Date:
20121019
Docket:
IMM-2176-12
Citation:
2012 FC 1225
Ottawa, Ontario,
October 19, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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FRANCINE NATALIE ST. JOAN CLARKE, A.K.A. FRANCENE NATALI CLARKE
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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]
The
applicant is a citizen of Jamaica, who fled that country in 2007 due to abuse
she suffered at the hands of her former common-law spouse. The Refugee Protection
Division of the Immigration and Refugee Board [the RPD or the Board] rejected
her refugee claim on February 12, 2012, finding that she was not a Convention
refugee or person in need of protection because she had not rebutted the
presumption that adequate state protection was available to her in Jamaica. In this application for judicial review, the applicant argues that the Board’s
determination was unreasonable and should be set aside because much of the
evidence before the Board indicated that state protection is not available to
women who are victims of domestic abuse in Jamaica.
[2]
Apart
from certain newspaper articles filed by the applicant with the Board, the
relevant objective evidence before it on state protection was comprised of
three documents: a report from the United States Department of State, entitled
“Jamaica, Country Reports on Human Rights Practices for 2010, dated April 8,
2011 [the US DOS Report], the United Kingdom’s July 2010 Home Office report
entitled “Operational Guidance Note: Jamaica” [the UK Operational Guidance
Note] and the National Documentation Package prepared by the Research
Directorate of the Immigration and Refugee Board of Canada, dated April 27,
2011 [the National Documentation Package]. As the Board noted in its decision,
this documentation provides a mixed picture as to the efficacy of enforcement
of Jamaican laws aimed at preventing spousal abuse. On the one hand, the UK
Operational Guidance Note indicates that such laws are effectively enforced,
while the other two reports indicate otherwise.
[3]
The
salient sections in each provide as follows:
US
DOS Report
Social
and cultural norms perpetuated violence against women, including spousal
violence […] The law prohibits domestic violence and provides remedies including
restraining orders and other noncustodial sentencing [… however] [p]olice were
generally reluctant to become involved in domestic issues, which led to cases
not being pursued vigorously when reported.
(Certified
Tribunal Record [CTR] at p 78)
UK Operational Guidance Note
[…] there is a general
sufficiency of protection available to victims of domestic violence through
enforcement of legislative provisions and availability of governmental and
non-governmental shelters, advice, and legal aid and counseling. […] Domestic
violence is widespread in Jamaica but there is in general sufficient protection
and internal relocation is also an option where in the particular circumstances
of the applicant it is not considered unduly harsh for them to relocate. The
grant of asylum or Humanitarian Protection is unlikely therefore to be
appropriate and unless there are specific reasons why sufficient protection
would not be available to the individual applicant and why it would be unduly
harsh to expect them to relocate internally, such claims may be certified as
clearly unfounded.
(CTR at p 93)
National
Documentation Package
According to the Woman Inc.
Representative, domestic violence legislation is "comprehensive but
enforcement and reporting are the real issues" (1 Dec. 2009). Similarly,
Freedom House reports that women's groups, government bodies and NGOs
"have noted that while much of the legal structure is in place to help
reduce violence and discrimination against women, enforcement remains
lacking" (2009). In the opinion of the Woman Inc. Representative, state
protection is "not available" to victims of domestic violence due to
"massive resource constraints" on the part of the government (1 Dec.
2009). Furthermore, the Woman Inc. Representative stated that "[u]nless
the victim is a witness who qualifies for protection under the witness
protection program, there is no other form of 'state protection'" (1 Dec.
2009). Corroborating information on whether the witness protection program is
the only form of protection provided by the government could not be found among
the sources consulted by the Research Directorate.
(CTR at p 99)
[4]
In
addition to the objective country documentation, the applicant also provided
evidence of her own experiences with the Jamaican police. She claimed that two
serious incidents occurred with her former spouse. The first occurred in 2006,
when he beat her up. She claims that she reported the matter to the police, who
came and took a verbal report but said they could not do anything as it was a
domestic matter.
[5]
The
second incident occurred in February 2007, when the applicant claims that her
former spouse “gave her a severe beating” and threatened to shoot her. As
corroborating evidence, the applicant provided an affidavit from a secretary at
her former workplace that confirms the secretary was aware the applicant was in
an abusive relationship and indicates that the applicant came to the
secretary’s home with bruises from an attack one evening in February of 2007.
The secretary also states that she witnessed the applicant’s former spouse
threaten to kill the applicant.
[6]
The
applicant also filed a copy of a police report that was made following the
February 2007 attack, which confirms her claim to have been attacked and
indicates that the attack left “visible bruises to her neck, forearm, thigh and
abdomen”. The report documents that the applicant told the police that the
attack went on for 15-20 minutes and that when she broke free her ex-spouse
threatened to shoot her. The police report further indicates that they went to
the residence the next day, searched the apartment and questioned the
applicant’s former spouse but did not find a firearm. The report goes on to
detail that the former spouse indicated that he and the applicant had been
arguing, that “he got out of control and he [would] not let it happen again”
and that the police gave him a warning (Applicant’s Record at p 52).
The parties’
positions
[7]
The
applicant argues that the Board’s state protection finding was not reasonable
as the UK Operational Guidance Note cites no empirical evidence for its
conclusion regarding the “general sufficiency of protection” available to
victims of domestic violence in Jamaica and notes that there is ample authority
for the proposition that mere presence of laws preventing abuse is insufficient
to ground a finding of adequate state protection if the evidence demonstrates
that those laws are not enforced, relying in this regard on Gilvaja v Canada
(Minster of Citizenship and Immigration), 2009 FC 598 and Beharry et al
v Canada (Minister of Citizenship and Immigration), 2011 FC 111. The
applicant further argues that the Board’s determination as to the adequacy of
state protection hinged in part on its determination that the police responded
to the applicant’s complaints, and that this finding is unreasonable, given
their failure to do anything in 2006 and their failure to lay charges in 2007,
when there was evidence of abuse. The applicant argues, relying on the decision
of the Supreme Court of Canada in Ward v Canada (Minister of Employment and
Immigration), [1993] 2 S.C.R. 689,103 DLR (4th) 1, that the best evidence
regarding the availability of state protection is evidence of a refugee
claimant’s own experiences, and that in the applicant’s case these indicate
that the police were unwilling to enforce the law. The applicant finally notes
that the possibility of assistance being provided by non-governmental
organizations is irrelevant to the issue of the availability of state
protection as there is no burden on an applicant to seek redress from an
organization other than the police (citing Molnar v Canada (Minister of
Citizenship and Immigration), [2003] FC 339).
[8]
The
respondent, for its part, argues that the Board’s determination was reasonable
because the evidence of the efficacy of state protection was mixed and
accordingly its finding that the applicant had not rebutted the presumption of
state protection is reasonable. As for the finding that the police responded to
the applicant’s complaint, the respondent argues that the verbal warning was a
response and therefore that this finding is likewise reasonable. The respondent
finally argues that the applicant is seeking to have this Court reweigh the
evidence, which is inappropriate and notes that the US DOS Report and the
National Documentation Package also lack empirical foundation for their
conclusions and therefore all three reports were appropriately afforded equal
weight by the Board.
Analysis
[9]
The
standard of review applicable to the Board’s finding regarding the adequacy of
state protection for the applicant in Jamaica is reasonableness, the matter
being one of fact or mixed fact and law (Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 at para 38 [Hinzman]).
[10]
It
is firmly established that there is a presumption that a democracy is capable
of adequately protecting its citizens and accordingly, the burden is on refugee
claimants (when put on notice that state protection is in issue) to establish
that such protection is not adequate (Kadenko v Canada (Solicitor General)
(1996), 143 DLR (4th) 532 at p 534; Hinzman at paras 45-46). This burden
has been described as a heavy one (Hinzman at para 46).
[11]
As
a finding of fact, the RPD’s state protection determination will only be unreasonable
if it is palpably erroneous and is shown to have been based upon factual
findings that were made in a perverse or capricious manner or without regard to
the evidence before the Board (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 45, [2009] 1 S.C.R. 339; Rahal v Canada (Minister of
Citizenship and Immigration), 2012 FC 319 at paras 24-40).
[12]
This
cannot be said of the Board’s state protection finding in this case. Dealing
first with the applicant’s evidence regarding her own experiences, what
transpired five or six years ago is not necessarily indicative of the treatment
she would now experience if she returned to Jamaica and was once again
threatened by her ex-spouse. Thus, contrary to what the applicant asserts, the
Board’s treatment of the applicant’s evidence regarding her experiences is not
unreasonable. (I note parenthetically that there is no evidence of any ongoing
threats having been made by her former spouse after she left Jamaica in 2007.)
[13]
Turning
next to the Board’s treatment of the objective evidence, it is clear from the
Board’s decision that it did consider all the evidence before it regarding the
efficacy of state protection as it cited it all three reports and noted that
the objective evidence was mixed. The Board therefore did not erroneously base
its finding merely on the presence of laws or on the presence of possible
assistance from organizations other than the police as the applicant asserts.
Rather, the Board premised its finding on the statements in the UK Operational
Guidance Note, which indicated that enforcement of the laws against spousal
abuse was adequate (and which also noted the various governmental and
non-governmental sources of assistance for abuse victims in Jamaica). The RPD’s
conclusion that the applicant had not rebutted the presumption of state
protection is supported by the documentary evidence and is therefore
reasonable.
[14]
In
making the determination that the Board’s decision on state protection in this
case was reasonable, I recognise that this Court has decided several times that
findings of adequate state protection, in the context of spousal abuse in
Jamaica, are not reasonable (see e.g. Mitchell v Canada (Minister of
Citizenship and Immigration), 2006 FC 133; Robinson v Canada (Minister of
Citizenship and Immigration), 2006 FC 402; Simpson v Canada
(Minister of Citizenship and Immigration), 2006 FC 970; Wisdom-Hall v
Canada (Minister of Citizenship and Immigration), 2008 FC 685).
All these cases, however, are distinguishable as in them, unlike the situation
here, there was no report before the RPD similar to the UK Operational Guidance
Note. Thus, in those cases, the objective country documentation was not mixed
and instead indicated that the police did not adequately enforce the laws against
domestic violence in Jamaica. As the evidence in this case is different,
presumably because the situation has evolved, the findings in those cases are
not applicable in the present case.
[15]
Therefore,
for these reasons, this application for judicial review will be dismissed as
the Board’s determination was reasonable. No question for certification under
section 74 of the IRPA was presented and none arises in this case as it is
entirely fact specific.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary J.L.
Gleason"
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