Date: 20100504
Citation: 2010 FC 489
Ottawa, Ontario, May 4, 2010
PRESENT: The Honourable Mr. Justice Phelan
Docket: IMM-2302-09
BETWEEN:
GRACEL BERNADET JESSAMY
SADREENA GRACEL JESSAMY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
Docket: IMM-2639-09
BETWEEN:
GRACEL BERNADET JESSAMY
SADREENA GRACEL JESSAMY
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
There
are two judicial reviews at issue. IMM-2639-09 relates to an enforcement
officer’s refusal to defer deportation. It is, as the parties agreed, moot
because Justice O’Keefe granted an emergency stay and because there are no Borowski
type issues raised.
IMM-2302-09
is the judicial review of the negative PRRA decision, a matter which is very
much alive.
II. FACTS
[2]
The
Applicants, Gracel and Sadreena Jessamy, are citizens of Barbados; Gracel is
the mother and for purposes of these Reasons is referred to as the Applicant.
[3]
The
Applicant’s claim is that her husband was verbally and physically abusive. Over
the course of their 15-year relationship, he assaulted her frequently including
attacking her with a screwdriver, hitting her with a shovel, a belt buckle, a
vase and a hammer. He also threatened the Applicant with an ice-pick and
frequently with a gun. The husband abused her son and added sexual assault to
his many other attacks on her. At least some of these incidents resulted in
scars and hospitalization.
[4]
The
Applicant attempted to escape her husband’s abuse but she was always
recaptured. Having fled to her aunt’s home, her husband burned the house;
having fled to St. Vincent, he dragged her home.
[5]
The
Applicant claimed that she had phoned the police on many occasions after some
of these attacks but they were dismissive of her problems because they were
domestic issues.
[6]
Finally,
in August 2002, she and her daughter fled to Canada and filed
their refugee claim. Her son followed in December and joined in the claim. The
refugee claim included a medical report confirming the physical indications of
severe abuse. A report from Dr. Pilowsky on post-traumatic stress syndrome and
depression – a common feature of some of these cases – was also filed.
[7]
The
Applicant’s refugee claim (including that of her children) was rejected on
grounds of credibility and state protection in February 2004. Leave was never
perfected. It is erroneous to conclude that the judicial review was dismissed
on its merits.
[8]
The
Applicant submitted her first PRRA in January 2007 which was negative. Her son
was removed in December 2007 but the Applicant and her daughter were given a
deferral to allow for completion of Grade 11. The Applicant applied for
judicial review of this first PRRA.
[9]
Justice
Russell granted judicial review on the grounds of a flawed state protection
analysis without taking issue with the conclusions on new evidence and
restatement of old risk.
[10]
In
Justice O’Keefe’s emergency stay, he expressed concern that the Applicant faced
the prospect of being beaten but he was most concerned that the daughter could
lose her Grade 12 if removed prematurely. That concern has now passed.
[11]
The
Applicant has been unable to secure the hospital report related to the injury
caused by the hammer attack. The problem appears to be the cost of the report
rather than the non-existence of it.
[12]
In
response to the opportunity to submit additional evidence on the new PRRA
flowing from Justice Russell’s decision, the Applicant filed evidence from her
husband’s cousin, from her aunt, from a friend and from her son. All stated
that the husband had not changed, that he would continue to seek her out and
was harassing her son toward that end. The Applicant also filed a letter from a
friend who confirmed the past abuse.
[13]
The
PRRA Officer concluded that, after referring to s. 113(a) of the Immigration
and Refugee Protection Act, S.C. 2001 ch. 27 (IRPA), three of the letters
submitted merely confirmed that the Applicant had been in an abusive
relationship and that her husband had threatened to kill her upon her return to
Barbados. These letters were not accepted as new evidence – there was no new
risk development or change in country conditions.
[14]
The
Officer rejected one letter because there was no evidence of why it could not
have been submitted to the Board. The son’s letters, one that outlined that his
father wanted all of them dead and the other that he had been approached about
his mother’s whereabouts, were contradictory (presumably because if the father
wanted all of them dead, he would not have asked the son about the mother’s
whereabouts, he would simply have killed the son). The son had also not sought
protection from the police.
[15]
Notwithstanding
this assessment of the evidence before her and the Refugee Protection
Division’s (RPD) conclusion that the claim of spousal abuse was not credible,
the Officer went on to accept that the Applicant had been in an abusive
relationship but that state protection was available in Barbados. The Officer
went on to consider aspects of state protection including control of a
functioning police force, laws against violence toward women, efforts against
domestic violence, funding of a shelter and support for victims’ groups and
police training.
[16]
The
Officer ultimately concluded that there was insufficient evidence on state
protection to reach a conclusion different from the Board.
III. ANALYSIS
[17]
Section
113 of IRPA provides:
|
113.
Consideration of an application for protection shall be
as follows:
(a)
an applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
(b)
a hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
(c)
in the case of an applicant not described in subsection 112(3), consideration
shall be on the basis of sections 96 to 98;
(d)
in the case of an applicant described in subsection 112(3), consideration
shall be on the basis of the factors set out in section 97 and
(i)
in the case of an applicant for protection who is inadmissible on grounds of
serious criminality, whether they are a danger to the public in Canada, or
(ii)
in the case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
|
113.
Il est disposé de la demande comme il suit :
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
b)
une audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part :
(i)
soit du fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii)
soit, dans le cas de tout autre demandeur, du fait que la demande devrait
être rejetée en raison de la nature et de la gravité de ses actes passés ou
du danger qu’il constitue pour la sécurité du Canada.
[Emphasis added]
|
[18]
The
standard of review on a PRRA decision as a whole and on state protection is
well established as reasonableness (Clarke v. Canada (Minister of
Citizenship and Immigration), 2009 FC 357). On the interpretation and
application of IRPA, s. 113, it is correctness and reasonableness respectively.
(See Elezi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 240 at paragraph 22.)
22 When
assessing the issue of new evidence under subsection 113(a), two
separate questions must be addressed. The first one is whether the officer
erred in interpreting the section itself. This is a question of law, which must
be reviewed against a standard of correctness. If he made no mistake
interpreting the provision, the Court must still determine whether he erred in
his application of the section to the particular facts of this case. This is a
question of mixed fact and law, to be reviewed on a standard of reasonableness.
[19]
There
are a number of difficulties with this PRRA decision:
(a) the
treatment and consideration of whether the letter evidence constitutes new
evidence was erroneous and unreasonable;
(b) the
finding of abuse was inconsistent with the treatment of the letter evidence;
and
(c) the
finding of state protection was flawed in that it ignored the personalized
risk.
[20]
The
legal test for “new evidence” under s. 113(a) is set forth in Raza v.
Canada (Minister of
Citizenship and Immigration), 2007 FCA 385 at paragraph 13:
13 As
I read paragraph 113(a), it is based on the premise that a negative
refugee determination by the RPD must be respected by the PRRA officer, unless
there is new evidence of facts that might have affected the outcome of the RPD
hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks
a number of questions, some expressly and some by necessary implication, about
the proposed new evidence. I summarize those questions as follows:
1. Credibility:
Is the evidence credible, considering its source and the circumstances in which
it came into existence? If not, the evidence need not be considered.
2. Relevance:
Is the evidence relevant to the PRRA application, in the sense that it is
capable of proving or disproving a fact that is relevant to the claim for
protection? If not, the evidence need not be considered.
3. Newness:
Is the evidence new in the sense that it is capable of:
(a) proving
the current state of affairs in the country of removal or an event that
occurred or a circumstance that arose after the hearing in the RPD, or
(b) proving
a fact that was unknown to the refugee claimant at the time of the RPD hearing,
or
(c) contradicting
a finding of fact by the RPD (including a credibility finding)?
If not, the evidence need not be considered.
4. Materiality:
Is the evidence material, in the sense that the refugee claim probably would
have succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5. Express statutory conditions:
(a) If
the evidence is capable of proving only an event that occurred or circumstances
that arose prior to the RPD hearing, then has the applicant established either
that the evidence was not reasonably available to him or her for presentation
at the RPD hearing, or that he or she could not reasonably have been expected
in the circumstances to have presented the evidence at the RPD hearing? If not,
the evidence need not be considered.
(b) If
the evidence is capable of proving an event that occurred or circumstances that
arose after the RPD hearing, then the evidence must be considered (unless it is
rejected because it is not credible, not relevant, not new or not material).
[21]
While
the fact that the evidence post-dates the hearing does not per se make
it new evidence, likewise evidence that refers to an old risk should not be
rejected as “not new” where it speaks to the development of the risk and is
materially different evidence of that old risk.
[22]
The
error in the Officer’s approach to this evidence was the failure to address the
five questions or factors outlined by the Court of Appeal. This analysis is not
necessarily formulaic as long as it is clear the factors were considered. The
Officer concluded that the letters from the three women did not show a change
of circumstances and are not new evidence. The Officer did not first consider
whether the evidence was new before considering what it showed.
[23]
The
analytical step of considering first whether the evidence was new is important
in this case because the Officer did not consider (i) relevance in terms of proving
or disproving a fact that was relevant to the claim of protection, and (ii)
newness in terms of contradicting a finding of fact by the RPD (including a
credibility finding). Therefore, there was an error of law.
[24]
The
Officer’s conclusion as to the significance of the evidence (which is tied in
with the “newness” analysis) is unreasonable. Firstly, the evidence shows that
the old risk is continuing, present and real; secondly, the evidence differs
from that which was before the Board. It was unreasonable to reject the
evidence as not new.
[25]
The
Officer’s rejection of the new evidence is further undermined by her acceptance
that the Applicant was in an abusive relationship but had state protection.
This was not a finding where risk was presumed as an alternative position but
discounted by the availability of state protection.
[26]
In
finding that the Applicant was in an abusive relationship, the Officer made a
finding that was contrary to the Immigration and Refugee Board (Board) which
rejected that submission on the grounds of credibility. The Officer accepted
the only evidence which could ground a finding of abusive relationship but
rejected it as not “new” for purposes of admissibility. The Officer’s finding
that there was no substantially different risk is unreasonable given her
finding which was contrary to the Board’s decision.
[27]
The
assessment of state protection in this case is unreasonable because it did not
address the Applicant’s personal circumstances. The Officer’s analysis of Barbados’ system and
efforts for state protection was reasonable but it did not then focus on
whether that state protection would be available to the Applicant.
[28]
Having
accepted that the Applicant was in an abusive relationship, there was no
consideration of the Applicant’s evidence of her past efforts to engage state
protection when she was subjected to abuse. Those efforts were unsuccessful and
whether they were adequate was never addressed.
IV. CONCLUSION
[29]
For
these reasons, this judicial review is granted, the PRRA decision is quashed
and the matter is referred back to a new officer for a fresh consideration.
[30]
The
issue of this Applicant’s status has been up and down the immigration and court
systems for far too long. She is either entitled to stay here for protection or
she must go. It is expected that this new PRRA will be completed quickly and
conclusively.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the PRRA decision is quashed and
the matter is referred back to a new officer for a fresh consideration.
“Michael
L. Phelan”
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