Federal Court Decisions

Date: 20050531

Docket: IMM-148-04

Citation: 2005 FC 774

Ottawa, Ontario, this 31st day of May, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE O'KEEFE

BETWEEN:

ROSALIND CLYONE KING

CODIE KING (a.k.a. Codie Dyneo King)

by his litigation guardian ROSALIND CLYONE KING

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]    This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated December 15, 2003, wherein it was determined that the applicants are not Convention refugees nor persons in need of protection.

[2]    The applicants seek an order setting aside the decision of the Board and remitting the matter back for reconsideration by a differently constituted panel.

Background

[3]    The applicants, Rosalind Clyone King (the "applicant") is a citizen of both St. Vincent and Barbados and her son, Codie King ("Codie") is a citizen of Barbados.

[4]    The applicant alleged that she was abused by her spouse, Michael King ("Michael"), whom she married in St.Vincent in April 1999. Although Michael is from Barbados, she met him in St. Vincent in 1998. He was very good to her, took her on trips to Barbados and pampered her. She agreed to marry him. After the marriage, she moved with him to Barbados, leaving her five children with her mother in St. Vincent.

[5]    The abuse began soon after arriving in Barbados. When the applicant told Michael that she was pregnant, he wanted her to have an abortion but she refused. This led to a physical assault by Michael in April 2001, resulting in her being hospitalized for a month. The applicant did not tell the hospital staff the real cause of her injury because she claimed that she was afraid to tell the truth about the abuse she suffered at the hands of her husband.

[6]    There were other incidents of abuse in 2001 when she was injured, but she did not report any of these to the police because she claimed that Michael threatened to kill her if she did. She did not disclose what truly happened to her when she went to the hospital in September 2001 after Michael had cut her on her arm and leg with a butcher knife.

[7]    Their son, Codie, was born in December 2001. In March 2002, the applicant returned to St. Vincent with Codie to visit her mother for about a month. However, a few days later Michael followed her there and asked her to return to Barbados. He promised to be better. Although she did not believe him, she returned because she claimed that she had a plan. In May 2002, she stole $5,000.00 from Michael's drug dealings and she and Codie fled to Canada.

[8]    The applicant stated that she is afraid to return to either Barbados or St. Vincent because Michael will find her. He is angry because she took his money, left with his son, and she is now pregnant with someone else's child. She further stated that she sends $300 of her monthly welfare allowance to St. Vincent in order to support her five children and mother there.

Reasons of the Board

[9]    The Board found that the applicants are neither Convention refugees nor persons in need of protection because adequate state protection is available to them should they return to either Barbados or St. Vincent, the countries against which the claims are filed. The Board's determination focussed on St. Vincent, the country where the applicant was born and where her other five children currently reside with her mother. The Board also noted that Michael King is not a citizen of St. Vincent.

[10]                        The pertinent portion of the Board's reasons is as follows:

The panel finds that the claimant did not provide sufficient evidence to support her claim that she and her son would be persecuted if they were to return to St. Vincent. While the documentary evidence indicates that violence against women is a serious problem in St. Vincent, there is also information that shows that the government has taken and is continuing to take measures to deal with the problem. In any event, the claimant did not experience abuse while in St. Vincent. In Barbados, where the abuse occurred, the claimant chose not to seek protection.

The claimant testified that on one occasion the St. Vincent Immigration authorities denied Michael entry to the island. Given that he is involved in drugs, and the government's concerns and efforts in attempting to deal with drug activity on the island, the panel finds that there is no reason why the claimant could not report Michael to the authorities. This could well result in his being considered a persona non grata and denied any future entry to the island.

On the other hand, if Michael were to gain entry to St. Vincent and create any problems for the claimant, the panel finds that state protection is available to her, should she need and seek such protection. As per Zalzali, state protection is not perfect. Nevertheless, based on the above-mentioned documentary evidence, the panel finds that the state is making serious efforts to provide protection to women who are the subject of violence or domestic abuse.

The panel has considered all three protection grounds under sections 96 and 97(1) of the Act and finds that as adequate protection is available to the claimants, there is no serious possibility that the claimants will be harmed in St. Vincent regardless whether the alleged harm would amount to persecution, a risk to life, cruel and unusual treatment or punishment or torture.

Issue

[11]                        Did the Board err in law in finding that state protection is available to the applicant?

[12]                        The applicant later included the following issue:

Did the Board err in law in finding that state protection is available to the applicant, specifically as it relates to the St.Vincent's ability to interdict drug traffickers such as the applicant's husband?

Applicants' Submissions

[13]                        Standard of Review

The applicant submitted that in determining whether or not the Board properly applied the test for state protection to the facts of this case, the appropriate standard of review is reasonableness simpliciter.

[14]                        Issue 1

The applicant submitted that in finding that state protection is available to the applicants, the Board erred by ignoring contrary documentation on country conditions. It was incumbent on the Board to assess the issue of state protection in light of all the evidence on the issue before it. By failing to do so, the Board committed a reviewable error.

[15]                        For example, the Board concluded that there is no compelling evidence that there is inadequate state protection. The Board addressed the fact that problems exist in St. Vincent, but contended these were offset by state protection, as was found in the Refugee Protection Division document dated May 6, 2003. However, the Board failed to note contrary information within that same document. Further, the Board failed to make reference to any other country condition documents provided by the applicant.

[16]                        The Board also failed to address the persuasive value of a 2001 case, W.T.S. (Re), [2001] C.R.D.D. No. 73, that found in favour of a claimant from St. Vincent on the grounds of domestic abuse. In particular, the decision quoted an interview with the co-ordinator of women's affairs. The co-ordinator stated that since October 1995, there has been no significant change or improvement in the situation concerning domestic violence.

[17]                        The applicant submitted that the Board noted that when she reported her husband to St. Vincentian immigration authorities on one occasion, he was denied entry. However, the Board failed to note that although her husband was denied entry once to St. Vincent based on his drug involvement, he managed to enter the country one month later.

[18]                        The applicant submitted that the failure of the applicant to approach the state for protection should be considered in light of the IRB's Gender Guideline, Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, which notes that if a claimant can demonstrate it was objectively unreasonable for her to seek protection of her state, then her failure to do so will not defeat the claim. Given the evidence before the Board regarding the likelihood of receiving state protection, it was not reasonable for the applicant to approach the state in St. Vincent or Barbados.

[19]                        Issue 2

[20]                        The Board found that as the applicant's persecutor was involved in drug trafficking, the applicant could report him to the St. Vincentian authorities. The Board stated:

Given that he is involved in drugs, and the government's concerns and efforts in attempting to deal with drug activity on the island, the panel finds that there is no reason why the claimant could not report Michael to the authorities. This could well result in his being considered a persona non grata and denied any future entry to the island.

[21]                        In stating this conclusion, the Board relied on the U.S. Department of State International Narcotics Control Strategy Report for 2002 (the "INSCR") as it relates to St. Vincent. However, a close reading of the INSCR provides evidence pointing to the lack of effectiveness of the St. Vincentian authorities in combating trafficking.

[22]                        In failing to address contradictory evidence, the Board failed to consider the totality of the evidence (see Alvarado v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 333; Demchuk v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1360).

[23]                        It is submitted that the decision-maker failed to assess the ability of the state to protect, but rather assessed whether or not the state is attempting or willing to provide protection. It is submitted that the test is whether or not the state is willing and able to provide protection and the Board's failure to consider both of these qualifications is an error of law (see Elcock v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R.116 at 121; Mohacsi v. Canada (Minister of Citizenship and Immigration) 2003 FCT 429; Molnar v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1081).

Respondent's Submissions

[24]                        Standard of Review

The respondent submitted that the applicable standard of review on findings of the availability of state protection is patent unreasonableness (Alfaro-Argueda v. Canada (Minister of Citizenship and Immigration) 2004 FC 112).

[25]                        Issue 1:

Absent a situation of complete breakdown of state apparatus, it is generally presumed that a state is able to protect a claimant. A claimant must provide clear and convincing confirmation of his state's inability to protect. The applicant in the case at bar has failed to do so. (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R.689 pg.724). In this case, there was ample documentary evidence to support the panel's conclusion.

[26]                        In this case, as the Board noted, the applicant did not experience any abuse while in St. Vincent. In Barbados, she did not seek protection. In addition, the Board noted that the St. Vincent authorities denied the abusive spouse entry to St. Vincent. The respondent submitted that applicants must do more than simply show that their state's ability to protect is not perfect (Canada (Minister of Employment and Immigration) v.Villafranca) [1992] F.C.J. No. 1189 (F.C.A.)).

[27]                        The Board is not required to specifically refer to all the evidence in its reasons. Furthermore, where the documentary evidence varies, the tribunal is entitled to place more weight on certain evidence, and it need not explain why it prefers certain documentary evidence over others. The applicants' arguments essentially invite this Court to re-weigh the evidence but this is not the role of the Court on judicial review (see Florea v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 598 (F.C.A.) and Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (C.A.)).

[28]                        The jurisprudence of this Court and of the Supreme Court of Canada in Ward, supra, supports the Board's understanding that there is adequate state protection where the state is making serious efforts to provide protection (see Ward, supra, and Adewumi v.Canada (Minister of Citizenship and Immigration), 2003 FCT 258, paragraph10). If there is evidence upon which a Board could conclude that state protection is available to the applicant, the Court should not intervene (see Jahan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 987 (F.C.T.D.) (QL)).

[29]                        An applicant is expected and required to attempt to approach the state for protection where protection might be reasonably forthcoming. An applicant must do more than simply show that he or she went to see some members of the police force and that the efforts were unsuccessful (see Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.)).

[30]                        This Court has recently considered a similar situation to the case at bar insofar as the claim was denied on the basis of objective evidence. In Anusionwu v.Canada (Minister of Citizenship and Immigration), 2003 FCT 761, the applicant had also approached the police for assistance but was told that protection was unavailable. Nevertheless, the Court determined that the Board's conclusion on state protection was reasonably open to it.

Analysis and Decision

[31]                        Issue 1

[32]                        Did the Board err in law in finding that state protection is available to the applicant?

The jurisprudence of this Court makes it clear that a board need not refer in its decision, to every piece of evidence that was before it. However, if there is evidence that supports the applicant's position, then this evidence must be considered by the Board. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, Evans J. (as he then was) stated at paragraphs 15, 16 and 17:

The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in        its reasons some evidence before it that was relevant to the finding, and pointed to a        different conclusion from that reached by the agency. Just as a court will only defer to an     agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration)        (1990) 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of             evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration)        (1992), 147 N.R. 317 (F.C.A.)). That would be far too onerous a burden to impose upon     administrative decision-makers who may be struggling with a heavy case-load and            inadequate resources. A statement by the agency in its reasons for decision that, in making         its findings, it considered all the evidence before it, will often suffice to assure the parties,         and a reviewing court, that the agency directed itself to the totality of the evidence when             making its findings of fact.

However, the more important the evidence that is not mentioned specifically and analyzed in            the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v.           Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In            other words, the agency's burden of explanation increases with the relevance of the evidence            in question to the disputed facts. Thus, a blanket statement that the agency has considered all             the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency        refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the    contradictory evidence when making its finding of fact.

[33]                        In this case, the board cited RPD document VCT41518 to support its finding that state protection was available to the applicant. A review of this document reveals that it also contains the following statements:

A counselor and coordinator of the youth assistance program at Marion House provided the following information on April 16, 2003. Marion House provides a variety of social,             health and education services to residents of St. Vincent and the Grenadines, including     women and children who are victims of family violence.

She corroborated the information provided by the coordinator of the SVGHRA regarding shelters and legal aid clinics, but provided contrasting information regarding the police    response to complaints of domestic violence by stating that they are "very poor". She    added that many officers are "unhelpful" in providing information to victims of domestic           violence             about their legal rights. According to the coordinator, most cases are not taken             seriously and are met with indifference. The general attitude tends to marginalize the          problem of domestic violence; moreover, given that the country is small, there is a feeling        among victims that there is no protection available and that there is "no place to go".

Few perpetrators of domestic violence are arrested, and when they are, they are soon after released. Many of the perpetrators are police officers themselves. Cases that make it to             the judicial system are often thrown out either for lack of evidence or for technical reasons.           Services for victims are "minimal".

[34]                        I am of the view that the failure of the Board to refer to this contrary evidence that supports the applicants' position constitutes a reviewable error. The Board made a finding of fact without regard to all of the evidence.

[35]                        Because of my finding on this issue, I need not deal with the other issue raised by the applicants.

[36]                        The application for judicial review is therefore allowed. The decision of the Board is set aside and the matter is remitted back for reconsideration by a differently constituted panel.

[37]                        Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

ORDER

[38]                        IT IS ORDERED that the application for judicial review is allowed. The decision of the Board is set aside and the matter is remitted back for reconsideration by a differently constituted panel.

                "John A. O'Keefe"