Date: 2008022
Docket: IMM-2149-07
Citation: 2008 FC 262
BETWEEN:
MARLON
EARLON WOODS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of the Refugee Protection Division (the “RPD”) of the Immigration and Refugee
Board wherein the RPD determined the applicant not to be a Convention refugee
or a person otherwise in need of Convention refugee-like protection in Canada. The decision
under review is dated the 8th of May, 2007.
BACKGROUND
[2]
The
Applicant is, according to his passport, a citizen of St. Vincent and the
Grenadines.
That being said, entries in that passport indicate that he exercised a right of
return from time to time
to Trinidad and Tobago, more specifically, Trinidad. It was not
in dispute before the Court, that prior to coming to Canada, the Applicant
lived almost all of his life in Trinidad.
[3]
The
Applicant is now 26 years of age. He alleges a well-founded fear of
persecution at the hands of his father who has been abusive to the Applicant’s
mother, to the Applicant and his brother and to his mother’s three children of
a second marriage. Indeed, the Applicant’s mother and her three children by her
second marriage had been, at the time the Applicant instituted his claim to
protection here in Canada, granted Convention refugee status in Canada based on the
same fear alleged by the Applicant.
[4]
The
Applicant came to Canada at his mother’s expense and in the company of
his brother. At the time of the decision here at issue, the Applicant’s
brother’s claim to Convention refugee status or like protection here in Canada remained
outstanding.
[5]
The
Applicant has a daughter who remains in Trinidad in the company
of her mother.
[6]
The
Applicant alleges that he fears his father and his father’s associates. Yet
despite violent encounters that he has experienced with his father over the
years, he has not sought state protection in Trinidad and Tobago since sometime
in the 1980s. Further, before coming to Canada, the Applicant on three
separate occasions left Trinidad and on each occasion
voluntarily returned.
THE DECISION UNDER
REVIEW
[7]
The
Decision under review is brief, extending to three pages only. It opens by
identifying the claimant before the Board who is described as “….a citizen of Trinidad and
Tobago”.
No acknowledgement is made throughout the brief reasons of the Applicant’s
actual citizenship, that being of St. Vincent and the Grenadines.
[8]
After
describing the allegations underlying the Applicant’s claim, the Board’s brief
analysis is in the following terms.
Relying on the
independent documentary evidence, I find that although there are problems with
generalized criminality in Trinidad, the government in that parliamentary
democracy is making strong efforts to provide adequate state protection for its
citizens. I am not satisfied within the preponderance of probability category,
as I must be, that the state of Trinidad would not be reasonably
forthcoming with serious efforts to protect a citizen who returned and
approached the state for protection. I find that Canada’s protection
is not necessary.
The evidence of the
claimant is that he last went to the authorities in the 1980s and has never again
sought state protection because none was forthcoming more than 20 years ago
when he was a very young child. I am not persuaded that the claimant, an
experienced man of 25 years of age who was employed in Trinidad and able to
travel abroad with a band representing the culture of Trinidad, would not be
able to live independently and seek state protection if Randolph [his father] assaulted
him.
Further, I find that the
problems experienced in Trinidad by the claimant were neither so appalling nor
atrocious that he could be found in need of refugee protection based on
compelling reasons.
The RPD does not have a
mandate to consider family reunification so that the claimant can be reunited
with his mother who left Trinidad in 2000 or with his half-siblings who are
Convention refugees in Canada. Further, I am not persuaded by the
particulars of the mother’s claim that included her minor children, that this
adult male claimant is a person who could not avail protection in Trinidad
today if he were threatened by Randolph.
The claimant’s
allegations that there is no adequate state protection available in Trinidad was not
supported by any clear and convincing evidence. Therefore, the presumption of
adequate state protection being available in the parliamentary democracy of
Trinidad has not been rebutted.
There was no evidence
provided that the government is in chaos or disarray and unable to protect its
citizens and the claimant’s burden of proof is directly proportional to the
level of democracy. No government is expected to be able to protect all of its
citizens at all times nor is it expected to provide perfect protection.
[footnoted references to
documentary evidence before the Board and citations omitted]
THE ISSUES
[9]
At
hearing, counsel for the applicant identified the issues on this application as
standard of review, failure to consider an identified country of reference, the
adequacy or inadequacy of the RPD’s state protection analysis and the failure
of the RPD to give weight to a Canadian refugee protection decision in favour
of similarly situated individuals, namely the Applicant’s mother and his
siblings by his mother’s second marriage. Apart from the issue of the standard
of review, I am satisfied that all of the issues raised on behalf of the Applicant
can be considered under the broad category of “adequacy of reasons”.
ANALYSIS
1. Standard
of Review
[10]
Generally
speaking, decisions of the RPD based on adequacy of state protection are
reviewed on a standard of reasonableness simpliciter
although pure determination of fact within the context of a state protection
analysis are reviewable on a standard of patent unreasonableness or on the
basis that they were made in a perverse or capricious manner or without regard
for the material before the decision-maker. In Law Society of New Brunswick
v. Ryan,
the Court wrote at paragraph 55:
A decision will be
unreasonable only if there is no line of analysis within the given reasons that
could reasonably lead the tribunal from the evidence before it to the conclusion
at which it arrived. If any of the reasons that are sufficient to support the
conclusion are tenable in the sense that they can stand up to a somewhat
probing examination, then the decision will not be unreasonable and a reviewing
Court must not interfere… .This means that a decision may satisfy the
reasonableness standard if it is supported by a tenable explanation even if
this explanation is not one that the reviewing court finds compelling… .
[citations
omitted]
[11]
That
being said, as earlier noted, each of the three substantive issues identified
on behalf of the Applicant can be encompassed within an overall concern on the
part of the Applicant that the reasons given by the RPD in rejecting his claim
to protection are simply inadequate. If such were the case, the RPD’s decision
would have been made in breach of natural justice or fairness. Put another
way, to withstand scrutiny by this Court, reasons of the RPD for rejecting a
claim must be “adequate” against a standard of correctness.
2. Adequacy of
Reasons
a) Ignoring
a Country of Reference
[12]
The
opening paragraphs of the RPD’s reasons is in the following terms:
These are the reasons
for the negative decision of the Refugee Protection Division (RPD) with respect
to the claim by Marlon Earlon Woods, the claimant, who is a citizen of Trinidad and
Tobago
(Trinidad). The hearing for this claim was held pursuant to sections 96 &
97(1) of the Immigration and Refugee Protection Act (IRPA).
[emphasis
added]
[13]
As
indicated earlier in these reasons, the identification o the Applicant as a
citizen of Trinidad
and Tobago
is simply incorrect. He is a citizen of St. Vincent and the
Grenadines
with some form of right of residence in Trinidad and a long history of
residence on that Island.
[14]
The
foregoing being said, the Applicant himself should be identified as much of the
source of the RPD’s confusion. Reference has earlier been made to a photocopy
of the Applicant’s passport which was in the record before the RPD which,
indeed, was footnoted to the above quoted paragraph of the RPD’s reasons. In
his affidavit filed in support of this application, the Applicant attests “I am
from St. Vincent, though I am a permanent resident of Trinidad and Tobago.”
[15]
By
contrast, in the Applicant’s Personal Information Form that was before the RPD,
the Applicant, in response to a request to list each country of which he is or
had been a citizen, responded that he was both a citizen of St. Vincent
and the Grenadines by birthright through his mother, and a citizen of Trinidad and
Tobago
“by birth”. Further, in a document entitled “Information on Individuals
Seeking Refugee Protection”
an unsigned document, the citizenship of the Applicant is indicated to be “St.
Vincent and Trinidad”, his last country of permanent residence is indicated to
be Trinidad in which it is indicated he is a citizen, and his nationality is
indicated to be “St. Vincentian and Trinidadian.”
[16]
While
the failure on the part of the RPD to examine the Applicant’s claim against St.
Vincent and the Grenadines is indeed an important oversight, I am satisfied
that it is not, in and of itself, fatal to the RPD’s decision if the finding by
the RPD that state protection exists for the Applicant in Trinidad withstands
this review. Put another way, if the Applicant can return to Trinidad with
reasonable impunity, as the RPD concluded, then whether or not he could return
to St.
Vincent and the Grenadines with impunity becomes irrelevant. His claim
must fail.
b) The State
Protection finding
[17]
The
RPD based its state protection finding, in a very cursory way, on the
independent documentary evidence before it. Its citations in support of the
finding were equally generalized.
[18]
In
Florea v. Canada (Minister of Employment and Immigration), Justice
Hugessen, in a one paragraph judgment, for the Court, wrote:
The fact that the
Division [here the RPD] did not mention each and every one of the documents
entered in evidence before it does not indicate that it did not take them into
account: on the contrary, a tribunal is assumed to have weighed and considered
all the evidence presented to it unless the contrary is shown. As the
tribunal’s findings are supported by the evidence, the appeal will be
dismissed.
[original
delivered in French].
[19]
In
Hinzman v. Canada (Minister of Citizenship
and Immigration),
the Court cited (Canada Attorney General v. Ward) for the
proposition that in refugee law, there is a presumption of state protection:
…nations should be
presumed capable of protecting their citizens. Security of nationals is, after
all, the essence of sovereignty. Absent a situation of complete breakdown of
state apparatus, such as that recognized in Lebanon in Zalzali,
it should be assumed that the state is capable of protecting a claimant.
[20]
The
Court continued by citing Kadenko v. Canada (Solicitor
General) for the
proposition that:
…the more democratic a
country, the more the claimant must have done to seek out the protection of his
or her home state:
When the state in
question is a democratic state, as in the case at bar, the claimant must do
more than simply show that he or she went to see some members of the police
force and that his or her efforts were unsuccessful. The burden of proof
that rests on the claimant is, in a way, directly proportional to the level of
democracy in the state in question: the more democratic the state’s
institutions, the more the claimant must have done to exhaust all the courses
of action open to him or her.
[emphasis
added in Hinzman]
[21]
On
the facts of this matter, the Applicant made no efforts to overcome the
presumption of state protection in Trinidad and Tobago, undoubtedly a
democratic nation albeit a nation affording substantially less than “perfect”
state protection to its citizens and residents.
[22]
While
it undoubtedly would have been preferable for the RPD to provide a more fulsome
analysis in support of its state protection conclusion, the Applicant provided
the RPD with little to work with that was personalized to his particular
profile and experience. At the time the Applicant came before the RPD, he was
in his mid-twenties. He had been a resident of Trinidad for virtually all of
his life. He feared his father who had acted out violently against his mother,
against himself and his brother and against his mother’s children by her second
marriage. That being said, he had not lived with his father since 1990, he had
not sought state protection since sometime in the 1980s, and he had thrice left
Trinidad and
voluntarily returned.
[23]
In
all of the circumstances, and in particular in the circumstances of this
Applicant, I am satisfied that the RPD’s conclusion with regard to state
protection if the Applicant were required to return to Trinidad was reasonably
open.
c) Ignoring of the Protection
Decision in favour of the Applicant’s Mother and Her Children by her Second
Marriage
[24]
Counsel
for the Applicant relied heavily on the decision of this Court in Siddiqui
v. Canada (Minister of
Citizenship and Immigration) where my colleague
Justice Phelan wrote at paragraph 18 of his reasons:
What undermines the
Board’s decision is the failure to address the contradictory finding in the Memon
decision. It may well be that the member disagreed with the findings in Memon
and may have had good sustainable reasons for so doing. However, the Applicant
is entitled, as a matter of fairness and the rendering of a full decision, to
an explanation of why this particular member, reviewing the same documents, on
the same issue, could reach a different conclusion.
[25]
With
great respect, counsel’s reliance on the foregoing passage is misplaced.
While, once again in an ideal world, it might have been preferable for the RPD
here to explain why it found the situation of the Applicant’s mother and her
children by her second marriage to be different from that of the Applicant, the
reasons for doing so, I am satisfied, are obvious: the Applicant was in his
mid-twenties when his application for protection came before the RPD; his
mother was obviously substantially older and her children by her second
marriage were infants; and the Applicant’s mother and her infant children were
substantially more vulnerable than the Applicant, particularly in a nation
where spousal violence and violence against children is prevalent and sometimes
regarded as an internal family matter. The Applicant was not economically
dependant on this father. Quite possibly, the Applicant’s mother and her young
children were before they fled to Canada. The Applicant could
be presumed to be able to be better take care of himself and, in circumstances
where he could not, to be competent to seek out state protection. In short,
the profile of the Applicant’s mother and her young children was simply
dramatically different from that of the Applicant.
CONCLUSION
[26]
The
RPD’s reasons for its decision, while succinct to the point of inviting
criticism, were, I am satisfied, adequate in all respects. They allowed the
Applicant, his counsel and others impacted by the decision at issue to understand
how and why the RPD justified its conclusion.
CERTIFICATION OF A
QUESTION
[27]
For
the foregoing reasons, at the close of the hearing before me, I advised counsel
that this application for judicial review would be dismissed. Counsel for the
Applicant recommended certification of a question in the following terms:
Where a refugee claimant
has citizenship in one country and mere resident status in another, does the RPD
err if it only considers the risk of return in the country of residence and not
the country of citizenship?
Counsel for the Respondent did not agree to
certification of the proposed question and proposed no alternative question.
[28]
No
question will be certified. This matter turns on its very specific facts, not
on facts that can be said to produce a decision of general importance.
Further, the question proposed is
sufficiently general in nature that it
invites a response reaching far beyond the parameters of this particular
decision. Put another way, the proposed question is more in the nature of a
reference question than in the nature of a certified question.
“Frederick
E. Gibson”
Ottawa,
Ontario
February
28, 2008
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