Docket: IMM-735-11
Citation: 2011 FC 1134
Ottawa, Ontario, October 6, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MISHKA MATIKA WILLIAMS
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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
2002, when she was 16 years old, Ms. Mishka Matika Williams came to Canada from St Vincent
and the Grenadines to visit her mother. She began a relationship with a man from
St Vincent named Peter who abused her. Peter assaulted her repeatedly. He was
ultimately arrested and deported to St Vincent in 2006. He blames Ms.
Williams for his removal from Canada, and has been threatening to harm her if
she returns to St Vincent.
[2]
Ms.
Williams has sought refugee protection in Canada. A panel of
the Immigration and Refugee Board dismissed her claim primarily on the basis
that state protection is available to her in St Vincent.
[3]
Ms.
Williams argues that the Board’s conclusion that adequate protection was
available to her in St Vincent was unreasonable. She asks me to overturn the
Board’s decision and order a new hearing before a different panel. I agree that
the Board’s conclusion on state protection was unreasonable and must,
therefore, allow this application for judicial review. In my view, the Board’s
analysis did not take sufficient account of Ms. Williams’ personal
circumstances.
[4]
The
sole issue is whether the Board’s conclusion on state protection was
unreasonable.
II. The Board’s Decision
[5]
The
Board drew a negative inference from the fact that Ms. Williams did not seek
refugee protection until 2009, even though Peter had been deported in 2006.
This showed that she did not have a subjective fear of persecution if she
returned to St Vincent.
[6]
The
Board then considered whether there was an objective basis for Ms. Williams’
fear of being the victim of physical harm in St Vincent. In
particular, it analyzed documentary evidence describing the state apparatus
available in St Vincent to protect women who fear domestic violence.
[7]
The
Board noted that the burden fell on Ms. Williams to present clear and
convincing evidence of an absence of state protection, and that the burden is
greater in respect of a well-established democracy such as St Vincent.
[8]
The
documentary evidence before the Board showed that St Vincent has an independent
judiciary and a growing police force. In addition, it has put in place several
mechanisms to address the issue of domestic violence, including:
• The
Domestic Violence Proceedings Act (1994), and the Domestic Violence
Summary Proceeding Act (1995). The legislation enables the Court to issue
restraining orders against aggressors; if the aggressor fails to respect the
order, the police may arrest him without a warrant;
• Protective
or restraining orders through the Family Court, available to victims if they
can show that their spouse or partner has committed, tried to commit or
threatened to commit acts of physical, sexual or mental abuse;
• Criminal
Code sanctions for rape (including spousal rape) and sexual assault,
carrying sentences of up to 10 years’ imprisonment;
• Family
Court assistance to victims of domestic violence in locating temporary shelter;
• Family
Court counsellors that assist with the preparation of court documents, and
counsel victims and perpetrators;
• Female
police officers (there are now 121) and police officers trained to handle cases
of domestic violence, with emphasis on filing a report (with copies available
for the victims) and initiating court proceedings if there is sufficient
evidence; and
• A
Gender Affairs Division that provides a referral and information service to
domestic abuse victims, educating victims on the role of the police, legal
affairs and Family Court in dealing with domestic violence, and on the assistance
provided by Non Governmental Organizations [NGOs].
[9]
Police
are now more likely to view domestic violence as a criminal act rather than a
private concern. The coordinator of the Saint Vincent and the Grenadines Human
Rights Association [SVGHRA] reports that police respond to all calls of
domestic violence, and this organization holds national educational campaigns
to make victims more aware of their legal rights and options. Statistics
reflect that progress is being made, and that perpetrators are being arrested,
prosecuted and convicted.
[10]
The
Board also noted that, where offenders go unpunished, it is often due to a
culture where victims do not seek police assistance or do not follow through
with charges. This makes police reluctant to proceed criminally and instead
encourage parties to settle. To counter the social pressure on women to drop
charges, some courts imposed fines against people who brought charges but did
not testify.
[11]
Social
services agencies and NGOs also provide assistance to victims of domestic
violence.
[12]
The
Board acknowledged that violence against women remains a serious problem in St Vincent and that
protection for victims is not perfect. However, it noted that there has been an
improvement in the police response to violence against women as well as
accessibility to legal remedies, demonstrating that St Vincent is making
serious efforts to address the problem of domestic violence.
[13]
In
response to Ms. Williams’ allegation that Peter had threatened to kill her family
in St
Vincent,
the Board noted that murder convictions carry a mandatory death sentence. Her
mother said in a letter that she had reported Peter to the police several
times, but they had done nothing to protect them. The Board found that Ms.
Williams had not provided any of the police reports regarding her family’s
complaints about Peter. Furthermore, a local failure to provide effective
policing did not amount to a lack of state protection unless it was part of a
pattern of state inability or refusal to provide protection (Zhuravlvev v Canada (Minister of
Citizenship and Immigration), [2000] 4 FC 3 (TD)).
[14]
The
Board also pointed out that a state cannot be considered to have failed to
provide state protection when a claimant has not approached the state for
protection. In the absence of a compelling explanation, a failure to pursue
state protection will usually be fatal to a refugee claim, at least where the
state has the willingness and the apparatus necessary to provide its citizens
with a measure of protection.
[15]
The
Board concluded that, although state protection in St Vincent is not perfect,
it is effective and adequate, that St Vincent is making serious and genuine
efforts to address the problem of domestic violence, and that police are both
willing and able to protect such victims. For these reasons, Ms. Williams could
reasonably expect protection from the authorities should she return to St Vincent. The Board
therefore found that the applicant was neither a Convention refugee nor a
person in need of protection, and rejected her claim.
III. Was the Board’s Conclusion on
State Protection Reasonable?
[16]
Ultimately,
given the definition of a refugee, the question to be answered in all refugee
claims involving state protection is whether, taking account of all the
evidence, including the evidence relating to the state’s capacity and
willingness to provide protection against persecution, the claimant has shown
on the balance of probabilities that there is a reasonable chance that he or
she will be subjected to persecution if returned to his or her country of
origin.
[17]
In
this case, even though the Board cited the legislation on the books and various
policies and initiatives, it did not consider whether the state was actually able
and willing to provide Ms. Williams with protection against persecution. In
failing to consider this, the Board’s decision was unreasonable.
[18]
The
Board cited numerous examples of legislation, police training and resources
that had been put in place in St Vincent in order to protect domestic violence
victims. However, its reasons are virtually silent on whether those initiatives
are actually protecting women from harm. When examining whether a state is
making serious efforts to protect its citizens, that protection must be
evaluated at the operational level, particularly in cases of violence against
women: Toriz
Gilvaja v Canada (Citizenship and Immigration), 2009 FC 598, at para 39,
and Palomino
v Canada (Minister of Citizenship and Immigration), 2011 FC 1040, at paras
29-31.
[19]
Although
there is evidence that St Vincent is making serious
efforts to combat the issue of domestic violence, there is just as much
evidence showing that those efforts are not resulting in adequate state
protection. In addition, the Board did not appear to take account of the fact
that Ms. Williams was consistently physically abused throughout her year-long
relationship with Peter; he attacked her while he was out on bail; and even
after he was deported, he harassed her with threatening phone calls and
messages sent through his family and friends. Ms. Williams believes that, if
she returns to St Vincent, Peter will harm her or even kill her.
[20]
The
Board is to be commended for its thorough review of the documentary evidence.
However, it failed to take the essential next step of considering whether the
remedies available to Ms. Williams in St Vincent would actually offer her
sufficient protection to justify a conclusion that her fear of persecution or
serious mistreatment in St Vincent was not well-founded or
not substantiated.
[21]
To
answer the questions inherent in s 96 and s 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (see Annex), the Board must consider
whether, taking account of all the evidence, including the evidence relating to
the state’s ability and capacity to respond to the risks faced by the claimant,
the claimant has shown on the balance of probabilities that, if returned to his
or her country of origin, (1) there is a reasonable chance that he or she will
be subjected to persecution (s 96); or (2) he or she will face a risk to life
or of cruel or unusual treatment or punishment (s 97).
[22]
Of
course, the Board must review the relevant evidence, as the Board did here. It
must look carefully at the state resources available in the claimant’s country
of origin. However, having done so, it must then go on to determine whether
those resources would actually provide protection to the claimant. This demands
a consideration of the specific threat to the claimant’s safety and the degree
to which the state’s resources would provide meaningful protection to him or
her.
[23]
Without
that final step, the Board’s description of the state’s apparatus is no more
than that – a description – and not a real analysis of the degree to which the
claimant will be put at risk if returned to her country of origin. And without
that analysis, the Board’s conclusion that state protection is available to the
claimant is abstract and artificial, unresponsive to the actual circumstances
the claimant faces. In such a situation, as here, the Board’s conclusion is
unreasonable because it fails to take account of the evidence before it
relating to the claimant’s particular circumstances.
IV. Conclusion and Disposition
[24]
Because
the Board’s treatment of the issue of state protection did not evaluate St
Vincent’s real capacity to protect women in Ms. Williams’ circumstances, I must
find that the Board’s conclusion was unreasonable. Accordingly, the application
for judicial review must be allowed. Neither party proposed a question of general
importance for me to certify, and none is granted.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is allowed and a new hearing before a different
panel is ordered;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
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.
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.
(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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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
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.
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.
(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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