Ferguson v. Canada (Minister of Citizenship and Immigration)

Between
Gloria Ferguson, applicant, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 1636
2002 FCT 1212
Docket IMM-5927-01

Federal Court of Canada - Trial Division
Toronto, Ontario
Noël J.

Heard: November 20, 2002.
Judgment: November 22, 2002.
(12 paras.)

   Aliens and immigration — Admission, refugees — Persecution, protection of country of nationality — Appeals or judicial review, scope of review.

   Application by Ferguson for judicial review of a decision of the Refugee Division which found that she was not a Convention refugee.  Ferguson was found credible and successful in demonstrating that she sustained physical and emotional abuse at the hands of her husband but the panel found that she could have availed herself of the existing state protection in Jamaica.  Ferguson argued that the panel failed to consider that her husband had friends in the local police force and she could not press charges against him which made the state protection unavailable.  There was legislation in Jamaica which provided for protection orders such as restraining orders for the protection of victims of domestic violence. Ferguson indicated that she could have filed her complaint elsewhere with the local police of another city, and in fact did so, without pressing charges.  She said that she did not press criminal charges because she was afraid of her husband's reaction.

   HELD:  Application dismissed.  While Ferguson's behaviour in deciding not to press criminal charges against her husband was understandable, it did not make the state protection insufficient.  The panel's finding regarding the existence of state protection for victims of domestic abuses in Jamaica was well-founded and the panel did not err in concluding that Ferguson was not a Convention Refugee.

Statutes, Regulations and Rules Cited:

Domestic Violence Act of Jamaica.
Federal Court Act, s. 18.1.
Immigration Act, s. 82.1.                                                                                           

Counsel:

Anna Zachariah, for the applicant.
Tamrat Gebeyehu, for the respondent.                                                                       

REASONS FOR ORDER AND ORDER

1      NOËL J.:—  This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "panel"), dated December 3, 2001, wherein it was found that the applicant is not a Convention refugee.

2      Although the applicant was found credible and successful in demonstrating that she sustained physical and emotional abuse at the hands of her husband, in denying the claim, the panel found that the applicant could have availed herself of the existing state protection in Jamaica.

3      The applicant argues that the panel in this case failed to consider that because her husband had friends in the local police force, she could not press charges against him and hence, she could not count on state protection in Jamaica. She submits that the said protection was therefore unavailable to her considering her particular situation.

4      Evidence shows that the Government of Jamaica enacted "The Domestic Violence Act, 1995" (the "Act"), which came into effect in 1996. This legislation provides for protection orders such as restraining orders, for the protection of victims of domestic violence. The objective of that Act was to offer quick and effective relief to victims.

5      Furthermore, it was also submitted to the panel that police officers are given courses in relation to violent domestic crimes to ensure that the victims are treated professionally and humanly. It was also indicated that the Government had provided the means and resources to activate the new system.

6      Having said that, the documentation filed with the panel indicates that the new approach to victims of violent domestic crimes is not perfect but that there has been some improvement since the coming into effect of the Act.

7      It is not for our Court to establish a high standard of state protection for other countries.  Reality has to prevail and a test of whether the system is adequate considering the circumstances of the case should be applied [See Smirnov v. Canada (Secretary of State) [1995] 1 F.C. 780 (T.D.) at paragraphs 11 and 15].

8      In addition, the applicant, in order to prove that there is inadequate state protection, must do so in a clear and convincing way [See Canada (Attorney General of Canada) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50].

9      The applicant did inform the panel that her husband had friends within the local police.  She also indicated that she could have filed (and she did without pressing charges) her complaint elsewhere, with the local police of another city, where her husband was not known. Therefore, the accessibility of police services was available to her.

10      Also, the applicant made the decision not to press criminal charges against her husband because she was afraid of his reaction.  This behaviour is understandable considering the circumstances but it does not make the state protection insufficient.  A decision was made by the applicant not to use the system established by governmental authorities. If all victims of violent domestic abuse do not use the service offered, that system will never improve.

11      In conclusion, I am of the opinion that the panel's finding regarding the existence of state protection for victims of domestic abuses in Jamaica is well founded and consequently the panel did not err in concluding that the applicant is not a Convention Refugee.

12      Although the CRDD determined that the applicant is not a Convention refugee, I believe that the matter requires particular attention by the immigration authorities, if such consideration is requested, with regard to the humanitarian and compassionate circumstances in this case.

ORDER

       THIS COURT ORDERS THAT:

       The application for judicial review is dismissed.

NOËL J.