Date: 20050823
Docket: IMM-2301-04
Citation: 2005 FC 1154
BETWEEN:
FRASER SUSANNE
(a.k.a. Susanne Patrici Fraser)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant has applied for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated January 30, 2004 (the "Decision").
[2] The Applicant is a woman from St. Vincent who was abused by her partner. In the first attack, she was slapped and pushed to the floor. She immediately complained to the police. However, they refused to respond saying that it was "man and woman business". The facts are not entirely clear but the Board appears to have accepted evidence that she approached the police a second time and was again rebuffed. The police later told her partner that she had complained.
[3] The next attack occurred when she was alone at her parents home. It was very serious. Her partner forced his way into the house and beat her and cut her face with a knife. He was angry because she had gone to the police and he threatened to kill her if she complained again.
[4] She received medical treatment for the knife wounds but did not report the attack to the police and did not tell the doctor the true reason for her injuries because she did not want the police to learn what had happened. Shortly after this incident she left for Canada. Since her arrival in Canada she has heard that her partner has said he will kill her if she returns to St. Vincent.
[5] The Board believed the Applicant but did not accept that evidence of two unsuccessful complaints to the police was sufficient to rebut the presumption of state protection (the "Presumption"). The Board noted that the Domestic Violence Act ("DVA") and the protective and other orders which are available to battered women afford State protection. The Board described the DVA as follows:
Parliament enacted the Domestic violence act (DVA) in 1995 aimed at combating domestic violence. It provides for penalties including jail sentences, fines, and community service and also includes provisions for issuance of restraining orders. Sentences for assault against a spouse vary according to the severity of the incident. The DVA has given the Family Court full jurisdiction over matters of domestic violence. The Court can serve protection orders, which may entail physical removal from the home or forbidding telephone or workplace contact by the perpetrator with the victim. The DVA gives the police the power of arrest, if perpetrators are in breach of orders from the court and make provisions [sic] for both victims and perpetrators to receive counselling if the president of the court deems this necessary. (RPD Decision, p.4.)
[6] The Board held that, because these remedies exist and had been publicized, state protection was available. In this regard the Board said:
I find that these two instances where her complaint was not taken seriously by police, is not clear and convincing evidence required to rebut the presumption of state's ability to protect, keeping in mind that the burden of proof is higher in a multiparty, parliamentary democracy, such as St. Vincent. (RPD Decision, p. 3.)
[7] This determination was made in the absence of any evidence about whether the DVA is effective and whether protective orders are made and enforced by the police.
CONCLUSIONS
[8] Although the first attack was comparatively minor, it frightened the Applicant to the point where she twice sought police assistance. The police not only ignored her, they reported her efforts to her partner and their report was the direct cause of the second attack. It is manifestly obvious that there was no state protection for this woman. Further, looking forward, it was patently unreasonable of the Board, on the limited evidence before it, to assume that the police will protect the Applicant from her partner.
[9] Accordingly, the Decision will be set aside and the matter will be referred back for redetermination.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
August 23, 2005
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2301-04
STYLE OF CAUSE: FRASER, SUSANNE (aka SUSANNE PATRICI FRASER v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: March 8, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER:
AND ORDER BY: SIMPSON, J.
DATED: AUGUST 23, 2005
APPEARANCES BY: Mr. Leroy Crosse
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Mr. Leroy Crosse
Toronto, Ont.
For the Applicant
Mr. Stephen Jarvis
Department of Justice Ontario Regional Office.
130 King St. W. Suite 3400, Box 36 Toronto,Ont.
M5X-1K6
For the Respondent