Date: 20131205
Docket:
IMM-2411-13
Citation: 2013 FC 1216
Montréal, Quebec, December 5, 2013
PRESENT: The Honourable Mr. Justice S. Noël
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BETWEEN:
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FRANCOIS, ZETA LOUVINA
FRANCOIS, SHONDA STACY
FRANCOIS, SHANIA DELISHA
FRANCOIS, DELICIA SHANIQUE
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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
I. Introduction
[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 by the Refugee Protection Division [RPD] rendered by
Ms. Anna Brychcy finding that Zeta Louvina Francois [the Principal
Applicant], her daughter, Shonda Stacy Francois, and her daughter’s
children, Shania Delisha Francois and Delicia Shanique Francois,
citizens of Saint Vincent and the Grenadines [Saint Vincent] [together,
the Applicants], were neither refugees within the meaning
of section 96 of the IRPA nor persons in need
of protection under subsection 97(1) of the IRPA.
II. Facts
[2]
The Principal Applicant is 62 years of age,
while her daughter, Shonda Stacy, is 23 years old and her daughter’s
children, Shania Delisha and Delicia Shanique, are respectively 4 and
2 years old.
[3]
Shonda Stacy Francois has some intellectual
impairment and so, for the purpose of the hearing, the Programme régional d’accueil
et d’intégration des demandeurs d’asile [PRAIDA] was confirmed as the
designated representative for her as well as for her two minor children.
[4]
The Principal Applicant has suffered abuse at the
hands of her former common-law partner, Brian Robinson, until the man’s sudden
death in 1997. She claims to have often complained to the police throughout
this abusive relationship.
[5]
Starting in 2004, she was abused by her
subsequent partner, Eddy Charles, whom she met in 1999. The abuse even
caused her to lose sight in one eye. The Principal Applicant never reported the
incidents of conjugal violence regarding Eddy Charles to the authorities
in her country.
[6]
The Principal Applicant came to Canada in 1981 and remained here for three years.
[7]
She came back to Canada a second time on
April 24, 2010 but was denied entry because she did not inform the
immigration officer of her trip in 1981. She was returned to Saint Vincent
on April 26, 2010 but traveled to New York for a few months prior to
returning to Saint Vincent in July 2010 after learning that
Eddy Charles had moved because of his work.
[8]
After the Principal Applicant had returned to Saint Vincent, Eddy Charles returned to her house, and both resumed the
relationship. No serious incidents of violence occurred except for the fact
that he gave her a sexually transmitted disease on two occasions.
[9]
The Principal Applicant came to Canada for a third time on June 9, 2011 and asked for refugee status in
October 2011 claiming that she was a victim of conjugal violence by
Eddy Charles.
[10]
Upon learning that the Principal Applicant
had left the country for Canada, Eddy Charles returned to her home in Saint Vincent, where the Principal Applicant’s daughter and her two grandchildren were
living, and he threatened to kill her should she ever return.
[11]
After this event, Shonda Stacy and her two
children moved in with the Principal Applicant’s sister in a nearby town.
[12]
Shonda Stacy and her two children
arrived in Canada on December 18, 2011 and asked for refugee protection on
January 5, 2012 claiming, on one hand, that she feared she would be harmed
by Eddy Charles, and on the other hand, that Elroy Diamond, her
children’s grandfather and her ex-partner’s father, had sexually abused Shania
in the past.
III. Decision
under review
[13]
The RPD was satisfied as to the identity of the
four Applicants.
[14]
Prior to rendering its decision, the RPD
specified having reviewed the Immigration and Refugee Board of Canada’s
Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related
Persecution as well as the Chairperson’s Guideline 3: Child Refugee
Claimants: Procedural and Evidentiary Issues.
[15]
The RPD ultimately found that Shonda Stacy does
not have a well-founded fear of persecution at the hands of Eddy Charles,
as she was never physically harmed by him and he only tried once to get into
her house, neither does she have a well-founded fear of persecution of
Elroy Diamond, the children’s paternal grandfather, as he never made any
threats to her. As for the Principal Applicant and her two minor
grandchildren, the RPD found that state protection would be available to them
in Saint Vincent and that they are therefore not “Convention refugees”
under section 96 of the IRPA. It also concluded that they are not “persons
in need of protection” under subsection 97(1) of the IRPA because of their
return to Saint Vincent, considering the availability of state protection,
would not place them in a situation where, on a balance of probabilities, there
would be at a risk to their lives or a risk of cruel and unusual treatment or
punishment or that they would face danger or torture.
[16]
At the beginning of its decision, the RPD
acknowledged that Shonda Stacy has some level of intellectual impairment
and specified having taken into consideration two psychological reports
prepared regarding the Principal Applicant and her daughter, which speak of the
vulnerability of the two women.
[17]
The RPD examined the claims of the Principal
Applicant and her daughter and grandchildren separately.
[18]
Firstly, regarding the Principal Applicant’s
fear of Eddy Charles, the RPD reviewed the required assessment of state
protection and considered the steps taken by the Principal Applicant in order
to seek state protection before concluding that state protection was available
to her. Upon analyzing the documentary evidence, the RPD found that although
the issue of violence against women is a serious problem in Saint Vincent,
the government is making serious and concerted efforts to tackle the issue of
gender violence and the situation is improving. However, it concluded that the
Principal Applicant had never approached the police when she had been abused
by Eddy Charles, despite having suffered important eye damage.
Consequently, if no protection is sought, the state cannot be considered to
have failed in providing protection. The RPD also noted that the Principal
Applicant has a sister who could have helped her to deal with the police but
did not.
[19]
Following this analysis, the RPD found that the
country’s efforts in protecting victims of domestic violence are producing
results and that such protection would still be available to her, should she
return to her country of origin. The RPD even noted specific resources of which
she could avail herself and finally concluded that, all in all, the Principal
Applicant simply failed to provide the clear and convincing evidence necessary
to rebut the presumption of state protection.
[20]
Secondly, the RPD examined the case of
Shonda Stacy, the Principal Applicant’s daughter and the mother of the
two minor Applicants. Shonda Stacy testified that after her mother
had left for Canada, she was at some point alone in the family home with her
two children. According to Shonda Stacy’s testimony, Eddy Charles only
came once to the house during that time, but she managed to lock the door in
time. He did not come back. She later left the house to stay with her mother’s
sister in a nearby village, but regularly returned to the family home prior to
her coming to Canada with her children. While the RPD accepted that she did not
feel comfortable living alone, it concluded that had Shonda Stacy felt in any
real danger, she would not have returned so frequently to the family home. Therefore,
the RPD found that Eddy Charles does not pose a real threat to
Shonda Stacy and her children, as they were never harmed by him.
[21]
Thirdly, the RPD turned to Shonda Stacy’s
submission that she fears for her two children because her oldest
daughter, Shania, was abused by her former boyfriend’s father – the
child’s grandfather – Elroy Diamond. The RPD accepted that the abuse
in question may have happened but found that it occurred only while the girl was
staying at her grandfather’s house during pre-school. It added that she was no
longer of pre-school age, that she could attend another school and that she and
her mother could live away from her grandfather’s house.
[22]
The RPD understood that due to her limited
intellectual capacity Shonda Stacy may have been unable to report
this abuse to the police, but it did consider a letter written by the Principal
Applicant’s sister in which she claims to have confronted Elroy Diamond’s
wife. Despite this confrontation, the abuse was never reported to the authorities.
The RPD then examined the documentary evidence submitted on child abuse and
found that the system “generally works” and that measures put in place and
efforts made by the government are efficient for children who are victims of
sexual abuse. The Applicants stated that Shonda Stacy’s oldest daughter
was sent to a physician who diagnosed a yeast infection on the minor Applicant
(a diagnosis which the RPD recognizes as a possible indicator of sexual abuse),
that the Principal Applicant tried to obtain a copy of the report and that
she was denied such access. In its decision, the RPD examined the documentary
evidence on the procedure to obtain medical reports in Saint Vincent and
concluded that the citizens of this country have a legislated right to grant access
to their medical records to another person. Had the Applicants followed this
procedure, they would have been able to obtain the record.
[23]
On the issue of the danger Elroy Diamond
poses for Shonda Stacy’s child, the RPD noted as a final point that psychological
evaluation and medical reports documenting the abuse suffered by the child
still exist and that all this information could be provided to the appropriate
authorities. The Applicants have a large family network, including the
Principal Applicant’s sister, who could offer them assistance.
IV. Applicants’
submissions
[24]
The Applicants argue that the RPD’s decision is
unreasonable and should be set aside for two reasons: 1) the RPD failed to
consider the particular circumstances of the Applicants, and 2) the RPD failed
to acknowledge evidence that goes contrary to its findings.
[25]
The Applicants first submit that the RPD made a
reviewable error because it failed to take into consideration the particular
circumstances surrounding their applications. The Principal Applicant’s
granddaughter who was sexually abused, Shania, is only four years old and
is surrounded by family members who are unable to protect her because of their
own limitations and vulnerabilities. Her mother has limited intellectual capacity
and did not even understand what was wrong when her daughter was diagnosed with
a yeast infection. According to a letter submitted by PRAIDA, Shonda is
vulnerable, only has a few years of education and, as a result of the
difficulties she has encountered, has a limited ability to function, all of
which render her unable to assist the child in the procedures. Furthermore, the
child’s father also has limited intellectual capacity and has not done anything
after learning of the abuse suffered by his daughter. The Principal Applicant
adds that she will have to continue dealing with her former spouse at the hands
of whom she suffered violence to the extent of losing sight.
[26]
Second, the Applicants argue that the RPD has
failed to refer to evidence that goes to the contrary of its conclusions and,
as such, has committed a reviewable error when it acknowledged the fact that
the system providing protection to abused women is still flawed but, at the
same time, still found that it is improving. The Applicants also submit that
the RPD made a reviewable error by assessing the improvements on the basis of
the measures taken by the government rather than the actual results.
V. Respondent’s
submissions
[27]
The Respondent argues that the RPD’s decision
was reasonable because state protection was available to the Principal
Applicant and the minor Applicants and because there is no risk of persecution
for the Applicant, Shonda Stacy, in her home country.
[28]
First, with regard to the
Principal Applicant, the Respondent claims that as stated by the RPD she
could have availed herself of state protection in Saint Vincent and that
refugee protection should not be granted when such protection exists. The
Principal Applicant had the burden of rebutting the presumption that Saint Vincent is capable of affording her protection, and she failed to rebut this
presumption. Also, she failed to prove that she had made all reasonable efforts
to exhaust all the protection avenues available to her in Saint Vincent,
given that she only sought police protection once during the time of her former
relationship and that she never went to the police during her abusive
relationship with Eddy Charles. What is more, when she returned to
Saint Vincent from Canada before leaving for Canada again, she even
rekindled a relationship with this man in 2010 without ever going to the
police. In this regard, it was most certainly open to the RPD to find that she
did not make all reasonable efforts to obtain state protection.
[29]
The Respondent further adds that the RPD indeed
took into account the Principal Applicant’s personal condition, having referred
to her limited education and to her negative past experience with the police,
but found that the Principal Applicant’s sister could have helped her in times
of need. The Principal Applicant’s subjective reluctance is not enough to rebut
the presumption of state protection. The Respondent adds that the RPD carefully
weighed the positive and the negative information available on the issue of
state protection before rendering its decision, and noted that the situation is
continuing to improve and that the efforts are producing actual results.
Protection needs only to be adequate and not effective. The Respondent
concludes by stating that this Court has confirmed several decisions in which
it was found that Saint Vincent is a democratic country that offers
adequate state protection to victims of domestic violence.
[30]
As for the minor Applicants, the Respondent
claims that the RPD accepted the fact that the youngest one had been sexually
abused but also found that she could have benefited from state protection via
the Principal Applicant’s sister, who never denounced the abuse suffered by the
children upon learning about it. The RPD also reviewed documentary evidence
submitted regarding child abuse in Saint Vincent and concluded that a
system was in place which has protected her and which could protect her in the
future. In this regard, measures could be taken to keep the abused child away
from her grandfather. The minor Applicants also failed to rebut the presumption
of state protection.
[31]
Lastly, with respect to Shonda Stacy, given
the facts of the case, it was not unreasonable for the RPD to conclude that had
Shonda Stacy been truly afraid of Eddy Charles, she would not have
returned regularly to her family home. No evidence was submitted to the effect
that Eddy Charles has been looking for Shonda Stacy since her arrival
in Canada. She failed to prove that she is exposed to a risk at the hands of
Eddy Charles in Saint Vincent, and it was reasonable for the RPD to
conclude as such.
VI. Issue
[32]
The case at bar raises the following issues:
1. Did
the RPD err when it concluded that state protection was available to the
Principal Applicant and the two minor Applicants in Saint Vincent?
2.
Did the RPD err when it concluded that Shonda Stacy
does not have a well-founded fear of persecution at the hands of
Eddy Charles in Saint Vincent?
VII. Standard
of review
[33]
The RPD’s state protection findings are a
question of fact and are therefore reviewable under the standard of
reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9 at para 53, [2008] 1 SCR 190 [Dunsmuir]).
[34]
As for the RPD’s determination that Shonda Stacy
does not have a well-founded fear of persecution in Saint Vincent, it, too,
is to be examined under the standard of reasonableness (see Moreno v Canada (Minister of
Citizenship and Immigration), 2011 FC 841 at para 7, [2011] FCJ No 1042, see also Jean v Canada (Minister of Citizenship and
Immigration), 2010 FC 1014, at para 9, [2010] FCJ No 1254).
[35]
Given that both issues are
subject to the standard of reasonableness, this Court shall only intervene if
it concludes that the RPD’s findings are unreasonable to the point that they
fall outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law.” [Dunsmuir,
above, at para 47]
VIII. Analysis
A. Did the RPD err when it concluded that state protection was
available to the Principal Applicant and the two minor Applicants in Saint Vincent?
[36]
The RPD’s findings in this regard do not warrant
the intervention of this Court, as it was reasonable to find that the Principal
Applicant and the two minor Applicants could have benefited from state
protection.
[37]
As correctly stated by the RPD in its
decision, a State is presumed to be able to afford protection to its citizens
unless it is in complete breakdown (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at p. 709, 20
Imm LR (2d) 85 [Ward]).
This Court has often reiterated that refugee protection should only be granted
as a form of surrogate protection in cases where the protection of the home
country is not forthcoming (Ward, above, see also Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171 at para. 41, [2007] FCJ
No 584 [Hinzman], and see for example Starcevic v Canada (Minister of Citizenship and
Immigration)
2008 FC 1370
at para 19, [2008] FCJ No 1748 and Campos v
Canada (Minister of Citizenship and Immigration), 2008 FC 1244 at para 14,
[2008] FCJ No 1566).
[38]
The RPD also noted that in order to rebut this
presumption claimants must “adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate”
(Carrillo v Canada (Minister of Citizenship and
Immigration) 2008 FCA 94 at para
30, [2008] FCJ No 399). The onus on claimants is heavier in cases where they
come from a democratic country (Hinzman, above, at para 57), such
as it is the case in the present matter (see for example, S.H.R. v
Canada (Minister of Citizenship and Immigration), 2010 FC 802 at
para 19, [2010] FCJ No 983 and Matthews v Canada (Minister of
Citizenship and Immigration), 2012 FC 535 at para 32, [2012] FCJ No
563).
[39]
The Federal Court of Appeal further
stated that the more democratic a country is, the more the claimant must have
done to seek out the protection of his or her home state (Hinzman,
above, at para 45, and Kadenko
v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 1376
at para 5, 143 DLR (4th) 532). In
such cases, the claimants are “required to prove that they exhausted all
domestic avenues available to them without success before claiming refugee
status in Canada” (Hinzman, above, at para 46). Also, the
protection offered by a state needs not to be perfect but adequate (Canada (Minister of Employment and Immigration) v Villafranca (1992), 18 Imm LR (2d) 130, 99 DLR (4th) 334 (FCA)).
1.
State protection for the Principal Applicant
[40]
Before concluding that state
protection measures in Saint Vincent could indeed protect the Principal
Applicant from Eddy Charles, the RPD rightly provided a detailed overview of the
analysis required in assessing state protection (the presumption of state
protection, the requirements for the rebuttal of said presumption, etc.) and considered documentary evidence related to state protection
and violence against women in the country. The RPD recognized that
although the issue of violence against women is a serious problem in Saint Vincent, the local government is making serious and concerted efforts to tackle
the issue of gender violence. In further examining the documentary evidence,
the RPD noted that adequate laws, initiatives, policies and mechanisms are in
place in the country to provide for the protection of Saint Vincent
citizens and that, contrary to the Applicant’s submissions, these measures are
indeed producing results: police are better prepared to
intervene, more women are coming forward and perpetrators are punished. The RPD
found that while the situation is not perfect, evidence clearly
establishes that it is continually improving.
[41]
In this regard, the
Applicants submit in their Memorandum of Argument that the RPD failed to refer
to evidence contrary to its findings. However, this Court finds that in its
extensive consideration of the evidence the RPD relied on evidence it found to
be mixed and referred to evidence which went to the contrary of its
determination, for example it referred to cases where the police did not act
quickly enough (see also paras 24, 29 and 30 of the decision under review).
Counsel for the Applicants would have liked to see more in-depth analysis. I
find that my reading of the decision in its totality shows not only a balancing
of the different point of views but also a good factual evaluation directly
related to the Principal Applicant. The same can be said for the daughter and
her children, as we will see later on.
[42]
In the present matter,
the Principal Applicant failed to prove that she exhausted all domestic avenues
available to her before seeking refugee status in Canada. She went to the
police once during a previous relationship but never sought protection from the
authorities throughout her relationship with Eddy Charles, even though it
resulted in her losing eyesight. Particularly noteworthy, after having left
Saint Vincent and being denied entry into Canada, she returned to her home
country where she resumed a relationship with her abusive partner.
[43]
Also, contrary to what
is being suggested by the Applicants, the RPD did take into consideration the
Principal Applicant’s particular circumstances, explicitly doing so at the
outset of the decision, stating that she is vulnerable, has limited education
and has been abused in her lifetime. However, it ultimately found that these
factors could be counterbalanced by the Principal Applicant’s sister who
could have helped her during her difficult times but did not.
[44]
Finally, the RPD indicated that this protection
would still be offered to the Principal Applicant should she return to Saint Vincent and noted specific resources that would be available to her, e.g. the
Family Court of Saint Vincent and the Grenadines which provides information on
the procedure for applying for protection orders. On the whole, this Court
finds that the RPD reasonably concluded that the Principal Applicant failed to
provide clear and convincing evidence necessary to rebut the presumption of
state protection.
2.
State protection for the two minor Applicants
[45]
In coming to the conclusion
that state protection was available to the two minor Applicants, the RPD
undertook a review of the mixed documentary evidence related to child abuse, and it concluded that although people are usually
reluctant to report child abuse, sexual abuse or incest for various reasons and
although this issue remains a hidden problem in the country, the law
enforcement and judicial process in Saint Vincent actually take abuse
seriously: police are involved and investigate, perpetrators are prosecuted,
and Family Services provide assistance to the children in cases where protection
orders are requested from the Family Court. The RPD also noted that Saint Vincent set up a foster care system for children that mainly helps children who are
victims of abuse, including sexual abuse, and that through this system many of
the expenses for the child are taken care of – clothing, medical
expenses, schooling, etc. – and social workers offer counselling to the
children and the family.
[46]
Once again, to the
contrary of the Applicants’ claims, the RPD did take into consideration the
two minor Applicants’ particular circumstances before finding that the
state could also have afforded them protection, in their case from Elroy Diamond. In fact, it took into account
the fact that their mother has limited intellectual capacities and that one of
the girls had been sexually abused. It also acknowledged that they are young
but stated in the decision that the Applicants have an important network of
family members in Saint Vincent who could help them.
[47]
That being said,
however, as rightly put by the RPD, no one tried to obtain state protection in
their name - not their mother, not the Principal Applicant (their grandmother)
and not the Principal Applicant’s sister, even though she knew of the abuse
suffered by one of the minor Applicants. In the case at bar, the major
Applicants failed to seek state protection and, as duly expressed by the RPD,
such protection would still be available to them should they return to
Saint Vincent. Moreover, the RPD noted that other precautions could be
taken (i.e. relocation) in order to protect the minor Applicant from her
abusive grandfather, Elroy Diamond.
[48]
Finally, the RPD
rightly indicated that all the medical and psychological reports related to the
abuse suffered by the minor Applicant are still available in Saint Vincent and could be used to prosecute the grandfather. Therefore, this Court
finds that the RPD reasonably concluded that the Applicants failed to rebut the
presumption of state protection as far as the minor Applicants are
concerned.
[49]
Consequently, I find that
the RPD properly stated and applied the test for state protection as it regards
the Principal Applicant and the two minor Applicants, thereby reasonably
concluding that these Applicants failed to meet their evidentiary burden to rebut the presumption of
state protection and that they could still avail themselves of such protection
should they return to Saint Vincent.
B. Did the RPD err when it concluded that Shonda Stacy does not
have a well-founded fear of persecution of Eddy Charles in Saint Vincent?
[50]
Considering the evidence before the RPD, this
finding, too, is reasonable and does not warrant the intervention of this
Court.
[51]
The Applicant Shonda Stacy had the burden
of establishing that she faced a reasonable risk of persecution in
Saint Vincent should she return to her home country (Adjei v Canada (Minister of Employment and
Immigration),
[1989] 2 FC 680 at para 5, 57
DLR (4th) 153). However, Shonda Stacy testified that there has only
been one incident involving Eddy Charles, namely the one when he had come
to the family house to threaten her but she had managed to lock the door in
time and stave him off. This was the only incident and she was never contacted
by Eddy Charles again. She also testified that she left the house after
the events but regularly returned to the house in the months before her coming
to Canada. It was certainly open to the RPD to infer from this testimony that
Shonda Stacy did not feel real fear from Eddy Charles. Given this
testimony and considering that no other evidence was submitted in this regard,
it was certainly reasonable for the RPD to conclude that the Applicant
Shonda Stacy has failed to discharge her burden that she faced a
reasonable risk of persecution at the hands of Eddy Charles should she
return to Saint Vincent. The RPD’s decision surely falls within the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.”
[52]
For the aforementioned reasons, this Court finds
that the RPD’s decision regarding the four Applicants is reasonable.
[53]
The parties were invited
to submit questions for certification but none were proposed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for
judicial review is denied. No question is certified.
“Simon Noël”
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