Date: 20100826
Docket: IMM-5954-09
Citation: 2010 FC 850
Ottawa, Ontario, August 26, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DOODPATTIE PERSAUD
and GAYATRI RAMDEHOLL
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a Pre-Removal Risk Assessment (PRRA) Officer, dated October
16, 2009, denying the applicants’ application for protection because of the
availability of state protection.
FACTS
Background
[2]
The
two applicants are citizens of Guyana. Ms. Doodpattie Persaud is the forty-two
(42) year old applicant mother. Ms. Ramdeholl Gayatri is the nineteen (19) year
old applicant daughter.
[3]
The
applicants entered Canada on August 19, 2003 together with Ms. Persaud’s
ex-husband, Mr. Repunandan Ramdeholl, and claimed refugee protection on
December 10, 2003. The Refugee Protection Division (RPD) of the Immigration and
Refugee Board dismissed the refugee claim on July 15, 2004, finding the
applicants were neither Convention refugees nor persons in need of protection.
The application for leave to judicially review the RPD’s decision was dismissed.
The first PRRA which included Mr. Ramdeholl was dismissed on December 6, 2005.
The applicants did not depart Canada by the required date. An immigration
arrest warrant was issued but it was not enforced until the applicants came to
the attention of immigration authorities.
[4]
Ms.
Persaud’s and Mr. Ramdeholl’s 26 year-old relationship was marked by physical,
verbal, and psychological abuse inflicted by Mr. Ramdeholl. In Guyana, Ms. Persaud
attempted to escape her ex-husband’s abuse but she could not find shelter with
her impoverished family. The applicant made a number of police complaints in Guyana which were
dismissed. In Canada, Mr.
Ramdeholl divorced Ms. Persaud on May 12, 2008 but they continued to cohabit
along with their daughter. On March 10, 2009 Mr. Ramdeholl violently assaulted
Ms. Persaud with a meat cleaver and injured her. He also tried to strangle her.
She went to the hospital which reported the assault to the police. This led to
criminal charges against Mr. Ramdeholl and his deportation on May 8, 2009. The
respondent re-initiated removal proceedings against the applicants who filed
their second PRRA on March 25, 2009 alleging a risk of persecution at the hands
of Mr. Ramdeholl in Guyana in revenge for his deportation. The applicants’
removal was administratively deferred on June 26, 2009 pending the decision on
their PRRA and judicially stayed on January 25, 2010 by Justice Barnes
following the PRRA Officer’s negative decision on October 16, 2009.
Decision under review
[5]
The
applicants’ PRRA was dismissed by an Officer on October 16, 2009 because they
were not able to rebut the presumption of adequate state protection in Guyana from Mr.
Ramdeholl. The Officer determined that there was insufficient objective
evidence that would discharge the applicants’ obligation to seek state
protection or that Guyana is not able or willing to provide state
protection.
[6]
The
Officer noted that the requirement that the PRRA contain new evidence pursuant
to subsection 113(a) of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 did not apply to a repeat PRRA.
[7]
The
Officer summarized the facts which led to this PRRA at page 2 of the decision:
In March 2009, Mr. Ramdeholl physically
assaulted and threatened to kill the applicant during a domestic dispute. The
applicant pressed criminal charges as a result of the attack which resulted in
a conviction against Mr. Ramdeholl [NOTE: this is not correct] and his
subsequent deportation to Guyana in May 2009.
The Court notes that Mr. Ramdeholl was not
convicted. The charges were stayed so he could be deported immediately. The
Officer summarized the basis of the applicants’ PRRA at page 3 of the decision:
Counsel’s submission of 22 May 2009,
indicates that Mr. Ramdeholl has demonstrated a consistent pattern of abusive
and dangerous behaviour towards the principal applicant over the past 20 years
that they have been together. He regularly abused the principal applicant both
physically and emotionally, but she remained in the relationship out of
devotion for her husband and the sake of their daughter.
Counsel contends that during the years
she was abused by Mr. Ramdeholl in Guyana,
the principal applicant attempted to seek help from the police on a number of
occasions. However, once Mr. Ramdeholl discovered she had gone to the police,
he would pay a bribe to the officers in charge and the record of her attempt to
seek help would quickly “disappear”.
The applicants submitted that they fear
returning to Guyana where Mr.
Ramdeholl could persecute them in revenge for his deportation from Canada.
[8]
The
Officer acknowledged that domestic violence in Guyana is a
widespread phenomenon. However, a review of the objective country documentation
indicated that the state of Guyana has taken responsibility to alleviate the
problem of domestic violence through the following measures:
i.
developing
educational programs;
ii.
publishing
reports;
iii.
raising
public awareness;
iv.
establishing
support services for abused women; and
v.
police
training on effective handling of domestic abuse cases and the formation of
specialized domestic abuse units in each police division.
[9]
The
Officer further found that domestic abuse victims could avail themselves of Guyana’s Domestic
Violence Act, which authorizes the dispensation of protection orders which
can be enforced by police. Victims are also able to avail themselves of
counselling, accommodation and legal services delivered by government
ministries and non-governmental organizations. The Officer concluded that the
applicants would not face more then a mere possibility of persecution or danger
of torture, a risk to life, or a risk of unusual treatment or punishment if
returned to Guyana because of
the adequacy of state protection. The PRRA was therefore dismissed.
LEGISLATION
[10]
Section
96 of IRPA grants protection to Convention refugees:
|
96. A
Convention refugee is a
person who, by
reason of a
well-founded fear of
persecution for
reasons of race,
religion,
nationality,
membership in a
particular
social group or
political
opinion,
(a) is
outside each of their
countries of
nationality and is
unable or, by reason
of that
fear, unwilling to
avail
themself of the
protection of
each of those
countries; or
(b) not
having a country of
nationality, is
outside the
country of their
former habitual residence and is unable or, by reason of that fear, unwilling
to return to that country.
|
96. A qualité de
réfugié au
sens de la
Convention — le
réfugié — la
personne qui,
craignant avec
raison d’être
persécutée du fait
de sa race,
de sa religion, de
sa
nationalité, de son
appartenance à un
groupe
social ou de ses
opinions
politiques :
a) soit se
trouve hors de tout
pays dont elle a la
nationalité
et ne peut ou, du
fait de cette
crainte, ne veut se
réclamer de
la protection de
chacun de ces
pays;
b) soit, si
elle n’a pas de
nationalité et se
trouve hors du
pays dans lequel
elle avait sa
résidence
habituelle, ne peut
ni, du fait de cette
crainte, ne
veut y retourner.
|
[11]
Section
97 of IRPA grants protection to certain categories of persons:
|
97. (1) A person in
need of
protection is a
person in
Canada whose
removal to their
country or countries
of
nationality or, if
they do not
have a country of nationality,
their country of
former
habitual residence,
would
subject them
personally
(a) to a
danger, believed on
substantial grounds
to exist, of
torture within the
meaning
of Article 1 of the
Convention
Against Torture; or
(b) to a risk
to their life or to a
risk of cruel and
unusual
treatment or
punishment if
(i) the person is
unable or,
because of that
risk, unwilling
to avail themself of
the
protection of that
country,
(ii) the risk would
be faced by
the person in every
part of that
country and is not
faced
generally by other
individuals
in or from that
country,
(iii) the risk is
not inherent or
incidental to lawful
sanctions,
unless imposed in
disregard
of accepted
international
standards, and
(iv) the risk is not
caused by
the inability of
that country to
provide adequate
health or
medical care.
|
97. (1) A qualité de
personne à
protéger la personne
qui se
trouve au Canada et
serait
personnellement, par
son
renvoi vers tout
pays dont elle
a la nationalité ou, si elle n’a
pas de nationalité,
dans lequel
elle avait sa
résidence
habituelle, exposée
:
a) soit au
risque, s’il y a des
motifs sérieux de le
croire,
d’être soumise à la
torture au
sens de l’article
premier de la
Convention contre la
torture;
b) soit à une
menace à sa vie
ou au risque de
traitements ou
peines cruels et
inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la
protection de ce
pays,
(ii) elle y est
exposée en tout
lieu de ce pays
alors que
d’autres personnes
originaires
de ce pays ou qui
s’y trouvent
ne le sont
généralement pas,
(iii) la menace ou
le risque ne
résulte pas de
sanctions
légitimes — sauf
celles
infligées au mépris
des normes
internationales — et
inhérents
à celles-ci ou occasionnés
par
elles,
(iv) la menace ou le
risque ne
résulte pas de
l’incapacité du
pays de fournir des
soins
médicaux ou de santé
adéquats.
|
ISSUES
[12]
The
applicants raise the following issue:
i.
Did
the PRRA Officer err with respect to the analysis of state protection?
STANDARD OF REVIEW
[13]
In Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R.
1, the Supreme Court of Canada held at paragraph 62 that the first step in conducting a
standard of review analysis is to “ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of (deference) to be
accorded with regard to a particular category of question”: see also Khosa
v. Canada (MCI),
2009 SCC 12, per Justice Binnie at para. 53.
[14]
The
issue of state protection concerns the relative weight assigned to evidence,
the interpretation and assessment of such evidence, and whether
the officer had proper regard to all of the evidence when reaching a decision. It is clear
that as a result of Dunsmuir and Khosa that such questions are to
be reviewed on a standard of reasonableness: see my decisions in Christopher
v. Canada (MCI), 2008 FC 964 Ramanathan v. Canada (MCI), 2008 FC
843; Erdogu v. Canada (MCI), 2008 FC 407; Perea v. Canada (MCI),
2009 FC 1173 at para. 23.
[15]
In
reviewing the officer’s decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir, supra at paragraph 47, Khosa, supra,
at paragraph 59).
Issue: Did the PRRA
Officer err in its assessment of whether state protection is available to the
applicants?
[16]
The
applicants submit that the RPD erred in failing to conduct any practical
assessment of whether the state of Guyana is able to protect the
applicants from Mr. Ramdeholl. The applicants submit that it was necessary for
the officer to carefully analyze the country condition documentation because
the applicants’ claim has never been assessed in a refugee hearing. The
applicant also submits the Officer erred in stating that Mr. Ramdeholl has been
convicted in Canada.
[17]
In Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689,
Justice La Forest held at page 709 that refugee protection is a form of
“surrogate protection” intended only in cases where protection from the home
state is unavailable. Further, the Court held that, except in situations where
there has been a complete breakdown of the state apparatus, there is a general
presumption that a state is capable of protecting its citizens.
[18]
While the presumption of state protection may be rebutted,
this can only occur where the refugee claimant provides “clear and convincing”
evidence confirming the state's inability to provide protection. Such evidence
can include testimony of similarly situated individuals let down by the state
protection arrangement, or the refugee claimant's own testimony of past
incidents in which state protection was not provided: Ward, supra,
pp. 724-725. Refugee
claimants must make “reasonable efforts” at seeking out state protection, and
the burden on the claimant increases where the state in question is democratic:
Kadenko v. Canada
(Solicitor General) (1996), 206 N.R. 272 (F.C.A.), at para. 5.
[19]
The
Federal Court of Appeal recently clarified the presumption of state protection
in Carillo v. Canada (MCI), 2008 FCA 94, 69 Imm. L.R. (3d) 309, per
Justice Létourneau. The Court engaged in a detailed discussion at paragraphs
16-30 on the distinctions between “burden of proof, standard of proof and
quality of evidence” and found that the burden proof rests on the applicant
to show with “clear and convincing” evidence that state protection is
inadequate or unavailable on a balance of probabilities.
[20]
The
applicants rely on this Court’s decision in Alvandi v. Canada (MCI),
2009 FC 790, per Justice Snider where she held at paragraph 15 that the
assessment of the adequacy of state protection in a PRRA, which was not preceded
by an RPD assessment, must be carefully undertaken and not be too generalized:
¶15 …Further, the
Applicant's claim has never been assessed in a refugee hearing. In such
circumstances, I would expect the Officer to be very careful to analyze the
country condition documents in light of the particular circumstances of the
Applicant. This is not a case where a “cookie cutter” state protection analysis
will suffice…
[21]
The
applicants rely on this Court’s decision in Wisdom-Hall v. Canada (MCI),
2008 FC 685, per Justice Hughes where he held at paragraph 8 and 9 that the RPD
erred in requiring only “serious efforts” of the state to tackle domestic
violence which consisted of examining the laws in place and the expectations
that they might be adequate. Justice Hughes held that a reasonable assessment
of the adequacy of state protection requires an examination of the evidence as
to how, as a practical matter today, the state can protect women from domestic
violence.
[22]
It
is trite law that PRRA Officer is not required to refer to every piece of
evidence as long as the decision states that the all the evidence has been
considered: Cepeda-Gutierrez v. Canada
(MCI)
(1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (F.C.T.D.), per Justice Evans (as
he then was) at paragraph 16. In this case the PRRA Officer’s reasons reflect
the ambiguous assessment in the RPD’s Response to Information Request
(RIR) GUY102929.E for Guyana which details the
condition of domestically abused women. The RIR is based on research from
publicly available country condition information and is footnoted with multiple
documentary references.
[23]
The
RIR indicates that bribery can be used to dismiss criminal complaints of abuse
and that police take a laissez-faire attitude when a complaint is filed. Upon
review of the Officer’s reasons it is apparent that the applicants’ evidence
which pointed towards less then adequate state protection was not fully
considered. The evidence from the 2008 DOS Report was that the legislation
against domestic abuse in Guyana was frequently not enforced; that the
government’s enforcement of these laws was poor, and that police officers could
be bribed to make cases of domestic violence “go away”. The RIR also states
that the legislation is frequently not enforced.
[24]
Considering
the applicant has been a victim of a violent knife attack and strangulation
attempt by her husband in Canada which led to his deportation, considering that
the applicant has suffered a long history of domestic abuse by her husband
which she has from time to time reported in Guyana to the police without any
result from the police, and considering that the evidence demonstrates that
domestic violence is widespread in Guyana and that the police maintain a
“laissez-faire” attitude with respect to complaints of domestic violence, it
was not reasonably open for the PRRA officer to conclude that the objective
country evidence establishes that the applicant would probably receive adequate
state protection from her ex-husband when she is returned to Guyana without first
assessing this contradictory evidence.
CERTIFIED QUESTION
[25]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
The
application for judicial review is allowed, the PRRA decision is set aside, and
the matter is referred to another PRRA officer for redetermination.
“Michael
A. Kelen”
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