BETWEEN:
JANELLA MATHURIN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of a member of the Immigration and Refugee Protection Board (the "Board") dated May 18, 2004 in which the Board determined that the Applicants are not Convention refugees (the "Decision").
[2] The Applicants are citizens of St. Lucia. The male Applicant, Emron Constantine, is twenty-four years old. His wife, Janella Mathurin, is twenty-three.
[3] On or about August 2, 2002, the male Applicant was attending a fundraising dance party. There, he witnessed an altercation between the doorman (the "Doorman") and a gang leader in which the gang leader was killed with a machete. After the incident, members of the gang saw the male Applicant speaking to the police. They assumed that he gave them information which led to the Doorman being charged with the reduced charge of second degree manslaughter. However, the male Applicant had simply been conversing casually with his cousin who happened to be a police officer attending the scene. In fact, the male Applicant never made a formal statement to police as many other witnesses came forward.
[4] Two days after the incident, the Applicants were outside their home when three gang members came by stating that they knew of the information given to the police which reduced the charge against the Doorman and warning that the male Applicant "won't live to see him (the Doorman) come out of prison." The Applicants interpreted this statement as a threat to kill the male claimant.
[5] Three days later, the same three gang members came by the house again, stating "we haven't forgotten you, we don't forget things like this." On another occasion later in August, the gang members grabbed the male Applicant and threatened him again. These incidents will be described collectively as the "Threats". At this point the male Applicant went to the police. The police did not take a report but did say they would look into his complaint.
[6] The male Applicant then decided to come to Canada and did so on August 18, 2002. A few days after he left, the female Applicant received an anonymous phone call asking for the male Applicant. When she informed the person that he wasn't home, the caller hung up. This occurred on several more occasions. Then, in October, while the female Applicant was outside the home, a gang member passed by and said "we know Emron isn't home and we can kill you or rape you." She did not report this incident to the police. The female Applicant then decided to join the male Applicant in Canada. She arrived on February 11, 2003.
[7] The male Applicant made his refugee claim on February 25, 2003, six months after his arrival in Canada. The female Applicant made her claim on June 16, 2003, four months after her arrival.
THE DECISION
[8] The Board concluded that the Applicants were credible witnesses "on the whole". However, the Board found that they were "simply too removed" from the situation and no longer faced a serious possibility of risk in St. Lucia. The Board noted that the Applicants have been out of St. Lucia for two years in the case of the male Applicant, and for over one year in the case of the female Applicant.
[9] The Board also noted that the Applicants were surprisingly ill-informed with respect to the progress of the Doorman's murder trial. The Board concluded that a lack of curiosity and information about the trial seriously compromised their allegations that they are at risk.
[10] With regard to state protection, the Board concluded that the Applicants had not established that anyone had denied them protection or would deny them protection should they require it. The Board noted that the female Applicant did not report the threat against her in October, even though she could have identified the perpetrator.
[11] The Board also commented on delay. The male Applicant testified that he waited to make his refugee claim to see "what would happen" and then waited for the female Applicant to arrive. Then, he ran out of funds. The Board recognized that there are some barriers to claiming, but noted that both Applicants are educated and articulate. The Board stated that, although not a conclusive factor on its own, the Applicants' claim was undermined by their failure to advance their claims in a timely manner.
THE ISSUES
State Protection
[12] The Applicants say that the Board's treatment of the issue of state protection was not adequate and I agree. On page 6 of the Decision, the Board acknowledges that it is aware that police in St. Lucia have not been effective in dealing with gangs. Yet, in the next sentence, the Board states that the Applicants have not established that the state would deny them protection. Presumably, this means adequate protection. The problem arises because it is hard to see how protection that is ineffective could be adequate.
[13] The Respondent acknowledges that the Board's reasons on the issue of state protection could be improved but says that any deficiencies are immaterial because, once the Board concluded that the Applicants are not at risk, state protection was not a live issue.
[14] I have found this submission persuasive. The Board did make a clear finding on the risk issue. It said at page 4 of the Decision:
The panel finds that the claimants are simply too removed from the situation and does not believe it is likely that the claimants face a serious possibility of risk to life today in St. Lucia.
[15] Once that finding was made, the Board was not required to consider state protection. That being so, the errors it made in addressing that issue are not material.
The Risk Assessment
[16] The Board concluded, among other things, that the Applicants were "surprisingly ill-informed" about the status of the Doorman's murder case. This was a finding which seriously undermined their credibility. In this regard the Board said:
The panel finds a lack of information, a lack of curiosity about the outcome of the murder trail on the part of the claimants, to serious compromise their allegations that they are at risk because the male claimant was present on the night of the murder.
[17] The Applicants say that this conclusion is patently unreasonable because it was the charge laid against the Doorman that was the reason for the threats and the outcome of the trial would not affect the charge.
[18] While this submission is accurate, it does not explain the Applicants' apparent disinterest in the status of the proceedings. Most people, if they observed a machete murder on a dance floor and had been threatened in the aftermath, would have followed the resulting court case even if they weren't particularly knowledgeable about legal affairs.
[19] In my view, the Board was entitled to draw a negative inference from the Applicants' lack of curiosity about the circumstances of this case.
CONCLUSION
[20] For all these reasons, this application will be dismissed.
JUDGE
Ottawa, Ontario
September 7, 2005
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: EMRON CONSTANTINE
JANELLA MATHURIN
v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
DATE OF HEARING: JUNE 20, 2005
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE SIMPSON
DATED: SEPTEMBER 7, 2005
APPEARANCES:
MS.KARINA A.K.THOMPSON APPLICANT
MR.TAMRAT GEBEYEHU RESPONDENT
SOLICITORS ON THE RECORD:
ROBERT R.BLANSHAY
BARRISTER AND SOLICITOR
TORONTO, ONTARIO
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
FOR RESPONDENT