Date: 20110902
Docket: IMM-6195-10
Citation: 2011 FC 1037
Ottawa, Ontario, September 2, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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KENRICK KEVIN DE BIQUE
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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
I. Overview
[1]
In
2007, Mr. Kenrick Kevin De Bique was violently attacked in his country of origin,
St.
Vincent.
He spent nearly a year in hospital while doctors tried, unsuccessfully, to save
one of his legs. His attacker, a man named Samuel, was a drug producer whose
girlfriend Mr. De Bique was having an affair with. Mr. De Bique was protected
by police and hospital security while he was being treated for his injuries.
[2]
Out
of fear of retaliation, Mr. De Bique refused to testify against his attacker,
so the charges against Samuel were dropped and he was released from custody.
Soon after Mr. De Bique was released from hospital in 2008, he travelled to
Canada but, because his travelling companion could not be admitted to Canada, he returned
with her to St. Vincent. He kept a low profile and tried to avoid Samuel. Once,
he was spotted by Samuel’s brothers, but he managed to evade them. He decided
to return to Canada and, in
January 2010, made a refugee claim here.
[3]
A
panel of the Immigration and Refugee Board considered Mr. De Bique’s claim but
found that he was not eligible for refugee status because his claim was not
based on any of the grounds recognized under the Refugee Convention. The Board
went on to consider whether Mr. De Bique faced a substantial risk of death, or
cruel and unusual treatment or punishment, if he returned to St. Vincent.
[4]
The
Board concluded that state protection was available to Mr. De Bique in St
Vincent and, primarily on that basis, dismissed his claim. Mr. De Bique argues
that the Board’s conclusion was unreasonable and asks me to order a rehearing
by another panel.
[5]
I
can find no basis for overturning the Board’s decision and must, therefore, dismiss
this application for judicial review. In my view, the Board’s conclusion that St. Vincent was able and
willing to protect Mr. De Bique was defensible in light of the law and the
facts before it.
[6]
While
the Board discussed issues of credibility and subjective fear, the
determinative part of its decision was its conclusion on state protection. As
such, the issue to be decided is whether its conclusion that state protection
was available to Mr. De Bique in St Vincent was unreasonable.
II. The Board’s Decision
[7]
The
Board noted that Mr. De Bique shouldered the burden of presenting clear and
convincing evidence that state protection was inadequate. In concluding that
Mr. De Bique had not met that burden, the Board relied on the following
evidence:
• Even
though Mr. De Bique was under police protection in hospital, he refused to
testify and, in so doing, stood in the way of convicting his assailant. In
effect, Mr. De Bique declined to accept the protection offered to him.
• Mr.
De Bique agreed there was nothing special about his circumstances that would
make it unreasonable for him to seek state protection; still, he was afraid.
• Mr.
De Bique testified that a police officer suggested that he drop the charges
against Samuel, but he was unable to identify the officer or his rank, or
explain why the officer would make such a suggestion.
• While
Mr. De Bique continued to receive threatening telephone calls, he failed to
report them to the police, so no action could be taken to investigate them.
[8]
Based
on this evidence, the Board concluded that state protection was reasonably
available and that Mr. De Bique had an obligation to avail himself of it. It
appeared that he simply declined to accept the protection that was available to
him.
[9]
The
Board further observed that St. Vincent is a democracy with a
functioning court system, is in effective control of its territory and has in
place a functioning security force to uphold the laws of the country. In those
circumstances, the presumption of state protection applied and the burden fell
on Mr. De Bique to present clear and convincing evidence to the contrary.
[10]
The
Board acknowledged that Mr. De Bique’s fear of continued attacks or revenge was
understandable. However, it was satisfied on the evidence that the authorities
in St. Vincent would help him if he asked. Accordingly, Mr. De Bique had failed
to show that adequate state protection was unavailable to him.
III. Was the Board’s Conclusion on
State Protection Unreasonable?
[11]
Mr.
De Bique submits that the Board erred in concluding that he had received, and
would continue to receive, state protection in St. Vincent.
[12]
Mr.
De Bique had testified that when threatened with anonymous telephone calls, the
police were unable to help him, and an officer in fact advised him to not
testify against Samuel, a known drug producer. Mr. De Bique contends that the
Board ignored these facts.
[13]
Further,
Mr. De Bique maintains that the Board ignored documentary evidence that
contradicted its conclusion that state protection was available. For example,
there was evidence showing that St. Vincent is a major producer of marijuana,
that police have difficulty combating drug violence and criminal organizations
in St. Vincent, and that there is corruption within government and the police
force. Further, there have been complaints that the government has failed to
investigate allegations of police abuse or punish police officers responsible
for abuses, and that the government has not implemented the law which penalizes
corruption. In fact, the Board’s own research indicated that “police are not
very effective in investigating crime and many crimes remain unsolved,” that
“witnesses in Saint Vincent and the Grenadines are reluctant to come forward
and get involved with police, that murder suspects have avoided convictions
because of deficiencies in police investigations, and that the perception of
police sympathy with drug growers has “hindered law enforcement.””
[14]
While
I agree with Mr. De Bique that the Board did not make explicit reference to the
fact that Samuel was alleged to be a drug producer, the Board clearly
recognized that Samuel was associated with a large criminal gang. The Board was
aware of the magnitude of the risk Mr. De Bique described.
[15]
Mr.
De Bique has pointed to portions of the documentary evidence setting out the
difficulties St. Vincent is having controlling drug trafficking and related
crimes. However, in my view, the Board correctly focused primarily on the facts
surrounding Mr. De Bique’s particular circumstances. Mr. De Bique testified
that, after his attack, he went to police and was provided protection. His
attacker was arrested, charged and detained while Mr. De Bique recuperated
under police protection. This was clear evidence that state protection was
available to protect him from Samuel. The fact that Mr. De Bique did not seek
further protection after he left the hospital is not evidence that state
protection was unavailable.
[16]
As
for the evidence that an officer counselled Mr. De Bique not to testify, the
Board discounted that testimony on the basis that Mr. De Bique could not
provide details of the conversation. This was purely a question of the weight to
be given to that testimony, which is solely for the Board to decide.
[17]
Based
on the evidence before it, I cannot conclude that the Board’s conclusion that St. Vincent had both the
means and the will to provide Mr. De Bique protection was unreasonable.
IV. Conclusion and Disposition
[18]
The
Board’s conclusion was a defensible outcome based on the facts and the law
before it. Therefore, I cannot conclude that it was unreasonable and must
dismiss this application for judicial review. Neither party proposed a question
of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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