Date: 20041203
Docket: IMM-10349-03
Citation: 2004 FC 1697
Ottawa, Ontario, December 3, 2004
Present: The Honourable Mr. Justice W. Andrew MacKay
BETWEEN:
BEVERLY NOELLA DIAZ
DANIELLE HELEN DIAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 as amended, of a decision of the Immigration and Refugee Board, Refugee Protection Division ("Board"), dated December 5, 2003, wherein the Board determined that the applicants were not Convention refugees under section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), and were not persons in need of protection under section 97 of that Act.
FACTS
[2] The principal applicant, Beverly Noella Diaz, is a 37-year-old citizen of Trinidad and Tobago, and the other applicant is her minor daughter whose claim is dependant on that of her mother. The applicant first came to Canada in 1989 with her husband and oldest child. The family claimed refugee status but that was denied, and they were subsequently deported back to Trinidad and Tobago.
[3] The applicant returned to Canada on December 29, 2000, with her youngest daughter, on a Minister's permit to visit her mother. She claimed refugee status for herself and her daughter in June 2001. The applicant claimed a well-founded fear of persecution on the basis of membership in a particular social group, namely women in abusive relationships in Trinidad and Tobago. The applicant's minor daughter's claim was based on that of her mother, and membership in a particular social group, namely the family of an abused woman.
BOARD DETERMINATION
[4] The Board was not satisfied that there was a "reasonable chance" or a "serious possibility" that the applicants would be persecuted if they were returned to Trinidad and Tobago.
[5] The Board referred to an issue with respect to credibility, that was, the applicant's six-month delay in claiming refugee status. The Board found that, while the delay was not lengthy, it was not credible that, if the applicant allegedly feared her spouse, she did not claim refugee status earlier. The Board determined that, on a balance of probabilities, the applicant was abused by her husband, but she had made arrangements to emigrate from Trinidad and Tobago without any complaint to the authorities in her home country about his abusive actions. The evidence of abuse by her husband included several affidavits, and a tape recorded phone message, allegedly from the applicant's spouse, in which a male voice was uttering threats. The Board accepted that the voice was identified as that of the applicant's spouse.
[6] Having determined, on the balance of probabilities, that the applicant was an abused woman, the Board considered that the applicant did not provide a reasonable explanation as to why she did not report any incident to the police. Instead, the applicant had her husband's nephew arrange for her exit from Trinidad and Tobago.
[7] In considering objective evidence the Board relied on documentary evidence about domestic violence in Trinidad and Tobago. According to the Board, the evidence indicated that, while legal redress is obtainable, such as protection orders and legal aid, the outcomes of cases will vary depending on their particular elements. As well, police responsiveness may vary depending upon the police station or officer to which a woman files her complaint. The Board noted that the government in Trinidad and Tobago runs a telephone hotline where victims can obtain information on how to access shelters, and that there are a number of shelters for women throughout the country. Recent political reports indicated that the police response to complaints of domestic violence was positive, and officers in general were sensitized to the problem as a result of ongoing training. After considering all of the documentary evidence, the Board concluded that the government of Trinidad and Tobago was taking serious steps to address domestic violence and, while it may not be perfect, protection is nonetheless available. The Board found that the applicant did not provide clear and convincing evidence that the state of Trinidad and Tobago was unable to protect her.
[8] Having determined that the applicant's claim to a well-founded fear of persecution was not objectively well-founded, the Board also determined that the applicant was not at risk of cruel or unusual treatment or punishment or of a risk of torture. The applicant's claim was therefore rejected.
ISSUES
[9] In written submissions, the applicant raised a number of issues. Some of these were specifically excluded from argument when this matter was heard, including an allegation of bias on the part of the Board and concern about the Board's reference to credibility of the applicant's explanation for delay in filing her claim. The issues dealt with by counsel for the applicant concern the Board's reference to delay in filing her refugee claim, its assessment of country conditions, and particularly to its assessment of state protection for abused women in Trinidad and Tobago.
ANALYSIS
[10] I note that argument about alleged bias of the Board was not advanced or supported in any way by counsel appearing for the applicant who said he had not been engaged in the matter until after the written record was submitted and leave was granted to proceed. Counsel for the respondent urged that there was no support in the transcript of the Board's hearing, for the written allegations of the applicant about bias and unfairness of the Board's process. In my opinion, those allegations of the applicant are, at the least, frivolous, if not scurrilous.
[11] Further, I am persuaded, as counsel for the respondent urged, that the Board's reference to lack of credibility of the applicant's explanation for delay in filing her application for refugee status was not a basis for the decision to deny her claim. The decision specifically accepted that Ms. Diaz was a woman victim of abuse by her spouse, and thus implicitly accepted that she was a member of a particular social group, women in an abusive marital arrangement.
[12] The decision of the Board is based on its assessment of objective evidence, that is, from country reports and other sources dealing with the circumstances of abused women in Trinidad and Tobago. Those reports were found by the Board to establish that there had been a serious social problem of inadequate appreciation of the situation of abused women and of the need for protective measures. Those reports were stressed in argument for the applicant. There were, however, other reports of the steps taken under government auspices to address the situation by establishing shelters and help-lines for victims of abuse, and by training of police to be sensitive to the concerns of abused women. As counsel for the respondent noted, reports on the measures taken to address the problem for the most part post-dated the reports on the serious social circumstances of spousal abuse in Ms. Diaz's country.
[13] It is true to say the Board's decision did not make specific reference to those reports highlighting the serious incidents of abuse but it did make reference to the general circumstances, and it acknowledged that the efforts made to address these did not ensure protection for abused women in all situations. Nevertheless, the Board did find that remedial measures had been adopted. There was a system in place to aid women victims, a system which the applicant had not sought to access by filing a complaint about her husband's actions. Rather, she had sought assistance to leave Trinidad and Tobago without having sought protection there.
[14] The standard of review applicable to the Board's decision is patent unreasonableness where, as here, it is urged that it has ignored evidence of significance or has relied on inappropriate information as the basis of its decision. I am not persuaded that the standard is met in this case. Here the decision in question makes reference to the unfortunate social circumstances of numerous cases of spousal abuse reported as late as the early 1990's but also refers to the measures adopted later in the 1990's to address those circumstances. Its assessment, on the evidence, was that progress had been made in establishing a system to aid abused women, and further that the applicant had not taken any steps to access that system by reporting any abuse. While that system might still provide differing results in cases of reported abuse, there was no evidence that reasonable state protection was not available to Ms. Diaz.
[15] The essence of the Board's decision is set out thus:
When the ... documentary evidence is taken into consideration, the panel finds that the Government of T & T is taking serious steps to address domestic violence. While protection may not be perfect, it is nonetheless available. The panel finds that the claimant has not provided clear and convincing evidence that the state of T & T is unable to protect her.
[16] The applicant's evidence of the lack of state protection consisted of documentary evidence of incidents of domestic abuse and of comments of a police officer with whom she had a brief general discussion. Yet, as the Board's decision noted, "At no time did she report any abuse to the police."
[17] The circumstances here are generally comparable to those in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.) and in Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. 4th 532, 206 N.R. 272 (F.C.A.). In Villafranca, failure of the refugee Board to consider evidence of unwillingness or inability of refugee claimants to avail themselves of protection offered in their country, led to setting aside a favourable decision to grant refugee protection. In Kadendo, the Court of Appeal declined to grant relief in the case of a decision that evidence of a single unanswered complaint to police authorities was insufficient to demonstrate inability to claim protection in one's own country.
[18] Whether the Court would have reached the same result on the evidence before the Board is not here in issue. Rather, the Court must assess whether the decision of the Board was patently unreasonable on the evidence before it. I am not persuaded that is established. Thus, an Order goes dismissing the application for judicial review.
O R D E R
IT IS ORDERED THAT the application for judicial review is dismissed.
"W. Andrew MacKay"
F.C.D.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10349-04
STYLE OF CAUSE: Beverly Noella Diaz
Danielle Helen Diaz
and
Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 3, 2004
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MR. JUSTICE W. ANDREW MACKAY
APPEARANCES:
Mr. Yehuda Levinson FOR APPLICANTS
Mr. Bari Crackower FOR RESPONDENT
SOLICITORS OF RECORD:
Levinson & Associates
610-480 University Avenue
Toronto, Ontario
M5G 1V2 FOR APPLICANTS
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario
M5X 1K6 FOR RESPONDENT