Date:
20130528
Docket:
IMM-8499-12
Citation:
2013 FC 537
Ottawa, Ontario, May 28, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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GENERVINE MELIUS
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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
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision of the Refugee Protection Division [RPD], dated August
16, 2012 denying the Applicant refugee protection.
I. Facts
[2]
The
Applicant is from Saint Lucia. She fears Celsus Pierre Anthony [Anthony], her
former common-law partner, by reason of membership in a particular social
group, namely, women subjected to domestic violence and sexual abuse.
[3]
She
met him in 2009 and moved in with him shortly thereafter. He became abusive a
month later. He pushed her, refused to give her money for food. Anthony became
very jealous because the Applicant was able to draw attraction from other men.
He threatened to kill her if she were to leave him and sexually abused her.
Anthony bought a knife and wrote the Applicant’s name on it and threatened to
use it should she give him any problem. He also gave her a miniature coffin
with her picture in it.
[4]
She
reported the threats to the police but they did nothing to help her. The
Applicant learned that some of Anthony’s family members are in the police force
and that some of the men he forced her to have sexual intercourses with were
police officers.
[5]
With
the help of a friend, she fled Saint Lucia and came to Canada in January 2012. She claimed refugee protection in February 2012.
II. Decision
under review
[6]
The
RPD took into consideration the Guideline 4:
Women Refugee Claimants Fearing Gender-Related Persecution
[the Guidelines]. It rejected the Applicant’s claim
on the basis that state protection was available to her.
[7]
The
RPD first determined that Saint Lucia benefits from the presumption that it is
capable of protecting its citizens. It also considered that the Applicant
complained to the police, that the police took her statement and that they
never investigated the complaint. The RPD noted that the Applicant called the
same day to follow up on her complaint but that she did not make any additional
attempt to contact the police.
[8]
The
RPD also noted that the Applicant asked Anthony’s brother, Denlee, for help and
advice, who is a member of the Royal Saint Lucia Police Force [RSLPF], marine
detachment, and that he advised her not to complain to the police and informed
her that he would speak to his brother. The RPD also considered the fact that
the Applicant did not go to the police after she spoke to Dunlee because she
thought that as Dunlee and some of Anthony’s friends were members of the police
force, she would not get the protection she sought.
[9]
The
RPD determined that based on the evidence, it cannot be assumed that the whole
RSLPF is complicit and that although there may be some rogue elements at play,
state protection would have been available to her had she taken reasonable
steps to access it. The RPD further noted that the Applicant did not ask for
help to a higher ranking police officer or other people such as a social
worker, a priest, a lawyer or a women’s group.
[10]
The
RPD considered the documentary evidence on the issue of domestic abuse and
violence in Saint Lucia and noted that violence against women remains a problem
but that a specific legislative scheme was adopted to address this problem in
addition to the non-governmental organizations put in place to help victims of
domestic abuse.
[11]
The
RPD therefore concluded that the Applicant has not taken sufficient steps to
test the protection available in Saint Lucia.
III. Applicant’s
submissions
[12]
The
Applicant submits that it is important to highlight that the RPD did not make
any negative credibility finding regarding the Applicant.
[13]
The
Applicant argues that her experience is shameful, as she was forced to have
sexual intercourses with police officers, and that it seems that the RPD did
not give full consideration to the Guidelines.
[14]
The
RPD contradicted itself by stating that the Applicant was under an obligation
to approach the police for help while at the same time explicitly recognizing
that she did so on two occasions. Therefore, the RPD made an error in stating
that the Applicant did not rebut the presumption of state protection as it
failed to consider that she met her obligation to seek help from the police on
two occasions.
[15]
The
RPD failed to consider that the Applicant did give the authorities a chance to
deal with her complaint and it has been treated as a case where no protection
was sought.
[16]
The
Applicant submits that it was unreasonable in the circumstances to determine
that she did not rebut the presumption of state protection considering that she
was forced to have sexual intercourses with various police officers and that
she was warned by a police officer not to go back to the police. The RPD cannot
simply state that the presumption of state protection is not rebutted because
the Applicant doubted its adequacy or that she was reluctant to test the
protection available. Indeed, the RPD’s decision expected the Applicant to seek
help from the same people complicit in her persecution and harm, which is
unreasonable. The Applicant submits that the RPD committed an error as it
failed to assess whether there is adequate protection in practice.
[17]
Finally,
the Applicant submits that the RPD’s decision ignores the fact that the police
are not effective in combating domestic violence with many people not receiving
an appropriate response and states that there are some key impediments to
protection in Saint Lucia. The RPD has not provided sufficient justification
for why it preferred some reports over the others. This is more so where the
agents of persecution include police officers.
IV. Respondent’s
submissions
[18]
The
Respondent submits that the RDP reasonably determined that adequate state
protection is available to the Applicant in Saint Lucia and relied on the
entirety of the evidence. It considered and weighted the contradictory evidence
and came to the conclusion that state protection is not inadequate.
[19]
The
Respondent argues that the Applicant failed to rebut the presumption of state
protection with clear and convincing evidence. It is not enough for the
Applicant to show that the police in Saint Lucia have not always been effective
at protecting victims of domestic abuse. Moreover, it is insufficient for an
Applicant to give up trying merely because of what is perceived as a bad
experience with local police.
[20]
The
Applicant failed to take reasonable steps to seek state protection in Saint Lucia, which is a democratic state. Moreover, the RPD took the Applicant’s circumstances
into consideration and it is well-established that state protection can be
available from state-run or state-funded agencies that can assist the Applicant
in obtaining protection and not only from the police, even where members of the
police are alleged to be the agents of persecution. Finally, the RPD considered
the Applicant’s testimony but however determined that it was insufficient to
establish that the police force was complicit.
[21]
Finally,
the Respondent submits that the RPD properly considered the Guidelines.
V. Issue
[22]
Did
the RPD err in its assessment of state protection?
VI. Standard
of review
[23]
The
RPD’s state protection determination is a question of fact and is therefore
reviewable under the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53,
[2008] 1 S.C.R. 190).
VII. Analysis
[24]
The
RPD made no negative credibility finding with respect to the Applicant as it
considered her to be a credible claimant and its decision is based on the
availability of adequate state protection.
[25]
The
Applicant has demonstrated to the RPD that she has been in an abusive
relationship with her former partner in Saint-Lucia. He namely forced her to
have sexual intercourses with police officers. However, the Applicant decided
to complain to the police about a knife bought by him and showed up at the
station where she was told that her complaint would be dealt with later on
during the day. After waiting for a few hours, no police officer came to her
house and she called and was told that she should not worry. Moreover, after
talking to her ex-boyfriend’s brother, who is in the police force, he told her
not to make a complaint to the police.
[26]
Considering
the above-mentioned facts, the RPD determined that the Applicant did not rebut
the presumption of state protection as it considered that she should have taken
additional steps to seek such protection, namely by trying to talk to a higher
ranking officer or going to other state agencies.
[27]
It
has been recognized by this Court that the fact that the state is the agent of
persecution doesn’t exempt the Applicant from seeking protection. However,
there can be clear and convincing evidence that such protection is unavailable depending on the
circumstances (Hinzman
v Canada (Minister of Citizenship
and Immigration), 2007 FCA 171 at para 54, 282
DLR (4th) 413). Such is the case of the Applicant.
[28]
The
Applicant reported the threats by her former partner to the police and made one
follow up but no police officer took her complaint seriously and she did not
seek help from higher authorities. Case law has established that such an
attempt to seek protection may
be justified and may indeed rebut the presumption of adequate state protection
depending on the circumstances. Indeed, in Kaur v Canada (Minister of Citizenship and Immigration), 2005 FC 1491, 143 ACWS (3d) 1094, this Court
noted at para 32:
Finally, I think it was perfectly legitimate
for the Applicant not to complain to the police in the circumstances, given
that the police itself were the aggressors and the perpetrators of the acts of
violence. As my colleague Tremblay-Lamer stated in Chaves v. Canada (M.C.I.), 2005 FC 193, [2005]
F.C.J. 232 (QL), 2005 FC 193 at para. 15, "the very fact that the agents
of the state are the alleged perpetrators of persecution undercuts the apparent
democratic nature of the state's institutions, and correspondingly, the burden
of proof."
[29]
The
Officer faulted the Applicant for not approaching higher police authorities,
but failed to consider whether that would have been reasonable given that the
police were the agents of persecution. The Applicant, given her experiences,
may not have had the confidence that this would result in any protection. Moreover, the
Applicant clearly explained that her complaint to the police resulted in no
action. The RPD considered the standard steps to be followed in
cases where state protection does not materialize after a first attempt to
access it, which can consist in speaking to higher ranking police officers or
resorting to other authorities. However, it failed to address the particular
circumstances of the Applicant’s case, including her psychological state as
well as her level of confidence in the authorities, considering that she has
been sexually abused by police officers.
[30]
The
Applicant’s situation is the following. Her former partner forced her to have
sexual intercourses with members of the police force and he has a brother who
is a police officer and who advised her not to make a complaint. In such
circumstances, it was unreasonable for the RPD to consider that the Applicant
should have taken additional steps to seek protection without conducting a proper analysis in light of the Applicant’s
situation. Indeed, it was unreasonable to suggest resorting to higher police
authorities without dealing with her particular unstable life. The obligation
imposed upon the Applicant to seek help from higher police authorities placed a
heavy burden on her of demonstrating that state protection is not forthcoming.
Such determination ignores the fact that the
Applicant had already gone twice to the police, called them without success and
relied on the advice not to make a complaint, given by her former partner’s
brother’s who is a police officer. She had also been forced to have sexual intercourses
with her former partner’s friends who were also police officers. This should
have been addressed during the hearing by the RPD and later discussed in more
detail by the Board Member in its decision.
[31]
With regard
to the RPD’s consideration of the documentary evidence, its analysis is
comprehensive as it recognized that although the police in Saint Lucia may be slow in responding to complaints, that the court system is overburdened and that
domestic violence remains a problem, the government has taken a number of
legislative steps to address this problem. Although the RPD’s determination
regarding objective evidence is reasonable, there remains an issue with its
decision as its determination that the Applicant, who finds herself in a
situation where the police force is her agent of persecution, should have made
additional efforts to seek protection from the police or other agencies, is
unreasonable. In different circumstances, this may have been a proper way of
showing that state protection was available. However, the RPD clearly made it an
obligation in the Applicant’s case (see paragraph 18 of the decision) to resort
to higher authorities in the RSLPF without considering her own state of mind
and factual situation. As seen above, this was unreasonable.
[32]
As
for the Guidelines, they were properly considered and applied by the RPD at the
beginning of the decision. There is no indication that the RPD did not give
weight to the Guidelines.
[33]
The
parties were invited to submit a question for certification but none were
proposed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the judicial
review of the RPD’s decision dated August 16,
2012 is
granted and the matter shall be returned to a different panel for
consideration. No question for certification will be certified.
“Simon Noël”
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