Date : 20050719
Docket : IMM-6438-04
Citation : 2005 FC 998
OTTAWA, Ontario, this 19th day of July, 2005
PRESENT: The Honourable Mr._Justice Rouleau
BETWEEN :
NADINE LINDONA SEARLES
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for leave and for judicial review, under s. 72(1) of the Immigration and Refugee Protection Act ("the Act") S.C 2001, c. 27, of the decision ("Decision") made by an officer ("Officer") of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated June 17th 2004. The Board found that the applicant was not a Convention refugee nor a person in need of protection. The Board found that there was no evidence that the father of the applicant's child has any current interest in the applicant and therefore the basis for her fear of returning to Grenada cannot be justified.
[2] The applicant Nadine Lindona Searles is a citizen of Grenada. She claims to be a Convention refugee, and a person in need of protection, on the basis of her abuse at the hands of her former common-law husband, Seth Harris, who fathered her child.
[3] The applicant was involved with Mr. Harris from the time she was 19 years of age until she came to Canada, at age 24. Mr. Harris, a barber and a drug dealer, was abusive towards the applicant throughout the relationship.
[4] In December of 1999, the applicant had a son with Mr. Harris. The child died shortly after a premature birth, induced by a beating at the hands of Mr. Harris. The applicant still has a permanent burn mark from the incident.
[5] The applicant went to live with her aunt in England in April of 2000. She remained one month and returned to Grenada, at Mr. Harris' request. She insisted on Mr. Harris fathering a second child, because of the death of the first child. A second child was born in St. Vincent, in November 2000.
[6] The applicant left Mr. Harris in May 2001 and went to live with her mother. She came to Canada in October 2001. Her daughter remains in Grenada. Mr. Harris has made a couple of telephone calls to the applicant but she, along with her mother in Grenada, have kept the child away from him. The applicant notes that Mr. Harris has not attempted to make contact in the recent past. Mr. Harris last saw his daughter when she was six months old; the daughter is now four years old. Her evidence was to the effect that Mr. Harris called her mother, once or twice shortly after she left Grenada; nothing has been heard from him since.
[7] The Board found that the applicant was credible and believed that she had been in an abusive relationship with Mr. Harris. The Board also believed that Mr. Harris has some influence with the police in Grenada. However, the Board found that, at the time of the hearing, there was no evidence to indicate that Mr. Harris had made an attempt to see his daughter, other than a few telephone calls. The Board found that there was no evidence that Mr. Harris has any continuing interest in the applicant or her daughter and that he would not insist on continuing the relationship if the applicant were returned to Grenada.
[8] The applicant argues, given the finding that she had suffered abuse and physical harm in the past and the finding that Mr. Harris had some influence with the police, that the Board's finding that she would not be harmed if she returned to Grenada is unreasonable, and that this determination was made without considering the evidence before the Board.
[9] The applicant argues that the Board's determination is based on a singular finding that Mr. Harris has had very limited contact with her and her daughter since she left him and he has no further interest in her and her daughter. The applicant submits that she still fears Mr. Harris and her fear of returning to Grenada is based on the fear of Mr. Harris.
[10] The applicant also argues that, if her family was unable to help her during the abuse she suffered in the past, they certainly would also be unable to protect her in the future.
[11] The respondent argues that the onus is on the applicant to provide clear and convincing proof of the well-foundedness of her claim. The respondent notes that the Board accepted that Mr. Harris had harmed the applicant in the past, but the evidence did not reveal that there was a serious chance that he would do so in the future.
[12] The respondent submits that it was open to the Board to find that the applicant had failed to meet the onus of showing that there was a serious possibility that she would be persecuted in Grenada.
[13] In RKL v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162, this Court noted at para 7:
¶ 7 [...] This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
[14] Further, in Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, [2002] F.C.J. No. 332, Dawson J. noted at para 11 that:
¶ 11 It is for the CRDD to assess the weight to be given to evidence, and not for this Court to simply substitute its own view of the evidence. Findings of fact made by the CRDD are to be reviewed on the most deferential standard of review, and should only be interfered with if made in a perverse or capricious manner or without regard for the material before the CRDD.
[15] In the case before me, the Board believed the applicant but rejected her claim for two reasons: 1) the Board found that applicant's former common-law spouse has lost interest in both her and her daughter; and 2) the applicant has a strong family in Grenada that would support her on her return.
[16] The applicant's daughter remains in Grenada. Mr. Harris' lack of contact with, and lack of interest in, his daughter, who is in the same country, supports the Board's finding that he has lost interest in pursuing the relationship with the applicant and their daughter. The applicant gave birth to her daughter in November 2000 and left Mr. Harris in May of 2001; she then went to her mother's home and left for Canada in October 2001. Mr. Harris has not seen his daughter since May 2001. The applicant and her mother have successfully kept the child away from Mr. Harris, from the time she was six months old to the present. There were no threats during the six months they remained in Grenada, nor have there been any since.
[17] The applicant left Mr. Harris once, to live with her aunt in England, and returned to Grenada at Mr. Harris' request. One month later she chose to return to Mr. Harris and left him in May 2001.
[18] The Board's decision is reasonable; their assessment of risk is forward looking, given the evidence in this case. The Board's conclusion is based on the facts and the principles outlined in the jurisprudence and should not be disturbed.
ORDER
This application for judicial review is dismissed.
"Paul U.C. Rouleau"
JUDGE
OTTAWA, Ontario
July 19, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-6438-04
STYLE OF CAUSE : Nadine Lindona Searles v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 15, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: July 19, 2005
APPEARANCES:
Mr. Laurence Cohen FOR THE APPLICANT
Ms. Janet Chisolm FOR THE RESPONDENT
SOLICITORS OF RECORD:
Laurence Cohen
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT