Date: 20080404
Docket: IMM-7117-05
Citation: 2008 FC 446
Ottawa, Ontario, April 4, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
DONNA MICHELLE WOODS
JANNIN MONIQUE WOODS
JASMIN KIMORNE NATASHA WOODS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This is an application pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 [Act] for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee Board
(Board) dated November 03, 2005, (Decision) wherein the Board determined that
the Applicants were not Convention refugees under section 96 of the Act, nor persons
in need of protection under section 97 of the Act.
BACKGROUND
[2]
The
Applicants, Jannin, Jasmin and Donna, are three sisters. They are citizens of St. Vincent. They allege
that they fear persecution in Saint Vincent from their brother, Ronald Woods
(half brother to Donna), on the basis that he is abusive.
[3]
The
Applicants say they were physically and sexually abused by Ronald for years. He
threatened to kill them on numerous occasions and has attacked them using
objects such as stones and a machete. His abusive and threatening behaviour is
known to the community, the family, and the authorities in St. Vincent.
[4]
The
Applicants do not fear any other person in St. Vincent.
[5]
At
the Board hearing, Donna provided a police report listing three convictions
where Ronald was charged and sentenced for assaulting and wounding her. In 1988,
Ronald was sentenced to hard labour for two months. In both 1990 and 1991, he
was sentenced to one year of hard labour. The Applicants testified that there
were other convictions for assaulting them including an attempted rape, which
did not appear on the police report. They further testified that two
restraining orders were issued by the court ordering Ronald to stay away from
the family home, the latest being issued in 1998 upon Ronald’s release from a
two-year jail sentence.
[6]
According
to the Applicants, notwithstanding his convictions, Ronald continued to stalk
the family and his abusive behaviour towards them persisted. They further
testified that the police were scared of Ronald and he did not obey the
restraining orders issued by the courts.
[7]
Jannin
came to Canada on March 14,
1999; Jasmin arrived soon afterwards on March 28, 1999. In 1992, Donna moved to
Trinidad and Tobago until 2001; she returned to St. Vincent briefly, and then came
to Canada on October
12, 2001. All three women claimed refugee protection on November 26, 2004.
DECISION UNDER REVIEW
[8]
The
Board accepted the Applicants’ evidence but rejected their claim for refugee
status on the basis of state protection, holding that “the claimants…failed to
rebut with clear and convincing evidence the presumption that the
democratically elected government of St. Vincent is capable of providing
protection for it is [sic] citizens and there was no evidence provided that the
government is in chaos or disarray and unable to govern” (Decision at page 4).
The Board also noted the Applicants’ delay in seeking refugee protection, but
stated that the determinative issue was the availability of state protection.
[9]
The
Board noted that there was evidence supporting the allegations “that women do
suffer sexual, physical and emotional abuse in St. Vincent as they do in many
regions of the world” but found that there was documentary evidence that the
government was “making a serious effort to address the problem” (Decision at
page 4).
[10]
After
stating that the police in St. Vincent had arrested, charged and prosecuted
Ronald on several occasions, the Board held that adequate state protection does
not require perfect protection, nor protection for all citizens at all times.
[11]
The
Board further held that compelling reasons did not arise in this case because
there was no evidence that the persecution suffered by the Applicants had
reached the threshold of being so atrocious or appalling that they were
psychologically damaged to the extent that they could not return to St. Vincent. The Board
also noted that there was evidence of support and awareness in St. Vincent of
the Applicants’ circumstances.
ISSUES
[12]
The
Applicants raise the following issue:
1. Was the
Board’s finding on state protection unreasonable?
ARGUMENTS
Applicants’
Submissions
[13]
The
Applicants say the Board imposed an unreasonable burden on them. They rely on Franklyn
v. (Canada) Minister of
Citizenship and Immigration, 2005 FC 1249, [2005] F.C.J. No. 1508 (QL) [Franklyn], a recent
decision of this Court also involving a claim of domestic violence from St.
Vincent. In that case, the Court held that the Board had placed too much
emphasis on the fact that St. Vincent was a democratic state
and pointed out that, although serious efforts were being made to curb domestic
violence, it was not enough to demonstrate that the state has the ability to
protect women in the claimants’ situation. The Court held in Franklyn that
it was unreasonable to have expected the claimants to seek further state
protection after having been “rebuffed or ignored,” and noted as follows at
paragraph 23:
…when, as in this case, past experiences turned out to be
ineffective and the country documentation is clearly to the effect that
domestic violence is met with insensitivity and inaction by the police, it
seems to me that the threshold to establish the incapacity of the state to
protect its citizens should be lower.
[14]
The
Applicants note that, in the present case, there was evidence before the Board
that Ronald beat, threatened, stalked and attempted to kill them on numerous
occasions. They argue that he has been in and out of jail, yet this has not and
will not act as a deterrent. In their words, “he will not stop until he kills
us.” According to the Applicants, since the Board found their evidence to be
credible, the Board was required to accept their “reasonable assessment and
their lived experiences that a restraining order would not deter him from
continuing to persecute them.”
[15]
Next,
the Applicants argue that the Board considered the documentary evidence
selectively and failed to refer to evidence contrary to its findings and that
supported their claims. The Applicants note that the Board’s analysis of the
country conditions documentary evidence was contained entirely in two lines of
its Decision, and the Board made reference only to the Domestic Violence Act,
1995 and an IRB Inforequest, VCT 42714.E. According to the Applicants, the
Board’s analysis did not deal with the contrary information contained in the
same document and found in other IRB Inforequests.
[16]
The
Applicants add that, although the Board is not required to refer to every piece
of documentary evidence, it must demonstrate in its reasons that it has read
and appreciated the nature of all the evidence before it. In the present case,
argue the Applicants, the Board ignored the letter from Mr. Sylvester
Raymond-Cadette, a Barrister and Solicitor and former Magistrate in St.
Vincent, which confirmed many of the Applicants’ assertions, including that
Ronald made continuous threats to his family and is a constant threat to the
lives of family members who live in St. Vincent. According to the Applicants,
the Board rejected their testimony and undertook a selective and minimal
reading of the documentary evidence before it. Further, they suggest that the
documentary evidence regarding St. Vincent revealed that the
government has started to make some small steps, but those steps fall far short
of providing actual protection. They argue that, in their particular situation,
they received some temporary protection on a few occasions but the state
continued to fail them and they continued to face a grave risk.
[17]
Next,
the Applicants argue that the Board erred in finding they failed to investigate
other avenues and did not have information about the services provided by
Marion House. The Applicants submit this finding is erroneous and fundamentally
flawed for two reasons: first, the Applicants testified they had heard about
Marion House and believed that it helped train young people who were out of
school (a view, according to the Applicants, supported by the documentary
evidence); second, they argue the Board confused the availability and
effectiveness of state protection with the provision of counselling and advice.
In support of this argument, the Applicant’s rely on Justice McKeown’s decision
in Cuffy v. Canada (Minister of Citizenship and Immigration), (1996),
121 F.T.R. 81 [1996] F.C.J. No. 1316 (QL) [Cuffy], where the Board was
found to have confused the documentary evidence with respect to the existence
of counselling and other resources with the state’s ability to provide state
protection. The Court in Cuffy held that “counselling is no substitute
for the absence of police protection” (Cuffy at para. 15).
[18]
The
Applicants go on to suggest that the Board also erred in its assessment of
whether the St. Vincent government could provide adequate and effective state
protection. In its Decision, the Board noted as follows at pages 4-5:
…I find that the police in St. Vincent had prosecuted Ronald as he
had been arrested, charged and prosecuted on several occasions and the standard
for adequate state protection is not perfect protection nor protection for all
citizens at all times.
The Applicants submit that the
jurisprudence of this Court has established that a willingness to provide state
protection to victims of domestic violence is not enough for a finding of adequate
state protection. The Applicants rely on this Court’s decision in Bobrock v.
(Canada) Minister of Citizenship and Immigration, (1994), 85 F.T.R. 13 [1994]
F.C.J. No. 1364 (QL), where Justice Tremblay-Lamer held as follows at
paragraph 13:
…even
when the state is willing to protect its citizens, a claimant will meet the
criteria for refugee status if the protection being offered is ineffective. A
state must actually provide protection, and not merely indicate a willingness
to help. Where the evidence reveals that a claimant has experienced many
incidents of harassment and/or discrimination without being effectively
defended by the state, the presumption operates and it can be concluded that
the state may be willing but unable to protect the claimant.
[19]
The
Applicants argue that the Board was not responsive to the reality of their
situation. They sought state protection on numerous occasions and, although
they were successful in obtaining temporary protection on some of those
occasions and Ronald was incarcerated for short periods of time, the reality is
that Ronald is “out of control” and his incarcerations do not deter him. It is
unrealistic, argue the Applicants, to hold that they should continue to place
their lives at risk. In support of this assertion, the Applicants cite the
Supreme Court of Canada’s decision in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689 at page 724, 103 D.L.R. (4th) 1 [Ward
cited to S.C.R.], where the Supreme Court held that “it would seem to defeat
the purpose of international protection if a claimant would be required to risk
his or her life seeking ineffective protection of a state, merely to demonstrate
that ineffectiveness.” Thus, according to the Applicants, the Board applied the
wrong legal test to state protection and did not address whether the state of St. Vincent can provide effective
protection to victims of domestic violence.
[20]
The
Applicants’ final submission on this point is that the Board applied too
elevated a standard in evaluating state protection. In its reasons, the Board,
relying on Ward, held as follows at page 4:
I find that the claimants have failed to
rebut with clear and convincing evidence the presumption that the
democratically elected government of St. Vincent is capable of providing
protection for it is [sic] citizens and there was no evidence provided
that the government is in chaos or disarray and unable to govern.
[21]
The
Applicants cite Justice O’Reilly’s decision in Carillo v. Canada (Minister
of Citizenship and Immigration), 2007 FC 320, [2007] F.C.J. No. 439 (QL) [Carillo],
where it was held that the presumption of state protection does not mean that
there is a higher burden of proof on claimants in cases involving the question
of state protection. Rather, the presumption “simply means that, in those
cases, claimants must tender reliable evidence on the point or risk failing to
meet the definition of a refugee. In other words, the presumption is not a
special hurdle that refugee claimants must overcome where the issue of state
protection arises – rather, it simply establishes a starting point for
analyzing the well-foundedness of a claim” (Carillo at para. 15).
[22]
The
Applicants further note that in Carillo, Justice O’Reilly held as
follows:
The words “clear
and convincing confirmation” could be interpreted as creating a standard of
proof. They are sometimes used to refer to a standard of proof greater than a
balance of probabilities and just short of proof beyond a reasonable doubt (see
Kenneth S. Brown, ed. McCormick on Evidence, 6th ed. (St. Paul, Minn.:
Thomson West, 2006 at [s]340)). However, this is rare. In my view, Justice La Forest could not have intended to establish such a unique and
elevated standard of proof in relation to state protection without any
discussion on the point or any reference to the prior jurisprudence dealing
with the burden of proof in refugee cases. In particular, he did not refer to
the Adjei case…in which the Federal Court of Appeal specifically dealt
with the burden of proof on refugee claimants in relation to the objective
branch of the definition of a refugee.
Respondent’s
Submissions
[23]
The
Respondent submits that the Applicants’ arguments regarding the issue of state
protection amount to a request for a reweighing of the evidence, which is not
the role of the Court on judicial review. According to the Respondent, the Applicants
have failed to show that the Board’s findings were not open to it. Moreover,
the Board’s findings were factual. Since the Board is best placed to weigh the
evidence, both oral and documentary, and assess the merits of the claim, the
Board’s determination is entitled to deference.
[24]
The
Respondent argues that it is well established that a refugee claimant must
provide clear and convincing proof of a state’s inability to protect. Thus, it
is not sufficient for a claimant merely to show that a government is not always
perfect in its protection of citizens, and it is not an unreasonable burden to
require a claimant to seek the protection of their country before seeking
surrogate protection elsewhere.
[25]
The
Respondent relies on the jurisprudence of this Court for the assertion that it
is reasonable for the Board to expect claimants to take all reasonable steps to
ensure their own protection. The state should be given the opportunity to
provide the protection that it has available. The Respondent goes on to note
that there was evidence before the Board in this case that Ronald was charged
and sentenced for the violence he committed against the Applicants. Thus, the
police in St. Vincent have responded to the Applicants’ requests for
protection.
[26]
The
Respondent further argues that the Applicants’ position clearly posits an overly
stringent standard of state protection that is not commensurate with Federal
Court of Appeal jurisprudence. According to the Respondent, that jurisprudence
establishes that it is an untenable position to require that a country be able
to guarantee protection to all its citizens at all times. Relying on Ward,
the Respondent argues that state protection does not require perfect
protection. In further support of this argument, the Respondent relies on
Justice Layden-Stevenson’s decision in Resulaj v. Canada (Minister of
Citizenship and Immigration), (2006), 53 Imm. L.R. (3d) 229, 2006 FC
269 at para. 20 [Resulaj], where she discussed the Supreme Court
of Canada’s decision in Ward and the Federal Court of Appeal’s decision
in Canada (Minister of Employment and Immigration v. Villafranca (1992),
99 D.L.R. (4th) 334, [1992] F.C.J. No. 1189 (QL) leave to appeal
dismissed, [1993] S.C.C.A. No. 76:
Absent a situation of complete breakdown
of state apparatus, it is generally presumed that a state is able to protect its
citizens. This presumption serves to reinforce the underlying rationale of
international protection as a surrogate, coming into play where no alternative
remains to the claimant. Refugee claimants must present clear and convincing
confirmation of a state’s inability to protect them in order to rebut the
presumption that states are capable of protecting their citizens: Ward v. Canada (Minister of Employment and
Immigration).
State protection cannot be held to a standard of perfection but it must be
adequate. It is not enough to show that a government has not always been
effective in protecting persons in a claimant’s particular situation. However,
where the state is so weak and its control is so tenuous as to make it a
government in name only, it may be justified to claim an inability to obtain
state protection: Canada (Minister of Employment and Immigration) v. Villifranca
[footnotes omitted].
[27]
The
Respondent argues that it is evident from the transcript and the Applicants’
own testimony that the police have consistently responded to the Applicants’
request for protection, including prosecuting and incarcerating Ronald for
assault on several occasions. The fact that St. Vincent can offer the Applicants
state protection, the Respondent argues, is determinative. Thus, given the
documentary evidence as well as the response from the police with regard to the
Applicants’ circumstances, the Board’s finding of state protection cannot be
characterized as unreasonable.
[28]
With
respect to the allegation that the Board ignored the letter from Mr. Sylvester
Yamond-Cadetter, the Respondent argues that the Board is not obliged to mention
every piece of evidence before it; further, the Board accepted that the Applicants’
brother made threats to the family on numerous occasions. The Respondent adds
that the Board did indeed refer to the letter from Mr. Yamond-Cadetter, as is
evidenced in the footnote reference to the letter in the Board’s Decision.
[29]
The
Respondent also submits that the Applicants’ arguments pertaining to the Board’s
comments in relation to the Marion House are without merit. The Respondent
suggests it is obvious from the Decision that the Board’s mention of Marion
House merely recites the fact that the Applicants had no information about that
institution. The Board did not rely on the existence of Marion House as a
source of protection for the Applicants in St. Vincent. Rather, the
Board relied on the protection available from the state itself.
REASONS
1.
Was
the Board’s finding on state protection unreasonable?
Standard
of Review
[30]
With
respect to the standard of review applicable to the Board’s determination of
state protection, the Applicant submits that the question is one of mixed fact
and law reviewable on a standard of reasonableness simpliciter. The Respondent
submits that the applicable standard is patent unreasonableness, as the Board’s
findings are factual in nature and so attract the greatest degree of deference.
[31]
Recently, in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir], the Supreme Court of Canada
recognized that, although the reasonableness simpliciter and
patent unreasonableness standards are theoretically different, the “analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” (Dunsmuir at para. 44). Consequently, the
Court held that the two reasonableness standards were to be collapsed into a
single form of “reasonableness” review.
[32]
The central issue in this case is whether, given
the facts established by the Applicants’ evidence, which the Board accepted,
the presumption of adequate state protection was rebutted. I regard this as a
question of mixed fact and law reviewable on a standard of reasonableness.
Following Dunsmuir, the analysis of the Board’s decision will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process” (Dunsmuir at para.
47). If the Decision does not fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law,” the Decision
shall be set aside.
Merits
[33]
As
regards the Applicants’ argument that the Board considered the documentary
evidence selectively and failed to refer to evidence contrary to its own
findings, the Board noted the following about the country condition documentary
evidence in its Decision at page 4:
There is evidence that supports the
claimants’ allegations that women do suffer sexual, physical and emotional
abuse in St. Vincent as they do in many regions of the world. The documentary
evidence is that the government of St. Vincent
is making a serious effort to address the problem.
[34]
With
respect to the Board’s comment in the first sentence, the Board makes a general
reference to the RPD Information Package and specifically cites section 5 of a
United States Department of State Country Report on Human Rights Practices. In
support of its finding that “the government is making a serious effort to
address the problem,” the Board refers to the Domestic Violence Act, 1995,
and the IRB Response to Information VCT42714.E from May 26, 2004.
[35]
It
is well established that there exists a presumption that the Board has
considered all the evidence before it (Florea v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 598 at para.1 (F.C.A.) (QL)). Thus, the
Board is not required to refer to every piece of documentary evidence in its
reasons. Further, the fact that the Board has not mentioned some of the
documentary evidence that was before it is not fatal to the Decision (Hassan
v. Canada (Minister of Employment and Immigration) (F.C.A.), (1992), 147
N.R. 317, [1992] F.C.J. No. 946 (F.C.A.) (QL)). With that said, however, I have
to keep in mind the well-known caution articulated by Justice Evans in Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No.
1425 (QL), at para. 17:
…the
more important the evidence that is not mentioned specifically and analyzed in
the agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the
evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993),
63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
Thus, a blanket statement that the agency has considered all the evidence will
not suffice when the evidence omitted from any discussion in the reasons
appears squarely to contradict the agency's finding of fact. Moreover, when the
agency refers in some detail to evidence supporting its finding, but is silent
on evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
[36]
In
the context of state protection, the words of Justice Layden-Stevenson in Castillo v. Canada (Minister of
Citizenship and Immigration), 2004 FC 56, [2004] F.C.J. No. 43 at para. 9
(QL), are
particularly instructive in this case:
The
question of effective state protection was identified as the central issue.
Where evidence that relates to a central issue is submitted, the burden of
explanation increases for the board when it assigns little or no weight to that
evidence or when it prefers specific documentary evidence over other
documentary evidence. Here, there is virtually no indication that the RPD
considered the applicants' documentary evidence or the submissions of their
counsel in relation to the issue of state protection. The applicants were
entitled to know that the board had not ignored these matters. A general
statement that all of the evidence was considered, in the circumstances, does
not suffice.
Thus, the burden of
explanation increases with the relevance of the evidence to the central issues
before the Board.
[37]
The
Board provided a succinct and narrow Decision in this case. There were no
credibility issues and the Board appears to have accepted the Applicants’
account of what they had suffered at the hands of Ronald and the unsuccessful
attempts by the authorities in St. Vincent to deal with him. The Board also
accepted that the evidence showed that women do suffer from sexual, physical
and emotional abuse in St. Vincent even though “the government of St. Vincent is making a
serious effort to address the problem.”
[38]
So
the claim was rejected on the ground that the Applicants “have failed to rebut
with clear and convincing evidence the presumption that the democratically
elected government of St. Vincent is capable of providing protection for it is
(sic) citizens and there was no evidence provided that the government is
in chaos or disarray and unable to govern.”
[39]
The
gravamen of the Decision comes down to a mere three lines:
I find that the police in St. Vincent had
prosecuted Ronald as he had been arrested, charged and prosecuted on several
occasions and the standard for adequate state protection is not perfect
protection nor protection for all citizens at all times.
[40]
So
the basic rationale for the Decision is that the Applicants had not rebutted
with clear and convincing evidence that St. Vincent cannot
provide adequate state protection because Ronald, the predator, had actually
been arrested, charged and prosecuted “on several occasions.” In other words,
provided the police arrest, charge and prosecute the predator from time to time
(even if this does not deter him) then the presumption of adequate state
protection is not rebutted.
[41]
I
do not believe that this position reflects the law on this issue or is a
reasonable response to the evidence put forward by the Applicants in this case.
[42]
The
Applicants put forward clear and convincing evidence that, notwithstanding the
actions of the police in trying to deal with the persistent threat and criminal
abuse of their brother, Ronald continued to behave in exactly the same way and,
unless he is stopped, he may well kill the Applicants. Whatever the authorities
in St. Vincent have done, Ronald has not been deterred and the same risks
remain if the Applicants are returned to St. Vincent. The evidence seems clear
that women are at risk in St. Vincent and the state has shown
that it is unable to protect the Applicants.
[43]
In
a situation where the Applicants have presented clear and convincing evidence
of risk and their credibility is not an issue, as well as clear and convincing
evidence that the police and the authorities in St. Vincent cannot protect them
from Ronald, the Board must do more than merely fall back on perfunctory formulaic
phrases gleaned from the caselaw to the effect that “there was no evidence
provided that the government is in chaos or disarray and unable to govern” and
that “adequate state protection is not perfect protection nor protection for
all of its citizens at all times.” In my view, this is not analysis at all, and
it is not reasons that are responsive to the facts of this case. If the laws of
Canada require these three women to return to St. Vincent and face more abuse
and possible death at the hands of a vicious predator who the state of St.
Vincent has shown it cannot deter, then in my view the Board is obliged to
explain why the presumption of state protection requires such a result and why
the presumption of adequacy has not been overcome in a situation where the
state’s response has proved to be totally ineffective. In light of the
established facts, the Board’s task is not an easy one because it may be, for
example, that even Canada cannot protect women from the Ronald’s of this world.
But even in difficult situations the Board has a duty to explain what it is
doing, and why, when the consequences of its Decision are so dire.
[44]
The
Board’s bromides may not be inaccurate as general statements of the law, but
the Board must confront the facts before it and explain why, for example,
arresting, charging and prosecuting Ronald means, for that reason alone (the
only justification given) that the presumption of state protection is not
rebutted when the evidence is clear and convincing that the actions of the police
in this case have not stopped the predatory conduct that the Applicants
justifiably fear.
[45]
I
agree with the Board that St. Vincent does not need to provide perfect
protection, but, in my view, the Board provides no evidentiary or
jurisprudential explanation as to why, in this case, the fact of some limited action
by the police means that the presumption of adequacy remains intact even when
the evidence is clear and convincing that such action has not deterred the
predator and the Applicants will face exactly the same abuse from the same man
if they are returned.
[46]
I
am not saying that, on the facts before the Board, the Board could not have
reached the conclusions it did on why the presumption was not overcome in this
case. But all the Board says is that adequate state protection is not perfect
protection, nor protection for all citizens at all times. The fact that the
police may have arrested, charged and prosecuted Ronald does not, in my view,
mean that they are providing adequate protection or that to require more is to
ask for perfect protection.
[47]
The
Board’s extremely brief analysis is perfunctory and it fails to confront and
deal with the central issue in this case, which is that the Applicants have
been subjected to and will, if returned, have to face, a dangerous predator who
has not been deterred by the police or the law. He will not stop until someone
is killed.
[48]
The
Respondent says that this is simply an unfortunate situation because no state
can protect its female citizens against such predators. However, all the Board provides
as reasons for the Applicants’ failure to rebut the presumption of adequate
state protection is that the police in St. Vincent have in the past, arrested,
charged and prosecuted Ronald, and that to expect more is to ask for perfect
protection. I believe the Board’s treatment of the state protection issue was
unreasonable and its reasons inadequate given the evidence before it.
[49]
I
have reviewed the other submissions of the Applicants and I can find no
reviewable error on other grounds. The fact is that the Board’s Decision on the
principal issue is very brief and its reasons are very narrow. The Decision
stands or falls on this central issue.
[50]
Regarding
the Applicant’s argument that the Board ignored the letter from Mr. Raymond-Cadette,
the Board’s reference to the letter in its reasons at page 5 and footnote 12
indicates that the Board did not ignore the letter. Further, I am not convinced
that the Board’s reference to the Marion House and the Applicant’ lack of
knowledge of that institution constitutes a reviewable error. Contrary to the Applicants’
suggestion, the Board does not appear to have fundamentally misstated Applicants’
testimony, nor confused the availability and effectiveness of state protection
with the provision of counselling and advice.
[51]
On
the central issue, however, as I have discussed above, I believe the Board’s
Decision is unreasonable and that this matter must be returned for
reconsideration.
[52]
Counsel are requested to serve
and file any submissions with respect to certification of a question of general
importance within seven days of receipt of these Reasons for Judgment. Each
party will have a further period of three days to serve and file any reply to
the submission of the opposite party. Following that, a Judgment will be
issued.
“James Russell”
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