Docket:
IMM-9800-11
Citation:
2013 FC 25
Ottawa, Ontario,
January 11, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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CATHERINE CINDY CHARLES
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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]
This is an application for judicial review pursuant to subsection
72(1) of the Immigration and Refugee
Protection Act, SC
2001, c 27 [IRPA], of a decision by the Refugee Protection Division of the
Immigration and Refugee Board (the Board) rendered orally on November 7, 2011,
wherein it determined that Ms. Catherine Cindy Charles (Ms. Charles) is not a
Convention refugee or a person in need of protection under sections 96 and 97
of the IRPA.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
Ms.
Charles is a citizen of Grenada.
[4]
She
entered Canada with a temporary visa in 1999. She filed a permanent residence
application on humanitarian and compassionate considerations [H&C] in 2005.
Her application was refused in 2010 by an immigration officer who told her that
she should have applied for refugee protection upon her arrival to Canada.
[5]
Ms.
Charles subsequently filed a refugee claim in December of 2010 on the basis
that she had suffered some 11 years of physical and emotional abuse in Grenada at the hand of her common-law husband, Mr. Roger Jeremiah.
[6]
The
Board rejected Ms. Charles’ claim due to her lack of credibility and the
availability of state protection in Grenada. It specifically determined that
Ms. Charles had failed to adduce evidence to support her claim and to claim
refugee protection in time, thereby undermining her credibility. It finally
concluded that adequate state protection is available for her in Grenada.
III. Legislation
[7]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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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,
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96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(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
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a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(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.
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b) soit, si elle
n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
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Personne à protéger
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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
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97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
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a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(ii) elle y est exposée en
tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou
qui s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(iii) la menace ou le
risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le
risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux
ou de santé adéquats.
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Person in need of protection
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Personne à protéger
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(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.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues
and standard of review
A. Issues
1.
Did
the Board err in finding that Ms. Charles was not credible?
2.
Did
the Board err in determining that Ms. Charles failed to rebut the presumption
that state protection would be available in Grenada?
B. Standard
of review
[8]
Questions
on credibility findings are reviewable on the standard of reasonableness (see Khatun
v Canada (Minister of Citizenship and Immigration), 2012 FC 159 at para 45;
and Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 [Aguebor]). As for the second issue, the Federal Court of
Appeal determined, in Carillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para 36 [Carillo], that the standard of
review on the availability of state protection is reasonableness.
[9]
When
reviewing a decision on the standard of reasonableness, the Court is concerned
with "the existence of justification, transparency and intelligibility
within the decision-making process [and also with] whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law." See Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 59.
V. Parties’
submissions
A. Ms.
Charles’ submissions
[10]
Ms.
Charles submits that she suffered physical and mental abuse at the hand of Mr.
Jeremiah over several years prior to her arrival in Canada. She also argues
that the State of Grenada never provided any assistance as she was regularly
beaten and assaulted by her common law partner. She notes that domestic
violence is still an enormous problem and claims that her removal to Grenada would put her in danger.
[11]
Ms.
Charles adduced evidence before the Board to support her position. She provided
a letter from Officer Cleveland Clement from the Criminal Records Office of the
Grenada Police Force explaining that she did complain to the police station on
several occasions but failed to press charges against Mr. Jeremiah. Officer
Clement also writes that medical forms were issued to Ms. Charles to proceed
with charges against Mr. Jeremiah.
[12]
She
also provided a letter from Nurse Morgan Llewellyn demonstrating that the
alleged abuse actually occurred.
[13]
She
filed a letter from Mr. Josh Colle, councilor for the City of Toronto. The
letter demonstrates Ms. Charles’ contribution to her community of Lawrence Heights.
[14]
Ms.
Charles argues that the Board’s decision was unreasonable and is asking this
Court to quash the decision and remit the matter back for determination before
a differently constituted panel.
[15]
With
respect to the delay in filing her claim for refugee protection, Ms. Charles
explained that she had received inappropriate legal advice from two different
lawyers she consulted in Ontario. Both would have stated that she had to wait
five years before making a claim.
B. Respondent’s
submissions
[16]
The
Respondent alleges that a delay in claiming protection at the first opportunity
undermines Ms. Charles subjective fear of persecution. He also submits that the
failure to claim protection at the first opportunity is an important
consideration in assessing credibility and in determining whether an applicant
has a well-founded fear of persecution (Antrobus v Canada (Minister of
Citizenship and Immigration), 2012 FC 3 at para 10 [Antrobus]).
[17]
In
the case at hand, according to the Respondent, the Board reasonably found that
Ms. Charles had delayed more than eleven years before claiming refugee
protection in Canada. In Aslam v Canada (Minister of Citizenship and
Immigration), 2006 FC 189 at para 25, the Court held that the Board is not
required to accept an applicant’s explanation for not filing an application in
due time. In its decision, the Board rejected Ms. Charles’ explanation as to
why she failed to file a refugee claim at the first opportunity. It found Ms.
Charles’ explanation not credible. Given the fact that Ms. Charles was involved
with a number of Community services, during her time in Canada, and given the length of time she was in Canada before filing a refugee claim, it was open to
the Board to make such determination, according to the Respondent.
[18]
The
Board concluded that Ms. Charles failed to rebut the presumption of state
protection in Grenada. The Respondent submits that a state is presumed capable
of protecting its citizens absent a situation of complete breakdown of the
state’s apparatus (see Canada (Attorney General) v Ward, [1993] 2
SCR 689; Carillo cited above and Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171).
[19]
The
Respondent further alleges that Ms. Charles sought protection in Grenada and the police responded adequately and detained Mr. Jeremiah and underlines that
Ms. Charles failed to press charges. The failure to pursue state protection in
a functioning democracy will usually be fatal to a refugee claimant, according
to the Respondent (see Martinez v Canada (Minister of Citizenship and
Immigration), 2011 FC 13 at para 84).
[20]
As
for the prospective fear of persecution at the hand of Mr. Jeremiah, the
Respondent claims that the Board reasonably determined, on the basis of the
documentary evidence concerning the country conditions, that the situation of
battered women in Grenada is different today because significant new
legislation criminalizing domestic violence is now in force.
VI. Analysis
1. Did
the Board err in finding that Ms. Charles was not credible?
[21]
It
is trite law that when it comes to assessing the credibility of an Applicant:
“There is no longer any doubt that the Refugee Division, which is
a specialized tribunal, has complete jurisdiction to determine the plausibility
of testimony: who is in a better position than the Refugee Division to gauge
the credibility of an account and to draw the necessary inferences? As long as
the inferences drawn by the tribunal are not so unreasonable as to warrant our
intervention, its findings are not open to judicial review…” (see Aguebor
cited above at para 4).
[22]
The
Board determined that Ms. Charles had adduced evidence demonstrating that she
had been abused in the past by Mr. Jeremiah. However, it also found Ms. Charles
not to be credible. The Board found that, even though she heard from her sons
in Grenada that their father had threatened to kill her if she ever returned,
no evidence was adduced to corroborate her statement. It noted that there was no
letter from the grandmother, with whom the children are presently residing, to
support Ms. Charles’ allegations. Considering the fact that Mr. Jeremiah is
living with his children and mother in Grenada, the Court finds that it would
be practically impossible for Ms. Charles to obtain such a letter from her
mother-in-law. That part of the Board’s finding is unreasonable.
[23]
However,
the Board underlined that Ms. Charles waited at least 11 years before applying
for refugee protection in Canada and submitting an H&C application. Ms.
Charles explained that she consulted two different lawyers and both informed
her that she had to wait five years before filing an H&C application. The
Board found this explanation not to be credible.
[24]
While
a delay in formulating a claim for refugee protection is not a determinative
factor in assessing the claim, it is relevant in the Board's assessment of the
applicant's credibility (Huerta v Canada (Minister of Employment and
Immigration), [1993] FCJ No 271 (FCA)). The Board may also consider an
applicant's conduct when assessing credibility, and such conduct may, in
itself, be sufficient to dismiss a refugee claim (El Balazi v Canada
(Minister of Citizenship and Immigration), 2006 FC 38 at para 6). In this
instance, it was open for the Board to make such a credibility finding.
[25]
In
Antrobus cited above, the applicant argued that he did not know
homosexuality was a Convention Ground and thought he had to wait five years
before making a claim on H&C grounds. The Board consequently determined
that the applicant lacked credibility because of his failure to file his claim
earlier. Justice Pinard found the Board’s conclusion to be reasonable in that
case.
[26]
The
Court finds the Board’s conclusion reasonable in this instance as “it is a well-recognized
principle that ignorance of the law is no excuse” (see Taylor v Canada (Minister of Citizenship and Immigration), 2007 FCA 349 at para 93). Also, there
was no evidence to substantiate Ms. Charles’ allegations that she had received
erroneous legal advice from two different lawyers. Ms. Charles should have
provided some evidence in support of that aspect of her claim (see Rueda v Canada (Minister of Citizenship and Immigration), 2009 FC 984 at para 56).
2. Did
the Board err in determining that Ms. Charles failed to rebut the presumption
that state protection would be available in Grenada?
[27]
The
Board did not err in determining that Ms. Charles failed to rebut the
presumption of the availability of state protection in Grenada.
[28]
The
Supreme Court of Canada held in Ward cited above that in order to rebut
the presumption of state protection, “clear and convincing confirmation of a
state's inability to protect must be provided” (Ward, p 724). The Board
noted, amongst other things, that “Grenada is a parliamentary democracy with a
bicameral legislature… the … Royal Grenada Police Force (RGPF) is headed by the
police commissioner and encompasses the Coast Guard, the Special Services Unit,
the Fire Fighting Unit and other specialized units. The RGPF is supplemented by
260 rural constables. The RGPF generally was effective at responding to
complaints and maintained a community policing program” (see paras 49 and 50 of
the Board’s decision). It also underlined that “…the evidence that the claimant
provided was that in fact the police did attend to her complaint, but the
evidence also shows from the claimant’s own documents that she did not pursue
her complaint with the police” (see para 51 of the Board’s decision).
[29]
The
Board affirmed that Ms. Charles had left Grenada 11 years ago and that the
situation for women who are victims of domestic violence is different today. It
writes “the law criminalizes rape, including spousal rape, and stipulates a
sentence of flogging or up to 15 years’ imprisonment for a conviction of any
non-consensual form of sex… Further documentary evidence refers to the Domestic
Violence Act. This new Act came into force in 2001” (see paras 54
and 55 of the Board’s decision). It also found that the authorities are making
legal recourses available to victims of domestic violence by reducing or
waiving legal fees (see para 56 of the Board’s decision).
[30]
These
findings were reasonable as the objective documentary evidence supports the
contention that state protection is available in Grenada. It is also noteworthy
that police forces were involved in Ms. Charles’ case before she fled Grenada in 1999. However, she never filed charges against Mr. Jeremiah, fearing she would
face reprisal.
[31]
Furthermore,
“the
Board made a reasonable finding in relation to the length of time since the
applicant had last sought protection” (see Williams v Canada (Minister of Citizenship and Immigration), 2011 FC 1412 at para 20). This conclusion does
not suggest that Ms. Charles must have sought state protection on a regular
basis. Rather, the Board concludes that the situation on domestic violence has
evolved significantly over the years and that state protection would be
forthcoming for Ms. Charles if she returns to Grenada.
[32]
The
Board’s conclusion on state protection is reasonable. Therefore, the
application for judicial review is dismissed.
VII. Conclusion
[33]
The
Board reasonably determined that Ms. Charles’ failure to file a refugee claim
in time indicates a lack of subjective fear of persecution. The Board also reasonably
concluded that Ms. Charles failed to rebut the presumption of state protection
in Grenada and that country conditions have changed significantly since 1999.
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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