Date:
20120116
Docket: IMM-2783-11
Citation: 2012 FC 53
Ottawa, Ontario, January 16, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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GREGORY THOMAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review submitted in accordance with subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
challenging the decision rendered by the Immigration and Refugee Board [IRB] on
March 31, 2011, determining that Gregory Peter Justin Thomas (G. Thomas) is
not a Convention refugee or a person in need of protection under sections 96 and
97 of the IRPA.
[2]
The
panel appointed Robert Naylor from the Programme d’accueil et d’intégration des
demandeurs d’asile [PRAIDA] to represent the interests of G. Thomas under
Guideline 3: Child Refugee Claimants.
[3]
It
should be emphasized that G. Thomas’s aunt Lalitha also testified before the
IRB as his guardian.
[4]
For
the reasons that follow, this application for judicial review is dismissed.
II. Facts
[5]
G.
Thomas is a 15 year old teenager and a citizen of Saint Vincent. In 2002, he
witnessed his mother’s murder. After that incident, he and his older sister
were put in the care of their aunt Eleanor.
[6]
In
October 2008, G. Thomas left Saint Vincent to live with his aunt Lalitha in Canada.
[7]
In
March 2009, G. Thomas claimed refugee protection, alleging that he had witnessed
his mother’s murder in 2002. At that time, an immigration officer questioned
him about his fears and the reasons for seeking asylum in Canada.
[8]
At
the IRB hearing, G. Thomas changed the grounds for his refugee claim. He now
alleges that he fears his aunt Eleanor, her spouse (Anton) and his cousins
because they abused him.
[9]
The
IRB rejected G. Thomas’s refugee claim, finding that he lacked credibility and
that he failed to submit the necessary evidence in support of his claim. The
panel also considered that he could enjoy sufficient protection in Saint Vincent
and had failed to rebut this finding. Finally, the panel determined that there was
an internal flight alternative [IFA] for G. Thomas throughout Saint Vincent.
III. Legislation
[10]
Section
96 and subsection 97(1) of the IRPA read as follows:
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Convention
refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
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(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,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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IV. Issues
and standard of review
A. Issues
[11]
The
Court must address the following two issues:
1.
Did the IRB commit an error by finding that G. Thomas
has failed to establish that he is a Convention refugee or a person in need of
protection?
2.
Is the IRB’s decision that G. Thomas failed to
rebut the presumption of state protection in Saint Vincent and that an IFA
exists reasonable in this case?
B.
Standard
of review
[12]
The
applicable standard of review for weighing the credibility of an applicant is
reasonableness (see Mejia v Canada (Minister of
Citizenship and Immigration), 2009 FC 354, [2009] FCJ No 438 at para
26; and Zarza v Canada (Minister of
Citizenship and Immigration), 2011 FC 139, [2011] FCJ No 196 at para
16).
[13]
The
IRB’s decision on the refugee claim submitted pursuant to sections 96 and 97 of
the IRPA must be assessed on a standard of reasonableness because it is
a question of mixed fact and law (see Gonzalez v Canada (Minister of
Citizenship and Immigration), 2010 FC 1292 at para 10). The same is true
for the IRB’s decision on state protection and the IFA (see Hernandez v Canada (Minister of
Citizenship and Immigration), 2009 FC 106 at para 10).
[14]
The
Court wishes to emphasize that reasonableness “is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (see Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
V. Position of
the parties
A.
Position
of G. Thomas
[15]
In
his memorandum, G. Thomas contended that he is a member of the social group composed
of abused and abandoned children in Saint Vincent. He filed in the record what
he considers medical evidence in support of his claim.
[16]
G.
Thomas alleges that the IRB committed a serious error when it wrote the
following in its decision: “[f]inally the claimant has a sister who is of age,
who is in Saint-Vincent and with whom he could possibly reside” (see page 9 of
the Tribunal Record).
[17]
He
also maintains that the IRB based its decision on elements that were irrelevant
and not determinative of his refugee claim.
[18]
According
to G. Thomas, the IRB was overzealous in its analysis of the evidence because
it sought contradictions while ignoring certain evidence in order to undermine
his credibility. It is necessary to rely on real contradictions or discrepancies
in an applicant’s testimony (see Attakora v Canada (Minister of
Employment and Immigration), [1989] FCJ No 444). The IRB is required to
refer to all of the evidence before it (see Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425).
[19]
G.
Thomas claims to have been abused by his aunt, her spouse (Anton) and his
cousins ever since his mother’s death. Even if the IRB refused to accept this
version of the facts, which seems plausible, it should have given him the
benefit of the doubt unless there was a valid reason to believe that his account
was not credible (see
Chan v Canada (Minister of Employment and Immigration), [1995]
3 SCR 593).
[20]
G.
Thomas alleges that his medical reports confirm his problems and that his
removal to Saint Vincent would cause
him substantial distress. Removal to Saint Vincent would be nothing less than
catastrophic for his mental equilibrium given that he has been receiving
adequate care in Canada (see Melchor v Canada (Solicitor General),
2004 FC 372).
[21]
G.
Thomas submits that he presented a coherent and credible picture of his real situation
in Saint Vincent.
[22]
Furthermore,
he states that he is a member of a particular social group, that of abandoned
children. Consequently,
if he is returned to Saint
Vincent, he
will easily become a victim of threats and persecution again. The behavior of
his family members in Saint Vincent could produce in him a fear of persecution
that falls within the definition of Convention refugee.
[23]
G.
Thomas also claims that the IRB did not base its findings of fact on the
standard of balance of probabilities. The IRB committed a reviewable error by
imposing a higher standard of proof.
[24]
G.
Thomas submits that he established the existence of a reasonable fear of
persecution. By
applying the balance of probabilities test to his objective fear of persecution,
the IRB committed an error that warrants the Court’s intervention.
B. Position
of the respondent
[25]
The
respondent argues that G. Thomas’s fear is unfounded. The panel nevertheless
carried out a full analysis of all of the evidence submitted on the new allegations
of risk based on the abuse G. Thomas allegedly suffered from at the hands of
his aunt and her spouse, a man named Anton.
[26]
The
panel began by finding that these new allegations by G. Thomas lacked
credibility and that the evidence submitted could not justify the claim.
[27]
The
respondent emphasizes that the panel questioned G. Thomas at length to try to
obtain specifics on his new allegations. Apart from one incident, G. Thomas did
not submit any new evidence or concrete examples of the abuse he alleges to
have been a victim of.
[28]
With
respect to the incident, the panel wrote the following: “[h]e did refer to one
incident where he was running away from his aunt and she allegedly threw a
stone at him. The claimant has a visible scar on his forehead. Unfortunately we
do not have any medical documentation in support of his claim, plus his account
was that he was running away, so it does not make sense that a rock hit his
forehead” (see page 7 of the Tribunal Record). The respondent contends that
this finding is reasonable in view of the facts.
[29]
The
respondent states that the IRB simply did not have evidence on which to rely to
determine that the abuse, which was alleged for the first time during the
hearing, exists. The lack of credibility finding is reasonable and based on the
evidence submitted before the IRB.
[30]
In
addition to finding that G. Thomas lacks credibility; the IRB found that he
failed to demonstrate that the state of Saint Vincent was unable to
provide him adequate protection. According to the IRB, this element is
essential for the acceptance of a claim under section 97 of the IRPA (see
Canada (Attorney
General)
v Ward, [1993] S.C.R. 689 at pages 724-725).
[31]
In
this case, the respondent emphasizes that the authorities in Saint Vincent took
action with respect to the murder of G. Thomas’s mother. Furthermore, the
respondent notes that G. Thomas received help from Marion House, a home that
helps children experiencing difficulties.
[32]
The
respondent also maintains that the applicant’s memorandum did not challenge
this finding by the panel.
[33]
The
respondent also alleges that refugee claimants have the burden of demonstrating
that there exists no internal flight alternative in another part of their
country of origin. It was therefore up to G. Thomas to establish that he would
face a substantial risk of persecution if he were to return to his country of
origin and that the IFA is objectively unreasonable (see Rasaratnam v Canada
(Minister of Employment and Immigration), [1992] 1 FC 706; and Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1994] 1 FC
589).
[34]
In
this case, the applicant did not attack the IRB’s findings with respect to the
IFA.
[35]
In
short, the respondent argues that G. Thomas failed to establish the
unreasonableness of the IRB’s decision. The humanitarian and compassionate
grounds raised by G. Thomas are not sufficient to grant him Convention refugee
or person in need of protection status.
VI. Analysis
1. Did
the IRB commit an error by finding that G. Thomas failed to establish that he
is a Convention refugee or a person in need of protection?
[36]
The
Court notes that the IRB did not commit an error when it found that G. Thomas had
failed to establish that he is a Convention refugee or a person in need of
protection.
[37]
The
applicant alleges that he is a member of a particular social group, that of
abandoned children in Saint Vincent. It is clear from
reading the hearing transcript and the record that G. Thomas submitted
only a letter from Marion House that was incomplete (the panel received only
the first of the two pages) and had obviously been tampered with because the
consultation date had been modified. It talks about a 9 year old boy seen for
the first time in May 2007. However, the evidence in the record clearly indicates
that G. Thomas was born in 1996; he therefore would have been 11 years old in
2007. This first page of the report deals exclusively with G. Thomas’s physical
and mental state but only in relation to his mother’s death. There is no
mention of the abuse suffered at the hands of his aunt Eleanor and her family.
[38]
A
close reading of the testimony transcript leads the Court to find that the IRB did
fail to mention certain elements of the new claim (see pages 17 to 19 of the transcript).
In fact, it states the following:
BY REFUGEE PROTECTION OFFICER (to person concerned)
Q.
Anyone
else?
A.
My
cousins.
BY PRESIDING MEMBER (to person concerned)
Q.
And what
are their names?
A.
Calvin and
Jimmy.
-
Jimmy.
Q.
And what
did you suffer?
A.
Like, one
day, like in the morning, I went to sleep, the rest of the day I won’t eat for
nothing.
-
Okay.
Q.
What did
you suffer from your aunt Elenor’s boyfriend Anton?
A.
Like, I, I
would just be there sitting and wonder and then he would just came, started
arguing, yelling, hitting me, for no reason.
-
It’s like
arguing, yelling, hitting, I didn’t hear the last thing.
A.
Yeah and
just arguing for no reason.
-
Okay.
Q.
And your
cousins Calvin?
A.
Okay, they
use to fool me to do things I didn’t wanna do.
Q.
Like what?
A.
Like
smoking, drinking.
Q.
Did you
ever need medical attention for anything that was caused by your aunt Elenor…
A.
Yeah.
Q.
…her
boyfriend Anton…
A.
I used to…
Q.
…or your
cousins Calvin and Jimmy?
A.
…I used to
have a thing right there.
-
Okay. So
injury.
Q.
When did
you get that?
A.
Like, I
can’t remember that.
-
Okay.
Q.
And, and
how did you get that?
A.
By a st…,
like a rock.
-
A rock,
okay.
Q.
Tell me
what happened?
A.
It’s like,
she was beating me and then after I tried to run…
Q.
So you…,
when you say she, what to do you mean?
A.
Aunt
Elenor.
-
Okay.
A.
And then
after I try to run, then after she take the rock and like, pelt it after me and
then after he catch me right there.
Q.
So you
were running away and she threw a rock at you but it hit your head?
A.
Yeah.
Q.
And do you
remember approximately when, when that was?
A.
No.
Q.
Was it
right before you left? Was it right after you mom passed away?
A. Right af…, I think
it’s right after my mom passed away.
[39]
Regarding
the scar, the Court is of the view that the IRB’s finding is unreasonable, as
the hearing transcript indicates, because it was the Board member who stated “[s]o
you were running away and she threw a rock at you but it hit your head” whereas
G. Thomas stated the following: “And then after I try to run, then after she
take the rock and like, pelt it after me and then after he catch me right
there.” He also stated the following: “It’s like, she was beating me and then
after I tried to run . . . ”. This is an important distinction and the IRB
nevertheless found a lack of credibility concerning this element, among others.
Moreover, it failed to mention the following allegation by G. Thomas, who
was at most thirteen years old at the time: “Okay, they use to fool me to do
things I didn’t wanna do. . . . Like smoking and drinking” (see above excerpt).
[40]
The
Court identifies another error in the IRB’s analysis, that is, the finding that
his older sister could take him in when she lives with the aunt who allegedly
abused him.
2. Is
the IRB’s decision that G. Thomas failed to rebut the presumption of state
protection in Saint Vincent and that an IFA exists reasonable in this case?
[41]
Even
if the above-mentioned errors could undermine the validity of the decision, the
Court must dismiss the application for judicial review on the ground that no
argument was submitted by G. Thomas with respect to a foreseeable failure of
state protection or with respect to the validity of an IFA. The Court must
therefore find that the IRB’s analysis in this respect was reasonable.
VII. Conclusion
[42]
Justice
Nadon emphasized the following in Chowdhury v Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 1591 at paras 8 and 9:
[8] It is obviously not
sufficient, in order to obtain leave and to succeed on the merits, to simply
assert that, for example, the Board erred in fact and in law. It is necessary
for an Applicant to demonstrate in what way the Board erred. In order to do so,
an Applicant must deal with the evidence presented before the Board and then
attempt to persuade the Court that the Board committed an error in rendering
its decision.
[9] If one reads the
Applicant's memorandum of argument, one comes to the conclusion that no such
attempt by the Applicant has been made. . . .
[43]
The
Court notes that no argument in G. Thomas’s memorandum challenged the validity
of the IFA or state protection. It is impossible for us to allow G. Thomas’s
application for judicial review. Therefore, the IRB’s decision is confirmed; G.
Thomas is therefore not a Convention refugee or a person in need of protection
under sections 96 and 97 of the IRPA.
[44]
However,
it is important to note, as the IRB did, that the facts in this case militate
strongly in favour of filing the appropriate application under the Act as soon
as possible. Despite our sympathy for G. Thomas and his aunt Lalitha, we cannot
allow this application for judicial review because the IRB did not commit an error
that warrants our intervention. The best interests of this child must be
protected as soon as possible using the appropriate recourse.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1.
the
application for judicial review is dismissed; and
2.
there
is no question of general interest for certification.
“André
F.J. Scott”
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