Date: 20061110
Docket: IMM-6815-05
Citation: 2006 FC 1363
Ottawa, Ontario, this 10th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
AVRIL
DANNETT
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATION
[1]
In this application
for judicial review, the Applicant challenges the determination by the Refugee
Protection Division of the Immigration and Refugee Board (Board) dated October
27, 2005 (Decision) that she is neither a Convention refugee nor a person in
need of protection.
BACKGROUND
[2]
The Applicant is a
63-year-old citizen of Guyana. She worked as a nurse for 34 years,
retiring in 1998 on a pension.
[3]
The Applicant has
three sons, two of whom reside in Canada. She says that she and her sons “were
a close-knit family” and that the sons “were complimented for being good
outstand[ing] citizens even though [she] raised them as a single parent.”
[4]
In 2001, the
Applicant suffered a stroke and her right leg was amputated. After her release
from hospital in August 2001, her youngest son moved in with her. The Applicant
says that while she was “expecting his help and support,” instead she was
“shocked at his behaviour.” Specifically, the Applicant makes the following
allegations in her Personal Information Form (PIF) concerning her youngest son:
a)
“My son sees my
inability to move around and my constant reliance on him as a way to punish me
and to extort money from me”;
b)
“When I confronted my
son, he became verbally abusive and boisterous to me […]”;
c)
“I would have no
money and food supplies in the home as he began taking away my pension money
from me”;
d)
“I do not have access
to my telephone services and he would disconnect the wiring so that I have no
communication with no one”;
e)
“Because of his
relationship with some officers of the law, my complaints are often ignored”;
f)
“Almost everyday, he
threatens to kill me, especially if I make complaints to the police or my
friends”;
g)
“He removes my
medication and hides them so that I cannot have access to it”;
h)
“He tortures me in
any way he sees fit as much as he want[s] to and threatens my life all the
time”.
[5]
The Applicant
acknowledges that her youngest son has never physically hurt her.
[6]
The Applicant states
that one of her other sons, who lives in Canada, invited her to attend his wedding. She
says in her PIF that “When I received my Visa I was tortured and threatened
about what I can and cannot tell my sons once I came to Canada. He told me he
would have to kill me and not let me leave.”
[7]
The Applicant, who is
in a wheelchair, says that she “arranged to leave when [her youngest son] was
away.”
[8]
The Applicant arrived
in Canada on June 23, 2004. She claimed refugee
status over seven months later, on February 2, 2005, alleging a well-founded
fear of persecution for reasons of membership in a particular social group,
namely, women in a vulnerable position in Guyana subjected to a fear for their
lives because of an adult child’s threats against them to obtain money. She
also claimed protection against the risk of death or cruel and unusual
treatment or punishment, as well as protection against torture.
[9]
She claims all of
this even though she acknowledges that her youngest son has never physically
hurt her.
DECISION
UNDER REVIEW
[10]
The refugee hearing
took place on August 5, 2005. The Applicant was self-represented. The presiding
member indicated at the outset that “I don’t think there is a nexus in this. …
I don’t think that there is a membership in particular social group. … we have
to concentrate on, … cruel and unusual punishment or treatment and possibility
of torture.” The Refugee Protection Officer agreed with this approach.
[11]
The Board rejected
the Applicant’s claim. While accepting that she “probably suffered from elder
abuse and was not well looked after, which is a very sad situation,” it
concluded that the abuse “has no nexus to any of the Convention grounds and is
not persecution.” Regarding the Applicant’s delay in claiming refugee status,
the Board noted that the “[d]elay points to a lack of subjective fear of
persecution,” and inferred that seeking protection was not a priority for the
Applicant.
[12]
Based on its
conclusion that the Applicant “has no well-founded fear of persecution,” and
its finding that “adequate state protection is available in Guyana,” the Board concluded
that “there is no more than a mere possibility that the claimant will be
seriously harmed in Guyana […].”
[13]
The Board also found
the Applicant’s testimony to be “problematic and inconsistent” because “She
made several statements about her son’s behaviour but she had a priest visiting
her once a month, there were friends and relatives. If her situation was as bad
as she says it was, they would have known or she could have told them.”
ISSUES
[14]
The Applicant asserts
the following as reviewable errors:
1.
The Board
erred in law in determining that the Applicant is not a Convention Refugee on
the ground that the Applicant had not met the onus on her to establish that
state protection was not available to her in Guyana;
2.
The Board erred
in failing to make specific reference to the documentary evidence before it
dealing with state protection in Guyana and relying only on case law to
determine if in fact there was adequate state protection in Guyana;
3.
The Board
committed a reviewable error in failing to effectively analyze, not merely
whether a legislative and procedural framework for protection existed in Guyana,
but also whether the state, through the police, was willing to effectively
implement any such framework;
4.
The Board
erred in failing to consider the Applicant’s credible testimony that she did
not believe that the police were making adequate efforts to protect her;
5.
The Board
erred in not providing reasons for its findings that the Applicant’s testimony
was problematic and inconsistent as stated in paragraph 2 on page 3 of the
reasons. Failure to state such reasons is a reviewable error;
6.
The Board
erred in coming to the conclusion that there was no nexus between the
Applicant’s fear and any Convention grounds;
7.
The Board
erred in making an adverse credibility finding because the Applicant delayed
making her refugee claim until 7 months after her arrival. The Board did not
consider the Applicant’s reasonable explanation for her delay and did not
provide any reasons as to why her explanation was not accepted by the Board;
8.
The Board
erred in deciding that the Applicant would not face a risk to her life or a
risk of cruel or unusual punishment if she were to return to Guyana. The Board based its Decision on an
erroneous finding of fact that it made without regard to the facts before it.
The totality of the evidence presented at the hearing was sufficient to
demonstrate that, on the balance of probabilities, she would face a serious
possibility of persecution or risk to life.
ARGUMENTS
Applicant
[15]
The
Applicant submits that the Board erred in law by making its determination
without regard to the documentary evidence concerning state protection in Guyana. Instead, the
Applicant argues that the Board based its Decision with respect to state
protection solely on the jurisprudence.
[16]
Furthermore,
the Applicant maintains that the Board erred in failing to analyze whether,
notwithstanding a legislative and procedural framework for protection existed
in Guyana, the state, through the
police, is willing to effectively implement that frameworks for protection.
[17]
With
respect to state protection, the Applicant submits that the Board erred in
failing to consider her testimony that she did not believe the police were
making adequate efforts to protect her.
[18]
The
Applicant further argues that the Board erred in not providing reasons as to
why it believed the Applicant’s testimony was problematic and inconsistent.
[19]
With
respect to the Board’s finding that there was no nexus, the Applicant states
that she provided evidence that she was persecuted as a result of being a woman
in a vulnerable position in Guyana who was subjected to a fear for her life
because of her adult son’s threats against her to obtain money and that this
constitutes membership in a social group.
[20]
The
Applicant submits that the Board did not consider the Applicant’s reasonable
explanation for her delay and did not provide reasons as to why this
explanation was not accepted by the Board.
[21]
Finally,
the Applicant states that when the totality of the evidence is assessed on a
balance of probabilities, the Board erred in not finding that the Applicant
would face a risk to her life or to a risk of cruel or unusual punishment if
she were to return to Guyana.
Respondent
[22]
The
Respondent submits that the Applicant failed to discharge the burden of showing
state protection is not available, given that Guyana is a democracy with effective political
and judicial systems. The Applicant was required to show clear and convincing
evidence that the state is unable to protect her; a democratic government is
not expected to protect all its citizens at all times.
[23]
The
Respondent maintains further that the documentary evidence establishes that
there are efforts in Guyana to implement measures
to outlaw abuse of women, and efforts to offer them sanctions and remedies.
[24]
The
Respondent also states that police indifference to the Applicant’s abuse is a
localized incident and not state policy in Guyana. A localized failure of state protection
does not necessarily result in a finding that state protection is unavailable.
[25]
The
Respondent’s position with respect to state protection is that it is open to
the Board to assess the availability of state protection with reference to
organizations other than the police or the judiciary. In Guyana, there is an active
community of non-governmental organizations and women’s rights groups who are
concerned with protecting female victims. There is no evidence the Applicant
sought assistance from these organizations.
[26]
In
sum, the Respondent argues that the re-weighing of evidence is not the function
of the Court. Furthermore, the availability of state protection is a question
of fact entitled to significant deference.
[27]
The
Respondent maintains that there is nothing before the Court which shows the
Board failed to consider the totality of the evidence before it. The Applicant
has not rebutted the presumption that the Board weighed and considered all the
evidence submitted. The Board does not have to mention every document submitted.
[28]
The
Respondent also states that the credibility findings of the Board were not
patently unreasonable and, furthermore, that state protection was the
determinative issue in this matter. Delay in claiming refugee protection is a
factor which the Board is entitled to consider as undermining the Applicant’s
subjective fear. The behaviour of the Applicant was inconsistent with someone
having a subjective fear of persecution.
[29]
According
to the Respondent, there was no nexus established. The acts described are
criminal in nature, involving a personal vendetta, and not all criminal acts
can be considered acts of persecution.
STANDARD OF REVIEW
[30]
I
have concluded that the determinative issue in this application is the
availability of state protection. There is some confusion as to whether the
appropriate standard of review for decisions relating to state protection is
reasonableness or patent unreasonableness. The dispute turns on the appropriate
characterization of the issue dealt with by the Board. Those decisions that
find the issue to be a question of fact wholly within the expertise of the Board
conclude that the appropriate standard is patent unreasonableness: Nawaz v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1255 at paragraph 11, Ali v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1449 at paragraph 8, and
Zhao v. Canada (Minister of Citizenship and Immigration), 2004 FC 1059.
[31]
However,
in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC
193 at paragraphs 9 to11 Madam Justice Tremblay-Lamer applied a pragmatic and
functional approach and found the appropriate standard should be
reasonableness, partly because the nature of the question involves an
assessment of whether a claimant has rebutted the presumption of state
protection, which is a question of mixed fact and law. Several recent
decisions have followed this reasoning and applied a reasonableness standard.
See, for instance, Resulaj v. Canada (Minister of Citizenship and Immigration), 2006 FC 269 and Robinson
v. Canada (Minister of Citizenship and Immigration), 2006 FC 402 at paragraph
8.
[32]
According
to Justice Kelen in O.O.M.R. v. Canada (Minister of Citizenship and Immigration), 2005 FC 1618 at
paragraphs 7 to 8, a review of state protection involves a two-part
assessment. For the Board to reach a conclusion with respect to state
protection, the Board must make certain findings of fact which can be set aside
if they are patently unreasonable. The findings of fact must be assessed
against the legal test for state protection, which involves a question of mixed
fact and law, reviewable on a standard of reasonableness.
[33]
In
this case, there appear to be two separate issues of state protection. First,
the Applicant maintains that the Board failed to turn its mind to all of the
evidence. This consideration is a question of fact and the appropriate
standard of review is patently unreasonable. However, the Applicant also
argues that the Board failed to consider whether, in practice, the evidence
discloses that state protection goes beyond a merely legislative and procedural
framework. This involves some consideration of the legal meaning of state
protection and should be reviewed against a standard of reasonableness.
ANALYSIS
[34]
There are several
issues raised by the Applicant and I have reviewed them carefully but the
determinative issue is state protection. If the Board’s handling of state
protection does not contain a reviewable error, then the other grounds cannot
on their own suffice to set the Decision aside.
[35]
The Board rejected
the Applicant’s claim because she had not discharged the burden of proving that
state protection was not available to her. It is not disputed that Guyana is a democracy with effective political and judicial
systems. In these circumstances, the burden on the Applicant is a heavy one and
the Board committed no reviewable error in concluding that the Applicant had
not discharged it.
[36]
The Board analyzed
the issue of state protection having regard to the correct legal principles. In
the absence of evidence of a complete breakdown in the state apparatus, the
Applicant had to provide clear and convincing evidence that the state is unable
to protect her: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,
103 D.L.R. (4th) 1. Further, even a democratic government is not
expected to be able to protect all its citizens at all times: Canada (Minister
of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232, 99
D.L.R. (4th) 334 (F.C.A.).
[37]
Domestic abuse is
illegal in Guyana. The documentary evidence shows that
Guyanese authorities are making efforts on several levels to address the issue
of abused women. There are initiatives to implement measures to outlaw the
activity as well as sanctions and remedies. The Domestic Violence Act 1996,
which was considered by the Board, defines and criminalizes domestic violence
and gives women the right to seek prompt protection.
[38]
While the Applicant
claims that she experienced some police indifference to her claims of abuse,
this is a localized incident and not Guyanese state policy. A localized failure
of state protection does not necessarily lead to the conclusion that state
protection is not available. See for instance Kadenko v. Canada(Minister of
Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532, 206
N.R. 272; Zhuravlvev v. Canada (Minister of Citizenship and
Immigration), [2000] 4 F.C. 3, 187 F.T.R. 110 (T.D.); Chorny v. Canada (Minister
of Citizenship and Immigration) (2003), 238 F.T.R. 289, 2003 FC 999; J.C.C.
v. Canada (Minister of Citizenship and Immigration), 2005 FC 534; Quijano
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1706.
[39]
Further, it is open
to the Board to draw conclusions about the availability of state protection
with reference to organizations other than the police or judiciary. In Szucs
v. Canada (Minister of Citizenship and
Immigration) (10 March
2001), Doc. No. IMM-6248-99 (F.C.T.D.), Justice Blais stated at paragraphs 28
to 30:
The
Board concluded that … additional protection was available from other organizations.
The Board found that for more serious and persistent forms of discrimination …
there was a network of government and government sponsored organizations …
which assist without charge those so threatened.
The
evidence established that the Applicant had never tried to seek help from
either the Ombudsman, NGO’s or through minority self-government. I find that
the Board, in requiring the Applicant to exhaust these avenues of protection in
addition to police protection, was asking the Applicant to take reasonable
steps in order to ensure his protection.
I
find that the Board’s conclusion on the issue of state protection was
reasonable … .
See also: Nagy v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 281 and Zsuzsanna v. Canada (Minister of Citizenship and
Immigration), 2002 FCT
1206.
[40]
In Guyana, in addition to the police and judicial options open to the
Applicant the evidence reveals that there is also an active community of NGO’s
and women’s rights groups, whose major concerns include the protection of
victims of domestic abuse. The Applicant herself cites an NGO called Help and
Shelter in her memorandum. There is no evidence that the Applicant sought
assistance from any of these organizations.
[41]
What the Applicant is
now asking this Court to do is to re-weigh the evidence on state protection and
to come to a different conclusion from that of the Board. But the re-weighing
of evidence is not this Court’s function. The fact that the outcome was not
favourable to the Applicant is not sufficient reason for this Court to
intervene.
[42]
The Board clearly
acknowledges in its reasons the difficulties that the Applicant experienced in
obtaining state protection. But there is no clear and convincing evidence that,
had the Applicant made contact and clarified her situation, the authorities
would not have responded effectively. Notwithstanding information in some of
the documentary evidence referred to by the Applicant concerning the
vulnerability of women in Guyana because of societal attitudes, there was
no clear and convincing evidence that the authorities (police and otherwise) do
not have the will and the resources to respond. Hence, even if there is a nexus
(and I make no finding on this ground) this application cannot succeed.
[43]
The Applicant is a
vulnerable individual and I believe the Board fully acknowledged this fact and
felt that, because of those vulnerabilities, she really needs careful
assessment under humanitarian and compassionate criteria. But a refugee claim
gives rise to particular evidentiary and legal demands that my review of the
record suggests the Applicant could not meet. I cannot say that the Board got
it wrong or committed a reviewable error on the determinative issue of state
protection. Hence, I am not in a position to interfere with the Decision.
JUDGMENT
THIS COURT
ORDERS that:
1.
This application for
judicial review is dismissed.
2.
There is no question
for certification.
“James
Russell”
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