Dockets: IMM-4421-11
IMM-4532-11
Citation:
2012 FC 147
Ottawa, Ontario, February 3, 2012
PRESENT: The Honourable Mr.
Justice Zinn
BETWEEN:
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JANE
JULIETTA FORDE
CARLEEN DARYNA
FORDE
ALLAN JOSHUA MONTEL
HYPPOLYTE NATALIE CHANTEE ALBERT
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Applicants
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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
[1]
The applicants are challenging two decisions: the first is a negative
Pre-Removal Risk Assessment (PRRA) (Court file IMM-4421-11) and the second is a
refusal to defer removal (Court file IMM-4532-11). These applications were
heard together and one set of reasons will issue and a copy shall be placed in
each file.
Background
[2]
The principal applicant, Ms. Jane Juliette Forde and her three children:
Carleen Forde, Allan Hyppolyte, and Natalie Albert are all nationals of St.
Lucia. Ms. Forde alleged a fear for herself and her children of serious
injury or death from her former partner, Nathaniel Albert, as she would be
unable to obtain adequate protection in St. Lucia.
[3]
Ms. Forde entered into a relationship with Mr. Albert in 2002 and in
July 2003 they had their daughter Natalie. When Natalie was about three years
old, Mr. Albert started to become increasingly violent with Ms. Ford. He
allegedly beat her physically, sexually and mentally. One time he hit her with
a post and split her lip. On another occasion he struck her and she lost two
teeth. The police in St. Lucia declined to intervene as they labelled the
abuse as a domestic dispute.
[4]
In 2007, Mr. Albert had relocated to Montreal and demanded that Ms.
Forde join him as he could give their daughter a better life. Both Ms. Forde
and Natalie arrived in Canada on December 21, 2007 as visitors. Shortly thereafter
it is alleged that the abuse resumed.
[5]
The record suggests that Ms. Forde resided with Mr. Albert before moving
out and taking Natalie with her. On one occasion, Mr. Albert went to Ms.
Forde’s residence to allegedly abduct their daughter. He was unsuccessful
because no one was home. Ms. Forde’s brother suggested that the two relocate
to Toronto as that is where he lived. An affidavit filed in the proceeding
suggests that a restraining order against Mr. Albert was obtained in the summer
of 2008.
[6]
Ms. Forde and Natalie moved to Toronto and then filed a claim for
refugee protection on August 14, 2008. On December 14, 2008, they were joined
by Carleen and Allan; Ms. Forde’s two children who had remained in St. Lucia. The
Refugee Protection Division (RPD) refused their claim on August 4, 2010,
finding several inconsistencies and contradictions. Leave to judicially review
that decision was denied by this Court on December 1, 2010. The applicants
filed a PRRA application on March 22, 2011 which was also refused.
[7]
On July 2, 2011, three police officers went to the applicants’ apartment
saying that they had received a report from Montreal Police that Natalie was
being sexually abused in the home. The family was questioned and the officers
accepted that there was no abuse. The police officers told Ms. Forde that Mr.
Albert had called the Montreal Police and made the complaint. The applicants were
told to be careful and to make sure that Natalie knew how to dial 911 if she
saw Mr. Albert or if she was ever afraid. It was also suggested that they move
to a different location.
[8]
The next day, Ms. Forde contacted the Montreal Police which confirmed
that the restraining order that had been issued against Mr. Albert had expired.
She was told that she could obtain a copy through an online service but it
would take at least 30 days.
[9]
On July 10, 2011, two different Toronto police officers went to Ms.
Forde’s home. They again said they had received a call from Montreal Police relating
to Nathalie’s wellbeing and immigration problems. Ms. Forde explained the
situation to the officers who told Ms. Forde to be careful.
[10]
Later that day, one of the officers called back and told Ms. Forde that
the Children’s Aid Society (CAS) would visit in the week to come. A CAS worker
did go to investigate and told the applicants that they were at risk from Mr.
Albert.
[11]
On July 13, 2011, the applicants filed a humanitarian and compassionate
(H&C) application, a judicial review of the PRRA decision with a motion to
extend the time and a request for deferral of their removal. The request for
deferral asked for 45 days so that they could gather the evidence relating to
the recent harassment by Mr. Albert and the impact on the best interests of the
child; or until the H&C application for permanent residence had been
decided. On July 18, 2011 the request was refused.
The PRRA Decision
[12]
The PRRA officer reviewed the RPD decision, noting that inconsistencies
and contradictions were made between the Personal Information Forms (PIF) and
the oral testimony. The RPD found that the applicants lacked subjective fear
in addition to having adequate state protection available to them should they
return to St. Lucia.
[13]
The PRRA officer noted that a PRRA is not intended to be a review of the
RPD’s decision, reinforcing his position by citing Perez v Canada (Minister
of Citizenship and Immigration), 2006 FC 1379. Accordingly, the officer
decided to not consider “arguments made by counsel with regard to possible errors
made by the RPD.”
[14]
The applicants were found to be materially restating the same facts that
were articulated to the RPD at the refugee hearing. The documentary evidence
filed by the applicants both pre-dated and post-dated the RPD decision. As for
the documents that pre-dated the RPD decision, the officer noted that no
explanation was given as to why the documents could not have been presented to
the RPD; they were not considered to be new evidence and were not considered in
the risk assessment. The documents that post-dated the RPD decision consisted
of letters from the YWCA, a walk-in counselling report and the US Department of
State 2010 Human Rights Report: St. Lucia.
[15]
The first letter from the YWCA dated March 17, 2011, was found to attest
to events that took place in the fall of 2009, which was over six months prior
to the RPD hearing. There was no explanation why a similar letter could not
have been presented to the RPD and it was therefore not considered as new
evidence. The PRRA officer held that, in any event, it did not address the
issue of state protection.
[16]
The walk-in report dated March 15, 2011, reflected a discussion
regarding how Allan was dealing with the domestic violence that occurred to his
mother. The PRRA officer noted that the report provided some coping strategies
for Allan and recommended that he “continue to come for walk-in.” The second
letter from the YWCA dated June 16, 2011, indicated that Ms. Forde had attended
further counselling sessions. According to the letter, Ms. Forde had a fear of
returning to St. Lucia and would not be able to access state protection.
[17]
The two YWCA letters were found to rely on the self-reporting of the
applicants. The officer stated that: “In light of the fact that the applicant
has not provided a satisfactory explanation for the inconsistencies in her
testimony noted by the RPD, I am not satisfied that these documents are
sufficient to overcome the credibility issues that were found by the RPD.” The
officer further found that even if the letters established a subjective fear,
there was insufficient evidence to rebut the presumption of state protection.
[18]
The officer also noted that it is not within the area of expertise of a
family counsellor to determine whether a person would be at risk or would be
able to access state protection should they return to St. Lucia. As such, the
documents were not found to be clear and convincing evidence that the
applicants would be unable to access state protection in St. Lucia.
[19]
The 2010 Human Rights Report: St. Lucia was reviewed by
the officer and was found to contain no information that was novel or
significant compared to the 2009 report which was used at the RPD hearing.
[20]
In sum, the new evidence did not satisfy the PRRA officer that the
applicants would be unable to access state protection in St. Lucia and the applicants
were therefore found not to be at risk if removed to St. Lucia.
Deferral Decision
[21]
The removal officer noted his limited discretion and considered the best
interests of the children. He noted that the children resided the majority of
their lives in St. Lucia and that they would be relocating with their mother.
As such, they would be able to relocate relatively naturally with her love and
support. The removal officer was confident that they would have every
opportunity to grow up to be capable individuals. He stated that there was
insufficient evidence to demonstrate that the family would face exceptionally
difficult circumstances that would justify a deferral.
[22]
The removal officer then considered the outstanding H&C application
which was filed on July 13, 2011. He noted that the processing time for such
an application is four to five months and is therefore not imminent. He also
noted that the H&C was only very recently filed and it was concluded that
the application had not been made in a timely manner.
[23]
Finally, the officer considered the request to defer so that this Court
to make a decision on the judicial review of the PRRA. He noted that the mere
filing of an application does not affect the normal immigration proceedings and
does not preclude the Minister from enforcing an execution of removal. He
stated that very little evidence was provided to show why the PRRA was made in
error.
[24]
The removal officer then noted that a motion to stay removal had been
filed. He also noted counsel’s arguments that “[t]he importance of pursuing
documentation relating to these incidents, and to co-operating with Children’s
Aid, cannot be underestimated. The abuser, Nathaniel Albert, is a violent man
who has beaten the applicant repeatedly, causing both her and her children
serious psychological harm.” In response to this submission, the removal
officer referenced the finding in the PRRA decision relating to the
availability of state protection in St. Lucia. A deferral of the execution of
the removal order was found to not be appropriate in the circumstances of the
case and the request was denied.
Issues
[25]
The applicants raise two issues respecting the PRRA decision:
1.
Did the officer err in his treatment of the new evidence before him and
make an unreasonable decision?
2.
Did the officer err in law by making a disguised credibility finding
and/or by failing to make a determination of subjective risk?
The applicants raise the following
issue respecting the refusal to defer:
3.
Did the officer err in his treatment of the best interests of the
children?
Analysis
[26]
The first and third issues involve factual findings and are reviewed
under the reasonableness standard. The second issue is a question of law and
is reviewed under the correctness standard.
1. New
evidence and unreasonableness of PRRA decision
[27]
The officer rejected the walk-in counselling report and the YWCA report
because they were self-reporting and provided no satisfactory explanation for
the inconsistencies in the RPD testimony.
[28]
The applicants submit that although the report is based on Allan’s
self-reporting, he was not found to lack credibility by the RPD, nor did the
PRRA officer point to any evidence to support that Allan was not credible.
Accordingly, it is submitted that his evidence should have been presumed
credible and the rejection of the letter was perverse and unreasonable.
Furthermore, they say, given the absence of a previous negative finding
regarding Allan’s credibility, an interview was warranted: Section 167 of the Regulations,
Latifi v Canada (Minister of Citizenship and Immigration), 2006 FC 1388
and Tekie v Canada (Minister of Citizenship and Immigration),
2005 FC 27.
[29]
The applicants also submit that they had provided an adequate
explanation for the inconsistencies, but the officer refused to take it into
account. They point to the PRRA officer’s statement that “a PRRA is not meant
to be a review of the RPD’s decision. … Accordingly, I will not be considering arguments
made by counsel with regard to possible errors made by the RPD” and say that
the officer is trying to have it both ways. In their memorandum of argument,
they put their submission this way: “[The PRRA officer] refuses to consider the
proffered explanation for the perceived inconsistencies at the RPD hearing, but
then proceeds to reject the new evidence submitted with the PRRA as adequate
because there’s been no explanation of the inconsistencies.” They say that
this is perverse and is a reviewable error.
[30]
I do not agree with the applicants’ submission that the PRRA officer
made a negative credibility finding against Allan. I agree with the submission
made by the respondent that the officer was merely weighing the self-reporting
evidence made to a third party. Evidence of third parties who have no means of
independently verifying the facts to which they testify is likely to be
ascribed little weight whether it is credible or not: Ferguson v Canada
(Minister of Citizenship and Immigration), 2008 FC 1067 at para 26.
[31]
The PRRA officer reasonably ascribed little weight to the evidence of a
family counsellor who had no means of independently verifying the facts
reported to him or her. Also, since no negative credibility finding was made
by the PRRA officer, no hearing was required under section 167 of the Regulations.
[32]
In my assessment, the officer was not imposing a double standard on the
applicants by (i) not considering arguments made by counsel with regard to
possible errors made by the RPD and then (ii) finding that the applicants did
not provide a satisfactory explanation for the inconsistencies in the testimony
noted by the RPD.
[33]
The applicants’ written submissions filed for the PRRA were, in part, as
follows:
The Board
should have considered that the Applicant’s initial statements to an
Immigration Officer were consistent with her statements at her hearing.
The Board
should have considered that the Applicant testified when asked about the
discrepancy in her PIF narrative, that people told her not to say anything
about Nathaniel abusing her in Canada. The Board ignored the Applicant’s
testimony that she “had these things hidden inside me, and I could not talk
about it, until I got some counselling later on.”
The Board should have considered
that the Applicant was traumatized and in crisis and that this affected her
ability to make rational decisions when preparing her PIF narrative.
[34]
These are clearly not relevant submissions in a PRRA application; they
are directly seeking that the RPD decision be reviewed or ignored. The PRRA
officer was correct in refusing to consider these arguments. The PRRA officer
could presume that the RPD properly concluded that there were inconsistencies
which led to credibility concerns. What was relevant was new evidence which
could overcome those inconsistencies. That is what the PRRA officer reasonably
found was lacking in the present matter. No double standard was imposed.
2. Disguised
Credibility Finding
[35]
The applicants submit that the finding that there was available state
protection was misplaced because the PRRA officer should first have made a
finding on the subjective component of the refugee claim. The applicants cite
several authorities to argue, as it was stated in Velasquez v Canada
(Minister of Citizenship and Immigration), 2010 FC 1201 [Velasquez],
at para 18, that “in the context of a state protection analysis, it is an error
of law for the Board to conclude that state protection is available if it fails
to make any findings about the applicant's personal circumstances.”
[36]
The applicants submit further that the PRRA officer erred in law by
failing to make a clear credibility finding, at least with respect to Allan: Armson
v Canada (Minister of Employment and Immigration) (FCA), [1989] FCJ No 800 and
Hilo v Canada (Minister of Employment and Immigration) (FCA), [1991] FCJ
No 228.
[37]
The PRRA officer did not fail to make a finding about the applicants’
personal circumstances as is alleged. There is no suggestion in their
submission that the nature of their fear was not specifically identified. That
was the fundamental error in Velasquez, above, cited by the applicants.
Justice O’Reilly at para 17 of that decision wrote:
The first
question the Board must answer when a proposed IFA is in issue is whether, on a
balance of probabilities, there is a serious possibility that the claimant will
be persecuted in the location proposed by the Board. Generally speaking, that
question cannot be answered if the nature of the person's fear has not been
specifically identified [emphasis added].
[38]
In this case, the nature of the applicants’ alleged fear was clearly
identified in the PRRA decision, as follows:
Jane Julietta
Forde (“the applicant”) fears her former partner, Nathaniel Albert. She states
in her PRRA submissions:
I am afraid
of returning to Saint Lucia. I do not believe that I can obtain adequate
protection from Nathaniel in Saint Lucia. I fear that I will be seriously
injured or killed if I have to return there, I also fear for the safety of my
children.
Carleen
Daryna Forde states in her PRRA application:
I fear my mother’s former
partner Nathaniel Albert. Please see her written statement. Nathaniel also made
threats to me.
[39]
The applicants are correct in stating that a proper identification of
the subjective fear is required to assess the availability of state
protection. However, I am not persuaded that the PRRA officer failed to do
so. The analysis of state protection in the present matter was an additional
factor made in regard to the alleged subjective fear. The applicants
presented no evidence that the PRRA officer misconstrued or failed to identify
their alleged fear.
3. Best
Interests of the Children
[40]
The applicants rely on the Court’s Order dated July 20, 2011, wherein it
is stated that the removal officer “did not direct his mind to new evidence
before him, from both the Toronto Police and the CAS and the implications of
this on the discharge of his duty to remove the applicants as soon as
practicable.”
[41]
It is submitted that the request to the removal officer “was relatively
straightforward: defer removal for 45 days so that they could gather the
evidence relating to the recent harassment by Nathaniel and the impact on the
best interests of the child; or defer until the [H&C] application for permanent
residence, in light of the new issues affecting that had arisen relating to the
best interests of the children which had never been assessed.” The applicants
presented evidence that the abuser had recently resumed an active and
continuing interest in the family and had dramatically increased his harassment
and they note that there is no mention in the officer’s reasons either of the
CAS letter or of the police documents. Therefore, they say, the officer
breached his duty to be alert, alive and sensitive to the short term interests
of the children affected by the removal order.
[42]
I agree with the Court’s observation on the stay motion that a removal
officer must “have regard to cogent new evidence when it is put to him;” however,
there is nothing in the record that leads me to the view that either the police
documents or CAS letter were “cogent new evidence” or that the officer had
failed to consider them.
[43]
Had there only been a finding that there was no risk from Mr. Albert,
then the CAS and police evidence would likely have constituted “cogent new
evidence” as it would have directly addressed and contradicted that finding.
However, here there was a finding that even if Mr. Albert was persecuting the
applicants, state protection was available in St. Lucia. The purported new evidence
does nothing to address or contradict that finding. Accordingly, it was not
the sort of evidence that the enforcement officer had to directly reference and
discuss. As such, even if the removal officer did fail to consider the police
report or the CAS report, the applicants would not have been entitled to
refugee protection under either section 96 or 97 of the Act because of
the state protection finding.
[44]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is dismissed
and no question is certified.
"Russel W. Zinn"
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