Ottawa, Ontario, November 18, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Stankeviciute, a 22 year-old citizen of Lithuania, sought judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, (the Board) wherein the Board determined that she was not a Convention refugee or a person in need of protection. At the
conclusion of the hearing, I indicated that the application would be dismissed and provided brief oral reasons. These are my reasons expanded for clarity and to cite authority.
[2] The applicant came to Canada on a visitor's visa on July 2, 2001 and made her claim for protection a few days later. She expressed a fear of returning to Lithuania because of her experiences with a former boyfriend whom she believed was involved in the trafficking of persons and drugs and had, among other things, assaulted her father. She also alleged that the state would not protect her.
[3] After taking into account the Gender Guidelines in assessing the applicant's testimony, the Board found the applicant to be a credible witness. The Board accepted her allegations about the boyfriend but did not accept as reasonable the applicant's explanation for not seeking state protection. Relying on the presumption of state protection, the Board held that there was no "clear and convincing" evidence of Lithuania's inability to protect the applicant and that she had not rebutted the presumption.
[4] The conclusion that the failure to report was not reasonable was based, in part, on the applicant's testimony that the police had investigated her father's complaint after her fiancée assaulted him at the family home. The documentary evidence provided by the applicant showed that even though charges were not laid, the police informed the applicant's father of his right to appeal that decision to the Prosecutor's Office and also to the Court.
[5] The sole issue in these proceedings was whether the Board erred in its finding that state protection was available to the applicant.
[6] While there have been divergent views expressed by this Court with regard to the standard of review applicable to a state protection determination, it is clear that findings of fact can only be set aside if made in a perverse or capricious manner, or without regard to the material before the tribunal: Federal Court Act, s. 18.1(4)(d). As the Supreme Court of Canada stated in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paragraph 38, such findings are entitled to "great deference" by the reviewing court.
[7] Once the findings of fact are made, they must be assessed against the test set out in Canada(Attorney General) v. Ward [1993] 2 S.C.R. 689, i.e., do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption. That is a question of mixed fact and law for which less deference should be shown the tribunal's decision. Thus, overall, the standard of review of the Board's decision should be reasonableness: Chaves v. Canada(Minister of Citizenship and Immigration) 2005 FC 193; Muszynski v. Canada (Minister of Citizenship and Immigration) 2005 FC 1075; Franklyn v. Canada(Minister of Citizenship and Immigration) 2005 FC 1249.
[8] The decision of the Board in this case turned on the documentary evidence of state protection in Lithuania, specifically the recent efforts of Lithuania to combat human trafficking and to assist the victims of domestic abuse. It is clear from the evidence before the Board that young women such as the applicant are particularly vulnerable to the risk of human trafficking and that it has been a serious problem in Lithuania since the break-up of the former Soviet Union. However, the evidence was also clear that Lithuania has been making a serious effort to address the problem. I am satisfied that the Board fully considered the documentary evidence that both supported and refuted the applicant's claim as well as her testimony and submissions in determining that she had not rebutted the presumption of state protection.
[9] Accordingly, I conclude that the findings of fact in relation to state protection were not made in a perverse or capricious manner, or without regard to the material before the Board and that the decision as a whole was reasonable.
[10] No serious questions of general importance were proposed and none are certified.
ORDER
THIS COURT ORDERS that this application is dismissed. No questions are certified.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-268-05
STYLE OF CAUSE: IEVA STANKEVICIUTE
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 10, 2005
APPEARANCES:
| Robin Morch
|
|
| Michael Butterfield
|
SOLICITORS OF RECORD:
| ROBIN MORCH Barrister and Solicitor Toronto, Ontario
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|