Date: 20061101
Docket: IMM-1315-06
Citation: 2006 FC 1320
Ottawa, Ontario, November 1st, 2006
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
ELIZABETH SYLVIA STAPLETON
DONETTE DESREE JOHN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the Board), rendered on January 16, 2006, denying the applicants the status of Convention refugees or persons in need of protection. They are asking this Court to set aside the Board’s decision and refer the matter to a differently constituted panel.
2. Factual background
[2] The principal applicant, Ms. Stapleton, is a national of Saint Vincent and the Grenadines and was born on April 19, 1974. The co-applicant, Miss John, born on October 22, 1990, and also a Vincentian national, is the principal applicant’s daughter.
[3] The principal applicant was the victim of severe sexual abuse and acts of physical and psychological violence from a young age, specifically since she was ten years old. At that time the abuser was her father, and she had a child by him whom she subsequently had to abandon. Very shortly thereafter, she met a man by whom she became pregnant almost immediately. She had a girl (the co-applicant) as well as another child whom she eventually abandoned because her husband began abusing her.
[4] In 1993, the police took action against her husband. In addition, the applicant was awarded alimony in 1992 and obtained a protection order against her husband in 1993.
[5] The husband in question sexually abused the applicant’s daughter, so she left him and came to Canada in 2001 only to be deported. She returned to her country, the couple divorced and she went to live with another man.
[6] Everything was going well with her new partner until one day when her daughter told her he had touched her breasts. As of that point, things became complicated between the partner and the daughter.
[7] In February 2004, the husband beat the daughter. This led the applicant to leave the family home with her daughter. She called the police and legal proceedings were undertaken against the husband, but the prosecution was dropped when the applicant left for Canada. She claimed she was scared that her husband would take vengeance against her and her daughter if they returned to Saint Vincent because of the prosecution that was initiated against him.
[8] The principal applicant arrived in Canada on March 16, 2004, her daughter on December 20, 2004. They sought the protection of Canada on September 13, 2005.
[9] The principal applicant alleges that she suffers profound psychological after-effects to this day.
[10] Both applicants claimed refugee status on September 13, 2005 and founded their claims on the sexual abuse they suffered. Applicant Stapleton was appointed as the designated representative of the co-applicant, Miss John.
[11] On January 16, 2006, in Montreal, their claim was rejected in an oral decision of a Refugee Protection Division panel.
[12] On March 10, 2006, the applicants filed an application for leave and for judicial review.
3. Decision appealed
[13] First of all, in the panel decision, the Member made the following findings of fact:
- Every time the applicant came to Canada, she left her daughter in Saint Vincent and the Grenadines, this despite her contention that her daughter was in danger.
- With the exception of February 2004, there was never any physical violence against the applicants.
- There was no refusal of state protection as such.
- Indeed, the police intervened on several occasions at Ms. Stapleton’s request.
[14] In support of its findings, the panel referred to the Supreme Court of Canada’s decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, wherein it was held that “[a]bsent a situation of complete breakdown of state apparatus, it should be assumed that the state is capable of protecting a claimant.” The panel then cited Szorenyi, Gabor v. M.C.I. (F.C., no. IMM‑2817‑02); in that case, the Court pointed out that there were numerous cases in which the Board would be justified in requiring claimants not only to go to the police, but to exhaust all options for obtaining state protection. Finally, the panel referred to Kadenko v. Canada (Attorney General), (1995), 32 Imm. L.R. (2d) 275, which held that failure by local authorities to provide adequate protection does not amount to a lack of state protection unless the situation is more generalized or the state is incapable of providing protection or unwilling to do so.
[15] The panel then examined the documentary evidence regarding the ability of Saint Vincent and the Grenadines to protect its citizens. After considering the documentary evidence indicating that Saint Vincent and the Grenadines has an effective police force and judicial system, the panel stated that it could not find “that there is no state protection or that that protection is ineffective in cases of spousal or domestic violence in St. Vincent.” As to the applicant’s daughter, the panel found that “nothing presented in the evidence proves that she would be at risk of persecution and/or that her life would be in danger if she returned to her country of origin.” Therefore, the Board rejected the claims for refugee protection.
4. Issues
A. Did the Board err in failing to apply the Gender-Based Persecution Guidelines?
B. Did the Board err in finding that the applicants had not met their evidentiary burden of rebutting the presumption that their country, the State of Saint Vincent and the Grenadines, was able to protect them?
C. Did the Board err in failing to examine the question of whether the applicants should have benefited from the exception provided in subsection 108(4) of the Immigration and Refugee Protection Act (the Act)?
D. Did the Board violate a principle of natural justice because the panel rendered its decision from the bench?
5. Analysis
A. Did the Board err in failing to apply the Gender-Based Persecution Guidelines?
[16] The applicants allege that the panel erred by failing to apply the Gender-Based Persecution Guidelines (the Guidelines): the panel thereby demonstrated a lack of knowledge, understanding and sensitivity around issues of spousal violence. To support their allegations, the applicants identified several instances of those flaws during the course of the hearing. Below are some examples:
- at page 17 of the transcript:
53 Q. What happened then, you became pregnant?
A. Yes, I became pregnant.
54 Q. How many days or weeks after you abandoned your child, how many days after that?
A. I got pregnant?
55 Q. Yes.
A. I got pregnant maybe one or two days after.
56 Q. You got pregnant one or two days after you abandoned your child?
A. Yes.
57 Q. Did you want to get pregnant?
A. No.
58 Q. Did you ever learn about protection? Was there no protection over there?
A. I never learned. I never had someone to talk to me.
59 Q. Okay, you didn’t know you could have been protected?
A. No. [Applicants’ emphasis.]
- at page 28 of the transcript:
126 Q. And you took him back every time? When he came back you allowed him to come into the house?
A. But when he comes he don’t stay to my room with me.
127 Q. He wouldn’t stay five minutes with me, but you know – [Applicants’ emphasis.]
- at page 33 of the transcript:
158 Q. What did you do then?
A. I waited until he left the house and I take my stuff and leave
159 Q. About time, yes.
A. Yes.
160 Q. A good decision. […] [Applicants’ emphasis.]
- at page 35 of the transcript:
169 Q. Did you go to the police then?
A. No, I didn’t.
170 Q. Why not?
A. Because I was ashamed.
171 Q. Ashamed of what?
A. Because when it gets to the people hearing they are going to boo my daughter when she walks on the street. It is not easy to walk knowing that your father had sex with you. It is very hard. It is something that people would harass you every day. [Applicants’ emphasis.]
- at page 43 of the transcript:
231 Q. And what happened with him?
A. We – by December, in December of that same year, he had – when I met him we went to rent an apartment, and then by December he had – we both had built a wooden house, so we were living together” Everything was okay. I was doing farming, he was going to the city to sell stuff, and one evening when I came home from farming my daughter said that Claydon had touched her on her breasts.
232 Q. Here we go again. [Applicants’ emphasis.]
[17] According to the case law, in determining the credibility of a claimant alleging gender-based persecution, the Board must demonstrate knowledge, understanding and sensitivity, as per the Guidelines. In the instant case, the comments of the Member appear inappropriate at times; however, on reading the hearing transcript as a whole, together with the reasons for decision, I am satisfied that the Board did not fail in its duty to apply the Guidelines. Both the reasons for decision and the transcript show that the Board accepted that the applicants were basing their refugee claim on acts of sexual violence. No doubt was cast on the applicants’ story. The Board believed their account and considered it sad. The Member even appeared at times to reassure the principal applicant, explaining to her that his role was not to judge her behaviour. Notwithstanding the Member’s inappropriate comments shown above, I am of the opinion that the Board’s decision was rendered in accordance with the Guidelines and that this ground does not warrant the Court’s intervention.
B. Did the Board err in finding that the applicants had not met their evidentiary burden of rebutting the presumption that their country, the State of Saint Vincent and the Grenadines, was able to protect them?
[18] The second issue involves the application of the test developed by the Supreme Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. It is a mixed question of fact and law since it involves applying a legal standard (i.e., there must be clear and convincing evidence of the state’s inability to protect) to a set of facts. In Chaves v. Canada (Minister of Citizenship and Immigration), 2005 F.C. 193, at paragraphs 9 to 11, Madam Justice Danièle Tremblay-Lamer considered the contextual factors in the framework of the pragmatic and functional approach for determining the standard of review applicable to this issue. Her analysis led her to determine that the appropriate standard of review is reasonableness simpliciter. I agree with her analysis, and for the purposes of the present application, therefore, I shall use this same standard to address the second issue.
[19] The Supreme Court in Ward noted that “[a]bsent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens.” A claimant wishing to show that a state is incapable of protecting its citizens must rebut the presumption developed in Ward. The onus of proof, therefore, is on the claimant.
[20] The applicants assert that the Board erred in finding that the State of Saint Vincent and the Grenadines was capable of protecting them. According to the applicants, such a finding could only be the result of the Board’s piecemeal, incomplete and misguided reading of the documentary evidence. The applicants further contend that they were denied a personalized analysis of their situation and experience in the light of the Guidelines.
[21] I reject these arguments. With respect to the subjective aspect of the Ward test, I am of the opinion that the Board did in fact take the specific circumstances of the applicants into account. As the respondent points out, the evidence shows that:
- The applicant did not report the incest her daughter suffered to the police;
- The principal applicant went to family court twice concerning her alimony claims against her husband;
- The principal applicant twice called the police, in December 2003 and February 2004, as a result of her partner Claydon Lewis’ behaviour;
- The first time, she refused to press charges;
- She pressed charges the second time, but the proceedings initiated by the police in 2004 ended with the charges being dropped because the principal applicant was out of the country, in Canada, at the time.
[22] The evidence reveals that the police responded to every call she made. They intervened and laid the appropriate charges. Nothing in the evidence indicates that the State of Saint Vincent and the Grenadines was unwilling to come to the assistance of the applicants in their particular situations. Rather, the evidence shows that they did not press charges in certain instances and, when charges were in fact laid, they left the country and the charges were eventually dropped for want of evidence.
[23] As to the objective aspect of the test, the documentation on the situation in Saint Vincent and the Grenadines contains evidence on which the Board could reasonably base its conclusion regarding the ability of the state to protect its people. Although the evidence shows that the situation is not perfect, the case law acknowledges that no democracy affirming its respect for human rights can guarantee the protection of its citizens at all times. See: Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. no. 1189 (QL); and Canada (Minister of Citizenship and Immigration) v. Kadenko, [1996] F.C.J. no. 1376 (F.C.A.) (QL). Indeed, in its reasons for decision, the Board in this case did make mention of the documentary evidence questioning the system in place for protecting assaulted women in Saint Vincent and the Grenadines. Despite that observation, the Board found that the State of Saint Vincent and the Grenadines was capable of protecting its people.
[24] On reading the documentary evidence, I am of the opinion that the Board was entitled to rule that the applicants had failed to discharge their burden of rebutting the presumption that their country was capable of protecting them. That was not an unreasonable finding. I am satisfied that the Board took all of the evidence into account and did not demonstrate a lack of understanding as to the question of the dynamics of domestic violence.
C. Did the Board err in failing to examine the question of whether the applicants should have benefited from the exception provided in subsection 108(4) of the Immigration and Refugee Protection Act (the Act)?
[25] Subsection 108(4) of the Act is drafted as follows:
|
108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: |
108. (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants : |
|
… |
[...] |
|
(e) the reasons for which the person sought refugee protection have ceased to exist. |
e) les raisons qui lui ont fait demander l’asile n’existent plus. |
|
… |
[…] |
|
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. |
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
|
[26] The standard of review applicable when compelling reasons are in issue as provided in subsection 108(4) of the Act was defined by my colleague Mr. Justice Richard Mosley in Decka v. Canada (Minister of Citizenship and Immigration), 2005 F.C. 822. In paragraph 5 of his reasons, he wrote:
[…] that as the question requires the proper interpretation of the statute, the appropriate standard of review when considering whether a Board should have applied the compelling reasons analysis is correctness. Review of the content of the analysis, had it occurred, would have been on the standard of reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
[27] For the purposes of this application, I adopt my colleague’s reasoning and ruling on the appropriate standard with respect to this third issue.
[28] In Brovina v. Canada (Minister of Citizenship and Immigration), 2004 F.C. 635, Madam Justice Carolyn Layden-Stevenson held that subsection 108(4) of the Act applies only in certain circumstances: in paragraph 5 of her reasons, she wrote:
[…] For the board to embark on a compelling reasons analysis, it must first find that there was a valid refugee (or protected person) claim and that the reasons for the claim have ceased to exist (due to changed country conditions). It is only then that the Board should consider whether the nature of the claimant’s experiences in the former country were so appalling that he or she should not be expected to return and put himself or herself under the protection of that state.
[29] In the case at bar, the Board never conferred refugee or protected person status on the applicants, so it cannot be found that there was a valid refugee (or protected person) claim and that the reasons for the claim have ceased to exist (due to changed country conditions). Therefore, the Board did not have to embark on a compelling reasons analysis. It follows that the Board did not err in its interpretation or application of subsection 108(4) of the Act.
D. Did the Board violate a principle of natural justice because the panel rendered its decision from the bench?
[30] I reject the notion that the brevity of a decision maker’s deliberations can establish per se that the decision maker was biased prior to hearing the evidence and arguments of either party. Having read the reasons for decision, I am satisfied that the Board duly considered the applicants’ allegations and all of the evidence submitted. Nothing in the evidence would allow me to hold that there was any violation of the principles of natural justice in this case as a result of the brevity of the deliberations.
6. Conclusion
[31] For the reasons set out above, I am of the opinion that in rendering its decision, the Board committed no error that would warrant the intervention of this Court. Therefore, the application for judicial review will be dismissed.
[32] The parties did not propose certification of any serious question of general importance as contemplated in paragraph 74(d) of the Act. I am satisfied that no such question was raised in these proceedings. No question will be certified.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed.
2. No question be certified.
“Edmond P. Blanchard”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: Elizabeth Sylvia Stapleton et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 18, 2006
REASONS FOR ORDER
APPEARANCES:
Nino Karamaoun FOR THE APPLICANT
Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nino Karamaoun FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec