Toronto, Ontario, November 21, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Jean claims to be a Convention refugee or a person in need of protection on the basis that she had been subjected to domestic violence at the hands of her former common-law spouse. The Refugee Protection Division (RPD) found that state protection was available to Ms. Jean in St. Lucia and it rejected her claim. This is an application for judicial review of that decision.
[2] Ms. Jean contends that the RPD engaged in a selective reading of the documentary evidence and erred in concluding that “strong efforts to confront domestic abuse” was a sufficient basis upon which to find that adequate state protection is available. She asserts that the RPD ought to have considered whether such efforts are yielding positive results.
[3] I have concluded that the RPD engaged in a selective reading of the documentary evidence such that its analysis regarding state protection is deficient. Consequently, the application for judicial review will be allowed.
Background
[4] Ms. Jean, the mother of three children from a previous relationship, began cohabiting with her common law spouse, Henry John, in October of 2000. In early 2001, Mr. John began drinking and became verbally abusive to Ms. Jean and her children. In September of 2001, after an incident of physical abuse, Ms. Jean and the children left and went to her mother’s home. When a contrite Mr. John begged them to come back, they returned to the “family” home. One week later, the abuse resumed and Mr. John threatened Ms. Jean that he would kill her if she ever left again.
[5] The abuse (both physical and mental) continued and intensified. Eventually, Ms. Jean sought the assistance of the police and the crisis centre. The police told her to sort it out and the crisis centre could not assist her because it had a long waiting list. Twice, Ms. Jean attended the hospital after episodes of abuse.
[6] When Ms. Jean and her children again sought refuge at her mother’s home, Mr. John repeatedly came to the house threatening to kill her if she did not return home. Ms. Jean left the children with her mother and came to Canada. After her arrival here, through telephone discussions with her mother, she learned that Mr. John had persisted in attending at her mother’s home and repeating his death threats against Ms. Jean. Although her mother went to the police, no action was taken.
The Decision
[7] The RPD seemingly accepted Ms. Jean’s evidence as credible but determined that state protection was available. It noted that domestic violence is a problem throughout the world. However, the government in St. Lucia is making strong efforts to address the problem. It noted that St. Lucia is a democratic country. It observed that the police have received sensitivity training regarding domestic violence, the judiciary has been diligent in processing protection orders quickly, and violators have been arrested. St. Lucia has a shelter for victims of domestic violence as well as a crisis center that provides counselling and access to social services. Consequently, there is “adequate, albeit not exemplary, state protection” available.
Issue
[8] The sole issue is whether the RPD erred in determining that state protection is available to Ms. Jean.
The Standard of Review
[9] In previous decisions, I have adopted the pragmatic and functional analysis of my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58. I agree with Justice Tremblay-Lamer that the applicable standard of review in relation to a finding of state protection is reasonableness.
Analysis
[10] The RPD’s determination was based on information contained in a Response to Information Request (RIR) dated April 25, 2003. The RPD relied primarily upon the positive statements of a relations officer from the Ministry of Home Affairs and Gender Relations for St. Lucia. These comments spoke to a “positive shift in the attitudes of police officers” and the “ongoing gender sensitivity training” provided to the police by the government. The RPD highlighted the presence of the women’s support centre and the issuance of protection orders.
[11] The documentation also contained negative comments. The RPD did not refer to, or acknowledge, the statements of the representative of the crisis centre. Those accounts were to the effect that “most complaints of domestic violence received by the police were not taken very seriously and were placed on the ‘back burner.’ The prevailing attitudes of the police and the population in general are that the man of the household is the chief and that he can impose discipline in the home by violent means.” There were also declarations that the “entire justice system needs to be modernized to reflect the seriousness of domestic violence”. Additionally, the documentation contains an admonition that, despite years of promises from the government, there are no legal aid clinics in the country.
[12] None of the negative information regarding the availability of state protection was addressed. While it is clearly open to the RPD to ultimately prefer the statements of one spokesperson over those of another, in so doing it must first deal with both and provide its reasons for choosing one position over the other. It is not open to it to adopt only the positive statements and totally disregard the negative statements without providing an explanation as to why it has done so. It is settled law that evidence that directly contradicts the findings of the board must be acknowledged: Ragunathan v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 229 (F.C.A.); Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.).
[13] I agree that the RPD engaged in a selective review of the documentary evidence. In the absence of an explanation or an analysis of the totality of the information contained in the RIR, the RPD’s reasons cannot be said to withstand the scrutiny of a somewhat probing examination. Consequently, the application for judicial review will be allowed. Since this is sufficient to dispose of the application, I need not deal with the other arguments.
[14] Neither party proposed a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted to a differently constituted RPD for determination.
“Carolyn Layden-Stevenson”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-638-06
STYLE OF CAUSE: NANCY SAMANTHA JEAN v.
MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 21, 2006
AND ORDER: LAYDEN-STEVENSON, J.
APPEARANCES:
Johnson Babalola FOR THE APPLICANT
David Cranton FOR THE RESPONDENT
SOLICITORS OF RECORD:
Johnson Babalola FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
Toronto, Ontario