Date:
20130822
Docket:
IMM-10390-12
Citation:
2013 FC 893
Ottawa, Ontario,
August 22, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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VERNLLA JEROME
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Applicant
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and
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THE MINISTER OF CITZIENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of a member of the
Refugee Protection Division of the Immigration and Refugee Protection Board
[the Board], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The Board dismissed the Applicant’s
claim for refugee protection, concluding that she was not a convention refugee
or a person in need of protection under sections 96 and 97 of the Act.
I. Background
[2]
The
Applicant is a 22-year-old citizen of St. Lucia. Her personal narrative, dated
May 31, 2011, alleges that in 2008, while living in St. Lucia, she met a man
named David Scott. She entered into a relationship with Mr. Scott.
[3]
In
early 2010, she was diagnosed with Lupus disease. Shortly thereafter, she
started noticing symptoms, such as facial sores and swelling. The Applicant
states that the onset of the Lupus symptoms brought about a sudden change in
Mr. Scott’s behaviour towards her. He started verbally abusing her because of
her appearance.
[4]
According
to the Applicant, Mr. Scott’s abuse escalated to physical abuse, forced sexual
intercourse, and serious threats to her safety. She tried to end their
relationship two more times, but he beat her each time. In her narrative, she
describes going to the police station to seek protection after the first
beating, but the police officer she spoke to said that she was wasting her time.
She also describes, after another beating, her mother helping her to find another
police station to report her abuse, but they too did nothing to assist her.
[5]
The
Applicant alleges that to avoid Mr. Scott, she started spending time with her
neighbour, Kate Paul, with whom she had known since she was a child, and they
become involved romantically. Their sexual relationship continued until April
18, 2011, when Mr. Scott inadvertently discovered it. Mr. Scott confronted the
Applicant and then raped her. The Applicant ended her relationship with Mr.
Scott at that time.
[6]
The
Applicant again attempted to go to the police to make a report about the sexual
assault. The police said that since Mr. Scott was the Applicant’s partner, they
did not consider it assault.
[7]
The
Applicant alleges in the days following the discovery of her affair with Ms.
Paul, people in her neighbourhood found out and directed homophobic slurs towards
her and threw things at her house. Mr. Scott also showed up at her house with a
group of male friends and threatened the Applicant with death unless she agreed
to resume her relationship with him.
[8]
The
Applicant then fled for Canada, arriving on May 8, 2011. She applied for
refugee protection on December 2, 2011.
[9]
Upon
questioning from the Board, the Applicant stated in her testimony that she had
been beaten by Mr. Scott multiple times, from three or four times to perhaps ten
times, and had requested assistance from the police after each beating. She also
requested to speak to a higher-ranking police officer, but was never given an
opportunity. She never sought assistance from any other social services
organization in St. Lucia, because she believes that they did not have any such
services. Further, she never sought assistance from a lawyer in seeking a
restraining order, because she could not afford one.
[10]
The
Applicant testified that her injuries resulting from the physical abuse
included bruising and blackened eyes. The Applicant further stated that after
leaving St. Lucia, she had not communicated with Ms. Paul in any way. Ms.
Jerome has not had same-sex encounters since her relationship with Ms. Paul.
[11]
The
Board rejected the Applicant’s claim for protection from domestic abuse, and
from being a bisexual woman, on the basis that she was not credible, and also
found that she failed to rebut the presumption of adequate state protection.
II. Issues
[12]
The
issues raised in the present application are as follows:
A. Was
the Board’s credibility finding reasonable?
B. Was
the Board’s state protection finding reasonable?
III. Standard of review
[13]
The
standard of review for credibility issues and for state protection is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
IV. Analysis
A. Was the Board’s Credibility
Finding Reasonable?
[14]
The
Applicant submits that the Board failed to make credibility findings in a clear
and unmistakable manner. It is argued that the Board asked confusing questions
concerning her abuses and rape by Mr. Scott, leading to unwarranted credibility
concerns, and improperly required specific types of documentary corroboration
in support of the Applicant’s testimony concerning reports to the police, and
with respect to her bisexual relationship with Ms. Paul.
[15]
The
Respondent argues that the Board’s credibility findings were reasonable, in
that Ms. Jerome’s evidence contained a number of inconsistencies and omissions:
A. Omission
of being raped while at the hearing, which was a material allegation in the
Applicant’s PIF narrative;
B. Inadequate
and inconsistent evidence of the same sex relationship with Ms. Paul. No
corroborative letter was obtained from Ms. Paul about the relationship, and Ms.
Jerome had no knowledge of Ms. Paul’s whereabouts after allegedly fleeing St. Lucia due to threats from Mr. Scott. No such threat was mentioned in the Applicant’s
PIF narrative. Having known Ms. Paul her whole life, the Board found her testimony
questionable concerning her lack of any knowledge of Ms. Paul being a lesbian
prior to their relationship;
C. Inconsistent
police reporting concerning the number of times the Applicant allegedly sought
police protection, from “multiple” times to agreeing to “2, 3, 4, or up to 10
times”, or “only a few limited occasions”. Also, no police reports were
produced, even though the RPD screening form specifically requested the
Applicant to submit police and medical reports.
[16]
While
any one of these factors relied upon by the Board would be insufficient to make
a reasonable finding of lack of credibility, when taken together, I find that
it was reasonable for the Board not only to seek corroborative evidence but as
well to find an overall lack of credibility by the Applicant in giving her
testimony. While the questioning by the Board concerning physical abuse was
perhaps ambiguous, in not eliciting facts specific to the rape of the Applicant
by Mr. Scott, the argument that the line of questioning by the Board led to all
the inconsistencies and omissions by the Applicant is not reasonable or
supported in the evidence.
[17]
With
respect to the allegation by the Applicant that the Board erred by impugning
the Applicant’s credibility based on contradictions and/or inconsistencies that
were not put to her, this is not a fair characterization. The Board did put
questions concerning the lack of police reports, the lack of seeking help or
protection from any agencies other than the one police station referred to by
the Applicant, and the lack of any corroboration from Ms. Paul concerning her
bisexual relationship.
[18]
The
law surrounding the duty of a tribunal to provide an applicant with notice of
its concerns and an opportunity to explain must be looked at contextually on a
case-by-case basis, as per Dehghani-Ashkezari v Canada (Minister of
Citizenship and Immigration), 2011 FC 809 at paras 14-15.
[19]
The
Applicant was represented by counsel, and no concerns were raised at the
hearing on this front. I do not find that the Board erred on how it conducted
itself such that the decision on credibility was unreasonable.
B. Was the Board’s State
Protection Finding Reasonable?
[20]
The
Board’s finding with respect to state protection is an alternative argument to
the credibility decision (Board’s decision, paragraph 11), and should be
considered independently of the credibility analysis.
[21]
The
Board decided that given St. Lucia is a functioning democracy it is presumed to
be capable of protecting its citizens. The Board refused to accept the
Applicant’s reason that she did not seek assistance or could not find help from
a women’s shelter, crisis centre or women’s group, because none of these services
are available to women in abusive relationships. The Board also found her position
of not seeking legal advice from a lawyer or legal clinic due to her inability
to afford such advice unreasonable.
[22]
The
Respondent relies on the cases of Fuentes v Canada (Minister of Citizenship
and
Immigration),
2010 FC 457 at para 14 and Lezama v Canada (Minister of Citizenship and
Immigration), 2011 FC 986 at para 92, to support the view that the
Applicant is required to seek protection from protective agencies other than
police, because those agencies are set up to protect women in the position of
the Applicant. Moreover, in Canada (Attorney General) v Ward, [1993] 2
SCR 689 at para 49, Justice LaForest states that an applicant’s claim will be
defeated where state protection might reasonably have been forthcoming,
but the Applicant failed to seek it.
[23]
Those
cases deal with the state infrastructure in Mexico, and qualify their findings
that each case must be decided on a case-by-case basis. St. Lucia is not Mexico.
[24]
As
stated by Justice Simon Noël in Horvath v Canada (Minister of Citizenship
and Immigration), 2013 FC 788 at para 36:
It has been recognized that when undertaking a
contextual approach to determine whether a refugee claimant has rebutted the
presumption of state protection, a number of factors need to be taken into
consideration including the following ones (see Gonzalez Torres v Canada
(Minister of Citizenship and Immigration), 2010 FC 234 at para 37):
1. The nature of the human rights
violation.
2. The profile of the alleged
human right abuser.
3. The efforts that
the victim took to seek protection from authorities.
4. The response of the
authorities to requests for their assistance.
5. The available
documentary evidence.
[25]
In
my opinion, the Board failed to consider relevant evidence and documentation
before it that contradicts its assertion of adequate or effective protection
for abused women or that state protection might reasonably have been
forthcoming:
In contrast, the Executive Director of the Saint
Lucia Crisis Centre (SLCC), which offers counselling, referrals and outreach
services to victims of domestic violence, did not think that the police were
effective in combating domestic violence or that the formation of the VPT had
improved the situation (SLCC 29 June 2009). In a 29 June 2009 telephone
interview with the Research Directorate, the Executive Director stated that
several clients of the Crisis Centre report not receiving an “appropriate
response” from police (idid.). This information could not be corroborated among
the sources consulted by the Research Directorate. However, the St. Lucia Star reports that prior to her death, one victim of domestic
violence had filed several reports against her alleged abuser which “were never
pursued”; details of why they were not pursued were not provided in the article
(St. Lucia Star 16 June 2009). According to the Attorney, the police do
not always take domestic cases seriously because many victims withdraw their
cases (Attorney 9 July 2009).
According to the Director of the Ministry of Home
Affairs and Gender Relations, the shelter has space to accommodate a total of
25 people, including both women and children (Saint Lucia 2 July 2009). IWRAW
and SLCC similarly report that the shelter has space for up to five women and
their children (IWRAW Mar. 2006, 4; SLCC 29 June 2009). According to the
Executive Direction of SLCC, the number of spaces at the shelter is
insufficient (ibid.). Sources indicate that it is the only women’s shelter in Saint Lucia (SLCC 29 June 2009; Saint Lucia 2 July 2009; IWRAW Mar. 2006, 4). IWRAW reports that the
shelter is available for a limited period (Mar.2006, 4). The Director of the
Ministry of Home Affairs and Gender Relations indicates that no clients are
forced to leave the shelter if they do not have safe alternative housing (Saint Lucia 2 July 2009).
Application Record, pp.51 and 52 of the CTR
[26]
As
stated by Justice Richard Mosley in EYMC v Canada (Minister of Citizenship
and Immigration), 2011 FC 1364 at para 16:
The Board did not provide any analysis of the
operational adequacy of the efforts undertaken by the government of Honduras and international actors to improve state protection in Honduras. While the state's efforts
are indeed relevant to an assessment of state protection, they are neither
determinative nor sufficient (Jaroslav v Canada (Minister of Citizenship and
Immigration), 2011 FC 634, [2011] FCJ No 816 at para 75). Any efforts must
have "actually translated into adequate state protection" at the
operational level (Beharry v Canada (Minister of Citizenship and
Immigration), 2011 FC 111 at para 9.
[27]
Failure
by the Board to do any contextual analysis of the effective protection of
abused women in St. Lucia, and to omit any reference to available protection
for bisexual women as part of its analysis, or any reference to clearly
contradictory evidence on the record concerning the adequacy of such
protection, and particularly with respect to the Applicant, is unreasonable.
[28]
In
this case, the Board briefly reviews the availability of social support
services for victims of domestic abuse as well as changes to the law around
domestic abuse itself. There is no analysis of how this translates into
adequate protection for the Applicant at an operational level.
[29]
In
conclusion, notwithstanding my decision concerning the inadequacy of the
Board’s analysis of state protection, the Board’s decision concerning lack of
credibility of the Applicant is reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicant’s application for judicial review is dismissed;
2.
No
question is to be certified.
“Michael D. Manson”
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