Date: 19990920
Docket: IMM-2985-98
BETWEEN:
JOAN THERESA ELCOCK (MILKSON)
SHARLENE M. ELCOCK
KARLENE R. ELCOCK
RISSA R.T. MILKSON
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 26th of May, 1998.
[2] The applicants seek an order setting aside the decision of the CRDD and referring their application for Convention refugee status back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[3] Joan Theresa Elcock (Milkson), (the "principal applicant"), is a citizen of Grenada. She claims Convention refugee status on the basis of her membership in a particular social group, namely, Grenadian women subjected to domestic violence. She alleges a well-founded fear of persecution at the hands of her former spouse if she is required to return to Grenada. Sharlene M. Elcock and Karlene R. Elcock are twin daughters of the principal applicant. Rissa R.T. Milkson is the daughter of the principal applicant and her former spouse who physically abused the principal applicant. At the time of the hearing before the CRDD, the three daughters of the principal applicant were all minors. They based their claims to Convention refugee status on that of their mother.
[4] The principal applicant began to cohabit with her former spouse in August of 1986. The two were married in 1988. The spousal abuse commenced prior to the marriage. In its reasons for decision, the CRDD wrote:
| In her detailed Personal Information (PIF) narrative, the claimant described incidents of spousal abuse and the reporting of these incidents to the police. She alleged that the police would not arrest Duncan [the principal applicant"s former spouse] or offer her any protection. The police told her that they do not get involved in problems between a husband and wife. The claimant did state, however, that the police had, on one occasion, assisted her in packing her clothes and took her to her mother"s house. |
| The claimant consulted a lawyer to seek advice with regard to a divorce and was advised to try and make the marriage work. ... The lawyer, at the time the claimant consulted him, did not advise her of any group or organization that could assist her. The claimant did not know about the legal aid clinic which was designed to assist women in her situation. |
In fact, the principal applicant attested that she consulted two lawyers and received a response roughly equivalent to that described by the CRDD from both of them.
[5] The principal applicant visited her sister in Canada between July, 1993 and January, 1994 after which she returned to Grenada to be with her children and to pursue training. She returned to Canada in July of 1994 after making arrangements for her children to stay with her mother and stepfather. The principal applicant, on her second visit, remained in Canada after her visitor"s visa had expired. The children joined her in Canada in August of 1995.
[6] In November of 1994, the principal applicant sought the consent of her spouse to a divorce. While the consent was eventually forthcoming, it was accompanied by threats of reprisal if the principal applicant ever returned to Grenada.
[7] In April of 1997, the police arrested and detained the principal applicant on the basis that she was illegally in Canada. Only then did the principal applicant and her daughters assert their claims to Convention refugee status.
[8] The CRDD did not question the credibility of the principal applicant.
[9] The CRDD, in its reasons for decision, quoted at some length from certain of the documentary evidence that was before it. The quoted passages include the following:
| Knowledgeable women"s rights monitors report that violence against women is common and that most cases of spousal abuse go unreported. The police confirm that most cases of alleged abuse are not reported and others are settled out of court.... |
| ...few specific recourses are available to victims of spousal abuse. There are no specific laws against spousal abuse of [sic] domestic violence. Instead, charges are brought against a battering spouse under sections of the law dealing with assault and battery or murder. ...the procedure for laying a charge requires that abused person to make [sic] a formal complaint to the police, who then open a case and make a report. Rarely is the accused offender detained, except in incidents of serious violence. A case may take as long as six months before it is brought to the court. The maximum sentence for an assault charge is two years, ... although lenient sentences such as a fine are often imposed. An abused spouse can petition the High Court for an injunction or restraining order against an accused abuser for protective purposes. However, in practice, a restraining order takes time to obtain, as well as requiring legal assistance, and it is not always effective since "24 hours protection is not possible." In addition, a protected person would have to show "substantive" evidence, such as a medical certificate of injury, to corroborate a violation of the restraining order. Threats, verbal harassment and mental abuse would not be "substantive enough." |
| Legal aid and counselling is available, but resources are limited, ... |
[10] Other documentary evidence before the CRDD, not referred to by the CRDD, supported the principal applicant"s experience regarding the reluctance of the police to intervene in situations of domestic violence as well as the unhelpful advice that the principal applicant reported she received from two lawyers. The CRDD concluded in the following terms:
| The claimant has not provided clear and convincing proof of Grenada"s inability to protect her. There is no evidence of a complete breakdown of state authority. The panel, guided by Ward and Villafranca, must assume that Grenada is capable of protecting the claimant. The police may be reluctant to interfere in domestic disputes and restraining orders may be difficult to obtain and maintain, as 24 hour protection is not possible; however, the panel notes from the documentation previously cited that legal aid and counselling is available and also legal penalties are imposed against those convicted of child abuse, and there is access to counsellors in the schools under the direction of the Ministry of Education. Civil and criminal procedures are also available to victims of domestic violence. |
| In the claims before us, the claimant did, on one occasion, state that the police came to the house and took her to her mother"s home. She is now divorced from Duncan Milkson; he agreed to the divorce. The divorce was granted in 1996 while the claimant was in Canada. The claimant had previously visited Canada in 1993 for six months and she returned [to Canada] in July 1994, yet she did not make a refugee claim nor seek to legalize her or her children"s status in Canada until she was detained in April 1997 for not having legal status in Canada. The Gender Guidelines were released prior to the claimant"s vacation in Canada in 1993. However, the claimant"s reasoning after she returned to Canada in July 1994, for delaying three years in making a claim after the Gender Guidelines had come into effect, the panel believes is not consistent with a well-founded fear of persecution. [citations omitted] |
[11] The references in the foregoing quotation to "Ward" and "Villafranca" are to Canada (Attorney General) v. Ward2 and to Canada (Minister of Employment and Immigration) v. Villafranca3.
[12] At the hearing before me, counsel for the applicant urged that the CRDD had erred in a reviewable manner in determining that the principal applicant had not met the onus on her to establish that state protection was not available to her in Grenada and that the applicants" delay of almost three years in making their claims to Convention refugee status after arriving in Canada was inconsistent with a well-founded fear of persecution.
[13] In Cuffy v. Canada (Minister of Citizenship and Immigration),4 Mr. Justice McKeown had before him a matter somewhat similar to this. He wrote:
| The issues are whether the Board erred in finding that the state was able to provide protection to the applicant... |
After citing from the CRDD"s findings, Mr. Justice McKeown continued:
| The Board then went on to confuse the documentary evidence with respect to the existence of counselling and other resources with the ability of the state to provide protection. |
The same might be said here. The existence of counselling services and of legal aid, whether the resources, as here, were limited, does not go to the root of the issue of whether or not a state is able and willing to protect its citizens from violence. Mr. Justice McKeown cited the reasons of our colleague Mr. Justice Teitelbaum in Kraitman et al.v Canada (Secretary of State)5 to the following effect:
| The police may have the ability to offer protection but when it chooses not to, this is equivalent to saying it is unable to provide protection to the applicants. |
and also of our colleague Madame Justice Tremblay-Lamer in N. K. v. Canada (Solicitor General)6 to the following effect:
| Further, in my opinion the consequence of this lack of action was not only to justify an applicant"s reluctance to seek protection from the State, since he had seen it was pointless, but as no corrective/punitive action was taken it encouraged the recurrence of such incidents. |
| Counsel for the respondent urged that in situations where the police refused to do their duty the individual should go to a higher tribunal or approach a different organization such as the Human Rights Commission. |
| I cannot accept such a suggestion. The issue here is not merely discriminatory acts, which could be the subject of a complaint to a Human Rights Commission. Some of the acts alleged are criminal in nature (sexual and other forms of assault) and so are not within the jurisdiction of a Human Rights Commission. When they are victims of criminal offences, the applicants are entitled, as in any country where the governmental system breaks down, to go to the police and to expect that at the very least there will be an investigation. I know of no legal system that imposes a greater burden than that on the individual... . |
[14] Counsel for the applicant also cited D"Mello et al v. Canada (Minister of Citizenship and Immigration),7 where I wrote:
| What the CRDD fails to do is make reference to paragraphs following immediately after the citation upon which it relies that reflect on the difficulties encountered by women in relying on that framework and thus, its ineffectiveness. Those difficulties are reflected throughout other portions of the documentary evidence that was before the CRDD. |
The same might be said here, at least in respect of "other portions of the documentary evidence that was before the CRDD." I continued:
| The principal applicant"s fear did not rest on the lack of a legislative and procedural framework in India to protect women abused by their husbands or agents of their husbands, but rather on the lack of police support to such women and the difficulty, given the lack of such support, in effectively taking advantage and having recourse to the existing legislative and procedural framework of state protection in India. |
[15] In both Cuffy and D"Mello, the decisions of the CRDD that were under review, relying as they did on a conclusion that the applicant or applicants had failed to meet the onus on them to establish a lack of state protection, were quashed. I am satisfied that the same result must follow here and that the CRDD committed a reviewable error in failing to effectively analyse, not merely whether a legislative and procedural framework for protection existed, but also whether the state, through the police, was willing to effectively implement any such framework. Ability of a state to protect must be seen to comprehend not only the existence of an effective legislative and procedural framework but the capacity and the will to effectively implement that framework.
[16] As to the delay on the part of the applicants in seeking Convention refugee protection in Canada, counsel for the applicant referred me to Williams v. Canada (Secretary of State)8 where Madame Justice Reed described the application before her in the following terms:
| The applicant was a citizen of Grenada who claimed Convention refugee status based on a well-founded fear of persecution on the ground of spousal abuse. |
Also as here, the applicant in that matter delayed in making her claim to Convention refugee status after arrival in Canada. Madame Justice Reed wrote:
| With respect to the applicant"s delay in making a claim for refugee status, she gave an entirely credible explanation for that delay. She did not know she was entitled to claim refugee status on the ground of spousal abuse. It was only after she had contacted a lawyer, on another matter, and told him her story that she was advised she might do so. The fact that until a few years ago most of the legal profession in Canada would have thought that claiming refugee status in a situation of spousal abuse was not possible, surely demonstrates the reasonableness of her explanation. I think it was a serious error for the Board to apply the presumption respecting delay, which developed in the cases of those seeking refugee status on, what might be called, traditional grounds, to the applicant"s situation. |
[17] While it is now somewhat more than "a few years ago" that members of the legal profession in Canada, at least those familiar with immigration law and practice, would have thought that claiming refugee status in a situation of spousal abuse was not possible, I am satisfied that Madame Justice Reed"s words apply here. The principal applicant"s explanation for delay in making her refugee claim was, as in the Williams case, "...entirely credible..". The principal applicant and her children were in Canada without status and had every reason, given their fear of returning to Grenada, to keep a low profile. In the circumstances, it would surely come as no surprise that the principal applicant did not wish to expose the situation of herself and her children to immigration authorities if it were unnecessary to do so. When their situation became known to police and immigration authorities, there was no delay in making a Convention refugee claim.
[18] That being said, I am not satisfied that the CRDD"s comments regarding delay in the making of the claim are central to its decision. I am not prepared to find that those comments constitute a reviewable error.
[19] For the foregoing reasons, this application for judicial review will be allowed. No question will be certified.
___________________________
Judge
Ottawa, Ontario
September 20, 1999
__________________
1 R.S.C. 1985, c. I-2.
2 [1993] 2 S.R.C. 689.
3 (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
4 (1996), 121 F.C.R. 81.
5 (1994), 81 F.T.R. 64 at pages 71-72.
6 (1995), 107 F.T.R. 25 at page 38.
7 [1998] F.C.J. No. 72 (Q.L.).
8 [1995] F.C.J. No. 1025 (Q.L.).
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