Date: 20110302
Docket: IMM-4040-10
Citation: 2011
FC 250
Ottawa, Ontario,
March 2, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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VIRGINIA VIOLA ST. CLAIR
SIANNA ELDWINA ST. CLAIR (Minor)
ISHMEL NEIL ST. CLAIR (Minor)
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Applicants
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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 of a decision of a member of
the Immigration and Refugee Board (Board), pursuant to s 72(1) of the Immigration
and Refugee Protection Act, SC 2001 c 27 (Act) by Virginia Viola St. Clair (Principal
Applicant) and her dependent children, Sianna Eldwina St. Clair and Ishmel Neil
St. Clair. The Board determined that the applicants were neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the Act.
[2]
The applicants are citizens of Saint Lucia. The Principal Applicant was
born on April 8, 1982. Her daughter was born on May 6, 1999, and her son was
born on January 7, 2002. The Principal Applicant ran a successful hair and nail
salon in Saint Lucia prior to her departure. The Principal Applicant was in a
relationship with Mr. Simon Citolyn for approximately six (6) years, and in a
common-law marriage with him for the last four (4) of those years. The minor
applicants lived with them for two (2) years, but the Principal Applicant
alleges that she moved them out to live with their grandmother for the two (2)
years prior to her departure, out of fear for their safety around Mr. Citolyn.
[3]
The Principal Applicant alleges that on July 7, 2008, she came home to
discover Mr. Citolyn and another woman in the house with bags of cocaine. She
fought with Mr. Citolyn, who then assaulted her, tried to choke her, and gave
her a black eye. A neighbor called the police and upon their arrival, the
Principal Applicant showed them the cocaine. Mr. Citolyn and the woman were
arrested. The police helped the Principal Applicant to make a formal complaint,
took her to the hospital for medical treatment, and then took her to a women’s
shelter.
[4]
The next morning, at approximately 3:00 a.m., the Principal Applicant
alleges that two (2) of Mr. Citolyn’s acquaintances came to the house looking
for her. Her cousin and her sister were present. As the Principal Applicant and
her children were at the shelter, no harm came to them.
[5]
Following a referral from the Family Court to the Women’s Support
Centre, on July 8, 2008, the Principal Applicant and her children spent five
(5) days in the shelter, where they received counseling and practical support.
On July 9, 2008, the Family Court issued a Protection Order prohibiting Mr.
Citolyn from contacting the Principal Applicant, and ordering both of them to
attend therapy. A judicial hearing was held with Mr. Citolyn present.
[6]
At the Principal Applicant’s hearing before the RPD Board, she alleged
that the Family Court Judge held a private meeting in her chambers, in which
she told the Principal Applicant that she should leave Saint Lucia for her own
safety, as the country could not protect her.
[7]
The Principal Applicant immediately left for Canada, leaving her
children with their grand-mother. She arrived on July 13, 2008 and claimed
refugee status on July 14, 2008.
[8]
The Principal Applicant further alleges that on February 2, 2009, the
children were on their way to school when Mr. Citolyn and two (2) acquaintances
pulled up alongside them in a car. He asked the children to come with him, but
they ran away to a store and hid. The Principal Applicant and her mother
decided not to call the police, but flew the children to Canada to join the
Principal Applicant. They arrived on June 6, 2009 and claimed refugee status on
July 9, 2009. Their claims were joined to the Principal Applicant’s.
[9]
The hearing was held on May 20, 2010. The Board’s negative decision was
issued on June 8, 2010, and received by the applicants on June 28, 2010.
The decision
under review
[10]
The Board issued a lengthy decision, in which the two (2) determinative
issues were the credibility of the Principal Applicant regarding the ongoing
nature of the abuse she suffered at the hands of Mr. Citolyn, as well as the
existence of adequate and efficient state protection for victims of domestic
violence. The Board took into account the Chairperson’s Gender Guidelines,
as well as the Guidelines on Child Refugee Claimants. The Board stated
that it was cognizant of the difficulties a domestic violence victim may face
in testifying, but noted that the Principal Applicant said that she did not
feel nervous.
[11]
Regarding the issue of credibility, the Board found that on the balance
of probabilities, the Principal Applicant did experience domestic assault on
July 7, 2008, but found no persuasive evidence that she was a victim of ongoing
domestic abuse. The Board found significant inconsistencies, contradictions and
omissions in the Principal Applicant’s testimony. The Board noted that there
was no mention of previous physical or sexual assault in the Principal
Applicant’s PIF or in her Citizenship and Immigration Canada interview notes,
which describe only the one (1) incident referred to above, and the one (1)
approach to police.
[12]
At the hearing, however, the Principal Applicant mentioned that Mr.
Citolyn had hit her, slapped her, and banged her head against the wall
approximately two (2) or three (3) times a month for four (4) years. When asked
to explain this omission, she said that he had never been “that violent” before
the incident in question, and yet later she stated that he had sexually assaulted
her several times. The Board drew a negative inference from the failure to
mention this in the PIF, which clearly asks for “all significant events and
reasons” for the Principal Applicant’s fear of persecution. The Board noted
that the explanation that Mr. Citolyn was never “that violent” before was
contradicted by the testimony regarding ongoing physical and sexual assaults,
and drew a negative inference.
[13]
The Principal Applicant also testified to at least one (1) other
incident in which she had complained to the police but received no assistance,
and the Board noted that this did not appear in the PIF narrative either,
though the PIF instructs applicants to “provide details of any steps you took
to obtain protection from any authorities in your country and the result”.
[14]
Regarding state protection, the Board noted that when called, the police
immediately came to the Principal Applicant’s home, arrested Mr. Citolyn and
the woman, made a report, took the Principal Applicant to the hospital and then
placed her in a shelter. The Principal Applicant also had the assistance of a
court-appointed social worker, a referral to the Women’s Support Centre,
counseling, and other practical assistance. She received a Protection Order
against Mr. Citolyn and had a hearing within days of the assault. The Board
found that all of this pointed to the existence of effective state protection
in the Principal Applicant’s case.
[15]
The Board noted the Principal Applicant’s alleged fear that Mr. Citolyn
is a drug dealer who has police contacts, and that in future the police may not
adequately be able to protect her, but found that a subjective fear not
supported by evidence does not overcome the presumption of state protection in
a functioning democracy, especially where the state has demonstrated a quick
and efficient response in the past. The Board noted that the Principal
Applicant made no effort to approach the state for protection at all in the
alleged incident involving the children.
[16]
The Board noted that Ward v Canada, [1993] 2 S.C.R. 689 held that a
claimant is required to seek state protection in situations in which it would
be reasonably forthcoming, and noted that it was forthcoming in this situation.
[17]
The Board extensively canvassed the documentary evidence and found that
domestic assault is recognized as a serious problem in Saint Lucia, and that
many institutions have been put in place to combat it and to aid its victims.
The Board noted that financial assistance is available for victims, and that
despite a shortage of shelter places, nobody is required to leave a shelter
without adequate alternative housing. The Board noted that the state clearly
took the Principal Applicant’s case seriously, and provided effective
protection. The Board found that on the balance of probabilities, the Principal
Applicant would receive adequate state protection if she were to return to
Saint Lucia, and found no “clear and convincing proof” that the state would be
unable to protect her and her children. Saint Lucia is a multi-party, parliamentary
democracy, whose civilian authorities control the security forces and whose
state generally respects human rights, according to the United States
Department of State 2009 Report.
Relevant
legislation
[18]
The relevant portions of the Act are as follows:
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Convention
refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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Définition de «
réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve
hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette
crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle
n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in
need of protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted international standards, and
(iv) the risk is
not caused by the inability of that country to provide adequate health or
medical care.
Person in
need of protection
(2) A person in Canada who is a member of a class of persons prescribed by
the regulations as being in need of protection is also a person in need of
protection.
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Personne à
protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque,
s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens
de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut
ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou
le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
Personne à
protéger
(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait partie
d’une catégorie de personnes auxquelles est reconnu par règlement le besoin
de protection.
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Issues and
standard of review
[19]
There are two issues in this application:
a) Did the Board misunderstood or mischaracterized the evidence
supporting the central element of the applicants’ claim?
b) Did the Board commit a reviewable error by ignoring vital
evidence in its state protection analysis?
[20]
The standard of review applicable to a Board member’s findings on
credibility is reasonableness, as it is a question of fact, to which deference
is owed by the Court, as per Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190,
paras 47, 53, 55 and 62; also Khosa v Canada (Minister of Citizenship and
Immigration), [2009] 1 S.C.R. 339, paras 52-62; Malveda v Canada (Minister
of Citizenship and Immigration), 2008 FC 447, paras 17-21.
[21]
In Paguada v Canada (Minister of Citizenship and
Immigration), 2009 FC 351, para 19, it is stated that the standard of
review applicable to a finding of adequate state protection, which is a mixed question
of fact and law, is reasonableness. The Board’s conclusion must fall within the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and the law” (Dunsmuir, above, para 47).
Analysis
A. Mischaracterization of
the central element of the claim
[22]
The applicants submit that the Board misunderstood the nature of their
claim, and allege that the social group to which the Principal Applicant
belongs is not women who are victims of domestic violence, but women who are
subjected to violence and threats as a result of witnessing a crime. She claims
that the instances of abuse were not the main reason that she left Saint Lucia,
and claims that this is clear from her PIF and her oral testimony. She notes
that the Judge of the Family Court told her to leave Saint Lucia because she
could not be protected there, and alleges that this was in the context of being
a witness to a crime, not a victim of domestic abuse.
[23]
The Principal Applicant cites over a dozen cases in support of the argument
that the Board misunderstood her evidence thereby committing a reviewable
error. The Principal Applicant submits that as the Board’s error went to the
root of the decision, it must therefore be set aside.
[24]
The Respondent argues that regardless of the applicants’ new
characterization of their claim, it is clear that the Board understood the
substance of the claim, namely violence at the hands of Mr. Citolyn. The
Respondent alleges that at no point in the PIF or the Principal Applicant’s
oral testimony did she indicate that her fear arose specifically because she
had witnessed a crime. The facts as alleged were about violence and domestic
abuse. The Respondent acknowledges that the fear came to a head because of a
specific incident, but argues that the Principal Applicant had a generalized
fear of violence, which was not solely as a result of the discovery of a
criminal incident. The Respondent notes that the Principal Applicant’s counsel
at the hearing characterized the cocaine incident as the “last straw” in a
history of domestic violence, and pointed the Board specifically to documentary
evidence about domestic violence. The Respondent argues that no evidence was
given to show that the Principal Applicant would be required to be a witness
against Mr. Citolyn, and that the documentary evidence alluded to by counsel at
the hearing mentioned crime victims only in passing.
[25]
The Respondent argues that the Principal Applicant’s fear is based on
her knowledge that her ex-boyfriend is a violent man, and that the fact that he
was also the perpetrator of the crime she witnessed is not, as she alleges,
coincidental. The Respondent argues that at most, the issue is a mixed one of
fear of the alleged incident and the alleged ongoing abuse (the latter of which
was disbelieved by the Board). The Respondent cites Suvorova v Canada
(Minister of Citizenship and Immigration), 2009 FC 373, paras 56-60, for
the proposition that where the ground of persecution or risk alleged is mixed,
the decision can be upheld provided the Board properly addressed the evidence
before it and considered all possible grounds for protection. The Respondent
submits that the Board addressed the totality of the evidence in the present
case. The Respondent also cites Arunasalam v Canada (Minister of Citizenship
and Immigration), 2001 FCT 1070, in support of their position that where
the Principal Applicant specifically links their fear to particular facts, the
Board is not faulted for having dealt with evidence under that ground only.
[26]
The Respondent submits that the Board never specifically characterized
the Principal Applicant’s claim, nor excluded the risk of being a witness,
which the Respondent argues is not a distinct risk. The Respondent argues that
this risk is only a risk of generalized criminality, without any nexus to a s
96 group. The Respondent contends that while this may give rise to a s 97
claim, where there is no evidence beyond that considered in the s 96 analysis
that could establish that the claimant is in need of protection, the s 97 is
not required, according to Prophète v Canada (Minister of Citizenship and
Immigration), 2009 FCA 31, and Chikukwa v Canada (Minister of
Citizenship and Immigration), 2008 FC 1191, para 55. Before the Court, the
Respondent argued that there is no evidence that the Principal Applicant is at
an additional risk beyond the evidence regarding the cocaine incident and Mr.
Citolyn’s violent history, so the Board was not required to deal with this
ground separately.
[27]
Regarding the Principal Applicant’s credibility, the Respondent notes
the Principal Applicant’s claim that since her fear was based only on the
cocaine incident, the past violence was not relevant. The Respondent argues
that the Principal Applicant did not say at any point that she had not included
the history of violence because it was not relevant, but said at the hearing
that Mr. Citolyn had not been “that violent” before. Her argument is therefore
contradicted by her testimony. The Respondent submits that the supposed violent
history, which was disbelieved by the Board, is directly relevant to whether
Mr. Citolyn would be violent towards the Principal Applicant in the future, and
that it was not unreasonable of the Board to draw this inference. The
Respondent argues that the Board’s conclusion on credibility was reasonable, as
the Principal Applicant’s testimony shifted from stating that Mr. Citolyn was
not “that violent”, then that he beat her two (2) or three (3) times a month,
and then that he sexually assaulted her on several occasions. The Respondent
argues that as the well-foundedness of her fear was central to the claim, the
Board’s credibility findings are determinative.
[28]
Firstly, this Court finds that the cases cited by the Principal
Applicant in her memorandum are, on the whole, not very relevant to the facts
in the present case. Each case cited deals with a situation in which the Board
misapprehended a specific fact related to the case, rather than misunderstood
in a more general sense the substance of the claim, as is alleged in the present
case.
[29]
Counsel for the Principal Applicant pointed out to the Court that the
Principal Applicant’s PIF describes only the incident of finding Mr. Citolyn
with the cocaine, and details the threats that he made at that point, saying
that he would kill the Principal Applicant if he went to jail because of her.
It also confirms that the police took her to the shelter for her protection
because “they have been looking for evidence against [Mr. Citolyn] on
trafficking drugs and for other cases”. In her testimony at the hearing, the
Principal Applicant did not specifically lay out the claim as one of witness
protection, nor did she state that it was simply a case of domestic violence.
It is our opinion that Suvorova and Arunasalam, cited by the
Respondent, are not directly on point, as the Board in the present case did not
deal with the risk as arising from “mixed” factors, nor did the Principal
Applicant fail to mention that she had witnessed a crime.
[30]
This Court does not conclude that the Board was unreasonable in finding
that there were separate credibility concerns in the Principal Applicant’s
story. She did state (transcript, CTR p 339), when asked, that Mr. Citolyn had not been physically
abusive to her prior to the cocaine incident, only made threatening statements,
and then she specifically contradicted this statement several times throughout
the testimony. However, on the whole, the Board’s analysis was not focused on
the risk faced by the Principal Applicant as a witness to a crime, and so the
reliance on issues regarding Mr. Citolyn’s violent past should not have been
as relevant to the determination of the case as the Respondent argues. The
Board accepted that the cocaine incident had occurred (Decision, para 15). This
Court does not agree with the Respondent that the Board’s conclusions apply no
matter the nature of the risk faced by the Principal Applicant, or that the
Board was in fact dealing with a “mixed” case. The Board’s focus on state
protection for domestic violence victims shows that this was the only risk
faced by the Principal Applicant in the Board’s view. It did not address the
possibility of persecution based on witnessing a crime, though this was clearly
a relevant issue. In the similar case of Vilmond v Canada
(Minister of Citizenship and Immigration), 2008 FC 926, Justice Michel
Beaudry held at para 17 that “[f]or the Board’s conclusion to be reasonable, it
must first characterize the claim in such a way that is responsive to the
allegations put forward by the aim”.
[31]
Therefore I find, as did Justice Beaudry, that the Board’s conclusions
on credibility are flawed in that the Board has misapprehended the nature of
the claim, and consequently has not correctly analyzed the Principal
Applicant’s case and the credibility of the risk that she faced. The Board‘s
decision cannot be held to be reasonable in such circumstances.
B. State protection
[32]
The Principal Applicant submits that the Board ignored most of the
relevant facts and made selective use of the documentary evidence, all the
while failing to address the most crucial issue, namely the lack of a witness
protection program in Saint Lucia. The Principal Applicant cites an RPD Response
to Information Request from 2006 stating that there is “no legislation or
program for protecting crime victims and witnesses in Saint Lucia. Also,
witness protection is provided only rarely, on a case-by-case basis, and only
when requested by the witness.” The Principal Applicant also cites a report by
CEDAW, published in 2006, stating that there is a lack of support for victims
of domestic violence in Saint Lucia, that the legislation is not effectively
implemented, and that women are given restraining orders that cannot be
enforced because police are understaffed and do not always respond to calls.
[33]
The Principal Applicant notes that the Board did not reject her
testimony regarding the incident of finding Mr. Citolyn with cocaine, and notes
that he was arrested for drug possession and later sent gang members to the
house to look for her (at which time she was in the women’s shelter). She notes
that the Family Court Judge told her to leave the country as she could not be
protected. She also cites the existence of a letter from the Family Court’s
social worker (CTR, p 225) and another from the Women’s Support Centre (CTR, p
273) in support of her claim that she witnessed a crime and that no
infrastructure exists that could protect her, and that she should seek refuge
outside of the country.
[34]
The Respondent submits that the Board’s findings are equally applicable
to victims of domestic violence and witnesses of crimes. The Board is presumed
to have considered all evidence before it (Hassan v Canada (Minister of
Employment and Immigration) (1992), 147 NR 317 (FCA)), and the conclusions
are consistent with and supported by that evidence.
[35]
The Respondent notes that the police came to the Principal Applicant’s
house, she was able to make a report, she was taken to hospital and to a
shelter, and was given the services of a social worker and of the Family Court.
The Respondent notes that when Mr. Citolyn’s men came to the house to look for
her, the Principal Applicant was safe in a shelter due to the police’s actions.
The Respondent argues that the Principal Applicant did not challenge the
Board’s conclusions regarding state protection for domestic violence victims,
and notes that the conclusions regarding her failure to rebut the presumption
of state protection still apply.
[36]
The Respondent argues that the evidence indicates that despite the lack
of a formal witness protection program, Saint Lucia is able to protect women
who are victims of violence, domestic or otherwise, and notes that the document
cited by the Principal Applicant states that witness protection is sometimes
available on a case-by-case basis.
[37]
Regarding the statement made by the Saint Lucia judge, the Respondent
argues that this cannot be substituted for the Board’s own determination
regarding the state’s ability to protect the Principal Applicant. The
Respondent argues that the preponderance of evidence indicates serious efforts
on the state’s part to redress violence against women, and notes that the
Principal Applicant was able to access these programs. It was within the
Board’s jurisdiction to assign little probative weight to the Judge’s
statement.
[38]
The CEDAW report is from 2006, while much of the documentation relied
upon by the Board is more recent as it is dated from 2009. Furthermore, the
Court finds nothing to indicate that the Board’s weighing of the evidence
regarding protection for victims of violence was unreasonable. If domestic
violence was indeed the central element of the Principal Applicant’s case, the
Court would agree with the Respondent that there is nothing that indicates that
the Board’s conclusion was unreasonable, especially given the steps taken by
the Saint Lucia state in the Principal Applicant’s case before she left the
country.
[39]
The Board extensively canvassed the protection offered to victims of
domestic violence, and there is nothing to indicate that there was any failure
on the Board’s part to examine any evidence in that regard. The Court notes,
however, that the Board did not discuss the Judge’s statement to the Principal
Applicant, nor the letters from the court-appointed social worker and the
Women’s Support Centre advising the Principal Applicant that nothing could be
done in her situation, and that she should leave the country and seek refuge
elsewhere. It is the Court’s view that these items of proof were crucial enough
that the Board should have explained why they were being given relatively
little weight. In light of these documents, which were before the Board, this
Court does not find that the Board’s conclusion on state protection was
consistent with and supported by the evidence (see Cepeda-Gutierrez v Canada
(Minister of Citizenship & Immigration), [1998] FCJ No 1425 ( Fed TD))
in these circumstances.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is
allowed and the matter is returned for reconsideration. There is no question
for certification.
"André
F.J. Scott"
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