Date: 20110124
Docket: IMM-1768-10
Citation: 2011 FC 82
Ottawa, Ontario, January 24, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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LANA SHERRY HIPPOLYTE
KEYNON CLIFF HIPPOLYTE
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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 for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated March 3, 2010,
concluding that the applicants are not Convention refugees or persons in need
of protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act)
because the applicants have adequate state protection in Saint Lucia.
FACTS
Background
[2]
The
applicants are Lana Sherry Hippolyte, the principal applicant, and her son,
Keynon Cliff Hippolyte, for whom the principal applicant acted as a designated
representative before the Board. The applicants are citizens of Saint Lucia. They
arrived in Canada on December
19, 2006, and filed their refugee claim approximately one year later, on
December 13, 2007. The applicants claim refugee protection on the grounds that
Keynon’s father was abusive towards the principal applicant.
[3]
Although
the principal applicant was vague on the precise dates, the Board accepted that
she was repeatedly abused by her son’s father. She sustained injuries and he
threatened to kill her. She described one instance, in 2000, when her abuser
hit her with a gun, leaving a gash that required her to get stitches at the
hospital. She described a second instance, in 2001, during which her abuser
stabbed her and she required hospital treatment.
[4]
The
principal applicant lived with her son’s father for one month following the
birth of her son, after which she went to live with her mother. Her abuser
continued to threaten and abuse her while she was living with her parents.
[5]
In
2002, after one abusive incident in which her abuser slapped her face, the
principal applicant called the police. The police gave him a warning and forced
him to leave.
[6]
Also
in 2002, the principal applicant testified that she began working at a
restaurant, where her abuser repeatedly came and harassed her. The applicant’s
“boss” at the restaurant always made her abuser leave the premises.
[7]
From
2002 to 2006, the principal applicant continued to be harassed by her abuser,
who threatened to kill her and take her son away.
Decision under Review
[8]
On
March 3, 2010, the Board rejected the applicants’ refugee claim. Because the
Board accepted that the principal applicant had been abused during her
relationship with the alleged agent of persecution, the Board stated at
paragraph 7 that it had considered the guidelines, Women Refugee Claimants
Fearing Gender-Related Persecution, issued by the Chairperson on June 28,
2002, under the authority of the Act.
[9]
At
paragraph 8, the Board stated that the determinative issue was state
protection. The Board stated the law with regard to state protection at
paragraphs 9-10 of its decision:
¶9. The Board, in assessing the
issue of state protection, is guided by a number of cases from the Federal
Court and the Supreme Court of Canada. There is a presumption, except in
situations where the state is in a complete breakdown, that it is capable of
protecting its citizens. A claimant can rebut this presumption by providing
clear and convincing evidence of the state’s inability to protect. The onus is
on the claimant to approach the state for protection in situations where state
protection might reasonably be forthcoming.
¶10. No government is expected to
guarantee perfect protection to all of its citizens at all times, and the fact
that a state is not always successful in protecting its citizens is not enough
to justify a claim, especially where a state is in effective control of its
territory, has military, police, and civil authorities in place and is making
serious efforts to protect is citizens.
Less than perfect protection is not a basis to determine that the state is
either unwilling or unable to offer reasonable protection.
[10]
The
Board considered the steps that the principal applicant took to seek state
protection. The Board noted that although the principal applicant claimed that
she had twice received hospital treatment as a result of the abuse that she
suffered, she had no documentary evidence to corroborate those claims. The
Board further stated that on neither occasion did the principal applicant
contact state authorities. The Board considered the principal applicant’s
explanation that she did not contact police because the perpetrator had
followed her to the hospital and so she was too afraid, but the Board appeared
to question this, noting that she had also not contacted the police after she
left the hospital.
[11]
The
Board stated that the principal applicant had only once approached the police:
in 2002, when she was living at her mother’s house and had been slapped by the
perpetrator. The principal applicant acknowledged that there had been a police
report made of the incident, but was unable to obtain a copy for the Board. The
Board stated that the principal claimant believed that the police reaction to
her complaint was insufficient because they failed to arrest the perpetrator.
[12]
The
Board found that the principal applicant’s evidence did not reveal details of
any incidents between the 2002 abuse and the time that the applicants left Saint Lucia in 2006,
although it did indicate that she was continually harassed by her abuser. The
principal applicant acknowledged, however, that at no time during this period
did she report any ongoing harassment or threats to the police. She explained
that she did not believe that the police would assist her.
[13]
At
paragraph 15, the Board concluded that the principal applicant was not diligent
in pursuing state protection:
¶15. The Board concludes that the
principal claimant was not diligent in pursuing state protection. The Board
specifically notes the two incidents in which the principal claimant sustained
injury and in which she made no reports to the police. Yet when roughed up
later at her mother’s house, she telephoned the police. At no time since 2002,
did the claimant contact the police or any other state authority.
[14]
The
Board considered the documentary evidence regarding the availability of state
protection in Saint
Lucia.
The Board found that Saint Lucia is a democracy with a
functioning and independent judiciary. It found that the state police force is
competent and orderly. It is hierarchical and provides members of the public
with procedures for complaining to higher levels if they are dissatisfied with
police services.
[15]
The
Board found that violence against women is a problem in Saint Lucia. It
considered the applicant’s evidence that state efforts to combat violence
against women are not effective. In particular, it considered a report from a
non-governmental organization, CAFRA, and counsel’s submissions that police do
not take complaints seriously.
[16]
The
Board concluded that there is an effective security force in place to protect
women of domestic violence. At paragraphs 18 and 20, the Board recited much of
the salient documentary evidence [references omitted]:
¶18. The Ministry of Health, Human
Services and Gender Relations is responsible for addressing the problem of
domestic violence. The increased recognition of gender-based violence has led
to the government and advocacy groups being able to offer better protection to
victims. The Domestic Violence Act (1995) prohibits violence against
women and children and has provisions for Protection Orders and Occupation
Orders, which can remove the abuser from the home. There is a special Family
Court to deal with domestic violence issues and generally, the laws are
enforced. The Court is described as victim friendly and an applicant does not
require the services of a lawyer to proceed. Social workers at the Court assist
victims in obtaining Protection Orders and conduct investigations of
allegations to determine urgency of need. Police have undertaken special gender
sensitivity training. Although it is acknowledged that some are still reticent
to intervene, response speed is often attributed to a lack of police
transportation.
…
¶20. Documentary evidence confirms
that there are investigations, prosecutions and convictions and Protection
Orders issued in domestic assault situations. The statistics bear this out.
Problems with reporting continue as victims are often reluctant to come forward
and follow through with laying charges, or they withdraw due to financial
dependency on the perpetrator.
[17]
The
Board also found that there are significant support services available to
victims of domestic violence [references omitted]:
¶19. The documentary evidence also
indicates that support services for physical, sexual and emotional abuse are
available in the Saint Lucia Crisis Centre for Women. In addition, the Women’s
Support Centre, which is a government-supported shelter for women, provides
residential services, crisis intervention, counselling education out-reach and
assists victims with applications at court for Protection Orders. The Centre
has a 24-hour hotline and can arrange to pick up victims at any time.
[18]
At
paragraph 21 the Board concluded that the principal applicant’s lack of
confidence in the availability of state protection was not supported on the
evidence:
¶21. The claimant does not believe
that she would be afforded state protection as the police in her opinion do not
take the necessary action. The Board finds that this statement is vague,
speculative and inconsistent with what objective agencies who observe
conditions in Saint
Lucia indicate.
The Board finds, based on the documentary evidence before it, that there is an
effective security force in place and that police reluctance, although
existing, is not generalized.
LEGISLATION
[19]
Section 96
of the Act, grants protection to Convention refugees:
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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
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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.
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[20]
Section 97
of the Act grants protection to persons whose removal would subject them
personally to a danger of torture, or to a risk to life, or to a risk of cruel
and unusual treatment or punishment:
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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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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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ISSUES
[21]
The
only issue in this application is whether the Board’s finding that the
applicants had failed to rebut the presumption of state protection was
reasonable.
STANDARD OF REVIEW
[22]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question”: see also Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per
Justice Binnie at paragraph 53.
[23]
Questions
of state protection concern determinations of fact and mixed fact and law. They
concern the relative weight assigned to evidence, the interpretation and
assessment of such evidence, and whether the Board had proper regard to all of
the evidence when reaching a decision. It is clear that as a result of Dunsmuir
and Khosa that such questions are to be reviewed on a standard of
reasonableness: see, for example, my decisions in Corzas Monjaras v. Canada
(Minister of Citizenship and Immigration), 2010 FC 771 at paragraph 15; and
Rodriguez Perez v. Canada (Minister of Citizenship and Immigration) 2009
FC 1029 at paragraph 25.
[24]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at para. 59.
ANALYSIS
Issue: Did the Board err in finding that the
applicants had failed to rebut the presumption of state protection?
[25]
The
applicants submit that where an applicant has sought state protection and it
was not forthcoming, objective evidence is sufficient to rebut the presumption
of state protection. In this case, the applicants submit that the principal
applicant did approach the police on one occasion but state protection was not
forthcoming. As a result, the applicant submits that the Board erred in failing
to consider the objective documentary regarding the inadequacy of state
protection. The applicant further submits that the Board erred by focusing upon
the availability to victims of domestic violence of mechanisms or organizations
for protection, rather than focusing upon the effectiveness of the protection
that they offer.
[26]
At
paragraphs 9 and 10 of its decision, quoted above, the Board described the law
with regard to state protection. As the Board recognized, the question is
whether state protection is adequate – perfection is not demanded.
[27]
There
has been some discussion in the past regarding whether the test for state
protection is adequacy or “effectiveness.” In Flores v. Canada (Minister of
Citizenship & Immigration), 2008 FC 723, at paragraph 8, Justice
Mosley, stated that “[Carrillo v. Canada (Minister of
Citizenship & Immigration), 2008 FCA 94] confirmed that the test is
adequacy rather than effectiveness per se.” This position has since been
upheld in a number of decisions before this Court. In Cosgun v. Canada (Citizenship
and Immigration), 2010 FC 400, at paragraph 52, Justice Crampton concluded:
¶52. Based on the foregoing review of
the cases cited by the parties, I agree with the Respondent that the law is now
well-settled that the appropriate test for assessing state protection is
whether a country is able and willing to provide adequate protection. In short,
a claimant for protection under sections 96 or 97 of the IRPA must establish,
with clear and convincing evidence, and on a balance of probabilities, the
inability or unwillingness of the state to provide adequate protection. This
burden of proof remains the same regardless of the country being assessed,
although the evidentiary burden required to rebut the presumption of adequate
state protection will increase with the level of democracy of the state in
question. (Carrillo, above, at paras. 25 and 26.)
[28]
In
this case, the applicants submit that there was significant documentary
evidence before the Board regarding the inadequacy of state protection for
victims of domestic violence in Saint Lucia. The applicants submit
that the Board failed to consider the following probative evidence:
- a 2006 Response to Information
Request stating that police response is sometimes ineffective, especially
in emergency situations, because of factors such as a lack of
transportation for police personnel;
- a 2009 Response to Information
Request stating that the Executive Director of the Saint Lucia Crisis
Centre did not think that the police were effective in combating domestic
violence or that the formation of the special police Victim Protection
Unit had improved the situation; and
- the same 2009 Response to
Information Request stating that a newspaper article reported on a victim
of domestic violence who had repeatedly sought and failed to receive
police protection and was eventually killed by her abuser.
[29]
The
applicants submit that this evidence reveals that state protection is not
available to victims of domestic violence, and that the mechanisms and
organizations that exist to offer state protection are not effective in
providing adequate protection.
[30]
In
this case, the Board’s reasons demonstrate a careful consideration of the
objective documentary evidence, including the evidence that is contrary to its
ultimate conclusion. Indeed, the Board specifically quoted from the 2006
Response to Information Request cited by the applicants, and recognized the
problems that some non-governmental organizations had reported regarding the
effectiveness of state protection. Nevertheless, the Board concluded that the
applicants had failed to provide clear and convincing evidence on a balance of
probabilities that the principal applicant had sought state protection or that
state protection would not be forthcoming to the applicants. Indeed, the Court
notes that the one time the principal applicant called the police the police
came and dealt with the alleged abuser in a reasonable manner.
[31]
The
Board’s reasons are justified, transparent, and intelligible.
CONCLUSION
[1]
It was
reasonably open to the Board to find that the applicants’ evidence failed to
persuade it on the balance of probabilities that there is inadequate state
protection available to the applicants in Saint Lucia. Accordingly, there is no basis upon
which this Court can interfere with the Board’s conclusion.
CERTIFIED QUESTION
[2]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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