Alexender v. Canada (Solicitor General), 2005 FC 54

Date : 20050118

Docket : IMM-722-04

                                                                                                         Citation : 2005 FC 54

BETWEEN :

                              JULIE-ANNE AMABELLE (A T) ALEXENDER

                                                                                                                              Applicant

AND :

                                  THE SOLICITOR GENERAL OF CANADA

                                                                                                                         Respondent

                                                  REASONS FOR ORDER

ROULEAU, J.

[1]                This is an application for judicial review of a decision by the Refugee Protection Division (RPD) dated January 6, 2004 wherein the claim of Julie Anne Amabelle Alexander, the applicant, was rejected, the RPD having concluded that she was neither a Convention refugee nor a person in need of protection.

Facts

[2]                The applicant is a citizen of Grenada. She based her claim on her fear of her former boyfriend and the lack of adequate state protection.

[3]                The applicant testified she was involved in a relationship with one Keith Phillip from 1984 to March 1999. They were living together and they have a daughter. She alleged that when she was five months pregnant, Mr. Phillip threatened that he would make her life miserable if she did not abort. She stayed with him with the hope that the child would rekindle their love. Unfortunately, the situation did not improve and the applicant was beaten, verbally abused and psychologically traumatised.

[4]                The applicant finally left Mr. Phillip in 1999. When she returned to collect her belongings, he assaulted her and her arm was broken. The applicant immediately reported this incident to the police; they wrote a report and sent her for medical examination.

[5]                The applicant testified before the RPD that she did not return to the police because Mr. Phillip did not cause her problems after the incident or before she left for Canada. Also, she testified that in her absence he threatened to kill her when visiting their daughter who is living in Grenada with the applicant's mother.

[6]                She came to Canada on June 20, 1999. She had, in previous years, come to Canada several times to visit relatives.

The RPD's decision

[7]                Initially, the RPD determined that the main issues in the case centered around the applicant's claim that there was no adequate state protection for a woman who fears gender related violence. The RPD specified that the Gender guidelines were taken into account.

[8]                The RPD concluded that the applicant failed to rebut the evidence that Grenada was capable of providing protection to its citizens. The explanation offered by the applicant for failure to seek police protection was not acceptable; she failed to make any effort to avail herself of protection because her problems had ceased before leaving Grenada.

[9]                The RPD also found that the applicant's claim failed since there is perfectly adequate protection in Grenada for abused women.

Submissions of the applicant

[10]            In dealing with the first issue, the applicant submits that the RPD misunderstood the law and the evidence and based its decision on its own erroneous speculations and unwarranted inferences. The RPD agreed that the applicant sought police protection but blamed her for not being persistent in seeking further state protection. The applicant qualifies that standard or onus as absurd, given her young age and lack of sophistication. Relying on Canada v. Ward,^[1] the applicant argues that she was not required to risk her life seeking ineffective state protection to demonstrate its effectiveness.

[11]            Further, the applicant alleges that the RPD erred when it concluded that, since the police have a record of her complaint, they were disinterested in her case; no arrest or charges resulted from the complaint. The RPD's position is inconsistent with the Supreme Court decision in Ward where the Court insisted on effective protection. The applicant also relies on the decision in Elcock Milkson et al. v MCI^[2].

[12]            The applicant argues that the RPD concluded that Grenada provided adequate state protection without providing reasons.

Submissions of the respondent

[13]            The respondent argues that the RPD's findings are reasonable. The applicant's submissions reflect a disagreement with the RPD's manner of assessing the evidence but did not demonstrate that the RPD ignored relevant facts. The tribunal is presumed to have weighed and considered all of the evidence before it, and the applicant has failed to establish the contrary. The documentary evidence suggests that the government in Grenada has taken steps to address domestic violence.

[14]            Primarily, the respondent submits that the applicant failed to rebut the presumption that state protection was available to her and that this finding was patently unreasonable. The evidence is that she made only one complaint to the police; this does not alleviate her burden. The applicant testified that she did not return to the police since "Mr. Phillip had not threatened her since she filed a police report in March; that he was aware of it and probably was restrained."

[15]            With respect to the issue of state protection, the applicant must provide clear and convincing proof of Grenada's inability to protect her. The onus is upon her, as set out by the Supreme Court of Canada in Canada v. Ward ^[3]; "Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens.".

[16]            In this case, there is no evidence of the inability of the country of the applicant to provide state protection. She testified that she once went to the police and it seemed to achieve the desired result since he ceased threatening her. The applicant was unable to convince the court that the RPD's decision on this issue was unreasonable.

[17]            As it was written in Ward supra, "a claimant must adduce clear and convincing proof" of the state's inability to protect. The inability of a state to protect a claimant can be established when the claimant has actually approached the state and been denied protection in the past. There is no evidence to support any unreasonable determination on this issue by the RPD.

[18]            This application for judicial review is dismissed.

      JUDGE

Ottawa, Ontario

January 18, 2005                  

                                                       FEDERAL COURT

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-722-04

STYLE OF CAUSE:     JULIE-ANNE AMABELLE (A T) ALEXANDER v. THE SOLICITOR GENERAL OF CANADA

PLACE OF HEARING:            Toronto, Ontario.

DATE OF HEARING: January 10, 2005

REASONS FOR ORDER:        January 18, 2005

APPEARANCES:                                            

Mr. Kingsley I. Jesuorobo                     FOR APPLICANT                                 

Ms. Margherita Braccio                         FOR RESPONDENT

SOLICITORS OF RECORD:                   

Kingsley I. Jesuorobo   

Barrister and Solicitor

North York, Ontario                              FOR APPLICANT                  

John H. Sims, Q.C.

Deputy Attorney General

of Canada                                             FOR RESPONDENT