Federal Court Decisions

Date: 20070615

Docket: IMM-3707-06

Citation: 2007 FC 646

Ottawa, Ontario, June 15, 2007

PRESENT:     The Honourable Mr. Justice Harrington

BETWEEN:

ALBERT JAMES JACOBS

(a.k.a. James Albert Jacobs)

KERHEN HARBOCH JACOBS

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               Mr. and Mrs. Jacobs are citizens of St. Vincent and the Grenadines. Their daughter was much abused by her husband; so much so that she fled to England. Their son-in-law then began threatening and harassing them with a view to learning her whereabouts. They were overcome by their fear, felt that the police would not protect them and so have sought protection in Canada.

[2]               The member of the Refugee Protection Division of the Immigration and Refugee Board who heard the matter found them to be credible, but that they had not rebutted the presumption that state protection was available to them in St. Vincent. He dismissed their claim. This is a judicial review of that decision.

ISSUES

[3]               During argument, counsel for the Jacobses raised two main issues. The first was that they were self-represented, uneducated and did not get a fair hearing. More particularly, there was no refugee protection officer to ask questions, and the Board member did not ask the questions which should have been asked to elicit the appropriate information.  The Minister objected because this point had not been raised in the application for leave and for judicial review. In any event, a reading of the transcript amply demonstrates that the applicants were given a full and fair hearing.

[4]               The second issue was that the Board member made patently unreasonable findings of fact with respect to the evidence which was before him and on the issue of state protection as applicable to the Jacobses.

DISCUSSION

[5]               Quite apart from the fact that the point was only raised at the last minute, there is no merit in the submission that the Jacobses were not given a full and fair hearing. The reporter’s notes indicated that a refugee protection officer was present. Be that as it may, she certainly did not participate.

[6]               Although the Chairperson’s Guideline 7 was not specifically mentioned, the Guideline provides that the standard practice is for the refugee protection officer to start questioning the claimant. If there is no refugee protection officer participating in the hearing, the member will begin. That is what happened here. There is nothing inherently unfair about this procedure as held by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Thamotharem, 2007 FCA 198.

[7]               The member went through the material most conscientiously, and pointed out to Mr. and Mrs. Jacobs that it was up to them to make their case. They were given every opportunity. What counsel is suggesting is that if she had been present, the result may have been different. The Jacobses had the right to represent themselves and can be in no better position because they did not have a lawyer. I recently reviewed this issue in Birkett v. Canada (Human Rights Commission), 2007 FC 428.

[8]               The record also shows that when the Jacobses’ daughter laid a complaint with the police, her husband was jailed and required to post a bond to keep the peace. The Jacobses admitted that his behaviour improved.

[9]               After their daughter left for England, their evidence of intimidation by their son-in-law was accepted. Although they called the police, they never laid a formal charge. The Court was invited to leap to conclusions about a remark the police made. They said they were tired of the son-in-law. Was the only inference to be drawn that the police would not act on complaints? On the other hand, as suggested by the Minister, perhaps an inference could be drawn that if a formal complaint were laid, the police would take strong measures? Both suggestions are in the realm of speculation and conjecture, rather than inference.

[10]           The member carefully reviewed country conditions in St. Vincent, as applicable to the Jacobses, and found that as adequate state protection was available there was no more than a mere possibility they would be seriously harmed in St. Vincent.

[11]           That conclusion was not unreasonable, much less patently unreasonable, and so the application must be dismissed.

ORDER

THIS COURT ORDERS that:

1.                  The matter is dismissed.

2.                  There is no question of general importance to certify.

“Sean Harrington”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-3707-06

STYLE OF CAUSE:                          Albert James Jacob (a.k.a. James Albert Jacobs)

                                                            Kerhen Harboch Jacobs v.

                                                            The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      June 14, 2007

REASONS FOR ORDER:               HARRINGTON J.

DATED:                                             June 15, 2007

APPEARANCES:

SOLICITORS OF RECORD: