Docket: IMM-6965-10
Citation: 2011 FC 948
Ottawa, Ontario, July 28,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
|
|
BRIAN AGUSTINE JOSEPH
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
|
|
|
|
REASONS FOR ORDER AND ORDER
[1]
Mr.
Joseph was an adult when he left St. Vincent and the Grenadines for Canada in March
2005. He said he had been the victim of his father’s verbal and physical abuse
since childhood. A defining incident was in December 2004 when he intervened in
an argument between his parents and barely escaped serious injury. He
complained to the police, who gave his father a warning and told Brian to move
out of the house. He went to live with his grandmother, but his father would
follow him in order to provoke a confrontation.
[2] However, upon
his arrival in Canada he did not claim for refugee protection. He
says he was afraid of being refused. In June 2007, he returned to St. Vincent
as his mother was sick and wanted to transfer the deed of her land to him. He
had no problem with his father until January 2008 when his father learned of
this proposed transfer and said he would either kill Mr. Joseph or hire someone
to kill him. Mr. Joseph came to Canada 13 months later, in
April 2009, and claimed refugee protection a month after that.
[3] The panel of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board of
Canada (IRB) found that he was neither a Convention refugee nor a person in
need of international protection. This is the judicial review of that decision.
[4] The second
defining incident, the one which brought Mr. Joseph back to Canada, was his
mother’s intention to transfer property to him. The panel noted that he did not
attach any documents to support his claim. His explanation was that his mother
had been told she was not allowed to make a photocopy. Indeed, at the time of
the RPD hearing in October last year, the property had still not been
transferred.
[5] The panel
also noted that Mr. Joseph’s other brothers remain in St. Vincent and do not
live in fear of their father. Indeed, the father has been living and working on
the Grenadine island of Bekuia
for many years and only returns occasionally to the homestead. More recently
the father instituted divorce proceedings.
[6] According to
Mr. Joseph, when his father learned of the intended property transfer he tried
to stab Mr. Joseph with a garden fork. This was six months after his return to St. Vincent. Until that
time he had no problem. Furthermore, he remained in St. Vincent for more than a
year after that incident. He says he did not leave earlier because he lacked
the funds with which to buy an airline ticket.
[7] The key parts
of the panel’s decision are found at paragraphs 13 and 20 which read:
[13] Given the fact that the
claimant did not fear returning to Saint Vincent in June 2007 and had not
claimed refugee status on his first trip to Canada, along with the fact that
the claimant remained in Saint-Vincent and did not suffer any physical harm
from his father after the January 2008 incident and given the fact that the
father has initiated divorce proceedings which will quite likely settle the
property dispute, the panel finds, on a balance of probabilities, that the
claimant is not at a serious risk of harm.
[20] Because of the possibility of
state protection and the lack of an objective basis to the claimant’s fear, the
panel finds the claimant is not a “Convention refugee” and that, on a balance
of probabilities, the claimant would not be subjected to a risk to life or to a
risk of cruel and unusual treatment of punishment or to a danger of being
tortured should he return to Saint Vincent.
[8] The panel
recited some facts which could have put Mr. Joseph’s credibility in doubt, such
as his excuse for not providing any particulars with respect to the property
subject to transfer, and his excuse for waiting more than a year before leaving
St. Vincent as he had to save money for his plane ticket to Canada when there
were many other safe havens much closer which could have been reached at far
less cost. This is unfortunate because there is a presumption that a claimant
is speaking the truth (Maldanado v Canada (Minister of Employment and
Immigration), [1980] 2 FC 302 (FCA)).
[9] The panel had
the great advantage of seeing the witness, and it would have been helpful to
this Court if a finding as to credibility had been made. Certainly, his story
raises suspicions. As Mr. Justice O’Halloran of the British Columbia Court of
Appeal said in Faryna v Chorny, [1952] 2 DLR 354, [1951] BCJ No 152 (QL)
at paragraph 11:
The credibility of interested witness, particularly in cases of
conflict of evidence, cannot be gauged solely by the test of whether the
personal demeanour of the particular witness carried conviction of the truth. The
test must reasonably subject his story to an examination of its consistency
with the probabilities that surround the currently existing conditions. In
short, the real test of the truth of the story of a witness in such a case must
be its harmony with the preponderance of the probabilities which a practical
and informed person would readily recognize as reasonable in that place and in
those conditions. Only thus can a Court satisfactorily appraise the testimony
of quick-minded, experienced and confident witnesses, and of those shrewd
persons adept in the half-lie and of long and successful experience in
combining skilful exaggeration with partial suppression of the truth. Again a
witness may testify what he sincerely believes to be true, but he may be quite
honestly mistaken. For a trial Judge to say "I believe him because I judge
him to be telling the truth", is to come to a conclusion on consideration
of only half the problem. In truth it may easily be self-direction of a
dangerous kind.
[10]
Mr.
Joseph’s counsel is quite right that the panel’s opinion that the upcoming
divorce between his parents will settle the land dispute is outright
speculation, and not an inference reasonably drawn from established facts.
However, that opinion is easily segregated from the finding that there was no
objective basis for Mr. Joseph’s fear both because he had not suffered any
physical harm from his father after the January 2008 incident and because of
state protection.
[11]
Mr.
Joseph’s counsel mounted a strong attack on the presumption of state protection
in St.
Vincent.
She referred to country conditions relating to domestic violence and to a great
deal of jurisprudence emanating from this Court such as King v Canada
(Minister of Citizenship and Immigration), 2005 FC 774, 139 ACWS (3d) 1061;
Myle v Canada (Minister of Citizenship and Immigration), 2007 FC 1073,
66 Imm LR (3d) 214; and Alexander v Canada (Minister of Citizenship and
Immigration), 2009 FC 1305, 88 Imm LR (3d) 75.
[12]
While
it is quite true that domestic violence is not limited to violence against
women, that is mainly what the decisions from this Court have dealt with. It
does appear that police officers only take action in domestic violence cases
when the situation seems out of control, as indeed happened in this case in the
2004 incident.
[13]
Based
on the facts of this case, the analysis of state protection has to be coupled
with Mr. Joseph’s own demeanour, which displays a lack of subjective fear. The
application for judicial review shall be dismissed.
[14]
The
hearing before this Court took place in the French language at the convenience
of counsel .However, since Mr. Joseph’s mother tongue is English, his affidavit
is in English and his hearing before the RPD was in English, the original
version of these reasons is being issued in that language.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that the application for judicial review is dismissed. There is
no serious question of general importance to certify.
“Sean Harrington”
Email this Content