Elcock ( Milkson ) v. Canada ( Minister of Citizenship and Immigration )
IMM-2985-98
Gibson J.
20/9/99
10 pp.
Judicial review of CRDD decision applicants not Convention refugees-Principal applicant, citizen of Grenada, claiming Convention refugee status on basis of spousal abuse-Arriving in Canada in 1994; remaining after visitor's visa expired-Children joining her in 1995-Only claiming Convention refugee status after arrest, detentention in 1997 on basis illegally in Canada-Documentary evidence before CRDD, not referred to by CRDD, supporting principal applicant's experience regarding reluctance of police to intervene in situations of domestic violence-CRDD holding in absence of evidence of complete breakdown of state authority, assuming Grenada can protect applicant; noting legal aid, counselling available; deducing delay in asserting claim not consistent with well-founded fear of persecution-Application allowed-Same might be said here as in Cuffy v. Canada (Minister of Citizenship and Immigration) (1996), 121 F.T.R. 81 (F.C.T.D.) where held Board confusing documentary evidence with respect to existence of counselling, other resources with ability of state to provide protection-Existence of counselling services, legal aid, whether resources, as here limited, not going to root of issue of whether or not state able, willing to protect citizens from violence-Cuffy citing Kraitman v. Canada (Secretary of State) (1994), 81 F.T.R. 64 (F.C.T.D.) wherein held police may have ability to offer protection but when it chooses not to, equivalent to saying unable to provide protection to applicants-CRDD committing reviewable error in failing to effectively analyze, not merely whether legislative, procedural framework for protection existed, but also whether state, through police willing to effectively implement any such framework-Ability of state to protect must be seen to comprehend not only existence of effective legislative, procedural framework, but capacity, will to effectively implement that framework-In Williams v. Canada (Secretary of State), [1995] F.C.J. No. 1025 (T.D.) (QL), Reed J. stating most of legal profession in Canada unaware possible to claim refugee status in situation of spousal abuse until few years ago; holding serious error for Board to apply presumption respecting delay, developed in cases of those seeking refugee status on so-called "traditional" grounds to applicant's situation-While now more than "few years ago" that members of legal profession in Canada, at least those familiar with immigration law, practice, would have thought claiming refugee status in situation of spousal abuse not possible, Reed J.'s words apply here-Principal applicant's explanation for "delay" in making refugee claim credible-In Canada without status, having every reason, given fear of returning to Grenada to keep low profile-As CRDD's comments regarding delay not central to decision, not constituting reviewable error.