Date: 20110627
Docket: IMM-6136-10
Citation: 2011
FC 782
Ottawa, Ontario, June 27, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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KAREN ADELINE KNIGHTS
R'KEEM JESAIAH KNIGHTS
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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 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 September 16, 2010, wherein the Board determined that
the applicants were not Convention refugees or persons in need of protection.
[2]
The applicants request that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Karen
Adeline Knights (the applicant) is a citizen of Trinidad and Tobago (Trinidad).
[4]
In
October 2007, the applicant was the victim of a violent rape and robbery in her
home in Trinidad. She reported the
assault to the police who detained her attacker the following day. The police
also took a written statement from the applicant.
[5]
The
applicant was harassed by several members of the community, urging her not to
follow through with testifying against her assailant. She testified at an
enquiry in April 2008 and the case was sent to the High Court for trial.
[6]
The
applicant’s attacker was charged and remained in custody until he was released
on bail in August 2008. The applicant heard that her attacker was released on
bail while visiting her sister in Canada. Instead of returning to Trinidad, she remained
in Canada and claimed refugee
protection.
Board’s Decision
[7]
The
Board reviewed the Chairperson’s Guideline 4: Women Refugee Claimants
Fearing Gender-Related Persecution and noted that women making
gender-related claims of persecution may face special obstacles when testifying
on sensitive matters.
[8]
The
determinative issue for the Board was state protection.
[9]
The
Board reviewed the jurisprudence from the Supreme Court and the Federal Court
of Appeal noting that refugee protection is a surrogate protection and that
there is a presumption that states can protect their citizens which can only be
rebutted by clear and convincing evidence of the state’s inability to protect.
[10]
The
Board found that Trinidad is a democratic country which generally respects
human rights. While acknowledging that the evidence shows that domestic
violence is a serious problem, the Board reviewed the services available for
female victims of domestic violence including training of police forces and
shelters.
[11]
The
Board focused on the applicant’s experience. Her assailant was detained the
same day she reported the assault to the police, he was charged with the
offences and committed to stand trial. He was then released on bail. The Board
found that the applicant received adequate protection from the state.
[12]
The
Board considered the profile of the perpetrator, finding that he was a local
criminal who the applicant could not tie to any particular gang or show that he
has influence over the state authorities.
[13]
The
Board noted that the applicant approached the police at other times for
assistance with threats and harassment. She chose not to follow their advice of
getting a restraining order on one occasion and on another occasion, did not
provide sufficient identifying information for the police to assist her.
[14]
The
Board acknowledged that due to gang-related crime, witnesses to crime are at a
higher risk of violence in Trinidad. The Board also
referenced documentary evidence that the criminal system is operating with
insufficient resources. However, the Board concluded that the applicant had
received adequate state protection and that protection would be forthcoming if
she were to return to Trinidad.
[15]
The
Board also rejected the compelling reasons argument made by the applicant’s
counsel. It found that this only applies where there has been a change in
circumstances and the applicant would have been a refugee but for that change.
The Board did not consider this to be the case.
Issues
[16]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
its analysis of state protection?
Applicants’ Written Submissions
[17]
The
applicant submits that the Board ignored evidence that six state witnesses were
shot last year in Trinidad, as well as evidence that the criminal system
is in a state of collapse. The Board’s conclusion that state protection is available
despite this evidence was unreasonable. The Board did not assess the personal
circumstances of the applicant as a woman returning to Trinidad to act as a
prosecution witness in her assault.
[18]
The
applicant also argues that the Board’s finding that she could have pursued
other avenues of recourse for protection was not applicable.
[19]
The
applicant further submits that the Board erred in emphasizing the efforts of
the state not the effectiveness of the efforts. The Board erred in finding that
willingness of the state to provide protection for victims of gender violence
establishes the effectiveness of such protection. The applicant submits that
the effectiveness of state protection must form part of the Board’s analysis of
the adequacy.
Respondent’s Written Submissions
[20]
The
respondent submits that the Board applied the appropriate legal test for
assessing state protection. The Board determined that the protection offered by
a state need not be perfect but that the state must undertake serious efforts
to protect its citizens. The respondent emphasizes that the settled test for
assessing state protection is the adequacy not effectiveness of the protection.
It is also not enough for the applicant to show that her state has not always
been effective at protecting people in her situation.
[21]
The
Board reasonably determined that state protection was available to the applicant
in her circumstances. The Board also noted that she had received adequate
protection relating to the assault prior to arriving in Canada. The police
responded to her situation and the judicial system worked in her case.
[22]
The
respondent argues that the Board did not ignore evidence of the applicant’s fear
as a witness in her trial. The Board accepted that there is violent
gang-related crime and witnesses face a higher risk. However, the Board
examined the profile of the assailant and noted that he was a local criminal
and not tied to any particular gang. The Board acknowledged the evidence
contrary to its position but reasonably determined though that the deficiencies
in policing were not generalized.
Analysis and Decision
[23]
Issue
1
What is the
appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue, the reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[24]
Assessments
of the adequacy of state protection raise questions of mixed fact
and law and is also reviewable against a standard of reasonableness (see Hinzman,
Re, 2007 FCA 171 at paragraph 38).
[25]
Issue
2
Did the Board
err is in analysis of state protection?
I find, for the following
reasons, that the Board did not err in its analysis of state protection.
[26]
The
Board correctly applied the test for assessing state protection. The Board
found that it must assess the adequacy of the protection provided by Trinidad
(see Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at paragraphs 18, 19 and 30; Cosgun v Canada (Minister
of Citizenship and Immigration), 2010 FC 400). While the Board must
assess whether the protection was adequate as opposed to effective, it must
also consider
the quality of the institutions providing that protection (Katwaru v Canada
(Minister of Citizenship and Immigration), 2007 FC 612 at paragraph
21). The Board did so in this case.
[27]
The
Board considered the specific circumstances of the applicant. It noted that she
was violently raped and robbed in her home. It considered the actions of the
police in responding to her assault as well as the behaviour of the judiciary. The
Board acknowledged counsel’s submission that “since the claimant testified at
the enquiry and would be subpoenaed to testify at the High Court trial, there
is even greater risk to the claimant”. The Board then assessed the identity of
the applicant’s perpetrator finding that he was a local criminal in a small
community who is not tied to any particular gang. The Board concluded that the
applicant’s perpetrator is unlikely to have strong influence on state
authorities to obtain impunity. This was a reasonable analysis of the specific
circumstances of the applicant’s situation.
[28]
Further,
the Board did not ignore the evidence before it, as submitted by the applicant.
The Board acknowledged that violence against women is a serious problem in
Trinidad. It reviewed how the police respond to gender violence; that there are
police being trained to deal with these crimes; that legal aid, shelters and
crisis centers are available; and that there is a government division devoted
to gender affairs. The Board directly stated that it recognized that the “bulk
of violent crime in Trinidad is gang-related, and witnesses to crime are at
a higher risk.” It further directly noted that one article describes the criminal
justice system as being in a state of “virtual collapse”. However, the Board
determined that while there are discrepancies in documentary sources, adequate
state protection exists for victims of gender abuse. It found that the evidence
demonstrates that police corruption and deficiencies are not generalized and
are being addressed by the government.
[29]
Given
the above comments, I cannot find that the Board’s assessment of the
availability of state protection in Trinidad was outside of the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law” as per the reasonableness standard in Dunsmuir
above, at paragraph 47.
[30]
As such, I would dismiss the
application for judicial review.
[31]
Neither party wished to submit a
proposed serious question of general importance for my consideration for
certification.
JUDGMENT
[32]
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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