Date: 20041021
Docket: IMM-8002-03
Citation: 2004 FC 1460
Toronto, Ontario, October 21st, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
PETRA KIMMA ROBERTS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board of Canada, Refugee Protection Decision (the "Board"), dated September 22, 2003, that the applicant is not a Convention refugee and is not a person in need of protection pursuant to subsection 170(b) of the Immigration and Refugee Protection Act, S.C. 2000, c. 27 (the "Act"). The applicant seeks that the decision of the Board be set aside pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 and that the claim be referred back to the Board for redetermination.
Background
[2] The applicant, Petra Kimma Roberts (the "applicant") is a citizen of St. Vincent who came to Canada on May 30, 1997, and subsequently made a claim for refugee protection in 1999.
[3] The applicant makes her claim on the grounds that she would suffer persecution and cruel and unusual treatment if forced to return to St. Vincent, in the form of sexual abuse, assault and harassment. A hearing into this matter was held before the Board on April 22, 2003.
[4] In her Personal Information Form ("PIF"), and in her testimony before the Board, the applicant stated that at the age of 14 (or so) she was raped by her neighbour, Alvan Cockburn, who was 21 years old at that time. While she told no one of the attack at that time, it left her pregnant. Over the next five years, the applicant claimed that Mr. Cockburn repeatedly assaulted, threatened and harassed her, until she left the country to live with the daughter of a friend of her grandmother in Canada. The applicant also stated that she fears further assaults from Mr. Cockburn if she returns to St. Vincent. The applicant has been joined in Canada by a half-brother, as well as three daughters, all of whom are currently in the custody of the Children's Aid Society as a result of an unrelated assault charge against the applicant.
[5] The Board found the applicant's evidence lacking in credibility and on September 22, 2003 issued a decision denying her refugee protection.
Decision under Review
[6] The Board first found that the applicant's testimony was not credible, however, on the hearing before me, the respondent indicated that it did not take issue with the applicant's challenge to the Board's credibility findings. As a result, the credibility of the applicant's testimony is not at issue.
[7] The Board found that state protection was available to the applicant in St. Vincent. The Board stated that other than reporting a break-in to the police, none of the other incidents were reported. The Board noted that the applicant did not believe that the police would assist her as the police take for granted the male abuse of women. The Board went on to state that St. Vincent is a parliamentary democracy and that the applicant did not provide clear and convincing proof, as required to rebut the presumption of a state's ability to protect. The Board found that the documentary evidence did not support her allegations of no police protection. Referring to the quoted documentary evidence, the Board stated the documents indicated that governmental and societal attitudes have been changing slowly in the recent past and that there is state protection available to women who need it.
Applicant's Submissions
[8] The applicant submitted that the Board erred in law in finding that state protection was available to her in St. Vincent and that the Board drew a negative inference from the fact that she did not seek this protection while in St. Vincent, despite her evidence and the documentary evidence that police in St. Vincent "usually afford little protection to assault victims." She also pointed to her evidence that Mr. Cockburn had friends on the police force, along with other high-ranking family connections (e.g., one of his cousins was Deputy Prime Minister).
[9] Furthermore, the applicant claimed the Board's reasoning is flawed since it found the state would be able to adequately protect the applicant since Mr. Cockburn is no longer "interested" in her; a finding that the applicant claims is contrary to her uncontradicted testimony that Mr. Cockburn is violent and would continue to harass her if she were to return to St. Vincent.
[10] The applicant finally pointed to documentary evidence provided to the Board that indicates that the situation of women facing gender-based violence in St. Vincent "remains a serious problem" based on "pervasive traditional, social and cultural values, as well as generally accepted behaviour patterns." The applicant alleged the Board ignored this evidence in reaching its decision.
Respondent's Submissions
[11] The respondent does not take issue with the applicant's challenge to the Board's findings in regard to the applicant's credibility.
[12] While the respondent may be in agreement with the applicant that the Board made errors in assessing the applicant's credibility, it further stated that the applicant has not rebutted the presumption of state protection available to her; thus, the Board's determination was correct on this basis. The respondent claimed that, based on the evidence before it, the Board was correct in finding that it was objectively unreasonable that the applicant did not involve the St. Vincent police at any stage in relation to the alleged threats from Mr. Cockburn. The only time she involved the police was following a break-in at her home, and that event was never definitively linked to Mr. Cockburn's continual harassment of the applicant.
[13] The respondent claimed that based on the evidence and especially the resources listed in the U.S. Department of State Report on St. Vincent, it was relatively open to the Board to reach the conclusions on state protection that it did. Citing a number of cases, the respondent submitted that where there is evidence that the government is taking steps to protect women, in the absence of evidence to the contrary, it must be presumed that these steps will be effective.
Issue
[14] Did the Board err in finding that state protection was available to the applicant in St. Vincent?
Analysis and Decision
[15] The only issue that was argued before me was the availability of state protection as the respondent did not take issue with the applicant's challenge to the credibility findings of the Board.
[16] The Board, in its decision, quoted extensively from the Country Reports on Human Rights Practices - 2001 for St. Vincent as a basis for its finding that the state protection was available to the applicant if she reported the incidents to the police. As part of the finding on the availability of state protection, the Board stated, "The Board finds that on a balance of probabilities, Mr. Cockburn, will not be interested in the claimant, if she returns to St. Vincent."
[17] The law is clear that the Board need not refer to every piece of evidence that was before it in its decision. However, if there is documentary evidence that is central to the applicant's position and supports the position, then that evidence must be considered by the Board. The failure to refer to this evidence is a reviewable error.
[18] The applicant submitted that the Board ignored certain documentary evidence in relation to the issue of the availability of state protection. This evidence includes the following:
Country Reports on Human Rights Practices - 2002
Hungary, U.S. Department of State
Women
Violence against women, particularly domestic violence, remained a serious problem. The Domestic Violence/Matrimonial Proceedings Act and the more accessible Domestic Violence Summary Proceedings Act provide for protective orders, as well as occupation and tenancy orders; the former only is accessible through the High Court, but the latter can be obtained without the services of a lawyer in family court. As part of a human rights education program, the SVGHRA conducted numerous seminars and workshops throughout the country to familiarize citizens with their rights. Increasing numbers of women came forward with domestic violence complaints. Development banks provide funding through the Caribbean Association for Family Research and Action for a program of Domestic Violence Prevention, Training, and Intervention. Police received training on domestic abuse, emphasizing the need to file reports and, if there was sufficient evidence, to initiate court proceedings. To counter the social pressure on victims to drop charges, some courts imposed fines against people who brought charges but did not testify. Depending on the magnitude of the offense and the age of the victim, the punishment for rape generally was 10 or more years in prison. Sentences of 20 years have been handed down for sexual assault of very young minors.
[19] The Board only quoted the first part of this passage and not the last part of the passage as is evident from page 13 of the application record:
Violence against women, particularly domestic violence, remains a serious problem. The Domestic Violence/Matrimonial Proceedings Act and the more accessible Domestic Violence Summary Proceedings Act provide for protective orders, as well as occupation and tenancy orders; the former only is accessible through the High Court, but the latter can be obtained without the services of a lawyer in family court. As part of a human rights education program, the SVGHRA conducts numerous seminars and workshops throughout the country to familiarize citizens with their rights. Increasing numbers of women are coming forward with domestic violence complaints . . .
Response to Information Request
(Application Record at page 69)
The CEDAW Committee blamed "Pervasive traditional, social, and cultural values, as well as generally accepted behaviour patterns . . ." as factors and difficulties affecting the implementation of the Convent. (ibid., 22).
A 14 May 1999 telephone interview with the Director of Marion House, a Kingstown social services agency which is cited in Country Reports 1998 states that changes in laws and the signing of conventions have made the public of Saint Vincent and the Grenadines more sensitive to the issue of domestic violence. However, the Director stated that the problem of ingrained attitudes persists and that those in authority, such as lawyers or police officers who are in a position to apply the law, maintain an attitude whereby matters of domestic violence are considered to be of concern to the family and as a result may not follow instituted procedures as they should.
The Director also mentioned that economic pressure is an element which deters women from prosecuting the offenders since men may be the family's sole source of income and their prosecution or incarceration may deprive the family of means. The Director corroborated that there is no shelter for battered women on Saint Vincent and that staff at Marion House may informally ask sympathetic persons to put up a victim. The Director added that "the system itself will work for you, but the problem lies with ingrained attitudes which serve to hamper proper implementation of the law."
Successive Country Reports on Human Rights Practices from 1995 to 1999 cite domestic violence as a human rights issue in Saint Vincent and the Grenadines. The reports for 1995 and 1996 list " . . . violence against women (particularly domestic violence) as a major problem", further adding: "The Government has failed to take steps to determine the seriousness of the problem. To speed up the judicial handling of such cases, the Government established a family court under the Domestic Violence Act of 1995." Country Reports 1997 states: " . . . The Government took legislative steps to address this problem through the Domestic Violence/Matrimonial Proceedings Act (1994) and the more accessible Domestic Violence Summary Proceedings Act (1995). Both laws provide for protective orders, as well as occupation and tenancy orders, although the former is only accessible through the High Court, whereas the latter can be obtained without the services of a lawyer in family court."
Subsequent reports for 1998 and 1999 continue to cite violence against women and children as major human rights issues for the country.
[20] In addition, there is also the applicant's evidence which is now considered to be credible. She stated that she is afraid to return to St. Vincent because she fears her attacker will still harm her. She also stated that she did not report the rape because her attacker threatened to kill her. She further testified that her attacker was friends with the police and a cousin of the Deputy Prime Minister. There has been no analysis done in the alternative as there was by the Board in Jahan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 987 (F.C.T.D.) (QL) at paragraph 8. I do not know what the Board's conclusion on state protection would be if this evidence was considered as that analysis was not done.
[21] A review of the above excerpts leads me to the conclusion that the Board erred by failing to properly consider all of the relevant evidence. As I stated earlier, the Board need not refer to all of the documentary evidence in its decision, but it must refer to evidence such as the documentary evidence noted above because of its importance to the Board's finding of the existence of state protection in St. Vincent. This evidence should have been weighed against the other evidence on state protection. This failure has resulted in the Board making a reviewable error.
[22] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[23] The respondent did not wish to propose a serious question of general importance for my consideration for certification.
[24] The applicant proposed the following question as a serious question of general importance for my consideration for certification:
May evidence satisfy the threshold test of "clear and convincing confirmation" of a state's inability to protect the refugee claimant where:
1) there is no state of civil war, invasion or total collapse of internal order, and where
2) the government is otherwise in effective control of its territory, has military, police and civil authority in place, and has made serious efforts to protect its citizens?
[25] I have considered the submissions of the parties and I am not prepared to certify the proposed question as a serious question of general importance as the answer to the question would not be determinative of this application which was decided on the Board's failure to consider all of the relevant evidence.
ORDER
IT IS ORDERED that:
1. The application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
2. No serious question of general importance is certified.
"John A. O'Keefe
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8002-03
STYLE OF CAUSE: PETRA KIMMA ROBERTS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 6, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Hilary Evans Cameron
FOR APPLICANT
Matina Karvellas
FOR RESPONDENT
SOLICITORS OF RECORD:
Vandervennen Lehrer
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20041021
Docket: IMM-8002-03
BETWEEN:
PETRA KIMMA ROBERTS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER