose],
and quotes paragraph 5:
The
Board made no credibility findings relative to the Applicant. In the absence of negative credibility
findings, it is arguable that the Board accepted that the past treatment
endured by the Applicant was "appalling and atrocious". Accordingly,
the Board erred in failing to consider whether there were "compelling
reasons" arising out of that past treatment in St. Vincent, such that the
Applicant would be entitled to the exception in section 108(4).
[Emphasis
added by the applicant]
[13]
The
applicant submits that the Board failed to examine the applicant’s situation as
a whole, and other mitigating circumstances which can explain the applicant’s
delay in making a refugee claim (Myle v Canada (Minister of Citizenship and
Immigration), 2006 FC 871).
[14]
The
applicant alleges that the Board erred by stating that she cannot rebut the
presumption of state protection by asserting a subjective reluctance to seek
protection, or a doubt that it will be effective without proximately testing it
(see decision at para 13). This she argues is inconsistent with a quote made
later in the same paragraph: “… I would add in that regard that the claimant
testified that the police did make efforts on the occasions that she complained
in the past.”
[15]
The
applicant submits that the Board accepted her testimony that, on several
occasions in the past, she sought police protection but her subjective fear of
her agent of persecution still existed and the measures taken by police were
not effective to stop the abuse. The applicant relies on Franklyn v Canada (Minister of
Citizenship and Immigration), 2005 FC 1249 [Franklin] to show
that the threshold for demonstrating the incapacity of the state to protect its
citizens should be lower. The applicant contends that her past negative
experience with the police and their failure to provide effective state
protection are such that she meets that lower threshold.
[16]
The
applicant claims that the Board used an incorrect legal test for state
protection by failing to address the issue of availability of adequate state
protection for the claimant in St. Vincent. The applicant quotes Woods v Canada (Minister of
Citizenship and Immigration), 2008 FC 446 at para 45-46 [Woods]:
I agree with the Board that St. Vincent
does not need to provide perfect protection, but, in my view, the Board
provides no evidentiary or jurisprudential explanation as to why, in this case,
the fact of some limited action by the police means that the presumption of
adequacy remains intact even when the evidence is clear and convincing that
such action has not deterred the predator and the Applicants will face exactly
the same abuse from the same man if they are returned. [Emphasis added by
applicant]
[17]
The
applicant states that St. Vincent was either unwilling or
unable to provide adequate protection. The Board accepted that she had made
several complaints to the police but her efforts were all futile and the abuse
continued. The Gender Guidelines state that a decision maker should consider
the applicant’s evidence that the home country was unwilling or unable to
provide protection from gender-related persecution (Gender Guidelines, at
heading “C. Evidentiary Matters”, paragraph 2).
[18]
Based
on Cuffy v Canada (Minister of
Citizenship and Immigration (1996), 121 FTR 81 [Cuffy] and Kraitman
v Canada (Secretary of State), (1994), 81 FTR 64 at para 71-72 (TD) [Kraitman]
as cited in Cuffy), the applicant argues that the state chose not to
offer her protection, which is equivalent to saying it is unable to provide
protection.
[19]
The
applicant also relies on N. K. v Canada (Solicitor General)
(1995), 107 FTR 25 at para 38 (TD) (as cited in Cuffy) to argue that,
due to previous police inaction, the applicant may be reluctant to seek state
protection in the future, thus putting her life at further risk for persecution.
This, she claims, shows that the Board was in error in stating 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…” (see decision at para 14).
[20]
The
applicant argues that the Board failed to fully address the negative aspects of
the country reports for St. Vincent and only referenced
them in a cursory statement that the reports are mixed. Here the Board only
provided a pro-forma analysis and failed to provide an in-depth objective
analysis of the country conditions as required in Alexander v Canada
(Minister of Citizenship and Immigration), 2009 FC 1305 at para 5 [Alexander].
The applicant also relies on Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35, for the proposition that
the more important the information that is not analysed, the more willing a Court
may be to conclude that a finding was made without regard to the evidence.
[21]
The
applicant submits that the Board erred with regards to the burden of proof it
placed on her regarding state protection and the documentary evidence she
adduced. The Board listed several positive measures implemented by the government
of St. Vincent but failed to explore whether these developments would be
effective in relation to that applicant as required by the “Gender Guidelines”.
The Gender Guidelines (at heading “C. Evidentiary Matters”, paragraph 3)
require the Board to inquire from the perspective of the applicant whether
changes in the home country will be meaningful in abating her particular fear. For
that proposition, the applicant relies on Codogan v Canada (Minister of
Citizenship and Immigration), 2006 FC 739 at para 32 [Codogan].
[22]
Pursuant
to section 108(1)(e) of the IRPA, the Board has no discretion to
grant an applicant protection if it finds that the reasons for needing
protection no longer exist. The respondent argues that the onus is on the
applicant to demonstrate that there are “compelling reasons” for not seeking
state protection. In this case, it was open to the Board to conclude that the
applicant did not provide compelling reasons as to why she should be exempt.
B.
Respondent’s
submissions
[23]
With
respect to state protection, the respondent argues that the Board correctly
applied the law since the applicant failed to adduce sufficient evidence to
clearly establish that the State cannot protect her. The member acknowledged in
his reasons the incidents claimed by the applicant. But according to the respondent,
the applicant failed to provide clear and convincing evidence of the failure of
the St.Vincent police to protect her. According to the respondent, the member
did not commit a reviewable error since he came to the only reasonable
conclusion based on the few elements that were before him.
[24]
At
the hearing the respndent’s counsel pointed out for the benefit of the Court that
the cases cited by the applicant were distinguishable from the case at bar. The
majority of cases cited by the applicant in support of her position that the
state of St
Vincent
cannot protect the applicant were cases of domestic violence that occurred in
St.Vincent. The respondent underlined that in several of these cases, namely Franklin,
Woods, Cuffy, Codogan and Alexander, cited above; Samuel
v Canada (Minister of Citizenship and Immigration), 2008 FC 762; Young
v Canada (Minister of Citizenship and Immigration), 2008 FC 637 and Richardson
v Canada (Minister of Citizenship and Immigration), 2007 FC 1009, the
facts were quite different from the present case and were therefore not
applicable.
[25]
On
the issue of the application of the Gender Guidelines, the respondent claims
that the member acknowledged their applicability in the case and did apply them
correctly. Respondent rejects applicant’s allegation that the member failed to
apply the Guidelines in this instance, pointing out that a failure to provide
sufficient evidence will not be remedied by the Guidelines.
[26]
Finally,
with respect to the application of section 108 (1)(e) of IRPA, respondent
points out that, in this instance, the Board did not err since there is no
compelling ground.
[27]
The
Respondent further argues that the applicant misconstrued the Board’s
consideration on the length of time the applicant was removed from her
situation in St. Vincent. The Board was not suggesting that the applicant had
delayed seeking refugee protection, but rather that she had not established
that the risk of domestic abuse, as alleged, was still present. The respondent
concludes that this was a reasonable finding given that the applicant failed to
present convincing evidence of a current threat of domestic abuse.
VI. Analysis
1. Did
the Board err in determining that there is adequate state protection available
to the applicant?
[28]
The
applicant alleges that the Board contradicted itself at paragraph 13 of the
decision. The Court does not agree. The Board states that the applicant has not
tested state protection in St Vincent recently, and that,
when she did in the past, the police did make an effort to protect her. There
is no contradiction in such a finding.
[29]
The
fundamental disagreement between the parties in this application is whether the
applicant received attention from the police when she complained in the past,
and whether there was evidence to support her claim that the state, through its
police force, can effectively protect her. The applicant argues, in her
memorandum, that she did seek police protection but found it inadequate. Hence,
her position that St. Vincent was unable or unwilling to protect her.
[30]
The
Board found the applicant credible with respect to the domestic abuse she
suffered at the hands of Mr. Johnson, her former common law spouse, but
disagreed with her that the state of St. Vincent could not protect her
adequately.
[31]
The
Board actually based its decision on its finding that the applicant had sought
protection in the past and the police had intervened. The transcript of the
hearing in this case reveal that, it is clear from the applicant’s answers,
that she stated she could seek protection from the police if she were to return
to St. Vincent. However, it is unclear, from the applicant’s answers, what the
police did when they intervened in the past (see pages 93-94 of the Tribunal
Record).
Member: … And what about the police in St. Vincent, do you think you could get
protection from them?
Claimant: I could. I could.
Member: Alright. Did you ever complain
to the police in St. Vincent about your former common-law?
Claimant: Yes, I did
Member: And what happened?
Claimant: Nothing happened.
Member: Okay well did they do anything
for you?
Claimant: They tried to pacify it, as
anyone else will but it still continue.
Member: Okay. So they did intervene is
what you are saying?
Claimant: Yeah.
[32]
This
evidence establishes that the police had intervened multiple times during and
before 2003 when the applicant had approached them, but the interventions had
not been effective to stop the abuse.
[33]
The
respondent argues several times that the applicant did not present compelling
evidence that the police interventions were inadequate. Absent any evidence,
they argue, the cases of Woods, Franklyn, Cuffy, Kraitman and N. K.,
cited above, are not relevant. All of those cases, the respondent argues, rely
on clear evidence presented by an applicant that the police were ineffective. Woods,
cited above, also relies on a finding that the abuse would continue from the
same perpetrator upon the applicant’s return.
[34]
The
applicant relies on the Board’s acceptance that the applicant was abused by
Johnson and the lack of a negative credibility finding. Without any negative
credibility findings, the applicant indirectly argues that all of her
assertions should have been accepted by the Board.
[35]
The
Court agrees with the respondent that the Board’s analysis of the availability
of state protection was reasonable in this case. Although the applicant clearly
had problems properly and clearly expressing herself at the hearing, in her PIF
and in her affidavit, the evidence to rebut the presumption of state protection
was not before the Board.
[36]
The
Board made no findings that any submissions by the applicant were not credible.
The Board accepted that she had been abused, but the evidence was not clear as
to how adequate the protection of the police had been when the applicant had
contacted them. Based on the quotation above from the hearing, it is not
unreasonable for the Board to conclude that the applicant’s answers suggest
that the police did attempt to help her when contacted.
[37]
The
Court agrees with the respondent that, absent a complete breakdown of state
apparatus, a state is presumed to be capable of protecting its citizens. This
presumption must be rebutted with “clear and convincing confirmation of a
state’s inability to protect” (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 at para 50 [Ward]). Ward also outlined how a
claimant can rebut the presumption:
…For example, a claimant might advance
testimony of similarly situated individuals let down by the state protection
arrangement or the claimant's testimony of past personal incidents in which
state protection did not materialize. Absent some evidence, the claim should
fail, as nations should be presumed capable of protecting their citizens…
[38]
The
Court finds that the lack of evidence presented is the applicant’s main hurdle
in this case. Franklyn is distinguishable because, in that case, there
was clear evidence available to the Board that the police had refused to
protect the applicant who was being abused due to her sexuality. Likewise, Woods,
cited above, is distinguishable due to the clear evidence that was before the
Board that St.
Vincent
had been unable to protect the applicants from stalking and repeated attacks.
The respondent also correctly distinguished Cuffy, Kraitman and N.
K., cited above, based on the lack of clear evidence in this case that the
police were ineffective in providing assistance to the applicant.
[39]
With
respect to the Gender Guidelines, the Court finds that the applicant also failed
to present compelling arguments that the Gender Guidelines were not followed or
observed in this decision. The applicant argues that the Board did not analyse
whether positive developments would have an impact on the specific
circumstances of the applicant. However, all of the quoted material in the
decision from the country documentation is directly related to domestic
violence, so the Board clearly considered that the information would be
applicable to the applicant’s situation.
[40]
The
respondent does not cite cases where claimants are “similarly situated” to the
present applicant, except for the case of Peter v Canada (Minister of
Citizenship and Immigration), 2011 FC 778, a recent decision by Justice
O’Keefe that found a state protection analysis of St. Vincent to be reasonable.
However, the other cases mentioned are not analogous to the present case.
[41]
In
summary, the applicant has not shown that the Board’s consideration of state
protection in St. Vincent was unreasonable. The key factor is that clear
evidence was not before the Board to rebut the presumption of state protection,
or to suggest that the presumption should not exist due to past inaction as in Franklyn
and Woods, cited above.
2. Did
the Board err by considering the delay in claiming without a section 108(4)
exemption?
[42]
Both
the applicant and respondent misread the meaning of section 108(1)(e)
and section 108(4). The respondent seems to suggest that the Board had
considered the application of section 108(1)(e) and then found that the
applicant had not provided compelling reasons under section 108(4). As there is
no mention in the decision of the applicability of this section, the Court
finds that this is pure speculation by the respondent.
[43]
Brovina
v Canada (Minister of
Citizenship and Immigration), 2004 FC 635 at para 5 is the leading case.
It states that section 108(1)(e) will only apply when the decision maker
has made a determination that the person has had a valid claim for refugee
protection due to persecution. The decision maker must then find that the cause
of that persecution no longer exists. At this point, the decision maker can
consider section 108(4) and “… whether the nature of the claimant’s experiences
in the former country were so appalling that he or she should not be expected
to return and put himself or herself under the protection of that state”.
[44]
Rose, cited
above, at para 3 is distinguishable because in that case, the decision maker
very clearly found that “[t]here has been a change in the attitudes of the
politicians about domestic violence in St. Vincent and efforts are continuing
to control this widespread problem”.
[45]
In
the present case, the Board did not make a finding that it was relying on
changes in the country conditions or that the applicant’s abuser, Ed Johnson,
no longer posed a threat nor did it find that the applicant had a valid claim
for refugee protection. It is clear to this Court that section 108 (1)(e)
is not applicable.
[46]
The
Board did not make its determination with section 108(1)(e) in mind, nor
did it make a decision that could fit the test for section 108(1)(e).
Therefore, the applicant was not eligible for an exemption from its application
under section 108(4).
[47]
The
applicant also presented arguments related to the delay in claiming refugee
status, but the Board did not make this determination either explicitly or
implicitly. Therefore, these arguments are not pertinent.
VII. Conclusion
[48]
The
Board did not err in determining that the applicant has adequate state
protection available to her in St. Vincent and is therefore not a
convention refugee nor a person in need of protection. The Board’s conclusion
on state protection was reasonable. This application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
this
application for judicial review is dismissed; and
2.
there
is no question of general importance to certify.
"André
F.J. Scott"
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