2014 FC, 2014 FC 1017

Date: 20141027 Docket: IMM-7791-13 Citation: 2014 FC 1017 Ottawa, Ontario, October 27, 2014 PRESENT: The Honourable Mr.

Justice Martineau BETWEEN: JOSETHA PETULA HENRYApplicantand THE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] This is an application for judicial review of a decision, dated November 12, 2013, in which the Refugee Protection Divisionof the Immigration and Refugee Board [Board] found that the applicant was neither a “Convention refugee” nor a “person in need ofprotection” pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act]. [2] The applicant is a citizen of Saint Vincent and the Grenadines who arrived in Canada on October 24, 2011.

The applicantclaimed refugee protection on the basis of the domestic violence, trafficking and threats she suffered at the hands of her former common-law partner, Mr. Alston Lorraine [Lorraine]. The Board found the applicant to be credible and accepted that she was mistreated in herrelationship with Lorraine when they were living in the same house. In July 2009, the applicant went to live with her sister in the samesmall village and stayed there safely for more than two years until her departure to Canada. Lorraine’s calls promptly stopped once theapplicant changed her phone number.

Indeed, he never came to threaten the applicant at her place of living, even if he knew where shewas and he lived just minutes away. However, on October 6, 2011, she saw him on the street and he began to run after her, but shemanaged to run away by hiding in a shop; the shopkeeper did not call the police. Be that as it may, the Board found that the applicant didnot have a well-founded fear of persecution. The Board went on to examine the issue of state protection.

In its analysis, the Boardfocused on the State’s efforts to protect its citizens, including the fact that some police officers are specially trained to handle sexualcrimes, that police officers follow a training program on domestic violence and that an increasing number of women are coming forwardto the police. Indeed, the Board found that these efforts were producing results in the case of victims of domestic abuse. The Board alsomentioned that the applicant could apply to the courts for a protection order.

Based on the documentary evidence and on the lack ofefforts by the applicant to obtain police protection, the Board concluded that the applicant had not rebutted the presumption of stateprotection. [3] The applicant submits three grounds of review: 1. The Board erred in failing to determine whether the applicant had compelling reasons arising out of previous persecution for refusingto avail herself of the protection of her country under subsection 108(4) of the Act; 2. The Board erred in determining that the applicant did not have a well-founded fear of persecution; and 3.

The Board erred in determining the presence of state protection. [4] First, the applicant argues that the Board found the applicant credible, and thus, implicitly accepted that she had been“persecuted” by Lorraine. Therefore, it had to make an analysis of the compelling reasons exception, whether the applicant had raisedthe argument or not (Yamba v Canada (Citizenship and Immigration), , [2000] FCJ No 457 at para 6 (FCA)).

Therespondent replies that a plain reading of subsection 108(4) of the Act shows that this is not a case where the exception applies. [5] Second, the applicant argues that the Board’s finding of an absence of objective fear is unreasonable because it does not takeinto account the full testimony of the applicant. The Board also erred in noting that Lorraine did not issue any threats during the October6, 2011 incident. The respondent replies that the applicant was not physically harmed for more than two years after leaving Lorraine, andthat even when she did run into him, she was not harmed.

In addition, if Lorraine had wanted to harm her, he knew where she lived, butthe evidence shows he never looked for her. The respondent argues that the applicant did not show a prospective fear and it wasreasonable for the Board to conclude that the applicant had not established a well-founded fear of persecution. [6] Thirdly, the applicant argues that the Board’s conclusion that there is adequate state protection is unreasonable.

Theapplicant points out that the Board concluded that the applicant only attempted to obtain state protection on one occasion, but that theBoard should also have considered the incident when the applicant’s daughter called the police, and when Lorraine was threatening toburn her brother’s house if she did not come home with him.

The applicant also questions the effectiveness of applying to the courts ofher country for a protection order since the police may not respond if called for help (see Alexander v Canada (Citizenship andImmigration), 2009 FC 1305 at paras 12-13; Trimmingham v Canada (Minister of Citizenship and Immigration), 2009 FC 1059).

Therespondent argues that the applicant never gave the police a real chance to protect her, referring to the fact that she never reported theincident of rape and that when she called police because Lorraine showed up at her brother’s house, they couldn’t come because theydidn’t have transport, not because they did not want to get involved, and the applicant did not go to the police the next day to report thethreats.

Moreover, the respondent submits that, on the contrary, the documentary evidence shows that there has been a substantialimprovement in the training of police who are better prepared to intervene in cases of domestic violence. The respondent also argues thatwhen her daughter called the police, they came and no other action was taken because the applicant took no other action.

[7] The second and third grounds of attack raise questions of fact, and mixed of fact and law, and the reasonableness standardapplies (Dunsmuir v New Brunswick, 2008 SCC 9).

While it is debatable whether the first ground should be assessed on the correctnessstandard (Kumarasamy v Canada (Citizenship and Immigration), 2012 FC 290 at paras 6 and 11) or on the reasonableness standard(Jairo v Canada (Citizenship and Immigration), 2014 FC 622 at para 18 [Jairo]), the choice of the standard of review is notdeterminative, as I find no reviewable error was made by the Board, whichever standard applies to the issue of compelling reasons whichwas never raised to the Board. [8] This application must be dismissed. [9] There was no need for the Board to conduct to a compelling reasons analysis.

Paragraph 108(1)(

e) and subsection 108(4) ofthe Act read as follows: 108.

(1) A claim for refugee protection shallbe rejected, and a person is not a Conventionrefugee or a person in need of protection, inany of the following circumstances: 108.

(1) Est rejetée la demande d’asile et ledemandeur n’a pas qualité de réfugié ou depersonne à protéger dans tel des cas suivants : […] […] (

e) the reasons for which the person soughtrefugee protection have ceased to exist.

e) les raisons qui lui ont fait demander l’asilen’existent plus. […] […] (4) Paragraph (1)(

e) does not apply to aperson who establishes that there arecompelling reasons arising out of previouspersecution, torture, treatment or punishmentfor refusing to avail themselves of theprotection of the country which they left, oroutside of which they remained, due to suchprevious persecution, torture, treatment orpunishment.

(4) L’alinéa (1)

e) ne s’applique pas si ledemandeur prouve qu’il y a des raisonsimpérieuses, tenant à des persécutions, à latorture ou à des traitements ou peinesantérieurs, de refuser de se réclamer de laprotection du pays qu’il a quitté ou horsduquel il est demeuré. [10] Firstly, two conditions had to be met: 1) the applicant had to establish that at some point, she met the definition forConvention refugee or person in need of protection, and 2) that the reasons for the claim have ceased due to changed country conditions(Jairo, above at para 26).

The applicant may have had been persecuted prior to leaving Lorraine’s house in 2009, but to be a “Conventionrefugee” or a “person in need of protection”, the applicant had to leave her country and seek the international surrogate protection. Shecould only cease to be a “Convention refugee” or a “person in need of protection” after she had left Saint Vincent, that is after October2011 (Musialek v Canada (Citizenship and Immigration), 2008 FC 403 at paras 24-27; John v Canada (Public Safety and EmergencyPreparedness), 2010 FC 1088 at para 41).

As indicated by Justice de Montigny in Jairo, above at para 30: “[subsection 108(4) of theAct] is meant to apply in situations where the applicant has fled at a time where the agent of persecution was in power and, at the time ofthe refugee application, this agent is no longer in power.” In this case, there had been no change in conditions between the time wherethe applicant fled and the time of the refugee application.

Therefore, the Board did not err in not considering the application ofsubsection 108(4) of the Act. [11] Secondly, while it is well established that physical harassment or harm is not necessary for the applicant to have a well-founded fear of persecution, especially in the presence of threats to one’s life (Amayo v Canada (Minister of Employment andImmigration), (FCA), [1981] FCJ No 136, [1982] 1 FC 520 (FCA); Ngwenya v Canada (Minister of Citizenship andImmigration), 2008 FC 156 at para 25), it was not unreasonable for the Board to conclude in this case that the applicant did not have anobjective fear of persecution for the various reasons provided in the impugned decision.

These reasons are transparent and intelligible.The reasoning of the Board is rational and supported by law, which provides that the fear must be evaluated on a forward basis. In thecase at bar, the finding of an absence of objective fear of domestic abuse or violence in the future, is not speculative and is based on theevidence on record. After all, there were no threats and no incident of persecution occurred during a period of more than two years afterthe applicant left the house of her violent and abusive partner.

As far as the incident of October 2011 goes, the applicant could notconfirm whether or not threats were actually made by Lorraine, and in any case, it was not unreasonable for the Board to consider thatthere were not sufficient efforts by the applicant to seek the protection of the police. In view of this conclusion, it is not necessary toaddress the other arguments made by the parties. [12] Counsel agree that this case does not raise a question of law of general importance. JUDGMENT THIS COURT’S JUDGMENT is that the application is dismissed. No question is certified. "Luc Martineau" Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7791-13 STYLE OF CAUSE: JOSETHA PETULA HENRY v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: October 20, 2014 JUDGMENT AND REASONS: MARTINEAU J. DATED: OCTOBER 27, 2014 APPEARANCES : Nilufar Sadeghi For The Applicant Me Zoé Richard For The Respondent SOLICITORS OF RECORD : Allen & Associates Barristers and Solicitors Montréal, Quebec For The Applicant William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent