REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by
the Refugee Protection Division [RPD] finding that
Dondre Calbert Henry is neither a “refugee” within the meaning of section 96
of the IRPA nor a “person in
need of protection” under section 97 of the IRPA.
I. Facts
[2]
Dondre Calbert Henry
[the Applicant] is a citizen of Saint Vincent and the Grenadines [Saint Vincent], where he was born on October 23, 2000.
[3]
The
Applicant’s mother, Michelle Hooper, was appointed designated
representative of her minor son.
[4]
The
Applicant’s mother left Saint Vincent in December 2007 to flee her abusive
father. She was unable to bring the Applicant with her for financial reasons. While
his mother was in Canada, the Applicant remained with his mother’s friend,
where he was mistreated to the extent that a hospital wanted to put him under
the care of Child Welfare Services. At the request of his mother, the Applicant
later moved in with his mother’s parents, where he was also abused. He was put
under the care of his mother’s sister, who took care of him for several months
until his arrival in Canada.
[5]
In
May 2009, two years after arriving in Canada, the Applicant’s mother
sought asylum claiming that she was abused by her father, who did not want to
support her financially. Her claim was denied in February 2011 for lack of
fear of persecution. She filed an application for the judicial review of this
decision, but the application was rejected.
[6]
The
Applicant’s mother claims that she cannot seek permanent residency on the basis
of humanitarian and compassionate grounds [H&C application] as the costs
involved in such an application exceed her financial capabilities. However, during
the judicial review hearing, counsel for the Applicant informed that the mother
and her son had filed an H&C Application.
[7]
The
Applicant visited his mother in Canada for two months in July 2010
but returned to his grand-parents’ house. The Applicant returned to Canada in July 2011 and claimed asylum.
[8]
The
Applicant’s mother was advised that her removal from Canada would take place no
later than on July 12, 2012. However, she requested the deferral of her
removal, which was granted after arguing that her son, the Applicant, was
suffering from severe separation anxiety, that he should not be separated from
his mother and that, as a result, her removal should be postponed pending the
outcome of the Applicant’s claim for refugee protection.
II. Decision
under review
[9]
The
RPD was satisfied with the evidence submitted as to the Applicant’s
identity.
[10]
It
ultimately found that the Applicant does not have a well-founded fear of
persecution should he return to Saint Vincent accompanied by his mother, nor
would he be subjected, on a balance of probabilities, to a risk to his life or
a risk of cruel and unusual treatment or punishment.
[11]
After
laying out the facts on which it relied its decision, the RPD explained that it
was considering the Applicant’s claim in the context of the fact that his
mother’s claim for refugee protection had been rejected, that she had decided
not to file an H&C application and that her deportation was imminent.
[12]
The
RPD explained that it would first examine the veracity of the allegations made
with regard to the Applicant and, if these were found to be truthful, it would
examine the consequences of his return to his home country.
[13]
On
one hand, the RPD was satisfied, based on the evidence submitted, that the
Applicant was indeed a victim of abuse and mistreatment tantamount to
persecution in Saint Vincent, but on the other hand it concluded that there was
not a serious possibility that he would be persecuted or that he would be
subjected, in all probability, to a risk to his life or a risk of cruel and unusual
treatment or punishment should he return to his home country.
[14]
The
RPD based this finding on a doctor’s report according to which the Applicant
greatly fears being separated from his mother again and has some friends in Saint Vincent whom he misses. The RPD insisted on the importance for the Applicant not to
be separated from his mother and determined that, from a prospective point of
view, the Applicant’s mother will have to leave Canada. It therefore concluded
to a significant change in circumstances with respect to what will happen to
the Applicant should he return to Saint Vincent. He would no longer be placed
in the care of his grandparents, but he would be with his mother. In
consequence, the RPD found the Applicant did not have a fear of persecution.
[15]
The
RPD then discussed the decision previously rendered with respect to the
Applicant’s mother’s refugee protection claim and more specifically to the
difficulties she experienced with her father. According to this decision, while
the Applicant’s grandfather is an abusive man and made the Applicant’s mother’s
life unbearable, the threats were made by the man because he did not want to
assume economic responsibility for his grown daughter. It seemed that he had not
harmed any of his other children in recent years. Ultimately this decision
found that there is not a serious possibility that the Applicant’s mother would
be harmed if she returned to Saint Vincent and does not return to the family
home.
[16]
The
RPD also considered the Applicant’s mother’s testimony, which states that while
her son was living with her sister, several villages away from her parents’
house, he still had to walk by his grandparents’ house and was yelled at by his
grandfather. The RPD found this part of the testimony to be not credible, as its
previous decision concerning the Applicant’s mother was to the effect that the
Applicant’s grandfather was not looking for revenge but simply did not want to
support his daughter economically.
[17]
The
RPD concluded that, should the Applicant return to Saint Vincent with his
mother, they would not have to live close to her parents. The most important
element was for the Applicant not to be separated from his mother.
[18]
The
RPD then turned to the issue of the availability of psychiatric care in Saint Vincent, which falls under section 97 of the Act. It found that while the
Applicant is receiving excellent treatment in Canada, the absence of the same
quality of psychiatric care in Saint Vincent does not constitute persecutorial
motives, given that this risk flows from legitimate financial priority reasons
on the part of the country for denying the care and not from an illegitimate
reason.
[19]
The
RPD also considered several pieces of evidence put forward by counsel for the
Applicant (e.g. a country report on corporal punishment, a study on child
vulnerability, and a document addressing the treatment and support for victims
with Post Traumatic Stress Disorder and mental health issues) and concluded
that these were not relevant to the case at bar or that they do not give rise
to persecutorial reasons for denying care.
[20]
Lastly,
the RPD concludes that neither the issue of state protection nor the question
of internal flight alternatives is relevant in the present matter.
III. Applicant’s submission
[21]
The
Applicant brings forward the following four issues which, in his opinion,
render the RPD’s decision unreasonable: (1) the RPD improperly applied the test
for “change of circumstances” pursuant to paragraph 108(1)(e) of
the IRPA or, alternatively, (2) it erred in determining that there was no
compelling reasons to accept the Applicant’s refugee claim pursuant to
subsection 108(4) of the IRPA, (3) the RPD erred in finding that the
Applicant would not have a fear of persecution should he return to
Saint Vincent with his mother, and (4) the RPD failed to consider the Applicant’s
claim on its own merit.
[22]
The
Applicant first submits that the RPD did not properly apply the test for
“change of circumstances” pursuant to paragraph 108(1)(e) of the
IRPA. The RPD was satisfied that the Applicant had been the victim of abuse
tantamount to persecution, and despite this finding concluded that he did not
face a serious possibility of persecution or a risk of cruel and unusual
treatment or punishment, on a balance of probabilities, should he return to
Saint Vincent because of a change of circumstances – he would be with
his mother. The RPD found that the Applicant’s mother was going back to Saint Vincent because her removal had only been deferred and she had not filed an H&C
application. While it wanted to refrain from speculating as to what could
happen in the future, the RPD did just that. The fact of the matter is, at the
time the decision was rendered by the RPD, the Applicant’s mother was still in Canada and there were no change of circumstances to speak of.
[23]
The
Applicant further argues that the test for the determination of whether there
was a “change of circumstances” is set out in section 108(1)(e) of
the IRPA. Pursuant to the wording of this provision, change needs to have
already occurred.
|
Immigration
and Refugee Protection Act,
SC 2001, c 27
Rejection
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.
|
Loi
sur l’immigration et la protection des réfugiés
LC
2001, ch 27
Rejet
108.
(1)
Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou
de personne à protéger dans tel des cas suivants :
[…]
e)
les raisons qui lui ont fait demander l’asile n’existent plus.
|
[24]
Furthermore,
the case law has established that the rejection of a claim on the basis of
“change of circumstances” requires a significant change in the political or
social situation in the country, which is not the case in the present matter.
The Plaintiff is therefore of the opinion that the RPD improperly applied the
test for “change of circumstances” and that there were no such changes in the
case at bar.
[25]
Second,
the Applicant submits that notwithstanding the improper application of this
test, the RPD also erred in determining that there were no compelling reasons
to accept the Applicant’s refugee claim pursuant to subsection 108(4) of
the IRPA, which the RPD was obligated to consider, as it had been found that
the Applicant has been a victim of abuse tantamount to persecution. The
provision reads as follows:
|
Immigration
and Refugee Protection Act,
SC 2001, c 27
Exception
108.
(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.
|
Loi
sur l’immigration et la protection des réfugiés
LC
2001, ch 27
Exception
108.
(4)
L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons
impérieuses, tenant à des persécutions, à la torture ou à des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
|
[26]
The
Applicant submits that he still suffers from the abuse despite now living with
his mother and that returning to his country of origin would be detrimental to
his psychological health given his age, the trauma suffered, his continued
mental and emotional anguish, etc. In concluding otherwise, the RPD either
ignored the documentary evidence submitted or disingenuously dismissed the
suffering endured by the Applicant. This error renders the RPD’s decision
unreasonable.
[27]
As
a third argument, the Applicant submits that it was unreasonable for the RPD to
find that the Applicant will not have a subjective fear of persecution, should
he return to Saint Vincent with his mother, while having found that he was the
victim of abuse tantamount to persecution. The RPD insisted on the importance
for the Applicant to remain with his mother. The Applicant argues that the
abuse suffered by the Applicant is being minimized by the fact that he misses
his friends and does not want to be separated from his mother, both of which
are reasonable expressions coming from a child in these circumstances. The
Applicant adds that the decision fails to consider the special vulnerabilities
of children and the Chairperson Guideline 3: Child Refugee Claimants [Guideline 3]
for the determination of the subjective fear of a child.
[28]
Lastly,
the Applicant submits that the RPD failed to consider the application on its
own merit and undertake an analysis of state protection. He submits that the
RPD engaged in an analysis of the risks associated with the return of the
mother to Saint Vincent and not of the Applicant himself, and that it concluded
that mother and son will be unharmed in the future because they will be reunited
in Saint Vincent. The Applicant has trouble understanding why the RPD could, on
one hand, state that the Applicant suffered abuse tantamount to persecution
and, on the other hand, that state protection is not relevant in the present
matter. Documentation submitted clearly shows that child abuse remains a
prevalent problem in Saint Vincent because of “woefully outdated” legislation
and a lack of shelter for such children. The RPD focused on the Applicant’s
mother’s claim and did not consider the application on its own merits. Given the
fact that the RPD accepted the Applicant’s allegation, a proper analysis of his
claim was warranted.
IV. Respondent’s submission
[29]
The
Respondent argues that it was reasonable for the RPD to conclude that the
Applicant would not be persecuted or abused should he return to Saint Vincent
with his mother because he would be with his mother and no longer with his
grandfather, i.e. a lack of prospective fear. The Respondent also adds that the
RPD did not err by concluding that the Applicant had not established the
existence of compelling reasons under subsection 108(4) of the IRPA.
[30]
With
regard to the lack of prospective fear, the Respondent claims that the Applicant
was only abused because he temporarily had to live with his grandparents. He
and his mother were in the same situation – the abuse would stop if they
left the grandfather’s house. Also, all the evidence submitted was to the
effect that the Applicant’s mother’s removal was only delayed pending the
outcome of the Applicant’s refugee protection claim. Her removal was imminent,
and considering how vital this fact is to the Applicant’s claim, the RPD had no
other choice but to acknowledge the fact that the mother was leaving the
country, as this meant that mother and child would be reunited.
[31]
The
Applicant failed to establish the existence of an actual and prospective risk
of return. What is more, if he is able to make a reasonable choice in order to
avoid being persecuted in his country, the Applicant must pursue this option.
This is the case in the present matter because the Applicant and his mother
could simply decide to reside anywhere but with their abusers.
[32]
With
respect to the absence of compelling reasons under section 108(4) of the IRPA,
the Respondent claims that the Applicant has failed to meet the burden of
establishing that he at one point satisfied the definition of refugee or person
in need of protection. Indeed, the RPD found that his fear was not well founded.
The Applicant had to establish a prospective risk of return, which he did not
do. Furthermore, the Applicant in any event failed to demonstrate the existence
of compelling reasons arising out of his persecution. Indeed, as established by
his own evidence, the Applicant’s psychological issues and his anxiety are all
linked to the fact that is or could be separated from him mother, and not to
the possibility of going back to his country.
[33]
The
Respondent further submits that, to the contrary of the Applicant’s submission,
the RPD did consider the Applicant’s case on its own merits. It actually
reviewed all of the evidence submitted and considered the trauma suffered by
the Applicant. In fact, the RPD was satisfied that the Applicant was a victim
of abuse tantamount to persecution based on medical evidence submitted by the
evidences and two psychological reports related to the Applicant’s health. Given
the extensive evidence which lead the RPD to determine that the Applicant’s
first concern was to remain with his mother, the RPD’s decision was reasonable
The abuse suffered will not continue if the Applicant returns to Saint Vincent because
he will not live with his grandparents.
[34]
Also,
on the subject of the Guideline 3 mentioned by the
Applicant, the Respondent claims that the Guideline was quite obviously
taken into consideration and that the RPD had no obligation to mention it in
its decision. In fact, the RPD went to great lengths to ensure due
consideration of the Applicant’s best interest.
[35]
As
for the issue of state protection, the Respondent argues that the RPD was in no
way obligated to determine the existence of such protection, because it was of
the view that he would not be subjected to a risk to his life or a risk of
cruel and unusual treatment or punishment if returned to Saint Vincent.
V. Issues
[36]
Did
the RPD err in rejecting the Applicant’s claims under sections 96 and 97 of the
IRPA?
VI. Standard
of review
[37]
The
RPD’s findings with regard to the Applicant’s claims under sections 96 and
97 of the IRPA shall be reviewed under the standard of reasonableness as they
constitute a question of mixed fact and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]). This Court must
afford deference to the RPD’s findings and its intervention shall only be
warranted if these findings fall outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law.” (Dunsmuir,
above, at para 47)
VII. Analysis
[38]
Prior
to undertaking its analysis of the issue, this Court cares to address the Applicant’s
argument according to which the RPD improperly applied the test for change of
circumstances pursuant to paragraph 108(1)(e) of the IRPA, as
previously cited at paragraph 23.
[39]
The
Applicant’s argument surely relies on paragraph 18 of the RPD’s reasons
which states the following:
[18] To
reiterate, the tribunal believes that there is a change of circumstances
in the sense that previously, Dondre was living without his mother and,
therefore, relied upon the shelter and protection of his grandparents where he
was abused. […]
[Emphasis
added.]
[40]
While
the Applicant’s understanding of the paragraph 108(1)(e) test is
quite correct – this provision indeed requires a significant change in the
political or social situation in the country – I do not believe the RPD
ever intended to base its reasoning on this test. In fact, there is no mention
of paragraph 108(1)(e) in the decision. In my view, the RPD simply refers
to a new element arising out of the Applicant’s mother’s claim being rejected which
affects, in its opinion, the outcome of the Applicant’s claim. The RPD’s wording
may be the same as that of the test on which the Applicant’s argument relies,
but I find this to be purely coincidental. The Applicant fruitlessly grasped
unto the RPD’s choice of words in the hope of finding an irregularity in the
decision. This argument is deprived of any relevance.
[41]
As
a consequence, while I recognize that the RPD referred to the issue of
“compelling reasons” in its decision, I find there is no need to address the
Applicant’s question relating to the RPD’s appreciation of “compelling reasons”
pursuant to subsection 108(4) of the IRPA, as this obligation could only
have been triggered had the RPD based its rejection on paragraph 108(1)(e)
of the IRPA, which it did not. As this Court previously stated in Contreras
Martinez v Canada (Minister of Citizenship and Immigration), 2006 FC
343 at para 21, [2006] FCJ No 421 [Contreras
Martinez]:
It
is clear from the wording of sub. 108(4) that it is not aimed at creating a
broad obligation for the RPD to assess the existence of “compelling reasons” in
every refugee claim. If a refugee claimant is neither a refugee nor a person in
need of protection because the conditions of the general definition of section
96 and 97 of the IRPA are not met, then no “compelling reasons” assessment need
be performed by the RPD. It is only necessary where the rejection of the claim
is based on 108(1)(e).
[42]
Moreover,
as rightly submitted by the Respondent, a 1992 Federal Court of Appeal decision,
Hassan v Canada (Minister of Employment and Immigration), [1992] FCJ No
946, 147 NR 317 [Hassan],
regarding subsections 2(2)
and 2(3) of the former Immigration Act, RSC 1985, c I-2, states that in
order to invoke the assessment of compelling reasons, one must at some point
have been considered a refugee or a person in need of protection:
It is clear, as the appellant suggests, that subsections 2(2) and
2(3) of the Immigration Act speak to the loss of status as a Convention refugee
because of, inter alia, a change in material circumstance in a refugee's home
nation. But those provisions in no way alter the test used to initially
determine a claimant's status. It is trite law that to establish status as a
Convention refugee within the meaning of the Immigration Act, one has to meet
both a subjective and objective threshold. One must have a "well-founded
fear of persecution". One cannot get to the point of possibly losing
one's status as a Convention refugee, i.e. subsections 2(2) and 2(3) cannot be
applicable, unless one first falls within the statutory definition contained in
subsection 2(1). [Emphasis added.]
[43]
Although
Hassan relates to the former version of the IRPA, this principle was
reiterated by the courts following the enactment of the new IRPA (see Contreras
Martinez, above at para 20 and Brovina v Canada (Minister of Citizenship and Immigration), 2004 FC 635 at
para 5, [2004] FCJ No
771).
[44]
In
this regard, while the RPD did recognize that the Applicant has been victim of
abuse tantamount to persecution, never at any point did it consider the
Applicant to be a refugee or a person in need of protection. In fact, that the
RPD found that the Applicant’s fear was not well founded as he failed to
demonstrate the existence of a prospective risk. As a matter of fact, the RPD
rejected the Applicant’s claim because he did not satisfy the necessary
conditions in order to be considered a refugee or a person in need of
protection. As such, the exception enacted in paragraph 108(1)(e)
was not applicable and, consequently, the RPD was in no way obligated to
undertake a “compelling reasons” assessment under subsection 108(4) of the IRPA.
[45]
Therefore,
the only relevant issue in the present matter is whether or not it was
reasonable for the RPD to reject the Applicant’s claims and to find that he is
neither a “refugee” within the meaning of section 96
of the IRPA nor a “person in
need of protection” under section 97 of the IRPA. I find that
these conclusions were reasonable for the following reasons.
[46]
Regarding
the RPD’s finding under section 96, it was reasonable for the RPD to conclude
that the Applicant would not have a well-founded fear of persecution, should he
return to Saint- Vincent with his mother.
[47]
The
Applicant’s mother claims that no real change has occurred in the circumstances
surrounding the Applicant and that the RPD’s decision is based on speculation. However,
the RPD did not speculate in rendering its decision, but rather adopted a
prospective approach, which is the approach mandated by case law, as recently
stated by this Court in Sugiarto
v Canada (Minister of Citizenship and Immigration), 2010 FC 1326 at para 14, [2010] FCJ No 1676:
[14] Justice Marshall Rothstein, in Pour-Shariati v Canada (Minister of Employment and Immigration)
(1994), [1995] 1 FC 767, 52 ACWS (3d) 621 (TD) emphasized the prospective
nature of the "well-founded fear of persecution" pointed to by
section 96 of the IRPA. At paragraph 17, he
indicated:
Before
turning to the cases themselves, I would observe that a Convention refugee
claimant must demonstrate a well-founded fear of persecution in the future to
support a Convention refugee claim. In making a claim for Convention refugee
status, an individual will often advance evidence of past persecution. This
evidence may demonstrate that he/she has been subjected to a pattern of
persecution in his/her country of origin in the past. But this is insufficient
of itself. The test for Convention refugee status is prospective, not
retrospective: for example, see Minister of Employment and
Immigration v. Mark (1993), 151 N.R. 213 (F.C.A.), at page 215. The
relevance of evidence of past persecution is that it may support a well-founded
fear of persecution in the future. However, it is a finding that there is a
well-founded fear of persecution in the future that is critical. [Emphasis
added.]
[48]
It
is a fact that at the time of the hearing all the evidence submitted was to the
effect the Applicant’s mother was scheduled to leave Canada in direction of Saint Vincent. Indeed, her removal has only been postponed pending the outcome of the
Applicant’s claim, which is imminent. The fact that the Applicant’s mother is scheduled
to be in Saint Vincent is crucial to the determination of this issue, as the
Applicant has suffered abuse when he was separated from his mother but never
while living with her. Contrary to what the Applicant suggests, this Court
finds that this major paradigm shift constitutes an important change in the
circumstances surrounding the Applicant’s return in Saint Vincent, albeit not a
change in circumstances for the purposes of paragraph 108(1)(e).
[49]
Moreover,
as we now know the H&C Application has been made and without predicting the
future, the mother and her son will be together at least for the time being.
[50]
Furthermore,
the Applicant claims that the RPD fails to consider the Chairperson
Guideline 3: Child Refugee Claimants. However, as stated by
Justice Beaudry in Allinagogo
v Canada (Minister of Citizenship and Immigration) 2010 FC 545 at para 14, [2010] FCJ No 649,
“[t]his argument cannot succeed as there is no
obligation for the Board to mention the guidelines in its decision and the
reasons show that the Board properly considered the […] Applicant’s claim”.
This decision relates to the Guideline 4: Women Refugee
Claimants Fearing Gender-Related Persecution, but this Court sees no difference as to the
application of this principle to Guideline 3. What is more, the Guideline 3
requires the
decision-maker to give primary consideration to the best interest of the child
and, in fact, the RPD stated on numerous occasions that the main concern in the
case at bar was for the Applicant to remain with his mother and to avoid future
separation. Therefore, this Court finds that the RPD did not fail to consider
the Guideline 3 as the reasons show that it did.
[51]
As for the
RPD’s finding that the Applicant is not a “person in need of protection,”
thereby rejecting his claim under section 97 of the
IRPA, the Applicant’s
mother claims that the RPD failed to conduct an analysis of the state
protection issue. The RPD indeed stated in its decision that state protection
was not an issue in the present matter, but it did so after considering the
evidence and reasonably concluding to the absence of cogent evidence that the
Applicant and his mother would be subject to aggressions by the Applicant’s
grandfather should they return to Saint Vincent. In any event, it was
certainly open to the RPD to come to such a conclusion – state protection
is not a relevant matter given that there is no risk of persecution from which the
state could protect the Applicant.
[52]
Moreover, about
section 97, a Federal Court of Appeal decision, Sanchez v Canada (Minister of Citizenship and Immigration), 2007 FCA 99,
[2007] FCJ No 336, states at paras 15 and 16 that the Applicant had the burden of establishing the existence
of a real and prospective risk resulting from the return and that if the
Applicant has the possibility of making reasonable choices in order to free
himself of harm he must do so:
[15] As such, a determination of whether
a claimant is in need of protection requires an objective assessment of risk,
rather than a subjective evaluation of the claimant's concerns. Evidence of
past persecution may be a relevant factor in assessing whether or not a
claimant would be a risk of harm if returned to his or her country, but it is
not determinative of the matter. Subsection 97(1) is an objective test to be
administered in the context of a present or prospective risk for the claimant.
[16] In assessing the existence of a
prospective risk, the applications judge analogized the appellants' situation
to one where there is an internal flight alternative (IFA) and held that "Canada cannot and should not be a substitute refuge for those who have the option of
choosing a safe haven in their home countries" (paragraph 18). Without
importing the IFA test into subsection 97(1), I believe the underlying purpose
of the IFA test is helpful in assessing a risk of harm. As noted by this Court
in Thirunavukkarasu v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 589 (C.A.), at paragraph 12, "if
there is a safe haven for claimants in their own country, where they would be
free of persecution, they are expected to avail themselves of it unless they
can show that it is objectively unreasonable for them to do so."
Similarly, claimants who are able to make reasonable choices and thereby free
themselves of a risk of harm must be expected to pursue those options.
[Emphasis added.]
In
the present matter, such a reasonable choice was available to the Applicant and
his mother; they could avoid all persecutions by opting to reside away from the
Applicant’s grandfather’s house. They do have a “safe haven” to “free
themselves of a risk of harm.” Thus it was reasonable for the RPD to conclude
that the Applicant does not have a well-founded fear of persecution should he
return to Saint Vincent.
[53]
The
Applicant’s mother also argues that the RPD’s decision generally failed to
consider the Applicant’s claim on its own merits and focused its analysis on
her case and history. Quite to the contrary, this Court finds that the RPD did
consider the case on its merits. In fact, the RPD reviewed and referred to
evidence submitted, including medical reports, and examined the trauma suffered
by the Applicant. While it is true that the RPD gives some importance to the
Applicant’s mother in its decision, it was nonetheless reasonable to do so
considering that, as it had reasonably been found that mother and child should
not be separated, she is the reason why the Applicant would no longer be
subject to persecution in Saint Vincent. This however does not amount to
the RPD failing to consider the Applicant’s claim on its own merits.
[54]
The
Applicant’s mother also puts forward the argument that the abuse suffered by
her son is being minimized by the fact that he misses his friends and that he
does not want to be separated from his mother. This Court finds it difficult to
reconcile this affirmation with the fact that the RPD ultimately came to the
conclusion, upon consideration of the evidence submitted, that the Applicant
was a victim of abuse tantamount to persecution. Stating that a person is in
reality a victim of abuse which amounts to persecution is quite the opposite of
minimizing the problems suffered by said person.
[55]
For the
aforementioned reasons, I find that the RPD’s decision, as it concerns
section 96 as well as section 97, was reasonable and falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law, and that this Court’s
intervention is not warranted.
[56]
The parties were
invited to submit a question for certification but none were proposed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question is certified.
“Simon Noël”
___________________________
Judge
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