Date: 20100318
Docket: IMM-4057-09
IMM-4058-09
Citation: 2010 FC 311
Ottawa, Ontario, March 18,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CAROL DAVEY JOHNSON &
CANDICE JOHNSON & MATHEW JOHNSON
by their Litigation Guardian
CAROL DAVEY
JOHNSON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review concerns a woman who challenges a negative Humanitarian and
Compassionate (H&C) decision and a negative Pre-Removal Risk Assessment
(PRRA) in respect of her return to the U.K. Her fear and
therefore the risk are entirely subjective – her own fear of returning to a
place where she had experienced abuse but where there is adequate state
protection and medical treatment. The fear described is akin to the emotional
response experienced on return to a place of personal hurt – a form of
“flashback”.
II. FACTS
[2]
Mrs.
Johnson was born in Scotland but her family moved to Jamaica when she was
a child. She eventually married Paul Johnson. She had a daughter in 1991 in
Jamaica and a son in 1996 in the U.K. where she had moved
with her husband so that he could pursue his accounting career.
[3]
Her
marriage deteriorated and the evidence confirms that she was subjected to significant
physical, mental, emotional and sexual abuse. The children were often witnesses
to that abuse. For largely religious reasons, Mrs. Johnson did not leave her
husband but she did call police in London during one particularly
brutal incident. The police arrived but she refused to press charges for the
sake of the children.
[4]
The
Applicant and her children came to visit relatives in Canada at different
times and returned to the U.K. Ultimately she moved to Canada and began to
receive counselling from a psychologist.
[5]
The
Applicant’s husband followed her to Canada and created an incident
which resulted in the police being called. The husband had moved from the U.K.
back to Jamaica but has remained
in touch with his children by telephone.
[6]
Since
arriving in Canada, the
Applicant has been employed as a chartered accountant. The children are doing
well in school; her daughter has been accepted at the University of Toronto.
[7]
The
Applicant’s claim for refugee status and protection was denied. The Refugee
Protection Division (RPD) found her failure to claim when she had been in Canada two previous
times, her reavailment and delay belied her subjective fear. Furthermore, the
RPD found that the U.K. would make serious efforts to provide
protection if asked.
[8]
In
the negative H&C decision the Officer covered the Applicant’s concerns. The
hardship test was not met even with the psychologist’s report. The Officer
found that there was insufficient evidence that the Applicant would not receive
state protection or therapy in the U.K. Jamaica was also analysed but it is
irrelevant since the Applicant intends to go to the U.K. where she
will experience this “fear”.
[9]
The
H&C decision also addressed the “best interests of the children” and noted
that there would be a period of adjustment but also considered that the
children had had experience in the U.K. school system.
[10]
The
PRRA decision, which is the decision that is really under attack, was made by
the same Officer who did the risk assessment in the H&C. It is hardly
surprising that the Officer relied on the PRRA decision in the H&C decision
on the topic of risk.
[11]
Having
considered the psychologist’s reports, the Officer found that the evidence of
abuse and of the Applicant’s subjective fear did not overcome the evidence of
state protection.
III. ANALYSIS
[12]
The
real issue is the PRRA decision’s finding and weighing of evidence. That aspect
of a PRRA decision is subject to a reasonableness standard of review (Suppiah
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1170).
[13]
Justice
Zinn granted a stay of removal pending this hearing. In his endorsement Justice
Zinn commented that the issue of alleged risk to the Applicant’s psychological
state arising from being in the U.K. where the abuse had
occurred, had not been assessed. The learned judge found irreparable harm based
not on physical harm but on psychological risk. The Applicant contends that
these conclusions of the learned judge are findings of fact binding on the
Court as to what was not assessed and the existence of the risk the Applicant
would face.
[14]
Justice
Zinn’s comments on the legal issue are made in the context of the test on a
stay application of “serious issue” – a low threshold. The findings on
irreparable harm are also in the context of a stay where the issues are not
fully and finally argued and analysed. Except in the clearest of cases, a
judge’s comments on a stay do not bind or necessarily impact the judge hearing
the full judicial review. I do not interpret Justice Zinn to have sought to
bind the judicial review hearing nor is this one of those “clearest cases”.
[15]
As
to psychological risk, in this case it is purely subjective and the
psychological evidence is based on the Applicant’s expression of her own
feelings. The reports lack clarity or explanation of why the Applicant would
have the same fear and the same intensity (the form of “flashback”) in each and
every part of the U.K. where she could live.
[16]
There
are limits to the impact subjective fears may have in a PRRA assessment. In
this case the psychological fears were assessed in the H&C. The PRRA
process, focused as it is on s. 97 risk, is principally related to objective
risk which includes the analysis of state protection.
I can not conclude, on the basis of the
evidence that was before it, that the RPD could not reasonably determine that
state protection exists in Costa
Rica for these
applicants. I also find no error regarding the board’s treatment of the
psychological report. The report concluded that the applicants would be “at a
high risk for retraumatization” should they be forced to return to Costa Rica. However, I agree with the
respondent that the report does not deal with the applicants’ ability to access
state protection in Costa
Rica. In my
view, the report speaks to the applicants’ subjective fear, but it does not
assist in relation to the objective issue of state protection.
Chinchilla v. Canada (Minister of Citizenship and
Immigration),
2005 FC 534, para. 18
[17]
As
held in Varga v. Canada (Minister of
Citizenship and Immigration), 2005 FC 617 at para. 29, Martinez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 343 at paras. 14 and 15 and Farias
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 578, psychological harm is not
relevant to a state protection analysis.
[18]
In
Nadjat v. Canada (Minister of Citizenship and Immigration), 2006 FC 302
at paras. 55-57, the Court held that under s. 97, the section requires
objective fear, purely subjective fear is insufficient and not relevant.
[19]
The
fear, as reported by the psychologist and as argued forcefully by counsel, is
subjective. It is, at best, a fear that in the U.K. the
Applicant will suffer flashbacks and experience extreme anxiety and stress.
[20]
It
was not an error to not delve into or analyse the purely subjective fears
advanced by the Applicant. The Applicant’s argument, that the PRRA Officer
ought to have assessed what could happen in the U.K. if the
Applicant’s fears were reasonable, finds no support in law.
[21]
In
assessing state protection, the Applicant had to address any new evidence since
the RPD determination. It is trite law that a PRRA is not a rehearing or review
of the RPD finding.
[22]
Of
the 91 pages submitted as evidence, only one document was new. There was
nothing in the Record which undermined the finding of adequate state protection
in the U.K. That finding
finds support in the DOS Reports and was considered by the Officer.
[23]
Therefore,
the PRRA decision was reasonable.
IV. H&C
DECISION
[24]
The
Applicant submits that the H&C decision was in error in part because the
Officer’s erroneous PRRA analysis infected the H&C analysis. Since the Court
has found no error with the PRRA decision, this contention must fail.
[25]
Contrary
to the Applicant’s submissions, the Officer did consider the Applicant’s
psychological condition (see Certified Tribunal Record, page 5) but found that
there was insufficient evidence that the U.K. could not
provide adequate protection and therapy.
[26]
The
Officer was alert, alive and sensitive to the interests of the children. The
Officer was aware of the Applicant’s psychological difficulties and aware that
the Applicant was the primary caregiver and sole emotional and financial
support for the children.
[27]
The
Officer’s use of the H&C test of “unusual, undeserved and disproportionate”
in respect of the “best interests of the child” is somewhat problematic (see Lewis
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 790) although similar wording was
accepted in de Zamora v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1602. However, a fair reading of
what the Officer did is more important and in that regard, the Officer
exhibited being alert, alive and sensitive to the interests of the child.
[28]
Therefore,
the Officer discharged the duty to be “alert, alive and sensitive” and
consequently committed no error which justifies the Court’s intervention.
V. CONCLUSION
[29]
For
these reasons, this judicial review will be dismissed.
[30]
The
Court has considered the Applicant’s request to “state a question” but the
issues raised here are not novel and this decision is too fact specific.
[31]
The
Applicant asked for costs. There is no basis for such an award. Given the
result, the Court suspects that the Applicant would now, and rightly so, take
the position that there are no special circumstances warranting a cost award
against her. Requests for costs can “cut both ways”.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Michael
L. Phelan”
Email this Content