Date: 20110518
Docket: IMM-1606-10
Citation: 2011
FC 572
Ottawa, Ontario,
May 18, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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LUVINA LAVERNE THOMAS
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated February 12, 2010, wherein the applicant was
determined not to be a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Luvina
Laverne Thomas (the applicant) was born on September 20, 1965 and is a citizen
of St.
Vincent and the Grenadines (St. Vincent).
[4]
At
age 13, the applicant began dating Mr. Prince Albert Joe in St. Vincent. She became pregnant
with his first child in 1985. In 1990, the applicant travelled to Canada to join Mr. Joe, who
she then married. She gave birth to his second child in Canada in 1993.
[5]
After
the birth of their second daughter, Mr. Joe began abusing the applicant. The
abuse escalated when the applicant learned of an affair Mr. Joe was having with
another woman. At that time, in 1995, the applicant returned to St. Vincent.
[6]
Around
the same time that the applicant left Canada, Mr. Joe was convicted and imprisoned in Canada. In 2005, he was
released and removed to St. Vincent. Upon Mr. Joe’s return to St. Vincent, the applicant accepted
him back into her life believing that he was rehabilitated.
[7]
Mr.
Joe began to abuse the applicant again and threatened the applicant that he
would kill her if she went to the police. He also did not support their
children or the applicant. The applicant states that the abuse intensified and
culminated in her leaving St. Vincent and returning to Canada for the second
time in September 2007 at which at she claimed refugee protection in Canada.
[8]
The
applicant alleges that Mr. Joe called and threatened her in October 2008 after
which she changed her telephone number.
Board’s Decision
[9]
The
Board reviewed the Chairperson’s Guideline 4: Women Refugee Claimants
Fearing Gender-Related Persecution (the Gender Guidelines) and noted that
women making gender related claims of persecution may face special obstacles
demonstrating that their claims are credible. These include difficulties
providing evidence or testifying on sensitive matters, cross-cultural
misunderstandings and socio-economic differences.
[10]
Taking
into account the Gender Guidelines, the Board still found that some of the
applicant’s evidence was not reliable. The Board found that the applicant’s
evidence and testimony on whether she had approached the police was
inconsistent. In her Personal Information Form (PIF), the applicant stated that
she did not go to the police in St. Vincent because her husband
threatened to harm her if she did. However, she testified at the hearing that
she did approach the police. The Board recognized that female applicants who
have suffered abuse may have difficulty establishing their allegations; yet,
the Board found the applicant could easily have included the fact that she
sought state protection in her PIF. As such, the Board found that the applicant
had not approached the police.
[11]
The
Board also found it implausible that Mr. Joe had contacted the applicant in
2008 since there was no evidence that he knew she had left for Canada or that
he had contacted any of her family in St. Vincent.
[12]
Finally,
the Board found that the applicant’s evidence on the abuse she suffered to be
unreliable. The applicant testified that the abuse escalated in St. Vincent and
became so bad that she left for Canada as a result. However,
the applicant could not recall any details of the abuse prior to leaving for Canada.
[13]
The
Board found that the applicant’s fear was not objectively well founded. The
applicant has not been contacted by Mr. Joe since leaving for Canada in 2007. He
has not contacted her siblings or family in St. Vincent. The applicant does not
know if Mr. Joe is currently living in St. Vincent. As a
result, the Board found that there is not a serious possibility that the
applicant would suffer persecution by Mr. Joe if she were returned to St.
Vincent.
[14]
The
Board determined that even if there was a possible risk of harm from Mr. Joe,
the applicant had not provided clear and convincing evidence that the
authorities in St. Vincent would be unwilling or unable to protect her.
The applicant did not seek state protection in St. Vincent. She testified that
this was because she has heard from people on the street that the police did
not help victims of domestic violence. The Board found that there is a belief
of citizens in St. Vincent that the police will not help victims of
domestic violence and violence against women remains a serious problem.
However, while the protection is not perfect, the documentary evidence
describes the strong efforts of the government to address the issue. The Board
was not satisfied that there would not be adequate protection for the applicant
if she returned to St. Vincent.
[15]
The
Board concluded that the applicant was not a Convention refugee or person in
need of protection under sections 96 and 97 of the Act.
Issues
[16]
The
applicant submitted the following issue for consideration:
1. Did the Board err in
concluding that based on the evidence provided by the applicant, there was not
sufficient evidence to establish the applicant’s subjective fear of persecution
for reasons of her membership in a particular social group as a victim of
domestic abuse in St. Vincent and that she lacked credibility in key areas of
her claim?
[17]
I
would rephrase the issues as follows:
1. What is the
appropriate standard or review?
2. Was the Board’s
decision reasonable?
Applicant’s Written Submissions
[18]
The
applicant submits that the credibility finding of the Board is reviewable on
the reasonableness standard. The applicant’s testimony at the hearing must be
presumed to be truthful as there were no significant inconsistencies or
implausibilities in the applicant’s testimony. The Board made no reference to
the applicant’s explanations in finding aspects of her testimony not to be
credible.
[19]
The
applicant submits that the Board erred in its determination of the objective basis
for her fear. The test for a well founded fear of persecution is a low
threshold. The Board need not be convinced that what the applicant fears will
certainly come to pass in order to find her fear to be well founded. The
applicant submits that the Gender Guidelines indicate that a woman may establish
a well founded fear of persecution solely by reason of her membership in a
gender defined particular social group. The Board was required to assess the
past violence of Mr. Joe in determining whether there was an objective basis
for fearing harm from Mr. Joe should the applicant be retuned to St. Vincent.
[20]
The
applicant further submits that the Board erred in its state protection
analysis. In her written and oral evidence she stated that she could not
approach the police because Mr. Joe would harm her if she did. The Board was
under a duty to provide reasons why the threat on the applicant’s life was not
sufficient to explain why the applicant did not go to the police. The applicant
also provided evidence of similarly situated female victims of domestic
violence in St. Vincent let down by the police. The documentary evidence was
sufficient to show that the state cannot protect victims of domestic
violence.
Respondent’s Written Submissions
[21]
The
respondent submits that the standard of review for all issues is
reasonableness. Findings of credibility deserve a high level of deference
from the Court because of their factual nature. The Board does not have to
accept a witness’s testimony simply because it was not contradicted at the
hearing. The Board is entitled to make credibility findings based on
implausibilites, common sense and rationality and it may reject evidence if it
is not consistent with the probabilities affecting the case as a whole. The
Board’s findings on this basis were reasonable.
[22]
The
respondent argues that the Board reasonably concluded that Mr. Joe was not
interested in contacting the applicant. It was the responsibility of the
applicant to provide evidence upon which the Board could conclude that the
applicant’s fear exists and is objectively well founded. Based on the evidence
provided, the Board found that Mr. Joe had not attempted to contact the
applicant’s family members, the applicant or her daughter.
[23]
The
Board reasonably noted that the applicant failed to take any steps to seek
state protection in St. Vincent at any time. Where state protection is
reasonably forthcoming, an applicant’s failure to approach the state for
protection will defeat the claim. The applicant also failed to adduce clear and
convincing evidence that state protection in St. Vincent is inadequate. The
applicant was required to do more than rely on the assertion that state protection
would not be available. The Board’s finding that the applicant had not rebutted
that presumption of state protection was reasonable.
Analysis and Decision
[24]
Issue
1
What is the appropriate
standard or review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[25]
Credibility
findings lie at the heart of the Board’s expertise in determining the
plausibility of testimony and drawing inferences from the evidence. Assessments
of credibility are essentially pure findings of fact and it was Parliament’s
express intention that administrative fact finding would command this high
degree of deference (see Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 46). For this reason, it is established that in reviewing assessments
of credibility, the applicable standard of review is reasonableness.
[26]
Likewise,
previous
jurisprudence has determined that the adequacy of state protection raises
questions of mixed fact and law and is also reviewable against a standard of
reasonableness (see Hinzman Re 2007 FCA 171 at paragraph 38).
[27]
In
reviewing the Board's decision using a standard of reasonableness, the Court
should not intervene on judicial review unless the Board has come to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47).
[28]
Issue
2
Was the
Board’s decision unreasonable?
The Board’s credibility
findings including that the applicant had not approached the police and that
Mr. Joe had not contacted her, were reasonable. This Court owes findings of
credibility a high degree of deference. The Board reviewed the applicant’s PIF
and compared that to her testimony at the hearing. The Board gave the applicant
an opportunity to explain the discrepancies between her testimony and her
written evidence, which she was unable to do in a satisfactory manner. In
addition, it was not unreasonable for the Board to find it implausible that Mr.
Joe would wait one year to contact the applicant, not contact any of the
applicant’s family in St. Vincent and yet still be
looking for her. The Board’s findings were not made capriciously or without
regard to the evidence.
[29]
The
Board concluded that there was no objective basis to the applicant’s fear. It
found that there was no reason to believe that Mr. Joe would seek out and harm
the applicant were she to return to St. Vincent. However, despite this finding,
the Board assessed the applicant’s evidence on the availability of state
protection to determine whether the applicant could receive state protection if
Mr. Joe were still looking to harm her.
[30]
The onus is on
a refugee claimant to provide “clear and convincing” evidence of a state’s
inability to protect its citizens in order to rebut the presumption of state
protection (see Ward v Canada (Minister of Employment and Immigration), [1993] 2 S.C.R. 689, [1993] SCJ No
74 (QL) at paragraph 52). In order to meet the onus, an applicant may testify
regarding his or her own experiences where state protection was not forthcoming
or provide testimony of similarly situated individuals who sought state
protection and were let down (see Ward above, at paragraph 50). The
Board reasonably found that the applicant had not approached the state herself.
Where state protection is reasonably forthcoming, failure to seek state
protection may defeat the applicant’s claim (see Victoria v Canada
(Minister of Citizenship and Immigration), 2009 FC 388 at paragraphs 17 to 19). An applicant must do
more than rely on a subjective assertion that she thought state protection
would not be available to her. As Mr. Justice James Russell held at paragraph
70 of Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC 354, commenting on an
applicant’s personal assertion of a lack of state protection in Mexico:
The
problem with this assertion is that it is highly subjective and the Applicant
has supplied little in the way of objective support for her personal
experiences or for her assertion that state protection and an IFA are not
available to her.
[31]
It
was also open to the Board to find that the applicant had not presented clear
and convincing evidence of similarly situated individuals let down by the
State. The
Board noted that the documentary evidence confirmed the common belief that
police do not respond to complaints of domestic violence. However, the Board
found that the actual evidence was mixed regarding what the police and
authorities are doing to prevent and respond to domestic violence. The Board
examined the improvements in St. Vincent such as training of
police in handling domestic violence and the increase in resources available to
victims of domestic violence. The Board’s conclusion that the applicant had not
convinced it that there would not be adequate state protection was transparent,
intelligible and justified and within the range of acceptable outcomes.
[32]
As
a result, the application for judicial review is dismissed.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[34]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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.
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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.
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