Date: 20100503
Docket: IMM-4645-09
Citation: 2010 FC 487
Ottawa,
Ontario, May 3, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
UDINE PAULA WARNER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Udine
Paula Warner is a victim of her past. All she knows about domestic life is
violence and sexual abuse. She grew up in St. Vincent where her
father constantly battered her mother. Although a young child, she recalls that
her mother went to the police, who did nothing.
[2]
She
married in St. Vincent and found herself in the same situation. She went to the
police who said that they could nothing for her.
[3]
She
fled to Trinidad
and Tobago,
where she is also a citizen, and again fell into the same dreadful pattern.
This time she did not complain to the police.
[4]
However,
she came to Canada and sought
refugee status. Thereafter, she found herself once again in a disastrous,
violent relationship. Again she did not call the police. However the hospital
where she was treated did so. Criminal charges were laid.
[5]
The
deciding member of the Refugee Protection Division of the Immigration and
Refugee Board found her to be a credible witness and the victim of domestic
violence in St.
Vincent and the Grenadines, in Trinidad and Tobago, and in Canada. However,
after carrying out an analysis of state protection he found that adequate state
protection was available to her in both St. Vincent and the
Grenadines
and in Trinidad
and Tobago,
and so dismissed her application. This is a judicial review of that decision.
[6]
The
Minister has gone out of his way to emphasize that it is not contested that Ms.
Warner had and has a subjective belief, honestly held, that no state protection
was, or in the future would be, available to her in either country. However the
question is, objectively speaking, whether the member’s decision was
reasonable.
[7]
The
analysis of state protection in St. Vincent and the Grenadines was based on
the same tired template this Court has seen time and time again. The analysis
goes like this. St. Vincent is a democracy. The burden is upon the applicant to
rebut the presumption that state protection is available. That burden becomes
heavier the more democratic the state. A number of cases were mentioned in
which applications for judicial review of decisions based on this type of
analysis were dismissed. However no mention was made whatsoever of the many
cases which came to the opposite conclusion, cases which are set out in Alexander
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1305. I think the time has come
where it is insufficient to simply say that St. Vincent and
the Grenadines is a democracy. It is a democracy where domestic violence
runs rife.
[8]
The
burden of proof which lies upon a claimant was aptly described by Mr. Justice
O’Reilly in Carillo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 320, [2008] 1 F.C.R. 3 at para. 13:
The burden of proof lies on claimants to show that they meet the
definition of a refugee. To do so, they must prove that they actually fear
persecution and that their fear is “well-founded”. To establish a well-founded
fear, refugee claimants must show that there is a “reasonable chance”, a
“serious possibility” or “more than a mere possibility” that they will be
persecuted if returned to their country of nationality (Adjei v. Canada
(Minister of Employment and Immigration), [1989] 2 F.C. 680, F.C.J. No. 67
(C.A.) (QL)). (By contrast, a person who claims to be in danger of being
tortured, killed or subjected to cruel and unusual treatment must establish his
or her claim on the balance of probabilities: Li v. Canada (Minister
of Citizenship and Immigration), 2005 FCA 1, [2005] F.C.J. No. 1 (C.A.)
(QL)). In respect of particular underlying facts, the claimant shoulders a
burden of proof on the balance of probabilities (Adjei, above, at para.
5).
[9]
He
emphasized that the term “clear and convincing confirmation”, which comes from
the decision of Mr. Justice La Forest speaking for the Supreme Court of Canada
in the leading case of Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, 20 Imm. L.R. (2d) 85, is descriptive of the nature of the evidence
required, not the burden of proof.
[10]
Although
Mr. Justice O’Reilly was reversed by the Federal Court of Appeal, 2008 FCA 94, [2008]
4 F.C.R. 636, 69 Imm. L.R. (3d) 309, Mr. Justice Létourneau agreed, at para. 26
thereof, that Mr.
Justice
La Forest, in Ward,
was referring to the quality of the evidence necessary to rebut the presumption,
not to a higher standard of proof:
Indeed, in Hinzman v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 171, at paragraph 57, our colleague Sexton J.A. used
a somewhat similar expression when he wrote that “a claimant coming from a democratic
country will have a heavy burden when attempting to show that he should
not have been required to exhaust all of the recourses available to him
domestically before claiming refugee status” (emphasis added). I think our
colleague, as was La Forest J. in the Ward case, referred to the quality
of the evidence that needs to be adduced to convince the trier of fact of the
inadequate state protection. In other words, it is more difficult in some cases
than others to rebut the presumption. But this in no way alters the standard of
proof. In this respect, I fully agree with the finding of the judge that La
Forest J. in Ward was referring to the quality of the evidence necessary
to rebut the presumption and not to a higher standard of proof.
[11]
A
claim for refugee status arises out of, and has to be considered within the
context of a particular fact pattern. Ward was seeking refuge from a
paramilitary terrorist organization. Ms. Warner is seeking refuge from a
member of her own household. Her past makes it difficult for her to break away
from the circle of violence and abuse, subjectively speaking. Her experiences
in Canada give
testimony to that fact.
[12]
However
it is not necessary to reach a final conclusion with respect to the
reasonableness of the analysis by the RPD with respect to St. Vincent and the
Grenadines in this particular case, as I am of the view that the separate
analysis done with respect to the availability of state protection in Trinidad
and Tobago was within the range of acceptable reasonable outcomes as enunciated
by the Supreme Court in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para.
47.
[13]
Since
Ms. Warner did not seek state protection in Trinidad and Tobago, the burden
falls upon her to establish, objectively speaking, that any efforts would have
been fruitless. The Member took account of inconsistencies among several
sources within the documentary evidence, noted that violence against women is a
serious problem in Trinidad and Tobago, but nevertheless, for reasons he clearly
set forth, was of the view that state protection was adequate. Indeed, there
appears to be a better structure in place in Trinidad and Tobago when
compared to St.
Vincent and the Grenadines in that there are women’s shelters, hotlines
and community crisis centres.
[14]
This
case is somewhat similar to Lynch v. Canada (Minister of Citizenship and
Immigration), 2007 FC 374, another domestic abuse case from Trinidad and
Tobago.
What Mr. Justice Phelan said in that case, at para. 10, applies equally to the
case before me:
The Board did consider both the objective evidence of state
protection and the personalized situation of whether that protection was
reasonably available to the Applicant. The Board’s reasons were adequate – the
Applicant could understand how the Board reached its conclusions. The
Applicant’s real challenge is to the Board’s conclusions; not the adequacy of
the reasons.
[15]
There
may be humanitarian and compassionate considerations which would persuade the
Minister to allow Ms. Warner to remain in Canada. However,
that issue is not before me, and so I must dismiss the application.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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