Date: 20040914
Docket: IMM-5639-03
Ottawa, Ontario, this 14th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
MICHEALINA SKELLY
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 Refugee Protection Division of the Immigration and Refugee Board ("Board") dated July 2, 2003 ("Decision") in which the Board determined that Michealina Skelly ("Applicant") was not a Convention refugee or a person in need of protection.
BACKGROUND
[2] The Applicant is a 32-year-old citizen of St. Lucia. She claimed protection on the basis of domestic abuse in her homeland.
[3] She never reported the abuse to police nor made any effort to obtain state protection prior to coming to Canada.
[4] She gave evidence of the circumstances that led to her flight from St. Lucia in her PIF:
In 1997, I became involved with a man from St. Lucia. In the beginning of the relationship, we were both very happy and I thought that it was going to last for a very long time and that we would eventually get married.
Within a very short time into the relationship, I discovered marijuana pieces in my boyfriend's pockets clothes and when I confronted him he at first denied using any substance. He later admitted using marijuana but occasionally and he did not see anything wrong with it.
All kinds of people started frequenting our home to buy drugs. And when I told him that I did not approve of his involvement, he became very aggressive and violent. He started beating me every so often. He would sometimes kick and pound me with his fists. Many times he slapped me in the face and for no reason at all. Whenever he became high on drugs I tried to avoid any intimacy with him and this made him extremely angry. He raped me several times and did not see anything wrong with it.
Only my close friend at work and parents got to know of the abuse. I was too embarrassed to tell other people. My father told me to leave him, but I still loved my boyfriend and did not want to return to my parents' home. I tried to talk him into counselling but he would not budge. He did not feel the need for counselling.
Then he started sleeping with other women and again when I confronted him, he beat me up and pulled a gun on my head.
He threatened to beat me if I ever reported to the police. I was so afraid that he would carry out his threat, I chose not to report.
In July 1999, I could not take it any more. I decided to escape the abusive relationship. I went to my sister's home in Boston USA. In December 2000, a friend invited me for a visit in Toronto. On the December 25, while in Toronto, I telephoned my spouse in St. Lucia. He begged me to return home and said that he had changed. I thought about it, but did not believe him.
In early June 2001, I decided to return home to give the relationship a chance. I soon realized that I was pregnant from another relationship. I told my boyfriend and he became very violent. He beat me so hard and said he will never forgive me for cheating on him. He took away my passport and threatened to kill me if I reported to the police.
My father advised me to return to Canada. He and a close friend paid an agent $5000. 00 Eastern Caribbean Dollars to bring me to Canada. On November 5, 2001, I arrived at Toronto with the agent using another person's passport. We parted as soon as we got through all the check points and he left with the passport.
I returned to the friend's home, and was sleeping on the couch for a while but I started getting complications with my pregnancy. She could not care for me and the growing baby. We decided that I should move to a shelter and get more help. It was at the shelter that I applied for refugee status.
I have not heard from my boyfriend since I left St. Lucia. My father told me that he had been to their home several times demanding to know my whereabouts.
Knowing the kind of man and the business that my boyfriend is involved in, I could not seek government protection. He threatened to kill me if I ever reported him. I fear that if I am forced to return home, I will lose my life to this man. He is dangerous, on drugs, involved with gangs and has a gun which he has held to my head before.
The police is corrupt and does not really offer much protection to abused women.
Application Record pp. 24 - 25
DECISION UNDER REVIEW
[5] The Board found that adequate state protection is available to the Applicant in St. Lucia and rejected her claim for protection.
ISSUES
[6] The Applicant raises the following issues:
Was the Board's overall assessment of the totality of the evidence patently unreasonable, perverse and capricious?
Did the Board ignore, misstate and/or misapprehend material evidence properly before it to the extent that the Board committed an error of law?
ARGUMENTS
Applicant
[7] The Applicant says that the Board misunderstood the evidence presented before it. Its Decision was not based on the totality of the evidence, but on its own speculations and unwarranted inferences. Furthermore, the Board misconstrued the facts and failed to take into consideration vital documentary and oral evidence given by the Applicant.
[8] The Applicant says that the sole reason for the Board's impugning her credibility was the fact that, according to the Board, "State protection, even though not perfect, is available in St. Lucia for a woman who is subjected to domestic violence." The Board referred to the case of Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 132-133.
[9] The Applicant says that the use of the qualifying words "even though not perfect" to describe the state protection in St. Lucia fails to take into account that the Applicant had many reasons not to report the domestic violence to the police.
[10] The Applicant pointed out that reporting the situation to the police would have resulted in serious negative consequences against her from her boyfriend, whom the police knew to be a drug user and dealer.
[11] The Applicant says that the test used by the Board to determine adequate state protection was erroneous. The requirement in Villafranca of total breakdown as the condition for the absence of state protection was overruled in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The Applicant argues that Convention refugee status is established if she can demonstrate that, despite best efforts by the state, it cannot provide adequate protection, particularly where there is also evidence that she is likely to suffer more serious negative consequences. The Applicant says that she presented clear evidence establishing that the police cannot protect her. Her persecutor was already known to the police as a drug user and dealer, yet the police could do nothing. The Board erred when it ignored this vital evidence supporting the absence of state protection.
[12] The Applicant says that she rebutted the availability of adequate state protection for her alone because of her particular circumstances.
[13] The Applicant says that the Board's reasons for rejecting her explanation as to why she did not report her boyfriend to the police were very unreasonable and subject to review. The Board did not provide any evidence to substantiate its opinion of the matter, nor was there any evidentiary basis for the Board to contradict the Applicant.
[14] The Applicant says that the US Department of State Country Report on St. Lucia - 2001 shows that the Applicant is not the only woman who is not willing to report domestic abuse to the police:
The police force conducts some training for police officers responsible for investigating rape and other crimes against women, but there is no special unit that handles crimes against women and children ... although police are hesitant to intervene in domestic disputes and many victims are reluctant to report cases of domestic violence and rape or to press charges.
[15] The Applicant says the Board should not have impugned her credibility on the issue of her not first reporting her abuser to the police. She says she saved her own life in not making a report to the police and in choosing instead to flee. The question that the Board should have asked itself was: Why are women reluctant to report cases of domestic violence?
[16] In Sabaratnam v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 901 (F.C.A.), the Court overturned a panel's decision on the ground that the panel's conclusions were perverse on face of the record and because, in reaching its conclusions, the panel drew unreasonable inferences from the evidence.
[17] The Applicant submits that the Board determined the Applicant's claim based on a false premise. The credibility of the Applicant was never questioned.
[18] In Bastienne v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 221 (F.C.A.), a panel did not question the credibility of the claimants' testimony of having been imprisoned and brutalized by the authorities in the Seychelles Islands as a result of expressing political opinions but concluded, nevertheless, that the subjective and objective criteria required to satisfy the refugee definition were lacking. The Court overturned the decision on the ground that the panel had erred in failing to consider the evidence and address the question as to whether the treatment the claimants had received amounted to persecution.
[19] In Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.), after holding that the panel had erred in several respects in its appreciation of particular evidence, the Court went on to consider some of the other grounds relied on by the panel. It concluded in this regard (at 113):
...
This is not a game of numbers but, it seems to me, when the Board has found numerous reasons for doubting a claimant's credibility and was patently wrong in selecting a significant majority of them, it must be clear to a reviewing authority that those remaining were properly considered.
[20] However, there are cases which support the view that where the Board has made erroneous findings of relevant facts, this, without more, is grounds for review and it is inappropriate for the Court to speculate as to what decision the Board may have made had the erroneous findings not be made.
[21] The Applicant also refers the Court to Sharma v. Canada (Minister of Employment and Immigration) (1984), 55 N. R. 71 (F.C.A.), where the Court overturned an Appeal Board decision dismissing an application for redetermination in which the Appeal Board had relied on erroneous fact findings in determining that the claimant was not credible. Regarding the effect of the factual errors on the Appeal Board's decision, the Court stated at 72:
It is clear that these erroneous findings of fact were relied upon by the Board in making its adverse finding of credibility and in arriving at its conclusions that the application should not be allowed to proceed to a full hearing and that the Applicant was not a Convention refugee. It is true that the Board also relied upon certain other findings of fact that are supported by the evidence. But in arriving at its adverse finding of credibility and in disposing of the application in the manner that it did, the Board clearly had regard to all of its findings of fact including those, which were entirely without support in the evidence. I do not think this is a case where one can say with any assurance that the Board's conclusion as to credibility and its decision on the merits would have been the same had it not considered its erroneous findings of fact but only the findings of fact that are supported by the evidence. In my view, the Board ought now to reconsider the application for redetermination without having regard to those erroneous findings.
[22] The Applicant also submits that her sworn evidence must be believed in the absence of any evidence to the contrary (Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.)).
[23] In Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238, for example, the Court held that a finding of implausibility based on external criteria could not stand:
The Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is the heartland of the discretion of triers of fact, but rather on the implausibility of the claimant's account in the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw. (at 1-2)
[24] The Applicant also relies upon Gosal v. Canada (The Minister of Citizenship and Immigration), [1998] F.C.J. No. 346 where the Court set aside a decision on the ground that the CRDD had misapprehended the evidence and had made implausibility findings that were based on dubious reasoning.
Respondent
[25] The Respondent submits that this Court should not interfere with the findings of fact and the conclusions drawn by the Board unless the Court is satisfied that the Board based its conclusions on irrelevant considerations or ignored evidence. Furthermore, where any of the Board's inferences and conclusions are reasonably open to it on the record, the Court should not interfere even if it disagrees with the inferences drawn by the Board (Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (T.D.)).
[26] In order for an alleged error of fact to be reviewable, it must be truly erroneous; the finding must be made capriciously or without regard to the evidence, and the decision must be based on the erroneous finding (Rohm and Haas Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175, 91 D.L.R. (3d) 212 (F.C.A.); Federal Courts Act, R.S., 1985, c. F-7, s. 18.1; Bhuiyan et al. v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 310).
[27] The Respondent says that in the instant case, none of the three conditions precedent has been met.
[28] Specifically, the Board was entitled on the record before it to conclude that adequate state protection will be forthcoming to the Applicant in St. Lucia should she choose to avail herself of it. The Board noted that the Applicant had previously made no effort to report the domestic abuse to the authorities. The Board also reasoned that the authorities would likely assist her, especially in light of their alleged knowledge of her consort's drug dealing. The Board finally found that the Applicant had not shown any reasonable attempt to access state protection and had failed to rebut its presumed availability.
[29] The Respondent says that the Board was entitled to make such a finding and that the Applicant has failed to raise any arguable issue of law that would warrant the Court's interference.
[30] The Respondent says that there is no merit to the Applicant's contention that the police would not offer protection as her abuser was "already known to police as a drug user and dealer and yet the police was (sic) not able to do anything about that." These assertions of the Applicant are unsupported and are without basis in the evidence.
[31] The Applicant's arguments are particularly weak because she has made no effort to obtain protection. Merely disagreeing with the Decision is not sufficient to find reviewable error in the Board's finding.
[32] The Applicant's claim that the Board used the wrong test is also without merit: the Board used the correct test, as established by the Supreme Court of Canada in Ward.
[33] The Applicant's claim that she has rebutted the availability of state protection "not to everyone in the country but to herself alone" does not demonstrate any reviewable error. The Applicant must satisfy the Board of the absence of state protection. This is not done by merely satisfying herself of the lack of availability.
[34] It is trite law that, on an application for judicial review, this Court should not substitute its decision for that of the Board. In any judicial review of the factual determinations of a lower tribunal such as the Board, the primary question to be asked is whether the finding was one that could reasonably have been made on the evidence before the Board. If the finding is reasonable, it must stand and review must only take place where the findings of fact may be construed as perverse, capricious or made without regard to the material before it (Federal Courts Act, R.S., 1985, c. F-7, s. 18.1(4)(d)).
[35] In this matter, the Board did not make findings that were perverse in nature and its conclusions were all substantiated in the evidence before it.
Analysis
[36] The essence of the Applicant's case is that, although the police and the courts in St. Lucia may be committed to enforcing laws to protect women against abuse, this would be of no avail to the Applicant because of the particular situation in which she finds herself. She says that the handling of any abuse case could take years and that, in the interim, her abuser (like many others in St. Lucia) will exact his vengeance upon her and take her life.
[37] In her affidavit and in her PIF she had said that the police are corrupt and do not offer protection to abused women. Her PIF reads as follows at p. 9:
Knowing the kind of man and the business my boyfriend is involved in, I could not seek government protection. He threatened to kill me if I ever reported him. I fear that if I am forced to return home, I will lose my life to this man. He is dangerous, on drugs, involved with gangs and has a gun which he held to my head before.
The police is (sic) corrupt and does not really offer much protection to abused women.
[38] So the Applicant says that all of the good intentions on the part of the government are of no use to her because they will not protect her against this particular individual.
[39] What is more, the Applicant says (and offers documentary evidence) that her case is not untypical in the Caribbean where there is a culture of violence against women and children.
[40] The Transcript of the hearing shows that the Board took the position that the Applicant had some remedies available to her in St. Lucia (family, she could leave the country, contact the police) but she made no attempt to avail herself of any of them. Her sole attempt at a remedy was to leave St. Lucia and claim refugee status. However, the Board based its Decision upon the availability of adequate state protection.
[41] The Board concluded that state protection, even though not perfect, is available in St. Lucia for a woman who is subjected to domestic violence and was "not persuaded ... that the authorities in St. Lucia would not respond to the claimant if she chose to report her incidents of domestic violence, particularly as the claimant testified that the drug dealing of Francois had made him known to the police."
[42] As Ward makes clear, before a claimant can seek refugee protection she must first attempt to seek state protection in her country of reference or rebut its availability.
[43] The Applicant had made no effort to seek state protection (she felt it was pointless, given the realities of the situation) or even to find out what protection was available to her.
[44] The jurisprudence on state protection in the context of domestic abuse says that the Board must look at the particular circumstances of the claim and determine whether effective protection can be provided. Of course, if a claimant has attempted to obtain state protection in the past and it had been refused, this will raise a strong inference that protection will not be available in the future. But that is not determinative, particularly in a situation where seeking state protection would place the claimant's life in danger.
[45] The crucial issue is whether the state can provide protection in the particular circumstances. I find the words of Mr. Justice Gibson in Elcock v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1438 (T.D.) of particular assistance in this context:
... the CRDD committed a reviewable error in failing to effectively analyse, not merely whether a legislative and procedural framework for protection existed, but also whether the state, through the police, was willing to effectively implement any such framework. Ability of a state to protect must be seen to comprehend not only the existence of an effective legislative and procedural framework but the capacity and the will to effectively implement that framework.
[46] Similarly, in D'Mello v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 72, the board had concluded that there was sufficient documentary evidence to support the availability of state protection for domestic abuse, but the Court quashed the decision because other evidence had been ignored:
The CRDD relies upon an excerpt from Human Rights Briefs, Women in India as authority for the proposition that there is, in India, a legislative and procedural framework to which women subject to domestic violence can have recourse. What the CRDD fails to do is make reference to paragraphs following immediately after the citation upon which it relies that reflect on the difficulties encountered by women in relying on that framework and thus, its ineffectiveness. Those difficulties are reflected throughout other portions of the documentary evidence that was before the CRDD ... The principal applicant's fear did not rest on the lack of legislative and procedural framework in India to protect women abused by their husbands or agents of their husbands, but rather on the lack of police support to such women and the difficulty, given the lack of such support, in effectively taking advantage and having recourse to the existing legislative and procedural framework of state protection in India.
[47] In the case at bar, there was evidence before the Board that St. Lucia does have a legal framework and a government committed to protecting women against domestic abuse. Against this, however, the Applicant asserted the following:
1. there is a difference between a formal legal framework and government statements and what the government and the police can, or are willing, to do when it comes to protecting women subjected to domestic violence;
2. the Applicant did not seek state protection in the past because, given the propensities of the abuser, to do so would have put her life at risk;
3. the Applicant could not seek state protection in the future because she would be subject to the same risk.
[48] Bearing in mind that, in dealing with this issue, the Board was obliged to look at the particular circumstances of the Applicant, the Applicant alleged that those particular circumstances were that her boyfriend was involved in drug dealing, he had threatened to kill her if she ever reported him, and the police in St. Lucia are corrupt and will not offer much help.
[49] The Applicant argues that she provided evidence of the State's inability to protect her because "she demonstrated that the state is unable to protect her from her prosecutor whose nefarious activities are already known to the police yet they could not do anything to curtail him." At bottom, the argument is that, because the police had not in the past acted to curtail the boyfriend's drug activities, they had proved themselves incapable of protecting the Applicant against his threats of violence.
[50] It is obvious from the Decision that the Board considered this argument and rejected it:
The panel is not persuaded by the submissions of counsel that the authorities in St. Lucia would not respond to the claimant if she chose to report her incidents of domestic violence, particularly as the claimant testified that the drug dealing of Francois had made him known to the police.
[51] The fact that the police in St. Lucia may not have acted against the boyfriend's drug activities is hardly cogent evidence that they would not respond to a request for protection against violence. Hence, it is difficult to fault the Board's conclusion that the Applicant had not rebutted the availability of state protection in her particular circumstances because she "made no effort whatsoever to seek protection in St. Lucia, or even to find out what protection was available to her."
[52] I can find no reviewable error in the Decision of the kind alleged by the Applicant.
ORDER
THIS COURT ORDERS that
1. The Application for judicial review is dismissed.
2. There is no question for certification.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5639-03
STYLE OF CAUSE: MICHEALINA SKELLY
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: July 21, 2004
REASONS FOR [ORDER or JUDGMENT] : THE HONOURABLE
MR.JUSTICE RUSSELL
APPEARANCES:
ESTHER OBEMBE
FOR APPLICANT
LORNE MCCLENAGHAN
FOR RESPONDENT
SOLICITORS OF RECORD:
ESTHER OBEMBE
BARRISTER AND SOLICITOR
MISSISSAUGA, ONTARIO
BARRISTERS & SOLICITORS
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
TORONTO, ONTARIO
FOR RESPONDENT