PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
KHALID OLIVER TARRICK HENRY
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of the decision of the Immigration and Refugee Board (Refugee Protection Division) (the Board) dated June 16, 2006, which determined that the applicants were neither Convention refugees nor persons in need of protection.
[2] The applicants requested that the decision be set aside and the matter referred for redetermination by a differently constituted panel of the Board.
Background
[3] The applicants, Cavell Alicia Henry (the applicant), and her son, Khalid Oliver Tarrick Henry, are citizens of Grenada. The applicant alleged having a fear of persecution on the basis of her membership in two particular social groups, namely, people threatened by criminals implicated in a crime, and women who have been abused by their common-law spouses. She also claimed to be a person in need of protection. Her son’s claim for protection was based upon her own. The circumstances which led to the applicant’s claim for refugee protection were set out in the narrative portion of her Personal Information Form (PIF) and in her affidavit.
[4] The applicant was in a common-law relationship with Oliver Williams from 1997 until April 2005. Their son was born in January 2000. In September 2002, Williams was stopped at gun point and forced to drive a group of men somewhere. One of the men was Sheldon Bain, a well-known criminal in Grenada. Williams overheard the men discussing a murder, and he was told that his family would be killed if he reported the crime. Despite the threat, Williams filed a police report and Bain and three other men were captured. Williams also testified against Bain at his trial. During the trial, the applicant and her son were threatened by the men and their family members.
[5] Bain escaped from prison in April 2004 and Williams was placed in protective custody. The applicant and her son were escorted by the police in order to live with her mother, who was a police officer. The police informed the applicant that she and her son were not safe in Grenada, since many people wished to retaliate against them. The police helped them leave Grenada, and provided them with official correspondence confirming the situation.
[6] They arrived in Canada on August 25, 2004, accompanied by Williams. The family claimed refugee protection on September 10, 2004. While in Canada, Williams was informed that the three other men arrested with Bain had also escaped from prison. Williams and the applicant ended their relationship after several incidents of domestic violence. Williams was convicted of assault and uttering death threats after attacking the applicant on September 14, 2005. Williams was also convicted of breaching a no-contact provision of his release.
[7] The applicant and her son’s claims for refugee status were separated from that of Williams on January 20, 2006. Their refugee hearing took place on June 15, 2006, and the claim was denied by decision dated June 16, 2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[8] The Board determined that the applicant and her son were neither Convention refugees, nor persons in need of protection, as there was no objective basis for their claims. The Board noted its consideration of the Chairperson’s Gender Guidelines.
[9] The applicant provided the Board with a letter from the police in Grenada which confirmed her story. This evidence showed that the authorities provided them with more assistance than was normally available in Grenada. The Board found that while the protection available to them was not perfect, it was adequate. In addition, the applicant was separated from Williams, who was the target of Bain’s threat. The Board reasoned that it would be known in Grenada that she was no longer connected to Williams, therefore the agents of persecution would no longer be interested in harming her.
[10] The Board cited documentary evidence regarding the situation faced by abused women in Grenada and acknowledged that it was tenuous. There was legislation in place in Grenada allowing for protection, occupation and tenancy orders. While violence against women was a problem in Grenada, it was being addressed and improved. The Board noted that the applicant’s mother was a police officer, and could make arrangements to protect the applicant.
[11] The Board noted that both the Convention refugee definition and the grounds for establishing a need for protection were forward looking. The Board found that the applicant could avail herself of protection services in Grenada, if required. The Board noted that nations are presumed capable of protecting their citizens, and a claimant must approach his or her state for protection where it would be forthcoming (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1). There was no more than a mere possibility that the applicant and her son would be persecuted if they returned to Grenada, nor were they persons in need of protection.
Issues
[12] The applicant submitted the following issues for consideration:
1. Did the Board err in concluding that there was adequate state protection in Grenada and that the applicants were no longer at risk?
2. Did the Board err by failing to properly review the evidence concerning state protection and domestic violence?
[13] I would rephrase the issues identified by the applicants as follows:
Did the Board err in finding that state protection was available to the applicants?
Applicants’ Submissions
[14] The applicant submitted that while the Board need not refer to every piece of evidence before it, evidence in support of a claimant’s position must be considered (see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (F.C.T.D.)). It was noted that the more important the evidence, the more likely it was that the Board had erred in failing to consider it. The applicant submitted that the Board should not selectively refer to evidence in support of its conclusion, without also referring to evidence to the contrary (see Polgari v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 263, 2001 FCT 626).
[15] The applicant submitted that where evidence relating to a central issue was submitted, the Board’s burden of explanation increased if it was assigned little weight. It was submitted that a general statement that all of the evidence was considered was insufficient, especially if the omitted evidence contradicted the Board’s conclusion (see Castillo v. Canada (Minister of Citizenship and Immigration) (2004), 128 A.C.W.S. (3d) 782, 2004 FC 56). The applicant submitted that the most important piece of evidence in her case was a letter from the Grenadian police. The Board accepted the authenticity of the document, but found that state protection was adequate. The applicant submitted that the Board’s conclusion disregarded the evidence.
[16] The applicant submitted that whether she and her son were granted more protection than usual was irrelevant, since the level of protection was inadequate. The applicant submitted that the letter established that the state was unable to offer adequate protection. It was submitted that the Board’s finding that the applicants did not face a continuing risk was perverse, given that the police believed that they were still at risk.
[17] The applicant testified that the agents of persecution were not rational, and would not care that she was no longer in a relationship with Williams. It was submitted that the finding that the criminals no longer posed a risk because of her separation from Williams was patently unreasonable. The applicant noted that Bain, his criminal associates, and his family felt that the applicant was personally responsible for his conviction and had threatened her.
[18] The applicant submitted that the Board selectively considered evidence regarding the abuse of women in Grenada. The documentary evidence indicated that there were serious problems with the enforcement of domestic violence laws. The applicant submitted that the Board should have assessed the actual ability of the state to protect its citizens. It was submitted that the Board did not address the fact that despite efforts to remedy the situation, the protection offered was inadequate. The applicant submitted that the Board erred by selectively relying upon portions of the evidence, while ignoring other statements in the same document.
Respondent’s Submissions
[19] The respondent submitted that the Board’s finding on state protection was reasonable. It was submitted that states are presumed capable of protecting their citizens unless there was evidence of a complete breakdown of the state (see Ward above). The respondent noted that while there was evidence before the Board that the Grenadian police had helped the applicant flee Grenada, the letter did not rebut the presumption of state protection.
[20] The respondent submitted that the applicant bore the burden of showing that Grenada was incapable or unwilling to protect them. It was submitted that the more democratic a country’s institutions, the more a refugee claimant had to do to exhaust all courses of action available (see Ward above). The respondent submitted that a local failure to provide effective policing did not constitute a lack of state protection, absent evidence of a broader state policy to not extend protection to a targeted group. The applicant did not seek help beyond contacting the local police, and it was submitted that the Board’s conclusion was therefore reasonable (see Orban v. Canada (Minister of Citizenship and Immigration) (2004), 130 A.C.W.S. (3d) 1190, 2004 FC 559).
[21] The respondent submitted that the Board considered all of the evidence in making its state protection finding. The Board noted that there was evidence that the Grenadian government was dealing with domestic violence and personal security issues. The respondent submitted that the standard for state protection was adequacy, not perfection (see Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605, 14 Imm. L. R. (2d) 81 (C.A.)). It was submitted that the Board was not required to mention every piece of evidence before it, so long as it had considered all of the evidence (see Chowdhury v. Canada (Minister of Citizenship and Immigration) (2003), 122 A.C.W.S. (3d) 344, 2003 FCT 407).
[22] The Board found that Williams was the target of Bain’s threat, not the applicant and her son. The police offered Williams full protection while the applicant and her son were allowed to live with a relative. In addition, the applicant’s separation from Williams served to minimize the threat she faced. The respondent submitted that the fact that Grenada was a small island meant that the community would be aware that the applicant was no longer in a relationship with Williams. It was submitted that the mere possibility of a threat was not sufficient to generate objective grounds for fearing persecution or risk of torture, or cruel or unusual treatment.
Applicants’ Reply
[23] The applicant submitted that the Board’s state protection finding did not address any local failure to provide protection. It was submitted that the respondent had introduced this argument, and that the finding was patently unreasonable. The applicant submitted that the Board did not make a determination that she should have sought help beyond contacting the local police. It was submitted that the respondent was again making arguments that were not based upon the Board’s decision. In any event, it was submitted that the letter came from police headquarters and was signed by the police commissioner, therefore it was difficult to understand how the applicant could have sought help from a higher police authority.
[24] The applicant conceded that the standard for state protection was adequacy. However, it was submitted that the Board erred in failing to consider that the police had admitted that it was unable to protect them. The applicant submitted that the letter from the police post-dated her separation from Williams, which constituted strong evidence that she was still at risk. It was noted that the Board did not consider her son’s claim independently.
Analysis and Decision
Standard of Review
[25] While the underlying factual findings are subject to review on the standard of patent unreasonableness, the Board's findings on the adequacy of state protection is a question of mixed fact and law that is reviewable on a standard of reasonableness (see M.P.C.R. v. Canada (Minister of Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 1068, 2005 FC 772).
Did the Board err in finding that state protection was available to the applicants?
There are two aspects to the Board’s state protection finding. First, whether there was adequate state protection from the convicted murderer, Bain, and his associates. Secondly, whether there was adequate state protection from apprehended violence from the applicant’s former common-law spouse.
[27] I will deal first with the adequacy of state protection from the convicted murderer, Bain. The applicant’s former common-law husband, Oliver Williams, was forced to drive Bain and others somewhere, and overheard them discuss the murder of a woman. He was warned not to tell police or his family would be murdered. Williams reported the matter to police, and Bain and three of his associates were arrested. Williams testified against Bain, who was convicted of murder. During the trial, Bain’s friends and family threatened the applicant and her son. People called their house and threatened them.
[28] On April 9, 2004, Bain escaped from prison and Williams went into protective custody. The applicant and her son were taken by the police to stay with the applicant’s mother, who is a policewoman. The police advised the applicant and her family to leave Grenada as it was not safe. The other three men arrested with Bain also later escaped.
[29] In May 2006, the following letter was provided to the applicant by the Grenadian police:
TO WHOM IT MAY CONCERN
This is to certify that Miss Cavell HENRY and son Khalid HENRY were placed under protective care by the Royal Grenada Police Force (R.G.P.F.). A team of officers was assigned to visit them on a regular basis to check on their well being.
Mr. Oliver WILLIAMS the former common-law spouse of Miss Henry and father of her son Khalid was the State witness in a Murder trial involving Sheldon BAIN alias “Dutch”. He (Sheldon) was found guilty and was awaiting sentence. On 9th April 2004 he unlawfully escaped from Her Majesty’s Prison, at Richmond Hill, St. George’s, Grenada, and went into hiding. He was considered to be armed and dangerous.
While under protective care it was reported that Ms. HENRY received numerous death threats from Sheldon BAIN (Dutch). As a result she quitted her job and removed her son from school. It was at this juncture that the Police advised Ms. Henry and her family that in the interest of their well being they should leave the State of Grenada.
Now that they are in Canada we believe that this is the safest place for Miss Henry and her son Khalid HENRY to be where there is adequate protection.
We advise that they be allowed to stay in Canada.
Grateful for whatever assistance that can be rendered to Ms. Henry and family in that regard.
“Raymond CHARLES”
Commissioner of Police (Ag.)
The Board received this letter and accepted it to be authentic.
[30] The Board took note of the applicant’s testimony and stated that the evidence illustrated that the authorities provided more support to she and her family than would normally be available to people in Grenada.
[31] The Board further noted that the applicant was separated from Williams and therefore she should no longer be a target of Bain’s threats, as he would know about the separation. This, however, did not address the danger to their son.
[32] The letter from the police, which is dated after the separation, states that it is safer for the applicant and her son in Canada where “there is adequate protection”. This statement implies that there is inadequate protection in Grenada.
[33] The Board mentioned the letter but did not explain why it failed to show that there was inadequate state protection in Grenada for the applicant and her son. The letter is the most current piece of evidence regarding state protection. Since the letter relates to the central issue in this case, the Board had to explain why it did not rely on or accept the evidence about state protection. In my opinion, the issue is whether there was adequate state protection for the applicant and her son, not whether the applicant was given more state protection than was normally available to people in Grenada.
[34] The Board’s reasons contain no analysis concerning the police statement about state protection. In my view, this evidence should have been weighed against the other evidence on state protection. In failing to do so, the Board committed a reviewable error.
[35] Because of my finding, I will not deal with the other aspect of state protection.
[36] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[37] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[38] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Immigration and Refugee Protection Act, S.C. 2001, c.27.:
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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,
(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
(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.
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 (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(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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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:
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;
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.
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 : 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;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(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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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3796-06
STYLE OF CAUSE: CAVELL ALICIA HENRY and
KHALID OLIVER TARRICK HENRY
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
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C. Julian Jubenville
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Bernard Assan
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SOLICITORS OF RECORD:
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C. Julian Jubenville Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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