Date: 20040407
Docket: IMM-4438-03
Citation: 2004 FC 537
Ottawa, Ontario, this 7th day of April 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
MICHELE AGATHA ROSE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Michele Agatha Rose (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"). In its decision, dated May 15, 2003, the Board determined that the Applicant is not a Immigration Refugee nor a person in need of protection.
[2] The Applicant, a citizen of St. Vincent, first entered Canada in 1996. She claimed Convention refugee status in August 2000, on the grounds that she is a member of a particular social group, that is women who suffer domestic abuse. The Applicant's evidence before the Board included details about the abuse she had suffered at the hands of her husband.
[3] The Board found that the Applicant was not a Convention refugee nor a person in need of protection because there has been a change in country conditions since she had left St.Vincent in 1996. The reasons of the Board provide as follows:
The RPD relies on the documentary evidence that the authorities in St. Vincent are attempting to improve the police attitudes toward domestic violence by implementing such things as the Ministry of Women's Affairs and Culture. There has been a change in the attitudes of the politicians about domestic violence in St. Vincent and efforts are continuing to control this widespread problem. The authorities in St. Vincent will issue restraining orders to protect women from stalkers and abusers and there is legal aid for persons requiring legal assistance. This protection is not perfect but it is adequate and available to citizens of St. Vincent and improved since the claimant left in 1996. The RPD finds that the claimant may well have been challenged to find this level of available protection years ago when she left St. Vincent; however, the panel prefers the documentary evidence over the claimant's memory of requesting state protection in St. Vincent. The claimant was a much less mature woman when she lived in St. Vincent and this was when the 1995 Domestic Violence Act was newly proclaimed and implementation was beginning. [Footnotes omitted]
[4] On the basis of the evidence contained in the record, I am of the view that the Board erred in the conclusion stated above. It failed to consider whether the Applicant should receive the benefit of section 108(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. Sections 108(1)(e) and 108(4) are relevant and provide as follows:
| (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: ...(e) the reasons for which the person sought refugee protection have ceased to exist.
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. |
|
(1) Est rejetée la demande d'asile et le demandeur n'a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants_: ... e) les raisons qui lui ont fait demander l'asile n'existent plus.
(4) L'alinéa (1)e) ne s'applique pas si le demandeur prouve qu'il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu'il a quitté ou hors duquel il est demeuré.
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[5] The Board made no credibility findings relative to the Applicant. In the absence of negative credibility findings, it is arguable that the Board accepted that the past treatment endured by the Applicant was "appalling and atrocious". Accordingly, the Board erred in failing to consider whether there were "compelling reasons" arising out of that past treatment in St. Vincent, such that the Applicant would be entitled to the exception in section 108(4).
[6] In the result, the application for judicial review is allowed and the matter is remitted to a different panel of the Board for re-determination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a different panel of the Board for re-determination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4438-03
STYLE OF CAUSE: MICHELE AGATHA ROSE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 23, 2004
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: APRIL 7, 2004
APPEARANCES BY:
Mr. Ronald Poulton
FOR THE APPLICANT
Mr. Greg George
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamman & Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040407
Docket: IMM-4438-03
BETWEEN:
MICHELE AGATHA ROSE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER