Ottawa, Ontario, this 10th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATION
[1] In this application for judicial review, the Applicant challenges the determination by the Refugee Protection Division of the Immigration and Refugee Board (Board) dated October 27, 2005 (Decision) that she is neither a Convention refugee nor a person in need of protection.
BACKGROUND
[2] The Applicant is a 63-year-old citizen of Guyana. She worked as a nurse for 34 years, retiring in 1998 on a pension.
[3] The Applicant has three sons, two of whom reside in Canada. She says that she and her sons “were a close-knit family” and that the sons “were complimented for being good outstand[ing] citizens even though [she] raised them as a single parent.”
[4] In 2001, the Applicant suffered a stroke and her right leg was amputated. After her release from hospital in August 2001, her youngest son moved in with her. The Applicant says that while she was “expecting his help and support,” instead she was “shocked at his behaviour.” Specifically, the Applicant makes the following allegations in her Personal Information Form (PIF) concerning her youngest son:
a) “My son sees my inability to move around and my constant reliance on him as a way to punish me and to extort money from me”;
b) “When I confronted my son, he became verbally abusive and boisterous to me […]”;
c) “I would have no money and food supplies in the home as he began taking away my pension money from me”;
d) “I do not have access to my telephone services and he would disconnect the wiring so that I have no communication with no one”;
e) “Because of his relationship with some officers of the law, my complaints are often ignored”;
f) “Almost everyday, he threatens to kill me, especially if I make complaints to the police or my friends”;
g) “He removes my medication and hides them so that I cannot have access to it”;
h) “He tortures me in any way he sees fit as much as he want[s] to and threatens my life all the time”.
[5] The Applicant acknowledges that her youngest son has never physically hurt her.
[6] The Applicant states that one of her other sons, who lives in Canada, invited her to attend his wedding. She says in her PIF that “When I received my Visa I was tortured and threatened about what I can and cannot tell my sons once I came to Canada. He told me he would have to kill me and not let me leave.”
[7] The Applicant, who is in a wheelchair, says that she “arranged to leave when [her youngest son] was away.”
[8] The Applicant arrived in Canada on June 23, 2004. She claimed refugee status over seven months later, on February 2, 2005, alleging a well-founded fear of persecution for reasons of membership in a particular social group, namely, women in a vulnerable position in Guyana subjected to a fear for their lives because of an adult child’s threats against them to obtain money. She also claimed protection against the risk of death or cruel and unusual treatment or punishment, as well as protection against torture.
[9] She claims all of this even though she acknowledges that her youngest son has never physically hurt her.
DECISION UNDER REVIEW
[10] The refugee hearing took place on August 5, 2005. The Applicant was self-represented. The presiding member indicated at the outset that “I don’t think there is a nexus in this. … I don’t think that there is a membership in particular social group. … we have to concentrate on, … cruel and unusual punishment or treatment and possibility of torture.” The Refugee Protection Officer agreed with this approach.
[11] The Board rejected the Applicant’s claim. While accepting that she “probably suffered from elder abuse and was not well looked after, which is a very sad situation,” it concluded that the abuse “has no nexus to any of the Convention grounds and is not persecution.” Regarding the Applicant’s delay in claiming refugee status, the Board noted that the “[d]elay points to a lack of subjective fear of persecution,” and inferred that seeking protection was not a priority for the Applicant.
[12] Based on its conclusion that the Applicant “has no well-founded fear of persecution,” and its finding that “adequate state protection is available in Guyana,” the Board concluded that “there is no more than a mere possibility that the claimant will be seriously harmed in Guyana […].”
[13] The Board also found the Applicant’s testimony to be “problematic and inconsistent” because “She made several statements about her son’s behaviour but she had a priest visiting her once a month, there were friends and relatives. If her situation was as bad as she says it was, they would have known or she could have told them.”
ISSUES
[14] The Applicant asserts the following as reviewable errors:
1. The Board erred in law in determining that the Applicant is not a Convention Refugee on the ground that the Applicant had not met the onus on her to establish that state protection was not available to her in Guyana;
2. The Board erred in failing to make specific reference to the documentary evidence before it dealing with state protection in Guyana and relying only on case law to determine if in fact there was adequate state protection in Guyana;
3. The Board committed a reviewable error in failing to effectively analyze, not merely whether a legislative and procedural framework for protection existed in Guyana, but also whether the state, through the police, was willing to effectively implement any such framework;
4. The Board erred in failing to consider the Applicant’s credible testimony that she did not believe that the police were making adequate efforts to protect her;
5. The Board erred in not providing reasons for its findings that the Applicant’s testimony was problematic and inconsistent as stated in paragraph 2 on page 3 of the reasons. Failure to state such reasons is a reviewable error;
6. The Board erred in coming to the conclusion that there was no nexus between the Applicant’s fear and any Convention grounds;
7. The Board erred in making an adverse credibility finding because the Applicant delayed making her refugee claim until 7 months after her arrival. The Board did not consider the Applicant’s reasonable explanation for her delay and did not provide any reasons as to why her explanation was not accepted by the Board;
8. The Board erred in deciding that the Applicant would not face a risk to her life or a risk of cruel or unusual punishment if she were to return to Guyana. The Board based its Decision on an erroneous finding of fact that it made without regard to the facts before it. The totality of the evidence presented at the hearing was sufficient to demonstrate that, on the balance of probabilities, she would face a serious possibility of persecution or risk to life.
ARGUMENTS
Applicant
[15] The Applicant submits that the Board erred in law by making its determination without regard to the documentary evidence concerning state protection in Guyana. Instead, the Applicant argues that the Board based its Decision with respect to state protection solely on the jurisprudence.
[16] Furthermore, the Applicant maintains that the Board erred in failing to analyze whether, notwithstanding a legislative and procedural framework for protection existed in Guyana, the state, through the police, is willing to effectively implement that frameworks for protection.
[17] With respect to state protection, the Applicant submits that the Board erred in failing to consider her testimony that she did not believe the police were making adequate efforts to protect her.
[18] The Applicant further argues that the Board erred in not providing reasons as to why it believed the Applicant’s testimony was problematic and inconsistent.
[19] With respect to the Board’s finding that there was no nexus, the Applicant states that she provided evidence that she was persecuted as a result of being a woman in a vulnerable position in Guyana who was subjected to a fear for her life because of her adult son’s threats against her to obtain money and that this constitutes membership in a social group.
[20] The Applicant submits that the Board did not consider the Applicant’s reasonable explanation for her delay and did not provide reasons as to why this explanation was not accepted by the Board.
[21] Finally, the Applicant states that when the totality of the evidence is assessed on a balance of probabilities, the Board erred in not finding that the Applicant would face a risk to her life or to a risk of cruel or unusual punishment if she were to return to Guyana.
Respondent
[22] The Respondent submits that the Applicant failed to discharge the burden of showing state protection is not available, given that Guyana is a democracy with effective political and judicial systems. The Applicant was required to show clear and convincing evidence that the state is unable to protect her; a democratic government is not expected to protect all its citizens at all times.
[23] The Respondent maintains further that the documentary evidence establishes that there are efforts in Guyana to implement measures to outlaw abuse of women, and efforts to offer them sanctions and remedies.
[24] The Respondent also states that police indifference to the Applicant’s abuse is a localized incident and not state policy in Guyana. A localized failure of state protection does not necessarily result in a finding that state protection is unavailable.
[25] The Respondent’s position with respect to state protection is that it is open to the Board to assess the availability of state protection with reference to organizations other than the police or the judiciary. In Guyana, there is an active community of non-governmental organizations and women’s rights groups who are concerned with protecting female victims. There is no evidence the Applicant sought assistance from these organizations.
[26] In sum, the Respondent argues that the re-weighing of evidence is not the function of the Court. Furthermore, the availability of state protection is a question of fact entitled to significant deference.
[27] The Respondent maintains that there is nothing before the Court which shows the Board failed to consider the totality of the evidence before it. The Applicant has not rebutted the presumption that the Board weighed and considered all the evidence submitted. The Board does not have to mention every document submitted.
[28] The Respondent also states that the credibility findings of the Board were not patently unreasonable and, furthermore, that state protection was the determinative issue in this matter. Delay in claiming refugee protection is a factor which the Board is entitled to consider as undermining the Applicant’s subjective fear. The behaviour of the Applicant was inconsistent with someone having a subjective fear of persecution.
[29] According to the Respondent, there was no nexus established. The acts described are criminal in nature, involving a personal vendetta, and not all criminal acts can be considered acts of persecution.
STANDARD OF REVIEW
[30] I have concluded that the determinative issue in this application is the availability of state protection. There is some confusion as to whether the appropriate standard of review for decisions relating to state protection is reasonableness or patent unreasonableness. The dispute turns on the appropriate characterization of the issue dealt with by the Board. Those decisions that find the issue to be a question of fact wholly within the expertise of the Board conclude that the appropriate standard is patent unreasonableness: Nawaz v. Canada (Minister of Citizenship and Immigration), 2003 FC 1255 at paragraph 11, Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449 at paragraph 8, and Zhao v. Canada (Minister of Citizenship and Immigration), 2004 FC 1059.
[31] However, in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193 at paragraphs 9 to11 Madam Justice Tremblay-Lamer applied a pragmatic and functional approach and found the appropriate standard should be reasonableness, partly because the nature of the question involves an assessment of whether a claimant has rebutted the presumption of state protection, which is a question of mixed fact and law. Several recent decisions have followed this reasoning and applied a reasonableness standard. See, for instance, Resulaj v. Canada (Minister of Citizenship and Immigration), 2006 FC 269 and Robinson v. Canada (Minister of Citizenship and Immigration), 2006 FC 402 at paragraph 8.
[32] According to Justice Kelen in O.O.M.R. v. Canada (Minister of Citizenship and Immigration), 2005 FC 1618 at paragraphs 7 to 8, a review of state protection involves a two-part assessment. For the Board to reach a conclusion with respect to state protection, the Board must make certain findings of fact which can be set aside if they are patently unreasonable. The findings of fact must be assessed against the legal test for state protection, which involves a question of mixed fact and law, reviewable on a standard of reasonableness.
[33] In this case, there appear to be two separate issues of state protection. First, the Applicant maintains that the Board failed to turn its mind to all of the evidence. This consideration is a question of fact and the appropriate standard of review is patently unreasonable. However, the Applicant also argues that the Board failed to consider whether, in practice, the evidence discloses that state protection goes beyond a merely legislative and procedural framework. This involves some consideration of the legal meaning of state protection and should be reviewed against a standard of reasonableness.
ANALYSIS
[34] There are several issues raised by the Applicant and I have reviewed them carefully but the determinative issue is state protection. If the Board’s handling of state protection does not contain a reviewable error, then the other grounds cannot on their own suffice to set the Decision aside.
[35] The Board rejected the Applicant’s claim because she had not discharged the burden of proving that state protection was not available to her. It is not disputed that Guyana is a democracy with effective political and judicial systems. In these circumstances, the burden on the Applicant is a heavy one and the Board committed no reviewable error in concluding that the Applicant had not discharged it.
[36] The Board analyzed the issue of state protection having regard to the correct legal principles. In the absence of evidence of a complete breakdown in the state apparatus, the Applicant had to provide clear and convincing evidence that the state is unable to protect her: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1. Further, even a democratic government is not expected to be able to protect all its citizens at all times: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232, 99 D.L.R. (4th) 334 (F.C.A.).
[37] Domestic abuse is illegal in Guyana. The documentary evidence shows that Guyanese authorities are making efforts on several levels to address the issue of abused women. There are initiatives to implement measures to outlaw the activity as well as sanctions and remedies. The Domestic Violence Act 1996, which was considered by the Board, defines and criminalizes domestic violence and gives women the right to seek prompt protection.
[38] While the Applicant claims that she experienced some police indifference to her claims of abuse, this is a localized incident and not Guyanese state policy. A localized failure of state protection does not necessarily lead to the conclusion that state protection is not available. See for instance Kadenko v. Canada(Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532, 206 N.R. 272; Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3, 187 F.T.R. 110 (T.D.); Chorny v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 289, 2003 FC 999; J.C.C. v. Canada (Minister of Citizenship and Immigration), 2005 FC 534; Quijano v. Canada (Minister of Citizenship and Immigration), 2005 FC 1706.
[39] Further, it is open to the Board to draw conclusions about the availability of state protection with reference to organizations other than the police or judiciary. In Szucs v. Canada (Minister of Citizenship and Immigration) (10 March 2001), Doc. No. IMM-6248-99 (F.C.T.D.), Justice Blais stated at paragraphs 28 to 30:
The Board concluded that … additional protection was available from other organizations. The Board found that for more serious and persistent forms of discrimination … there was a network of government and government sponsored organizations … which assist without charge those so threatened.
The evidence established that the Applicant had never tried to seek help from either the Ombudsman, NGO’s or through minority self-government. I find that the Board, in requiring the Applicant to exhaust these avenues of protection in addition to police protection, was asking the Applicant to take reasonable steps in order to ensure his protection.
I find that the Board’s conclusion on the issue of state protection was reasonable … .
See also: Nagy v. Canada (Minister of Citizenship and Immigration), 2002 FCT 281 and Zsuzsanna v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1206.
[40] In Guyana, in addition to the police and judicial options open to the Applicant the evidence reveals that there is also an active community of NGO’s and women’s rights groups, whose major concerns include the protection of victims of domestic abuse. The Applicant herself cites an NGO called Help and Shelter in her memorandum. There is no evidence that the Applicant sought assistance from any of these organizations.
[41] What the Applicant is now asking this Court to do is to re-weigh the evidence on state protection and to come to a different conclusion from that of the Board. But the re-weighing of evidence is not this Court’s function. The fact that the outcome was not favourable to the Applicant is not sufficient reason for this Court to intervene.
[42] The Board clearly acknowledges in its reasons the difficulties that the Applicant experienced in obtaining state protection. But there is no clear and convincing evidence that, had the Applicant made contact and clarified her situation, the authorities would not have responded effectively. Notwithstanding information in some of the documentary evidence referred to by the Applicant concerning the vulnerability of women in Guyana because of societal attitudes, there was no clear and convincing evidence that the authorities (police and otherwise) do not have the will and the resources to respond. Hence, even if there is a nexus (and I make no finding on this ground) this application cannot succeed.
[43] The Applicant is a vulnerable individual and I believe the Board fully acknowledged this fact and felt that, because of those vulnerabilities, she really needs careful assessment under humanitarian and compassionate criteria. But a refugee claim gives rise to particular evidentiary and legal demands that my review of the record suggests the Applicant could not meet. I cannot say that the Board got it wrong or committed a reviewable error on the determinative issue of state protection. Hence, I am not in a position to interfere with the Decision.
JUDGMENT
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. There is no question for certification.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6815-05
STYLE OF CAUSE: AVRIL DANNETT v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 16, 2006
APPEARANCES:
Donald Greenbaum FOR APPLICANT
Amy Lambiris FOR RESPONDENT
SOLICITORS OF RECORD:
Donald Greenbaum,QC FOR APPLICANT
Barrister, Solicitor & Notary Public
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario