Date:
20121219
Docket:
IMM-3884-12
Citation:
2012 FC 1510
Montréal, Quebec,
December 19, 2012
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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VALINCIA KENDRA GREGG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board [the Board], dated October 6, 2011, wherein the Board determined that the
applicant is not a Convention refugee or person in need of protection.
BACKGROUND FACTS
[2]
The
applicant is a 28-year-old citizen of Saint Vincent. She claims refugee
protection because she fears her ex-boyfriend, Delan John [John]. The applicant
alleges she started dating John in April or May 2001 and moved in with him in
Bequia in October of that year. She chose to leave John in April 2002 and move
to New Montrose because he threatened he would kill her if she told anyone he
was a drug dealer. The applicant claims she went to the police, but that they
told her they were not getting involved in a boyfriend-girlfriend fight.
[3]
The
applicant alleges that she saw John at a grocery store in New Montrose in
December 2002 and that he followed her home, held a knife against her throat,
kidnapped her, and raped her. She claims she went to report John to the
police, but that they laughed at her and told her to stop making false
accusations.
[4]
The
applicant alleges that in order to hide from John she moved to Bequia to stay
with her aunt and her aunt’s husband. The applicant claims she decided to flee
to Canada after a man claiming to be John’s cousin told her at her workplace
that John was looking for her.
[5]
The
applicant arrived in Canada on July 14, 2004. She claimed refugee protection on
July 5, 2010.
THE DECISION
UNDER REVIEW
[6]
The
Board accepted that the applicant was in a relationship with John, that it was
abusive, that it ended in 2001, and that as she alleged, John may have
kidnapped the applicant and sexually assaulted her in December 2002. However,
the Board found that nothing in the applicant’s testimony or the documentary
evidence credibly conveyed that John looked for her following the alleged
incident of December 2002 or subsequent to her departure from Saint Vincent in
July 2004, or that John would be looking for the applicant in the future were
she to return to Saint Vincent.
[7]
Specifically,
the Board noted that after the alleged sexual assault of December 2002, the
applicant testified she did not go to the authorities and that she moved to
Bequia to stay with her aunt, in close proximity to where she used to reside.
The applicant testified that she was not aware of any of her family members
being contacted, threatened, or assaulted by John, nor of John asking them
about her whereabouts. The Board noted that while the applicant testified that
her friends tell her they still see John around, she had no attestation letter
or confirmation for her allegation that John has asked her friends about her
whereabouts.
[8]
The
Board also noted that the applicant alleged the abuse began in 2001, that there
was a sexual assault in December 2002, but that she did not leave Saint Vincent until July 2004 and that the applicant’s only explanation for this delay was
that she was working. The Board concluded that this delay in departing Saint Vincent negatively impacted the applicant’s subjective fear.
[9]
Because
the Board found that the applicant’s narrative regarding John pursuing her
since the incident in 2002 and still now in 2012 was not credible, the Board
concluded that the applicant is not a Convention refugee or a person in need of
protection.
[10]
In
the alternative, the Board considered whether, in the particular circumstances
of this case, the applicant provided clear and convincing evidence of the
state’s inability to protect her in Saint Vincent. The Board noted that the
articles on violence against women that were submitted by the applicant mention
police intervention, arrests and convictions in Saint Vincent. The Board also
noted that when the applicant allegedly told the police in Bequia in 2001 that
John was a drug dealer, she failed to also allege any abuse.
[11]
The
Board acknowledged the applicant’s second alleged attempt to report John to the
police after the alleged assault in New Montrose in December 2002 and that the
police thought she was making a false accusation, but noted that the applicant
testified that she did not pursue the matter or seek a protection order, nor
did she attempt to obtain corroboration of her allegations. Therefore, the
Board concluded that the applicant failed to take reasonable steps to pursue
state protection in Saint Vincent.
[12]
The
Board also determined that the applicant failed to meet her burden to
establish, with clear and convincing evidence, that state protection would not
be forthcoming. The applicant could not say from her own experience that the
police would not do anything to protect her.
[13]
In
the further alternative, the Board found that even if the applicant’s narrative
had been found credible that John has been and would be looking for her in 2012
and if she had credibly established that she sought state protection and that
it was not forthcoming or that it was inadequate, an internal flight
alternative [IFA] would have been available. The Board determined that both
prongs of the test for an IFA had been met because the applicant had failed to
credibly establish that John is or would be looking for her or that it would be
unduly harsh for her to relocate to any of the proposed areas.
[14]
Therefore,
the Board rejected the applicant’s claim for refugee protection.
ISSUES
1) Did the Board err in
concluding that the applicant’s prospective fear was not well-founded?
2) Did the Board err in
concluding that the applicant has an internal flight alternative?
[15]
The
applicant also submits that the Board’s finding on state protection was
unreasonable. There is no need to discuss this issue because, for the reasons
below, the IFA is determinative of the matter and is sufficient to dismiss the
application (Rasaratnam v Canada (Minister of Employment and Immigration),
[1991] FCJ 1256 (FCA) at para 8 [Rasaratnam]; Vargas v Canada
(Minister of Citizenship and Immigration), 2008 FC 1347 at para 22; Lopez
v Canada (Minister of Citizenship and Immigration), 2010 FC 990 at para
13).
STANDARD OF
REVIEW
[16]
The
Board’s determination on the applicant’s prospective fear is a question of
mixed fact and law and is therefore reviewable on the reasonableness standard
(see SAMG v Canada (Minister of Citizenship and Immigration), 2010 FC
812 at para 32). Similarly, its internal flight alternative determination is
also reviewable on the reasonableness standard (see Soto v Canada (Minister of Citizenship and Immigration), 2011 FC 360 at para 19).
ANALYSIS
1. Did the Board err
in concluding that the applicant’s prospective fear was not well-
founded?
[17]
The
applicant submits that it was not reasonable for the Board to find that her
narrative was not credible regarding John pursuing her after the sexual assault
in 2002. She claims the Board repeatedly and implicitly drew unreasonable
negative inferences from her testimony, including her inability to remember the
name of the man claiming to be John’s cousin who told her John was looking for
her. I disagree.
[18]
The
respondent submits that the Board’s finding that there was no objective basis
for the applicant’s claim was reasonable, as the applicant failed to explain
why her ex-boyfriend would still be looking for her if she returned to Saint Vincent. The respondent points to the following excerpt from the transcript of the
hearing to illustrate that there is no reasonable basis for a prospective fear:
By presiding member (to claimant)
Q. So now, I have to ask you, how many death threats
did you have between December 2002 and July 2004 when you left?
A. Numerous.
Q. Can you be a little more specific because that’s
extremely vague?
A. No response.
Q. How about this, did he ever attack you again?
A. Well, I was actually in - - never coming outside
because I was so scared.
Q. You lived inside for two years?
A. Well, I stayed inside - - yeah. I stayed inside
pretty much. I was inside scared to come out because I feared that he would
attack me again.
Q.
Did he know where you lived?
A. Yes.
Q.
And, did he come by your house?
A.
Well, I stayed with my aunt.
Q.
This is your mother’s step-daughter.
A.
Yes.
Q.
Anyone ever call the police when he was outside the house?
A.
I don’t think so.
[19]
On
my reading of the decision, the Board analyzed in detail the applicant’s
testimony regarding her relationship with John and her explanation for why she
is still afraid of him in order to reasonably justify the conclusion
that the applicant did not credibly convey that John continued to pursue her
after the alleged kidnapping and sexual assault and that he continues to pursue
her. I find that this credibility determination is within the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” and is therefore reasonable (Dunsmuir v New Brunswick, [2008] 1
SCR 190 at para 47).
[20]
I
also disagree with the applicant that the Board in the case at bar
failed to apply the Gender Guidelines. Here, the Board noted at the beginning
of the decision that the applicant was of limited education, that the Board
progressed in a slow and deliberate manner in order to ensure the applicant
understood all questions, and regular breaks were offered and counsel was
encouraged to support the applicant as needed. Although the Board made no
mention of the applicant’s explanation for why she did not leave Saint Vincent
immediately after John kidnapped and raped her, the Board considered all the
evidence she submitted regarding the core issue of whether John continued to
pursue her after the sexual assault and whether he continues to pursue her.
2. Did the Board err in
concluding that the applicant has an internal flight alternative?
[21]
In
finding an IFA, the Board must be satisfied, on a balance of probabilities,
that there is no serious possibility of the claimant being persecuted in the
part of the country in which it finds an IFA exists and also that the
conditions in that part of the country must be such that it would not be
unreasonable for the claimant to seek refuge there (Rasaratnam at para
10 and Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1993] FCJ 1172 (FCA) at para 12).
[22]
The
applicant submits that the Board ignored her allegation that she had relocated
after the death threat and again after the rape. Moreover, the applicant claims
that the islands of Saint Vincent and Bequia are so small that John would be
able to find her in Saint Vincent if she were forced to return there.
[23]
I
disagree with the applicant. I have determined for the reasons aforementioned
that it was reasonable for the Board to find that the applicant had failed to
establish a prospective fear in Saint Vincent, so the first prong of the test
for an IFA was reasonably met. Regarding the second prong, the only evidence
the applicant provided on the issue was her testimony. When the Board asked her
whether she could find a place to live or work in Canouan, Fancy or Georgetown, she only answered that she did not think she could relocate to those cities
because there is no job for her there. In my view, based on this testimony, it
was reasonable for the Board to find that the applicant had failed to credibly
establish that it would be unduly harsh for her to relocate to Canouan, Fancy
or Georgetown and that the second prong of the IFA test was therefore met.
[24]
As
such, the Board’s conclusion on the IFA was reasonable.
[25]
For
these reasons, the application is dismissed.
JUDGMENTà
THIS
COURT’S JUDGMENT is that:
The application
for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
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