Docket: IMM-386-15
Citation:
2015 FC 1017
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, August 27, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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DELCINA SYLVIA
HARRY
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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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JUDGMENT AND REASONS
I.
Preliminary
[18] [T]here is serious evidence in
support of the Board’s finding of availability of state protection. Considering
that the Board is presumed to have considered all the evidence before it (Florea
v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 598
(C.A.) (QL)) and it is under no obligation to refer to every piece of evidence
(Kumar v. Minister of Citizenship and Immigration, 2009 FC 643), it
would be inappropriate for this Court to substitute its own appreciation of the
facts to that made by the Board.
[15] [T]he Board was certainly entitled
to consider the applicant’s delay in claiming when assessing her subjective
fear of persecution. However, delay is not normally determinative of a claim (Espinosa
v. Minister of Citizenship and Immigration, 2003 FC 1324). This is
precisely what the Board found in this case. While it did express concerns over
the subjective fear of the applicant based on her behaviour, the Board
ultimately concluded that the delay was not decisive, and still concluded that
the applicant was credible regarding her story. There is nothing unreasonable
about the Board’s conclusion on this matter.
(As per Justice Yvon Pinard in D.D.N. v
Canada (Minister of Citizenship and Immigration), 2010 FC 1167 at paras 18 and
15)
II.
Introduction
[1]
This is an application for judicial review under
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of
a decision by which the Refugee Protection Division [RPD] rejected the
applicant’s refugee protection claim, concluding that the applicant is neither
a Convention refugee nor a person in need of protection within the meaning of
sections 96 and 97 of the IRPA.
III.
Facts
[2]
The applicant is a citizen of St. Vincent
and the Grenadines [St. Vincent] and is 55 years old.
[3]
The applicant met her husband when she was about
17 years old and then moved in with him in Trinidad. They married in
November 1981 and had three children.
[4]
The applicant’s spouse was constantly aggressive
and violent towards her. The applicant wanted to leave him but did not do so
because of the threats he made against her.
[5]
One day, the police came to see the applicant’s
spouse and warned him to stop hitting the applicant. However, the applicant’s
husband continued to hit her, which prompted the applicant’s daughter to file a
complaint with the police. Although nothing came of this complaint, the
applicant’s husband forced his daughter to leave the house for daring to file a
complaint with the police.
[6]
The applicant was able to move to St. Vincent
to flee her husband, but a few years later, he convinced her to come back to
live with him. Her husband started beating her again.
[7]
The applicant then fled to the United States in 2003.
The applicant’s mother, who lived there, decided to sponsor the applicant in
the United States.
[8]
In 2005, the applicant’s spouse divorced her in
absentia.
[9]
In 2008, the applicant returned to St. Vincent
to be with her daughter, who had cancer. The applicant’s husband heard that she
was back and made several aggressive attempts to see her.
[10]
When the applicant returned to the United
States, while her sponsorship application was still pending, her mother died.
The applicant therefore decided to come to Canada on November 29, 2011, to
claim refugee protection.
[11]
On December 23, 2014, the RPD dismissed the
applicant’s refugee protection claim.
IV.
Impugned decision
[12]
The RPD concluded that although the applicant
had shown that she was a victim of domestic violence, she had not rebutted the
presumption of state protection in St. Vincent.
[13]
The RPD found that the applicant was credible
and attributed her omissions or vague recollections to her vulnerable state.
[14]
In its state protection analysis, the RPD noted
that St. Vincent is a multiparty parliamentary democracy. The applicant
therefore had to provide clear and convincing evidence to rebut the presumption
of state protection.
[15]
In its reasons, the RPD identified domestic
violence as a problem in St. Vincent and recognized that although
perpetrators of this sort of violence may be subject to criminal prosecution,
there is no legislation criminalizing domestic violence per se.
[16]
The RPD noted that according to the documentary
evidence, the authorities in St. Vincent have taken action to sensitize
the police forces and the general public to the realities of domestic violence.
Among other initiatives, the authorities set up a special police unit, a crisis
centre and aid and prevention programs to fight domestic violence. The RPD
acknowledged evidence suggesting that protection for victims of domestic
violence is inadequate in St. Vincent. However, the RPD concluded that
such evidence did not constitute [translation]
“clear and convincing” evidence that
would rebut the presumption of state protection.
[17]
The RPD also noted that the applicant had not
made any effort to ask the authorities for protection. The RPD considered the
applicant’s testimony to the effect that she was uneducated, was young and
naive, was not aware of the recourses available to her and did not want to leave
her husband.
[18]
However, the RPD found that these explanations became
unacceptable when the applicant was informed by the police that charges could
be brought against her husband. According to the RPD, at that moment, the
applicant became aware of the availability of state protection but decided not
to avail herself of his opportunity.
V.
Legislative provisions
[19]
The following provisions are relevant to the
applicant’s refugee protection claim:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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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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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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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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;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(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,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(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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(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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(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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Exclusion – Refugee Convention
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Exclusion par application de la Convention sur les réfugiés
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98. A
person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
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98. La personne visée aux sections E
ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
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VI.
Analysis
[20]
The Court finds that the RPD’s decision is
reasonable on the basis of the evidence and testimony in the record.
[21]
It was reasonable for the RPD to conclude that,
after receiving advice from medical personnel and the police, the applicant
should have filed a complaint with the police against her husband. The
applicant’s alleged naïveté became untenable once these state entities
suggested possible courses of action to her (see: Navarro v Canada (Minister
of Citizenship and Immigration), [2008] FCJ 463).
[22]
The RPD demonstrated through a clear analysis of
all the subjective and objective evidence that there was a possibility for the
applicant to obtain state protection.
[23]
Moreover, the RPD considered, based on the
answers given by the applicant, the violent behaviour of her spouse from the
perspective of a person with battered woman syndrome. To this end, the IRB
applied Guidelines 4 and 8 dealing with vulnerable persons appearing before the
IRB and women refugee claimants fearing gender-related persecution. The IRB’s
result was nonetheless reasonable, given that the applicant’s narrative
indicates that she spent a rather long period of time outside her country
before claiming refugee protection and instead initially tried to be sponsored
by her mother in the United States. The only reason the applicant was not
sponsored, according to her, was because her mother died before completing the
necessary steps to sponsor her.
VII.
Conclusion
[24]
On the basis of this Court’s analysis, the
application for judicial review is dismissed.
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