Ottawa, Ontario, March 21, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rendered on August 3, 2005 by Michael Crelinsten, finding that the applicant was not a Convention refugee nor a person in need of protection.
ISSUES
[2] The applicant raises the following issues:
1. Did the Board commit a reviewable error in finding that the applicant could benefit from state protection?
2. Did the Board err in law in imposing a state accountability requirement for the granting of protection under section 97 of the IRPA where none exists in the language of that provision?
[3] For the following reasons, the answer to both of these issues is negative and the application shall be dismissed.
BACKGROUND
[4] The applicant, Ms. Cassia Petro Hutchins, is a citizen of Saint Vincent and the Grenadines. She was born on October 14, 1976 in Kingstown.
[5] On June 20, 2000, the applicant came home to find her boyfriend, Gregory Laborde, kissing their daughter in a sexually inappropriate fashion. A heated argument ensued, during which Mr. Laborde pushed the applicant. She then fled to her mother's house, leaving her daughter with Mr. Laborde.
[6] When the applicant returned to retrieve her daughter and her possessions from the dwelling she shared with Mr. Laborde, he refused to release the child.
[7] Upon reporting the incident to social welfare authorities, the applicant was instructed to go to Family Court. She eventually received assistance from the Criminal Investigation Division, and lived at her mother's house with her daughter.
[8] The Family Court awarded the applicant full custody of her daughter, and they both lived with the applicant's mother, but the applicant was continually verbally harassed by Mr. Laborde. She reported this to the police, who apparently took no action.
[9] The verbal harassment continued and escalated into beatings, until an incident on November 5, 2000, prompted the applicant to call the police, who did not come to her assistance.
[10] This pattern of violence culminated on January 2, 2001, when he assaulted her while armed with a machete and scissors. The applicant sustained serious cuts as a consequence of the attack.
[11] Facing continual threats, the applicant left for Canada on September 22, 2001, leaving her daughter in Saint Vincent with her sister. She claimed refugee status on February 8, 2005.
[12] Mr. Laborde was arrested in March 2002, and charged with kidnapping and attempted murder regarding an unrelated incident.
DECISION UNDER REVIEW
[13] In its reasons, the Board stated that it had to come to positive credibility findings regarding the applicant's identity and allegations of conjugal abuse.
[14] The Board noted the significant delay incurred by the applicant in filing an asylum claim, but did not consider it determinative or fatal to her claim.
[15] Despite finding the applicant's allegations credible, the Board disallowed her claim because it determined that state protection was available to her in Saint Vincent.
[16] The Board cited Canada (Minister of Citizenship and Immigration) v. Kadenko, [1996] F.C.J. No. 1376 (F.C.A.) (QL) and Canada(Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.) (QL) as establishing the legal framework that guided its analysis.
[17] The Board relied on documentary evidence to determine that Saint Vincent and the Grenadines was a democratic state.
[18] The Board then considered the applicant's testimony, and found that the state had deployed efforts on behalf of the applicant in assisting her in safely reclaiming her daughter from Mr. Laborde, awarding her full custody of the child, and ordering Mr. Laborde to make support payments.
[19] The Board also determined that though assistance the applicant received from the police was less than perfect, this did not amount to a broader, state-wide pattern of non-assistance to battered women.
[20] Relying on documentary evidence, the Board found that there was no complete breakdown of the State apparatus in Saint Vincent and the Grenadines.
[21] Based on all these factors, the Board concluded that the applicant had failed to refute the presumption of state protection, and that she faced less than a "serious possibility" of persecution or a danger of torture or a risk to her life of cruel and unusual treatment or punishment if she were to return to Saint Vincent.
ANALYSIS
1. Did the Board commit a reviewable error in finding that the applicant could benefit from state protection?
[22] The applicant claims that the Board failed to consider the proper factors for determining whether the government of that country was unable or unwilling to protect her from domestic violence. The applicant urges that the state's assistance in obtaining full custody of her daughter was an entirely different issue from her inability to obtain protection against physical violence inflicted by her former boyfriend.
[23] The applicant further states that documentary evidence shows during the period within which the incidents occurred, the police response to allegations of domestic violence was very poor and inadequate. She submits that this is indicative of "past incidents in which state protection did not materialize"(Canada (Minister of Employment and Immigration) v. Ward, [1993] 2 S.C.R. 689).
[24] The applicant also argues that the mere existence of the possibility of filing complaints to Family Court and the police did not entail that the applicant would receive effective protection from Mr. Laborde's assaults.
[25] Though the Board did note that there were "significant problems with the implementation" of Saint Vincent's domestic abuse legislation, the applicant submits that it failed to explore this key issue and consider whether an effective framework really existed to protect the applicant.
[26] The Board's finding that the applicant could benefit from state protection is a question of mixed fact and law, and the applicable standard of review is that of reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In Chaves v. Canada(Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (T.D.) (QL), Justice Danièle Tremblay-Lamer wrote at paragraph 11:
Deciding whether a particular claimant has rebutted the presumption of state protection involves "applying a legal standard [i.e. "clear and convincing confirmation of a state's inability to protect": Ward, supra, at para. 50] to a set of facts", which according to the Supreme Court constitutes a question of mixed fact and law: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise with respect to the findings of fact and assessing country conditions. However, the Court has relative expertise with respect to whether the legal standard was met. Accordingly, the appropriate standard of review is in my view reasonableness simpliciter. This is consistent with the rulings characterizing the issue of state protection as a question of mixed fact and law [...]
[27] Asylum claimants appearing before the Board are presumed to be able to benefit from state protection, and they have the onus of establishing in a clear and convincing way that the state is unable or unwilling to offer them protection (Ward, above).
[28] The documentary evidence before the Board indicated that though Saint Vincent and the Grenadines had a spotty record of enforcement of legislation designed to protect battered women, it was undeniably a fully functional democratic state. In Villafranca, above, Justice James K. Hugessen stated:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. [...]
[29] In Kadenko, above, Justice Robert Decary analysed the difference between a state's institutional structure and the failure to act of individual police officers:
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.
[30] In light of these principles and after carefully reading the Board's reasons, I do not think that its finding that the applicant could benefit from state protection was unreasonable. The documentary evidence depicts Saint Vincent as a democracy in robust health. Though the applicant credibly established that she received insufficient and inadequate police protection from Mr. Laborde, it was not unreasonable for the Board to conclude, based upon the evidence before it, that she had not met the onus of establishing that she could not benefit from state protection in the future. The evidence showed that situations for battered women had greatly improved since 1999, and Mr. Laborde is currently incarcerated and facing an attempted murder charge, which puts him in an unlikely position to harm the applicant.
2. Did the Board err in law in imposing a state accountability requirement for the granting of protection under section 97 of the IRPA where none exists in the language of that provision?
[31] The applicant argues that the Board required her to demonstrate that the government of Saint Vincent was accountable for the past harm she suffered, and for the future harm she fears if she were to return to Saint Vincent.
[32] Such a finding would be a question of law, and the applicable standard of review would be correctness (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[33] However, after reading the Board's reasons, I cannot detect the presence of any such error. The Board did not in fact require the applicant to demonstrate that the state of Saint Vincent was accountable for the harm she suffered at the hands of Mr. Laborde. It required her to establish that she could not benefit from state protection, which is in accordance with the applicable legal principles regarding the issue of state protection.
[34] The applicant proposes the following two questions for certification:
1. What is the test for determining the effectiveness and/or adequacy of state protection in a case where a refugee claimant fears serious harm at the hands of non -State actors?
2. Does paragraph 97(1)(b)of IRP require that the State be accountable (either as direct perpetrator or by way of a failure to protect) for either the risk to life or the risk of cruel or unusual treatment or punishment?
[35] The respondent does not agree that such questions be certified. I agree that the decision in this case is mostly fact-findings with an analysis of the country conditions. It does not give rise to the questions asked by the applicant.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5254-05
STYLE OF CAUSE: CASSIA PETRO HUTCHINS
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 16, 2006
APPEARANCES:
SOLICITORS OF RECORD:
Joseph W. Allen FOR APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec