Date: 20111213
Docket: IMM-7203-10
Citation: 2011 FC 1414
Ottawa, Ontario, this 13th
day of December 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Enola Feria DARCY
Annamay Keyara DARCY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001 c. 27, (the “Act”) for judicial review of the decision
of Cynthia L. Summers, a member of the Refugee Protection Division of the Immigration
and Refugee Board (the “Board”), dated October 19, 2010, wherein the applicants
were determined to be neither Convention refugees within the meaning of section
96 of the Act nor persons in need of protection, as defined in subsection 97(1)
of the Act.
[2]
Enola
Feria Darcy (the principal applicant) and her minor daughter Annamay Keyara
Darcy are citizens of Saint
Lucia.
Their claim for refugee protection under sections 96 and 97 of the Act is based
on the abuse they suffered from Mr. Andy Stanley, the principal applicant’s
former common-law spouse, and the lack of state protection from such abuse in Saint Lucia.
[3]
The Board
found that the principal applicant had failed to make reasonable efforts to benefit
from the state protection available to her as a domestic violence victim in Saint Lucia.
[4]
This
matter raises the following issues:
1.
Did
the Board err in not considering the evidence of the applicants’ added
vulnerability should they return to Saint Lucia?
2.
Did
the Board err in concluding that the applicants did not rebut the presumption
of state protection in Saint
Lucia?
* * * * * * * *
[5]
The
first issue deals with the Board’s appreciation of the facts and, therefore,
must be considered based on a standard of reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
paragraph 57 [Dunsmuir]).
[6]
With
respect to the second issue, it is established that the Board’s assessment of the adequacy of state protection raises questions of mixed
fact and law and is also reviewable based on a standard of reasonableness (Hinzman
v. M.C.I.; Hughey v. Minister of Citizenship and Immigration, 2007 FCA 171 at
paragraph 38; Gaymes v. Minister of Citizenship and Immigration, 2010 FC
801 at paragraph 9; S.S.J. v. Minister of Citizenship and Immigration,
2010 FC 546 at paragraph 16).
[7]
In
reviewing the Board’s decision based on reasonableness, this Court should not
intervene unless the Board came to a conclusion that is not transparent,
justifiable, and intelligible, falling outside the range of acceptable outcomes
(see Dunsmuir at paragraph 47; Canada (Citizenship and Immigration)
v. Khosa, [2009] 1 S.C.R. 339 at paragraph 59 [Khosa]). As the
Supreme Court of Canada held in Khosa, at paragraphs 59 and 61, “it is
not open to a reviewing court to substitute its own view of a preferable
outcome . . . [nor is it] the function of the reviewing court to reweigh the
evidence”.
* * * * * * * *
1. Did the Board err in not
considering the evidence of the applicants’ added vulnerability should they
return to Saint
Lucia?
[8]
The
applicants submit that the Board erred in not considering the increased danger
that arose since their departure – an issue they alleged was sur place.
Conversely, the respondent submitted that no sur place issue arose on
these points, and that the applicants had provided insufficient evidence to
conclusively prove they would be in danger should they return to Saint Lucia.
[9]
The
difficulty with this sur place claim is that it is based on the birth of
the Canadian-born daughter and a concern that Mr. Stanley would be more
dangerous now that he knows the children’s paternity. However, Mr. Stanley
already knew that the principal applicant was pregnant when she left Saint Lucia. In addition, Mr. Stanley
was already dangerous and had already threatened to kill the applicants on
numerous occasions before they left Saint Lucia: in her oral testimony, the principal
applicant referred to Mr. Stanley’s past conduct and threats towards her and
her children as the trigger for their departure. Furthermore, although the
applicants allege that this level of danger has increased, it still pertained
to the same type and source of danger – domestic violence and death threats
from Mr. Stanley.
[10]
Although
the Board did not explicitly refer to the applicants’ submission on the alleged
increased danger, it did broadly address the question of state protection
available to victims of such danger in Saint Lucia. This differs from other cases where the
Board’s failure to address an applicant’s sur place claim was found to
be a reviewable error. For example:
- In Manzila
v. Canada (Minister of Citizenship & Immigration) (1998), 165 F.T.R.
313, this Court quashed a Refugee Division’s decision due to its failure to
deal with the applicant’s activities since his arrival in Canada – activities
that would have serious repercussions in his home country where there had been
an important change of regime since his departure.
- Similarly,
in Liang v. Canada (Minister of Citizenship & Immigration) (2000),
197 F.T.R. 303, this Court set aside a decision of the Convention Refugee
Determination Division due to its failure to examine the treatment by Chinese
authorities of first-time illegal migrants versus that of smugglers – a risk
that the applicant faced because he was wrongly publicized on Canadian
television as the captain and owner of the smuggling boat.
[11]
Unlike
both of these cases, the Board in the case at bar did address the state
protection available to the applicants due to their fear of domestic violence.
[12]
Therefore,
the Board’s failure to specifically address the applicants’ submissions on the
increased danger does not automatically make its decision erroneous.
2. Did the Board err in concluding
that the applicants did not rebut the presumption of state protection in Saint Lucia?
[13]
The
Board found that there would be adequate state protection available to the
applicants should they return to Saint Lucia.
[14]
The
Board relied on two primary findings in making this determination: the applicants’
failure to make reasonable efforts in obtaining state protection, and the
adequacy of protection against domestic violence in Saint Lucia. In making these
findings, the Board referred to the documentary evidence provided by the
applicants, and acknowledged the recognized problem of domestic assault in the
country. However, it then considered the principal applicant’s failure to make
reasonable efforts to obtain state protection during the five years that she
was a victim of domestic violence in Saint Lucia, in addition to excerpts from the evidence
that pointed to recent legislative and non-police efforts to remedy the problem
of domestic violence within the country. On this basis, the Board found that
adequate protection would be available to the applicants upon their return to Saint Lucia.
[15]
Notably,
the principal applicant only sought protection from the Saint Lucia police once, and she did
not file any complaints with the police regarding the poor quality of help she
received on that one occasion. Moreover, aside from leaving her daughter with
her mother, the principal applicant did not seek help from any other resources within
the country, including the medical officers that she was in contact with during
her two pregnancies and after being abused. At the hearing, the principal
applicant explained that she was not aware of the available support centres or
legal clinics, and that: “… back in the days, I was young, I did not care to
look for proper, you know, proper help, I did not care.”
[16]
In
addition, there was evidence that both governmental and non-governmental groups
have taken steps to reduce the problem of domestic violence in Saint Lucia. This evidence, coupled
with the fact that the principal applicant only approached the police once does
not meet the threshold of “clear and convincing evidence” that state protection
is unavailable (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 57). As stated by
the Court in Baku v. Minister of Citizenship and Immigration, 2010 FC
1163 [Baku] at paragraph 15:
.
. . a member is required to evaluate an applicant’s claim based on the specific
situation of that applicant, and the state’s ability to protect him or her
given the specific circumstances.
(Emphasis added.)
[17]
Therefore,
it was open to the Board to conclude that the applicants had not presented
clear and convincing evidence of similarly situated individuals let down by the
Saint Lucian authorities. The Board was aware of the problem of domestic
violence in Saint
Lucia.
However, the Board engaged in a detailed analysis of the current situation in Saint Lucia and concluded that the
country is currently taking steps to overcome this problem, and, although there
is still work to be done, a good deal has been achieved. Hence, the Board’s
conclusion was reasonable, being based on the evidence before it.
[18]
Furthermore,
in its decision, the Board identified various resources, other than the police,
that the applicants could rely on for protection in Saint Lucia. However, the
applicants submitted that an assessment of the adequacy of state protection
should be limited to the availability of police protection. Inversely, the
respondent relied on Baku for the proposition that
state protection can also be obtained from other resources. I agree. In Baku, the Court relied on
existing jurisprudence in stating that: “state protection may be expected to be
sought from sources other than the police, such as state-run agencies” (at paragraph
13).
[19]
In
summary, the Board reviewed the documentary evidence and acknowledged the
applicants’ submissions and arguments. Based on the totality of the evidence,
it concluded that the applicants had not rebutted the presumption of state
protection. Therefore, I am unable to conclude that the Board’s decision was
unreasonable: its finding regarding the adequacy of state protection was well
within the range of possible, acceptable outcomes that are defensible in
respect of the facts and law, being supported by the evidence before it. Hence,
its decision was reasonable, being justified, transparent and intelligible.
* * * * * * * *
[20]
For
all the above-mentioned reasons, this application for judicial review is
dismissed.
[21]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review is dismissed.
“Yvon
Pinard”
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