PICKTON ALFONSO EARL JOAN ROSEMARIE EARL v. RANDY JAMES MADANNY EARL, 2011 FC 312

Federal Court Cour fédérale Date: 20110315 Docket: IMM-4149-10 Citation: 2011 FC 312 Ottawa, Ontario , March 15, 2011 PRESENT: The Honourable Mr. Justice Scott BETWEEN: PICKTON ALFONSO EARL JOAN ROSEMARIE EARL AND RANDY JAMES MADANNY EARL Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT A.

INTRODUCTION [ 1 ] This is an application for judicial review of a decision of a member of the Immigration and Refugee Board (“Board”), pursuant to s.72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the “ Act ”) by Pickton Alfonso Earl, Joan Rosemarie Earl and Randy James Madanny Earl (the “applicants”). The Board determined that the applicants were neither Convention refugees nor persons in need of protection under s.96 and s.97 of the Act . B. FACTS [ 2 ] The applicants are all citizens of Jamaica . The principal applicant, Pickton Earl, worked as Minister at the Mt.

Refuge Church of the First Born from 1979 until 2001, when he and his family left Jamaica . [ 3 ] In 2001, the principal applicant was outside of his church prior to giving a service when a man known as Bigger who had borrowed or rented a car from a man called Tucker, to use as a taxi, claimed that Tucker had cheated him. Tucker was inside the church for the service. The principal applicant attempted to calm Bigger down and encouraged him to desist until after the service which he did. Bigger supposedly told him that if Tucker left before he could deal with him, the applicant would be held responsible.

After the service, Tucker was nowhere to be found. In the presence of other churchgoers, Bigger hit the applicant over the head from behind with a machete and stated that he would seek revenge on the applicant for allowing Tucker to escape.

[ 4 ] The applicant went to the local police station that day to make a complaint, but the police refused to get involved on grounds of insufficient evidence. The applicant went to a different police station on the same day, and was told the same thing.

He did not take Tucker with him, nor did he inform Tucker that he had been to the police, and did not verify if any report had actually been filed. [ 5 ] The applicant alleges that after this incident, Bigger came several times to both the church and the applicant’s house, further threatening him. [ 6 ] The applicant and his family came to Canada on August 16, 2001. They lived here on temporary visitor visas for several years. On June 6, 2006, they applied for permanent residence with the help of the church.

This application was rejected, as was the applicant’s application for judicial review of this decision ( Earl v MCI , 2008 FC 1144 ). On November 4, 2008, the applicants applied for refugee status. [ 7 ] The hearing took place on May 7, 2010. The decision was issued on June 18, 2010 and received by the applicants on July 6, 2010. C.

The decision under review [ 8 ] The Board found that the determinative issues were the existence of state protection and the applicant’s failure to take appropriate steps to obtain protection, the lack of evidence of subjective fear due to the long delay before the applicants applied for refugee status, and the lack of evidence of prospective risk should the applicants return to Jamaica . [ 9 ] The Board noted the presumption that state protection exists except where the state is in complete breakdown.

The Board canvassed the documentation and found that Jamaica is a constitutional parliamentary democracy with generally free and fair elections. The Board described the various branches of security forces in Jamaica , and noted that the Jamaican Constabulary Force had bolstered community policing to counteract the antipathy between residents and police. The Board noted that there is still some perception of corruption. Though issues existed, the Board found that overall, Jamaican security forces have effective control of the territory, and constitute a functional force to uphold the laws and the constitution.

The Board canvassed the jurisprudence regarding state protection, noting the burden on the applicants to rebut the presumption of its existence, and the fact that there must not be simply a subjective reluctance to engage the state. [ 10 ] It must be noted that in this

section of its analysis, the Board referred to “Mexico” instead of “Jamaica”, on several occasions including a reference to Mexico having free and fair elections and a relatively independent judiciary. [ 11 ] The Board noted that the applicant did report the attack to the police and received the same answer from two different police stations. The Board found that the consistency of the police response supported their decision not to take action, and noted that the applicant had not included Tucker in his attempts to go to the police, and did not verify that the stations had recorded his complaint.

The Board found that it would be unreasonable in any society to expect that all violent acts reported will result in immediate prosecutions or convictions. The Board found no indication that there was a lack of genuine and earnest effort on the part of the Jamaican police. [ 12 ] The Board took note of the applicant’s statement that he had no confidence in the police because of their negative response. The applicant stated that as Bigger had once helped a political party, the party would support him, and testified that Bigger could have had a police report disclosed to him.

The Board noted that the applicant had no evidence for this other than hearing it from someone. The Board found this unpersuasive and not backed up by the documentary evidence. [ 13 ] The Board acknowledged and said it had considered documentation regarding the inefficiency and corruption that exists in Jamaican security forces, but weighted this against persuasive evidence that Jamaica candidly acknowledges these issues and has made serious efforts to rectify the problems. The applicant had not rebutted the presumption.

The Board said that there was also no persuasive evidence that the applicant would face persecution or any of the risks listed in s.97 if he were to return, though again the Board states “return to Mexico” instead of “ Jamaica ”.

[ 14 ] Regarding the existence of a well-founded fear of persecution, the Board noted the seven-year delay before the applicants applied for refugee status. The Board found that this weakened the credibility of the applicant’s subjective fear of return. The Board also found that in the nine years since leaving Jamaica , the applicant had no news of Bigger, and no knowledge of whether he still wanted vengeance or even lived in the area. The Board found that the applicant’s fear of persecution upon his return was entirely speculative and unlikely.

The Board found that the applicants’ refugee claim was secondary in connection to seeking status to stay in Canada . D. Relevant legislation The relevant portions of the Act are as follows: Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :

a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;

b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.

Person in need of protection 97.

(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Personne à protéger 97.

(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :

a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (

i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger

(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait

partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. E. Issues and Standard of Review [ 15 ] This application raises the following issues:

a. Did the Board err by referring to the wrong country in its state protection analysis? b. Did the Board err in assessing the evidence related to the availability of state protection? c. Did the Board err in assessing the applicant’s subjective fear?

Standard of review - The applicable standard for the issues raised by this application is reasonableness. [16] In Saeed v Canada (Minister of Citizenship and Immigration), 2006 FC 1016, para. 35, and Collins v Canada (Minister ofCitizenship and Immigration), 2005 FC 1403, para. 10, it has been held that the analysis for state protection is reviewable on thestandard of reasonableness.

This standard also applies to the Board’s assessment and weighing of the documentary evidence (Zhang vCanada (Minister of Citizenship and Immigration), 2010 FC 9, para. 34; Malveda v Canada (Minister of Citizenship and Immigration),2008 FC 447 , [2008] F.C.J. No. 527). As the question of the existence of subjective fear is a question of fact, it is for theBoard to assess, and should also be reviewed on the standard of reasonableness, Dunsmuir v New Brunswick, 2008 SCC 9 at para. 47. F. ANALYSIS

a) References to Mexico instead of Jamaica [17] We have reproduced all of the Board’s references to Mexico in place of Jamaica: ( 10)……….In a functioning democracy, a claimant will have a heavy burden when attempting to show that they should not have beenrequired to exhaust all of the recourses available to them domestically before claiming refugee status. The documentary evidence beforethe Board indicates that Mexico is a democracy, and there are free and fair elections. (para. 10; footnoted to US Department of StateReport on Jamaica 2008). There is a relatively independent and impartial judiciary.

Therefore, in countries such as Mexico, the claimantmust do more than merely show that he or she went to see members of the police force and that those efforts were unsuccessful. (para.10) Therefore, having considered the totality of the evidence, I find that the principal claimant, in the circumstances of this case, has failed torebut the presumption of state protection with clear and convincing evidence and that the claimant did not take all reasonable steps in thecircumstances to avail himself of that protection before making a claim for refugee protection.

Therefore, I am not persuaded that thestate of Mexico would not be reasonably forthcoming with state protection, should the claimant seek it. (para. 18) There is no persuasive evidence before me that the principal claimant would face persecution or, on a balance of probabilities, face a riskto his life or to cruel and unusual treatment or punishment or a risk of torture, if he returned to Mexico. (para. 19) [18] The applicant argues that the discussion of state protection is the largest portion of the Board’s analysis, and notes that theanalysis of Mexico is irrelevant.

The applicant submits that it is impossible to conclude with certainty what part the consideration ofextrinsic or irrelevant evidence played in the Board’s decision. The applicant cites Justice Hugessen’s decision in B’Ghiel v Canada(MCI), [1998] F.C.J.

No. 1023, para. 8, where it was held that the judge could not determine which weight the Immigration Officer hadgiven to the correct factors, and “what weight was attached to the factors which were improperly considered”, and that therefore thedecision must be quashed. [19] The applicant also cites Martinez v MCI, (IMM-3598-08), an unreported case, in which Justice Barnes stated “[the] decisionappears to have been issued without a thorough proof-reading because it contains a number of regrettable typographical errors andeditorial mistakes”.

The applicant states that this led Justice Barnes to conclude that it would be difficult to be confident that the Boardwas doing more than going through the motions in reaching its conclusion on state protection.

The applicant argues that the errors in thepresent case cast doubt on the entire decision, given the importance of the state protection analysis. [20] In the applicant’s reply memorandum, it is further argued that the respondent’s contention that the errors were ‘inadvertent’ isspeculative, and also that the few sections where the Board does refer to Jamaica are supportive of the applicant’s position. [21] The respondent replies that the references to Mexico are immaterial and constitute typographical errors, as each one is only inthe context of a generalized statement that is generally found into any state protection analysis.

This does not affect the numerousreferences to Jamaica throughout the Board’s analysis. Furthermore, prior to the one non-generalized statement that Mexico is ademocracy with free elections, the respondent notes that the Board had found that Jamaica was a constitutional parliamentary democracywith generally free and fair elections at paragraph 6 of its decision.

[22] The respondent argues that the boilerplate paragraphs using “Mexico” are not critical, and do not indicate that the Board failedto consider the country conditions specific to Jamaica, especially since the Board clearly cites Jamaica in all other specific references(paras. 14-17). The respondent submits that the reasons must be read as a whole, and that the Board clearly knew it was dealing withJamaica, and engaged in a detailed analysis of the Jamaican security forces and the justice system.

Moreover, the respondent points to thetranscript of the hearing, and submits that the Board knew that it was Jamaica in question, not Mexico, and the Board only relied ondocuments about Jamaica. [23] The respondent cites Miranda v MEI (1993) 63 FTR 81 (FCTD): For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One mightapproach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particularstatements found in the decision.

But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe itis an effective way to decide if the conclusions reached were reasonable or patently unreasonable. Analysis [24] Firstly, this Court does not find that B’ghiel is relevant to the present case. In that case, the Immigration Officer, indetermining in the context of a residency application whether the applicant would be able to adapt to living in Canada, included severalirrelevant factors in her consideration.

As these were only some of the factors she considered in rejecting the application, the judge foundthat it was impossible to determine how she had weighted the factors. This is distinguishable from the present case, where the mistakesin the decision are not, with one exception, in the nature of fact finding or individual factors. [25] There are two other cases in which a Board’s decision made a similar error with regards to identifying the country at issue inthe state protection analysis.

In Fernandez v MCI, 2005 FC 536, the Board was found to have discussed Brazil instead of Argentina, andJustice Rouleau found at para. 20 that “there were doubts, when I read Brazil in the RPD's decision (written several times), that theanalysis on the risks faced by the applicants in Argentina was not properly assessed.

Thus, the confusion on the country has an impact onthe analysis and the decision cannot stand.” In Landaverde v MCI, 2005 FC 1665, Justice O’Keefe found at para. 36, that the Board hadincorrectly dealt with state protection in Guatemala instead of El Salvador, and that “[t]he only references to a fear of persecution in theBoard's decision are in respect of Guatemala, not El Salvador”. [26] The Board’s mistakes in the present case do not rise to the level referred to in Fernandez and Landaverde. Unlike in thosecases, it is apparent upon reading the decision that the Board is in fact referring to Jamaica.

The paragraphs referring to Mexico aregeneralized often used paragraphs regarding the jurisprudence on state protection, and I note that the one more specific “finding” maderegarding Mexico being a democracy with free elections actually cites country documentation on Jamaica. Furthermore, the same findingis explicitly made about Jamaica earlier in the decision. [27] While this error raises concerns about the apparent lack of proof-reading in this decision, I am not convinced in a reading of itthat the Board was actually intending to discuss Mexico and therefore it does not render the decision void.

b) Assessment of state protection and the documentary evidence [28] The applicant cites at length from Cepeda-Gutierrez v MCI (1998), (FC), 157 FTR 35, para. 17, whereJustice Evans stated: …The more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a courtmay be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”. […] Moreover,when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion; itmay be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. [29] The applicant acknowledges that the Board is presumed to have weighed and considered all the evidence unless the contraryis established.

However, the applicant points out that when the documentary evidence is contradictory, the Board has a duty to addresshow and why it chose to rely on some evidence over the rest (Flores v Canada (Minister of Employment and Immigration), [1994] F.C.J.No. 565; Antunes v MEI, [1991] F.C.J. No. 154). [30] The applicant contends that the Board only referred to two documents (the US Department of State Report, and an Amnesty

International country report). The applicant takes issue with paragraph 7 of the Board’s reasons, in which the Board describes theJamaican security forces, notes that there are some issues with regard to the perception of corruption, and then remarks that “afterreviewing the above information” it has concluded that overall the evidence “indicates that the security forces in Jamaica have effectivecontrol of its territory and have in place a functioning security force to uphold the laws and constitution of the country”.

The applicantargues that the Board did not review any substantive evidence nor cite any documentation, but merely described the security forces. Theapplicant notes that the next reference to a country is not until paragraph 10, where the Board refers to Mexico.

The applicant then findsthat the Board refers to Jamaica in paragraph 15, eight paragraphs after referring to what the applicant terms “non-existent countrycondition documents”. [31] The applicant argues that as no specific citations were included for paragraphs 15 and 16 on the specifics of policing inJamaica, the Board has not provided any documentary evidence in support of its conclusions.

The applicant notes that the sole referenceto the Amnesty International report is to discount it, though the applicant contends that this report is one of the most important, as itestablishes that many Jamaican police officers have been accused of human rights violations, and that gang violence is widespread. Theapplicant argues that this evidence is more on point than any reference to community policing as found by the Board. The applicant citesseveral portions of the documentary evidence on gang violence and human rights violations, and notes that the Board did not mentionthese.

The applicant contends that these reports “squarely contradict the Member’s findings” and should have been referred to.

Theapplicant cites in support of this proposition Tetik v MCI, 2009 FC 1240, where Justice de Montigny overturned a decision in partbecause the Board dealt with state protection in Turkey in a general sense, without dealing with the fact that the applicants in that casewere Armenian, or that they lived outside of Istanbul. [32] The applicant also argues that a significant amount of the documentary evidence does in fact support the applicant’s testimonyat the hearing to the effect that there is no effective state protection in Jamaica.

The applicant tried to obtain police assistance, but did notreceive any, and he argues that this is consistent with the documentation. The applicant does not cite any documents in particular, otherthan referring to the afore-mentioned reports on gang violence and human rights violations. [33] In the applicant’s reply memorandum, counsel also takes issue with the respondent’s characterization of the test for stateprotection as adequacy rather than effectiveness, and argues that adequacy implies effectiveness as a necessary element.

The applicantcites Aguirre v MCI, 2010 FC 916, para. 20: The case law is replete with statements confirming that it is not sufficient for a state to make efforts to provide protection; an objectiveassessment must also establish that the state is able to do so in practice. […] the Panel does not…refer to any documentary evidenceshowing that the resources devoted to combating crime have produced any tangible results. [34] The respondent submits that it was reasonable to find that the applicant had not taken all reasonable steps to seek theassistance of the state.

The respondent notes that a single refusal by the authorities to assist will not meet the threshold necessary to rebutthe presumption of state protection, and that it is not enough to give up after one bad experience (Morales Lozada v MCI, 2008 FC 397, paras. 27-30; Sanchez v MCI, 2008 FC 134, paras. 9, 12; Kadenko v MCI (1996), (FCA), 143 DLR (4th) 532 at 534(FCA)).

The respondent reiterates the Board’s findings that the applicant did not inquire as to whether a police report had been filed, didnot return to the police station with Tucker in order to provide further evidence, and did not report to the police that Bigger was stalkinghim. [35] The respondent argues that the onus is not on the Board to establish state protection, but rather on the applicant to rebut thepresumption of state protection where, as in this case, it is found that the country in question is a functioning democracy.

The respondentcites Ward v Canada, (SCC), [1993] 2 SCR 689, para. 50 and Carrillo v MCI, 2008 FCA 94, paras. 18-19, 26, 30.

Therespondent notes that the test for state protection is whether it is adequate, not whether it is perfectly effective, as per Flores v MCI, 2008FC 723, para. 11, where it was noted that “[r]equiring effectiveness of other countries’ authorities would be to ask of them what our owncountry is not always able to provide.” The respondent argues that to require effective protection is an unattainable standard, and wouldshift the burden of establishing state protection to the Board, rather than leaving it with the applicant, as it should be.

The respondent alsorefers to Samuel v MCI, 2008 FC 762, paras. 10 and 13, and Mendez v MCI, 2008 FC 584, para. 23. [36] Regarding the weighing of evidence, the respondent argues that it is not the role of this Court to reweigh the evidence, andnotes that the Board found that Jamaica had security forces that deal with criminal activity. The respondent notes that it is trite law thatthe Board is presumed to have reviewed and considered all of the evidence, and there is no obligation for the Board to refer to each piece(Hassan v MEI, [1992] 147 NR 318 (FCA)).

The respondent argues that the documents cited in the applicants’ arguments relate tosecurity problems faced by those living in poverty in inner-city ghettos rife with gang violence, and argues that this evidence is irrelevantto the applicant’s case. [37] The respondent notes that the applicant’s statements that someone like Bigger was protected by a political party and couldhave had police reports disclosed to him was not supported by any documentary evidence, contrary to the applicant’s argument.

Analysis [38] It is well established law that the threshold necessary to rebut the presumption of State protection is such that an applicantmust take all necessary steps to avail itself of the assistance of the state. It has also been held that one refusal will not suffice to rebut the presumption of state protection (See Kadenko v MCI (1996), (FCA), 143 DLR (4th) 532 at 534 FCA. Morales Lozadav MCI, 2008 FC 397 paras. 28 to 30.

In reviewing the Board’s decision in the present case I find it reasonable to find that the applicanthad not taken all the necessary steps to obtain the assistance of the authorities. [39] Similarly the Board’s weighing of the country documentation is reasonable in the present case. The onus being on theapplicant to rebut the presumption of state protection and since the Board is presumed to have considered all of the evidence, without theneed to mention each document, I am not persuaded when the applicant points to evidence that it feels should have been mentioned.

Theapplicant must establish a true connection between the evidence it claims has been ignored and its relevance to the applicants’ allegationsin this case that the Jamaican police would be incapable of providing adequate protection. I do not find that the evidence cited by theapplicant rises to the level discussed in Cepeda-Gutierrez, as documents discussing human rights violations by police officers, and gangviolence in Jamaican cities, are irrelevant to the present case.

No such issues were raised, nor do I see any connection to the applicant’sstory, and therefore I do not see why the Board would have been required to discuss and explain why it did not give weight to thesereports.

Having reviewed the case of Tetik, cited by the applicants, I do not believe that any similar issues exist with regard to theanalysis in the present case, as no special circumstances were alleged that should have been mentioned. [40] Justice Mosley’s decision in Flores v MCI, 2008 FC 723, is particularly applicable in the present case with respect to theapplicants argument with respect to effectiveness of state protection where he writes: 8 The applicants argued in their written submissions that the legal test for a finding of state protection was whether that protectionwas effective, citing Carrillo v.

Canada (Minister of Citizenship & Immigration), 2007 FC 320, [2008] 1 F.C.R. 3 (F.C.). In the interimbetween the filing of the representations and the hearing, that decision had been overturned by the Federal Court of Appeal in Carrillo v.Canada (Minister of Citizenship & Immigration), 2008 FCA 94, [2008] F.C.J.

No. 399 (F.C.A.) which confirmed that the test isadequacy rather than effectiveness per se. 9 The applicants contend, nonetheless, that it remains an error for an RPD panel to fail to consider whether the measures it deemsadequate are at least minimally effective. 10 While this is an attractive argument, it does not convey the current state of the law in Canada in my view. As noted by theFederal Court of Appeal in Carrillo, the decision of the Supreme Court in Ward v.

Canada (Minister of Employment & Immigration), (SCC), [1993] 2 S.C.R. 689 (S.C.C.) stressed that refugee protection is a surrogate for the protection of a claimant'sown state. When that state is a democratic society, such as Mexico, albeit one facing significant challenges with corruption and othercriminality, the quality of the evidence necessary to rebut the presumption will be higher. It is not enough for a claimant merely to showthat his government has not always been effective at protecting persons in his particular situation: Canada (Minister of Employment &Immigration) v. Villafranca (1992), (FCA), 18 Imm.

L.R. (2d) 130 (Fed. C.A.) . 11 The serious efforts to provide protection noted by the panel member support the presumption set out in Ward. Requiringeffectiveness of other countries' authorities would be to ask of them what our own country is not always able to provide. [41] In light of this jurisprudence, I find that the Board did not use the incorrect test in determining state protection.

c) Assessment of the applicant’s subjective fear [42] The applicant argues that as he always had legal status in Canada, it was not necessary for him to claim refugee status until thesudden possibility of a forced return to Jamaica made it imperative. He argues that it is generally highly questionable whether this factorin and of itself is sufficient to warrant an adverse credibility finding, and that the Board must carefully consider the applicant’sexplanations and give good reason for rejecting them.

The applicant argues that the Board confused legitimate attempts to remain outsideof Jamaica with a lack of subjective fear, and notes that as long as the applicant was in possession of legal residence in Canada, there wasno immediate need to seek protection. The applicant cites Hue v Canada (MEI), [1998] F.C.J. No. 283 (FCA), where it was said that “aslong as [the applicant] had his sailor’s papers and a ship to sail on, he did not have to seek protection”.

The applicant argues that hisdesire to seek permanent residence in Canada was a sign of his subjective fear that was overlooked by the Board. [43] The applicant cites at length from Gyawali v Canada (MCI), 2003 FC 1122, where Justice Tremblay-Lamer noted that a

failure to apply as a refugee immediately upon arrival can be an important factor to consider in determining a claimant’s credibility (para.16), but that in the circumstances of that case as well as Hue, there was no need to apply immediately as the applicants were safe for thetime being, and it was not reasonable for the Board to draw any negative inference against the applicant (paras. 18-19). [44] The respondent submits that with a seven-year delay before the applicants applied for refugee status, it was open to the Boardto reasonably find that they did not have any subjective fear.

The respondent notes that until 2006, the applicants were in Canada ontemporary visas and had no permanent status. [45] Furthermore, the respondent notes that the Board found that there was no reasonable fear of persecution upon their return toJamaica, and that their claims in this regard were speculative, as there had been no news of Bigger in the nine years of their absence. Therespondent argues that it is well-established that the test for persecution is prospective and that the applicants must fear harm on anongoing basis.

It was therefore open to the Board, according to the Respondent to find that given the long delay and the lack of evidenceshowing an ongoing threat, such a threat no longer existed. The respondent cites para. 16 of Pour-Shariah v MEI, (FC), [1994] F.C.J. No. 1928 (FCTD): an individual will often advance evidence of past persecution. This evidence may demonstrate that he/she has been subjected to a patternof persecution in his/her country of origin in the past. But this is insufficient of itself. The test for Convention refugee status isprospective, not retrospective.

Analysis [46] The cases of Hue and Gyawali do in fact leave open the possibility that it was unreasonable of the Board to rely on the delayin seeking refugee status, when the applicants had legal status in Canada during that delay. I note however that there are cases that havereached the opposite conclusion as well, as noted in Taruvinga v MCI, 2007 FC 1264, para. 11: It is well-established that the Board may find that the Applicants' delay is not consistent with those of people having a subjective fear ofpersecution (Bello v. Canada (Minister of Citizenship & Immigration), [1997] F.C.J. No. 446 (Fed.

T.D.) ; Heer v. Canada (Minister ofEmployment & Immigration), [1988] F.C.J. No. 330 (Fed. C.A.) ). [47] The entire judgment in Heer is as follows: While being of the view that the Immigration Appeal Board may have placed undue emphasis on the importance of the delay in makingthe claim for refugee status herein, we agree with the Board, nevertheless, that such a circumstance is an important factor which theBoard is entitled to consider in weighing a claim for refugee status. On the record, we are unable to say that the Board committed anyreviewable error that would entitle the Court to interfere with its decision.

The

Section 28 application will, therefore, be dismissed. [48] When applied to the facts of this case the Board‘s comments with respect to the applicant’s delay before legitimizing hisstatus from temporary to permanent does not in itself render the decision unreasonable, as that was up to the Board to decide and it wasone factor amongst others to be taken onto consideration in assessing the Applicant’s subjective fear of persecution. CONCLUSION [49] I further conclude that the Board did not err in its assessment of the evidence related to the availability of state protection; [50] I further conclude that the Board did not err in assessing the applicant’s subjective fear;

JUDGEMENT THIS COURT ORDERS AND ADJUGES that: - The application for judicial review is dismissed and no question of general importance is certified. "André F.J. Scott" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4149-10 STYLE OF CAUSE: PICKTON ALFONSO EARL JOAN ROSEMARIE EARL RANDY JAMES MADANNY EARL V THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto , Ontario

DATE OF HEARING: February 9, 2011 REASONS FOR JUDGMENT AND JUDGMENT: SCOTT J. DATED: March 15, 2011 APPEARANCES : Julian Jubenville FOR THE APPLICANT Amy King FOR THE RESPONDENT SOLICITORS OF RECORD : Mamann Sandaluk Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT