Date: 20050504
Docket: IMM-4582-04
Citation: 2005 FC 624
Toronto, Ontario, May 4th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
SONIA JAIKARAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Sonia Jaikaran is a citizen of Trinidad, who claims to have a well-founded fear of persecution at the hands of her former fiancé, Ralph Balgobin. The Refugee Protection Division of the Immigration and Refugee Board rejected Ms. Jaikaran's claim, finding that it had no credible basis.
[2] Ms. Jaikaran now seeks to have this decision set aside, asserting that a number of the Board's credibility findings were patently unreasonable. The respondent concedes that two of the Board's findings cannot withstand scrutiny, but asserts that there were other valid reasons why the Board found Ms. Jaikaran not to be credible, and that, as a result, the Board's decision should not be disturbed.
Ms. Jaikaran's Allegations
[3] Ms. Jaikaran claims to come from a very poor family in Trinidad. When Ms. Jaikaran was 17 years old, she says that her family was approached by a wealthy friend, who stated that his son, Ralph Balgobin, had fallen in love with Ms. Jaikaran, and wished to marry her. Ralph's father offered to give Ms. Jaikaran's parents $30,000 (Trinidadian) if she would marry his son.
[4] Ms. Jaikaran says that she agreed to this arrangement in order to help her family. The money was paid to Ms. Jaikaran's parents, and she moved in with Ralph Balgobin. Ms. Jaikaran says that she tried very hard to make the relationship work, and that during the first few months that she was with Mr. Balgobin, things went very well, and she ended up falling in love with him. Several months into the relationship, however, Mr. Balgobin began drinking heavily and using drugs. As a consequence, he lost his job. He also began to physically abuse Ms. Jaikaran.
[5] Ms. Jaikaran claims that she went to her parents for assistance, but they blamed her for her problems, and were not interested in assisting her. Ms. Jaikaran never approached the Trinidadian police for assistance, as Mr. Balgobin threatened to kill her if she did so.
[6] After enduring numerous serious beatings, Ms. Jaikaran finally fled Mr. Balgobin's home, going to stay with an aunt. Ms. Jaikaran's aunt then made arrangements for Ms. Jaikaran to leave Trinidad to come to Toronto, where she subsequently made her claim for refugee protection.
The Board's Credibility Findings
[7] The Board had a number of reasons for concluding that there was no credible basis for Ms. Jaikaran's refugee claim. It is not necessary to deal with each of these findings, however, as I am satisfied that the Board erred in relation to several of its central findings. As a result, the Board's decision cannot stand.
Ms. Jaikaran's Delay in Leaving Mr. Balgobin
[8] Perhaps the most egregious error made by the Board relates to its finding regarding Ms. Jaikaran's failure to leave Mr. Balgobin when the abuse began. In this regard, the Board said "When asked why she did not flee to her aunt much earlier when Ralph became abusive, the claimant explained that she loved Ralph. Again, this is not persuasive or credible."
[9] The respondent quite properly concedes that this finding cannot stand, as it does not take into account what we know about the conduct of abused women.
[10] As Justice Tremblay-Lamer observed in Keleta v. Canada (Minister of Citizenship and Immigration), 2005 FC 56, although it is not necessary for a Board member to explicitly make reference to the Chairperson's Guidelines dealing with gender-related persecution, the Board is expected to exhibit a 'special knowledge' of gender persecution and to apply that knowledge in an understanding and sensitive way: see also A.Q. v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 834, citing Newton v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No., and Griffith v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1142.
[11] Not only did the presiding member in this case fail to make any reference to the Gender Guidelines, he also demonstrated a remarkable lack of understanding of the dynamics of abusive relationships. This lack of sensitivity not only renders this specific finding unsustainable, but, in my view, casts a cloud over the entire decision.
[12] This concern is amplified when regard is had to two other findings of the Board, as will be discussed below.
Ms. Jaikaran's Relationship with her Family
[13] The Board member was clearly shocked by Ms. Jaikaran's claim that she had been essentially sold by her parents to Mr. Balgobin for $30,000. Ms. Jaikaran states that the deal was that she was to become engaged to Mr. Balgobin, and that the couple would live together until they were married. However, she also testified that once she moved in with Mr. Balgobin, there was no further discussion of a wedding date, and that her parents never raised the issue. According to the presiding member "This ... shows a level of callous disregard for the claimant that stretches credibility on its face, and is not consistent with her other evidence that hers was a loving family ..."
[14] The respondent concedes that this finding is simply not supported by the evidence that was before the Board. In fact, Ms. Jaikaran testified that although she sometimes felt loved by her parents, her relationship with her parents was not close. She never recalls ever having a nice conversation with her father. Further, Ms. Jaikaran stated that her father would regularly become intoxicated, and would physically assault her mother.
[15] Once again, this is a central finding underlying the Board's decision, as the nature of the arrangements underlying Ms. Jaikaran's relationship with Mr. Balgobin go to the very heart of her refugee claim.
The Alleged Inconsistency with Ms. Jaikaran's Personal Information Form
[16] The Board found that Ms. Jaikaran's claim that she was effectively sold to Mr. Balgobin for $30,000 was undermined by her failure to mention this specific dollar figure in her Personal Information Form (or 'PIF'). The Board stated that this was a significant omission, and from this drew a negative inference.
[17] A review of Ms. Jaikaran's PIF discloses that she discussed the arrangements made between her parents and Mr. Balgobin's father at some length. Specific reference was made to the fact that money was paid to her parents in exchange for her entering into the relationship with Mr. Balgobin. In my view, the fact that Ms. Jaikaran did not state precisely how much money changed hands is immaterial. As a result, it was patently unreasonable for the Board to draw a negative inference in these circumstances.
Conclusion
[18] As noted above, the insensitivity demonstrated by the Board in relation to the dynamics of abusive relationships seriously calls into question the sustainability of the Board's decision. Coupling this error with the Board's failure to properly appreciate the nature of Ms. Jaikaran's relationship with her family, and the error regarding the perceived inconsistency between her PIF and her testimony, leads to the conclusion that the decision is fatally flawed, and must be set aside.
[19] For these reasons, the application for judicial review is allowed.
Certification
[20] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4582-04
STYLE OF CAUSE: SONIA JAIKARAN
Applicant
and
THE MINISTER IF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MAY 3, 2005
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: MAY 4, 2005
APPEARANCES BY:
Karina Thompson FOR THE APPLICANT
Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert Blanshy
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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