Federal Court Decisions

IMM-1213-96

BETWEEN:

ORAINE ELIZABETH MYRIE,

Applicant,

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER

NOËL, J.:

     This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") holding that the Applicant was not a Convention refugee.

     The Applicant is a citizen of Jamaica and claims to have a well-founded fear of persecution by reason of her membership in a particular social group, namely women victims of domestic violence in Jamaica.

     Prior to her arrival in Canada, the Applicant had been carrying on business as an importer and vendor of clothing in Kingston, Jamaica. She married in 1989 and resided with her husband and two children from other prior relationships in a house which she owned in Kingston.

     In her Personal Information Form and during her testimony at the hearing, the Applicant recounted the incidents of brutal abuse which she suffered at the hands of her husband. The last incident occurred in December of 1992. She came to Canada a few days later leaving her two children behind. She arrived in Canada on a visitor's visa which she later extended. She eventually claimed refugee status some 20 months after her arrival.

     The Board did not question the fact that the Applicant had been subjected to violent domestic abuse. But it held that the Applicant had failed to provide clear and convincing evidence of the State's inability to protect her.

     The Board noted that the Applicant is a relatively wealthy person, and that as such she has better means to insure her protection than the average Jamaican women.¹ It explored the various options which were open to the Applicant in order to insure her safety. One option was divorce. Jamaican law does recognize the right to bring marriage to an end thereby terminating the legal existence of an abusive marriage. The issue is of significance as the Applicant had argued that an important factor in the lack of response by the police to complaints of abuse stems from the fact that in Jamaica, men are believed to have rights of physical domination over their wives, and that this view is prevalent in the police.² That is the context which the Board noted that although it was clear that the Applicant had more than sufficient funds to pursue divorce proceedings, she chose not to do so at any time even while she resided in Canada.

     When the Applicant was confronted with her failure to act in this regard, she answered that her counsel had advised her against seeking a divorce on the ground that the time was not right. Her counsel however could not remember providing her with this advice. That is one of the basis upon which the Board concluded that the Applicant did not appear inclined towards using the means available to her to insure her protection in Jamaica.

     The Board also noted the existence of a variety of legal proceedings available to victims of abuse in Jamaica, particularly those who, like the Applicant, have access to the services of lawyers. In particular, the documentary evidence indicated that the judiciary consciously applied legislation aimed at eliminating women's abuse, and no evidence was advanced by the Applicant to suggest that the police force was not responsive to orders issued by the Courts.

     The Board also had difficulty with the Applicant's conduct in Canada during the long period which preceded her claim for refugee status. It noted that upon the expiry of her visa in October of 1993, she remained without legal status for a further 10 month period, during which she was constantly at risk of being deported to Jamaica. Having regard to the expressed extent of her fear, the Board could not accept that the Applicant would risk being forcibly returned to Jamaica to meet whatever fate her husband had in store for her in circumstances where she could have avoided that risk altogether by filing a timely refugee claim. The Board obviously reasoned that the Applicant's behaviour did not support her claim that the State of Jamaica was unable to protect her.

     While the Applicant takes issue with a number of findings made by the Board, sometimes quite convincingly, it has not been shown that the decision itself is unreasonable or that it is based on improper legal principles.

     The application is dismissed.

     Marc Noël

     Judge

Ottawa, Ontario

January 15, 1997

__________________

     ¹      The Board notes in its decision that at the time she left Kingston, the Applicant had two hundred thousand dollars in a bank account as well as stocks and shares of a similar value.

     ²      See paragraphs 34, 35 and in particular 36 of the Applicant's Further Memorandum of Argument.