Date: 20061121
Docket: IMM-638-06
Citation: 2006
FC 1414
Toronto, Ontario, November 21, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
NANCY
SAMANTHA JEAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Jean claims to be a Convention refugee or a
person in need of protection on the basis that she had been subjected to
domestic violence at the hands of her former common-law spouse. The Refugee
Protection Division (RPD) found that state protection was available to Ms. Jean
in St. Lucia and it rejected
her claim. This is an application for judicial review of that decision.
[2]
Ms. Jean contends that the RPD engaged in a
selective reading of the documentary evidence and erred in concluding that
“strong efforts to confront domestic abuse” was a sufficient basis upon which
to find that adequate state protection is available. She asserts that the RPD
ought to have considered whether such efforts are yielding positive results.
[3]
I have concluded that the RPD engaged in a
selective reading of the documentary evidence such that its analysis regarding
state protection is deficient. Consequently, the application for judicial
review will be allowed.
Background
[4]
Ms. Jean, the mother of three children from a
previous relationship, began cohabiting with her common law spouse, Henry John,
in October of 2000. In early 2001, Mr. John began drinking and became verbally
abusive to Ms. Jean and her children. In September of 2001, after an incident
of physical abuse, Ms. Jean and the children left and went to her mother’s
home. When a contrite Mr. John begged them to come back, they returned to the
“family” home. One week later, the abuse resumed and Mr. John threatened Ms.
Jean that he would kill her if she ever left again.
[5]
The abuse (both physical and mental) continued
and intensified. Eventually, Ms. Jean sought the assistance of the police and
the crisis centre. The police told her to sort it out and the crisis centre
could not assist her because it had a long waiting list. Twice, Ms. Jean
attended the hospital after episodes of abuse.
[6]
When Ms. Jean and her children again sought
refuge at her mother’s home, Mr. John repeatedly came to the house threatening
to kill her if she did not return home. Ms. Jean left the children with her
mother and came to Canada.
After her arrival here, through telephone discussions with her mother, she
learned that Mr. John had persisted in attending at her mother’s home and
repeating his death threats against Ms. Jean. Although her mother went to the
police, no action was taken.
The Decision
[7]
The RPD seemingly accepted Ms. Jean’s evidence
as credible but determined that state protection was available. It noted that
domestic violence is a problem throughout the world. However, the government
in St. Lucia is making strong
efforts to address the problem. It noted that St.
Lucia is a democratic country. It observed that the
police have received sensitivity training regarding domestic violence, the
judiciary has been diligent in processing protection orders quickly, and
violators have been arrested. St. Lucia has a shelter for victims of domestic violence as well as a crisis
center that provides counselling and access to social services. Consequently,
there is “adequate, albeit not exemplary, state protection” available.
Issue
[8]
The sole issue is whether the RPD erred in
determining that state protection is available to Ms. Jean.
The Standard of
Review
[9]
In previous decisions, I have adopted the
pragmatic and functional analysis of my colleague Madam Justice Tremblay-Lamer
in Chaves v. Canada (Minister of Citizenship and
Immigration) (2005), 45 Imm. L.R. (3d) 58. I agree with Justice
Tremblay-Lamer that the applicable standard of review in relation to a finding
of state protection is reasonableness.
Analysis
[10]
The RPD’s determination was based on information
contained in a Response to Information Request (RIR) dated April 25, 2003. The
RPD relied primarily upon the positive statements of a relations officer from
the Ministry of Home Affairs and Gender Relations for St.
Lucia. These comments spoke to a “positive shift in
the attitudes of police officers” and the “ongoing gender sensitivity training”
provided to the police by the government. The RPD highlighted the presence of
the women’s support centre and the issuance of protection orders.
[11]
The documentation also contained negative
comments. The RPD did not refer to, or acknowledge, the statements of the
representative of the crisis centre. Those accounts were to the effect that
“most complaints of domestic violence received by the police were not taken
very seriously and were placed on the ‘back burner.’ The prevailing attitudes
of the police and the population in general are that the man of the household
is the chief and that he can impose discipline in the home by violent means.”
There were also declarations that the “entire justice system needs to be
modernized to reflect the seriousness of domestic violence”. Additionally, the
documentation contains an admonition that, despite years of promises from the
government, there are no legal aid clinics in the country.
[12]
None of the negative information regarding the
availability of state protection was addressed. While it is clearly open to
the RPD to ultimately prefer the statements of one spokesperson over those of
another, in so doing it must first deal with both and provide its reasons for
choosing one position over the other. It is not open to it to adopt only the
positive statements and totally disregard the negative statements without
providing an explanation as to why it has done so. It is settled law that
evidence that directly contradicts the findings of the board must be
acknowledged: Ragunathan v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 229 (F.C.A.); Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35 (T.D.).
[13]
I agree that the RPD engaged in a selective
review of the documentary evidence. In the absence of an explanation or an analysis
of the totality of the information contained in the RIR, the RPD’s reasons
cannot be said to withstand the scrutiny of a somewhat probing examination.
Consequently, the application for judicial review will be allowed. Since this
is sufficient to dispose of the application, I need not deal with the other
arguments.
[14]
Neither party proposed a question for
certification and none arises.
ORDER
THIS COURT ORDERS THAT the application
for judicial review is allowed and the matter is remitted to a differently
constituted RPD for determination.
“Carolyn Layden-Stevenson”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-638-06
STYLE OF CAUSE: NANCY
SAMANTHA JEAN v.
MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 21, 2006
REASONS FOR ORDER
AND ORDER: LAYDEN-STEVENSON, J.
DATED: NOVEMBER 21, 2006
APPEARANCES:
Johnson
Babalola FOR
THE APPLICANT
David
Cranton FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Johnson
Babalola FOR THE
APPLICANT
Barrister and
Solicitor
Toronto, Ontario
John H. Sims,
Q.C. FOR THE RESPONDENT
Deputy Attorney
General of Canada
Department of
Justice
Ontario Regional Office
Toronto, Ontario
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