Federal Court Decisions

     IMM-3135-95

BETWEEN:

     LOFERNE PAULINE CUFFY

     Applicant

     - AND -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

McKEOWN J.

     The applicant, a citizen of St. Vincent and the Grenadines, seeks judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated October 30, 1995, wherein the Board determined that the applicant was not a Convention refugee.

     The issues are whether the Board erred in finding that the state was able to provide protection to the applicant and whether the applicant's hearing was rendered unfair and breached the principles of natural justice in that the documentary evidence was disclosed to her minutes before the hearing. The Board found that the applicant's fear of her boyfriend's abuse was genuine when she left St. Vincent. The Board also found that:

... the claimant's fear of persecution stems from her "gender", a group defined by an innate or unchangeable characteristic as outlined in Ward. The claimant was a victim of abuse, mostly because of her gender and partly because of her age, and hence falls within the ambit of the Guidelines. The panel concludes that the evidence in this claim supports a finding that the claimant's gender, age, and hence her vulnerability, falls within the meaning of a "particular social group."      [footnotes omitted]

     The Board went on to state at pages 2-3 of its reasons:

However, the issue of whether or not the state is unable to provide protection is "... a crucial element in determining whether the claimant's fear is well founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality ..."

     The Board also stated that it should be kept in mind that:

... 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.

     The Board then went on to confuse the documentary evidence with respect to the existence of counselling and other resources with the ability of the state to provide protection. The Board discussed some documentary evidence where women had been murdered and an arrest had been made. However, all it stated with respect to the applicant's evidence with respect to her reporting to the police was as follows:

The claimant testified that she has approached the police in St. Vincent many times to seek protection. The claimant testified that the police told her that they would take action only if there were physical evidence of the abuse. They advised her to seek legal counsel if she wants to keep her boyfriend away from her. The claimant also testified that she did not seek out help from the National Council of Women or the Ministry of Women's Affairs and did not seek out legal counsel because of the cost.      (Board's reasons page 4)

     The Board then went on to discuss in detail the claimant's failure to exhaust all avenues of protection available to her before leaving St. Vincent. The Board stated at pages 4 and 5:

... The panel accepts the rationale (her lack of sufficient knowledge as to how and to whom to seek protection) for not having sought protection from all the existing support systems in St. Vincent before coming to Canada. However, the Convention refugee definition is a forward-looking one. The panel concludes, from her demeanour in the hearing room and the experiences she had in Canada in seeking out assistance, that the claimant will be able to seek out the protection if and when she needs and that the protection available to her will be adequate, if not perfect. She will not be one of those victims of domestic violence who will be either reluctant to press charges or not seek out support from the existing facilities like the National Council of Women. The panel is satisfied that the rationale for the claimant not to have utili[z]ed all the resources available to her in seeking protection -- namely, her lack of knowledge due to her age and inexperience -- is no longer valid now. The claimant was able to obtain financial assistance from a relative who lives in the United States of America for her trip to Canada. The panel, hence, cannot conclude that she will not be able to procure financial assistance to get legal help for a more serious matter, such as abuse. Since there is no "clear and convincing confirmation of the state's inability to protect" her, and since the claimant has demonstrated that she is now capable of seeking protection, the panel concludes that the claimant's fear of persecution is not well founded ...      [footnote omitted]

     As was stated by Tremblay-Lamer J. in N.K. v. Canada (Solicitor General) (1995), 107 F.T.R. 25 at 38 (T.D.):

The burden of proof on the applicant, as required by Ward at p. 724 S.C.R., is to show that such protection did not materialize in past incidents.

     The applicant here had requested police assistance and they had refused to act because of lack of physical evidence. However, as Teitelbaum J. stated in Kraitman v. Canada (Secretary of State) (1994), 81 F.T.R. 64 at 71-72 (T.D.):

The police may have the ability to offer protection but when it chooses not to, this is equivalent to saying it is unable to provide protection to the applicants.

     Tremblay-Lamer J. in N.K. v. Canada (Solicitor General), supra goes on to state at 38:

Further, in my opinion the consequence of this lack of action was not only to justify an applicant's reluctance to seek protection from the State, since he had seen it was pointless, but as no corrective and/or punitive action was taken it encouraged the recurrence of such incidents.

Counsel for the respondent argued that in situations where the police refused to do their duty the individual should go to a higher tribunal or approach a different organization, such as the Human Rights Commission.

I cannot accept such a suggestion. The issue here is not merely discriminatory acts, which could be the subject of a complaint to a Human Rights Commission. Some of the acts alleged are criminal in nature (sexual and other forms of assault) and so are not within the jurisdiction of a Human Rights Commission. When they are victims of criminal offences the applicants are entitled, as in any country where the governmental system breaks down, to go to the police and to expect that at the very least there will be an investigation. I know of no legal system which imposes a greater burden than that on the individual ...

     As Dubé J. pointed out in Risak v. M.E.I. (1994), 86 F.T.R. 67 at 70 (T.D.):

Thus, in the case at bar, the question is whether or not it was objectively reasonable to expect the applicant to have further sought the protection from the army and the police in Israel after having been so brutally rebuffed by the very authorities from whom citizens expect protection. There is nothing in our jurisprudence to the effect that in such situations the applicant has the further burden to seek assistance from human rights organizations or, ultimately, to launch an action in court against the government.

     The applicant in the case before me had gone to the police on several occasions as stated by the Board and they had not provided assistance to her. She has no obligation to use her own resources nor is an offer of counselling what state protection requires. The respondent sought to split the Board's remarks into two points: 1) that the Board was not satisfied that there was clear and convincing confirmation that the state was unable to protect the claimant; and 2) that the Board looked into the question of counselling. Despite the respondent's efforts to show otherwise, I am unable to determine that the Board separated these two matters. In my view, the Board looked at counselling as an adequate method of state protection in circumstances where the applicant submitted that the state, through its police, had been unable to protect her. The Board made no finding on this submission of the applicant. Accordingly, the matter must be returned to the Board in order that a newly constituted Board can determine, based on her testimony with respect to her visits to the police and their response and the documentation with respect to protection of women in St. Vincent and the Grenadines, if she has rebutted the presumption that the state normally provides adequate protection. The Board must be satisfied by clear and convincing confirmation of the state's inability to protect the applicant.

     It is not necessary for me to pursue the natural justice issue but I do wish to make a couple of comments. The applicant did not have an opportunity to read the documents until a few minutes before the beginning of the hearing. The documents are very important in this case and it is somewhat questionable whether giving two weeks for her to make submissions, including supplying any new information, was sufficient. However, the problem appears to have arisen because the material was provided to the applicant's counsel in adequate time but counsel withdrew from the case unbeknownst to the Board. It seems that it would be useful if the Board put in rules that any applications to withdraw from a case should be made to the Board or arrange some other way of receiving notification that counsel is no longer involved. It is very important that applicants who appear for themselves are given adequate notice of the documents that are proposed to be used in the matter before the Board.

     The application for judicial review is allowed. The decision of the Board dated October 30, 1995 is set aside. The matter is returned to a differently constituted Board for redetermination in a manner not inconsistent with the reasons set out above.

     I will certify the first question which reads as follows:

With respect to the requirement that a claimant provide clear and convincing evidence that the state will not protect him or her, is a refugee claimant required to approach agencies beyond the police?

     In my view the Board should have determined whether the applicant's evidence with respect to lack of support from the police was clear and convincing evidence of the state's inability to protect her. In my view counselling is no substitute for the absence of police protection (should the differently constituted Board make such a finding). This is a case where the applicant sought the aid of the police. An applicant's experience with counselling may well be relevant where the applicant has not sought the aid of the police or other security forces but I do not have to decide this issue.

     The second question is not determinative of the appeal and will not be certified.

                         _______________________________

                                 Judge

OTTAWA (ONTARIO)

October 16, 1996