Date:
20121031
Docket:
IMM-2546-12
Citation:
2012 FC 1271
Ottawa, Ontario,
October 31, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
S.R.H. and N.S.H.
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated February 27, 2012, wherein the applicants were determined to be
neither Convention refugees within the meaning of section 96 of the Act nor
persons in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicants request that the Board’s
decision be set aside and the application be referred back to the board for
redetermination by a different panel. Given that the Board found the applicants’
evidence to be credible, the applicants submit it would be appropriate to
direct that reconsideration be limited only to whether the applicants’ claim
falls within the section 96 and 97 definitions.
Background
[3]
The
principal applicant and her daughter are citizens of Barbados. They seek
protection on the basis of fear of abuse at the hands of the principal applicant’s
husband.
[4]
The
principal applicant married her husband in 1992 and he soon became abusive and
violent. He assaulted her after her surgery in 1993 and sexually assaulted her
son from a previous marriage in the same year. The principal applicant visited
the United States and returned to Barbados in 1994.
[5]
Her
abuser assaulted and raped her in 1995. The principal applicant’s husband
sexually assaulted her daughter at the age of two. The applicant was attacked
by four friends of her abuser in 1998. She fled Barbados for the United States in 1998.
[6]
The
principal applicant and her daughter arrived in Canada on July 6, 2011 and made
a claim for refugee protection. Their claim was heard by the Board on January
25, 2012.
Board’s Decision
[7]
The
Board made its decision on February 27, 2012. The Board began by accepting the
identities and nationalities of the principal applicant and her daughter and by
summarizing their allegations.
[8]
The
Board identified the determinative issues as well founded fear and state
protection. The Board held that while the principal applicant is in a bad
marriage and was abused, she and her daughter did not have a well founded fear
of persecution on a Convention ground in Barbados and that removal to Barbados
would not subject them personally to a risk to their lives or a risk of cruel
and unusual treatment or punishment or torture.
[9]
The
Board described the principal applicant’s history with her abusive spouse and
found that she had a “very subjective fear”, but that there was insufficient
evidence to support an objective basis for that fear, because there was little
evidence her husband was still actively pursuing her and her daughter. The principal
applicant did not have any direct contact with her husband since leaving Barbados in 1998. The Board gave little weight to the evidence from members of her church congregation
that he was still looking for her.
[10]
The
Board found it unreasonable that the principal applicant had not filed a claim
for refugee protection during her thirteen years in the United States. The Board then found that the principal applicant did not have a subjective fear.
[11]
The
Board went on to consider the issue of state protection. The Board found that Barbados was a democracy so the presumption of state protection applied. The Board
canvassed the principles of state protection, including the burden of proof.
The Board noted the principal applicant had complained to the local police
about her husband on three occasions, but had pressed no charges. Her abuser
found out about her complaints from a nephew on the police force and threatened
to kill her. She claimed the Barbados police did not take complaints about
domestic violence and abuse seriously.
[12]
The
Board acknowledged that the police in Barbados might be slow in responding to
some cases and that the court system is overburdened. The Board pointed to
documentary evidence showing serious efforts to combat violence against women,
including several statutes, the criminalization of marital rape and statistics
showing that a police report was created most of the time when the police were
called regarding domestic violence.
[13]
The
Board found that adequate protection was available to the principal applicant.
The Board noted the letter from the applicants’ Barbados lawyer indicating he would
seek a restraining order. This was never acted upon before the applicants left Barbados, but the Board found that they could seek a protection order in the family courts
upon their return.
[14]
The
Board found that the applicants had not provided clear and convincing evidence
to rebut the presumption of state protection. The applicants had not really
tested the effectiveness of the protection available to them. Three attempts to
seek protection over a number of years and the decisions not to seek protection
orders or press charges do not constitute probative and reliable evidence to
disprove protection. The mere fact that the state’s efforts to protect a
claimant are not always successful does not rebut the presumption of state
protection.
Issues
[15]
The
applicants submit the following points at issue:
1. Did the Board err
in failing to consider the principal applicant’s daughter’s claim on its own
merits?
2. Is the Board’s
finding regarding subjective fear intelligible and reasonable?
3. Are the Board’s
findings regarding an objective basis for the fear and state protection
reasonable?
[16]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board
adequately consider the principal applicant’s daughter’s claim?
3. Did the Board err
in rejecting the applicants’ claim?
Applicants’ Written Submissions
[17]
The
applicants argue the Board’s reasons contain no analysis of the principal applicant’s
daughter’s claim. While the Board confirmed the daughter’s claim is based on
her mother’s, this does not relieve the Board from the obligation of assessing
whether the daughter faces a section 96 or section 97 risk from her father upon
return to Barbados.
[18]
The
Board found the principal applicant had no well founded fear of persecution,
but made no finding relating to her daughter’s fear. The Board found that there
was adequate state protection for the principal applicant as a woman facing
domestic violence, but there was no consideration of the adequacy of protection
of the daughter as a victim of child abuse. The applicants’ counsel made
specific submissions referring to the shortcomings of protection for victims of
child abuse detailed in a response to information request. Corporal punishment
is allowed in Barbados and the country has no family court. Violence and abuse
against children remains a serious problem.
[19]
The
Board accepted the evidence that the principal applicant’s daughter was sexually
abused by her father and was therefore obliged to consider her claim
separately. The Board did not take the special vulnerabilities of children into
account and ignored the Chairperson’s Guideline on Child Refugee Claimants. The
Board made findings against the principal applicant that could not apply to her
daughter since she had no control over them, such as not making a refugee claim
in the U.S., the 1994 return to Barbados or failing to test state protection.
[20]
The
applicants further submit the Board’s subjective fear finding was
unintelligible, given that the Board came to opposite conclusions in different
paragraphs. The finding was also unreasonable given that the Board made no
adverse credibility findings and therefore accepted that the principal
applicant was abused. The Board also did not accept the principal applicant’s
testimony that she had no knowledge that the U.S. grants refugee protection to
abused women, but there was no evidence before the Board that this was the
case.
[21]
On
the point of objective basis for a well founded fear, the applicants argue the Board
gave insufficient reasons for discounting the evidence from members of the principal
applicant’s church congregation that her abuser would still harm her. The Board
simply stated it gave little weight to this evidence and provided no
justification.
[22]
The
applicants argue that the Board misconstrued the principal applicant’s evidence
regarding her efforts to obtain state protection. The principal applicant’s
evidence was not that she failed to press charges, but that they never came to
her house. Her evidence about not pressing charges was in relation to the
molestation of her son.
[23]
The
applicants argue the Board’s state protection conclusion was based on a highly
selective reading of the evidence in the Board’s National Documentation Package
(NDP). The applicants provided a list of relevant facts from the NDP helpful to
the applicants’ claim that were omitted from the Board’s decision.
[24]
Finally,
the applicants argue that on judicial review, it is sufficient for the
applicants to show the result might have been different absent the Board’s
errors.
Respondent’s Written Submissions
[25]
The
respondent argues that a state protection finding is determinative of a refugee
claim. The Board’s finding on this point is reviewed on a standard of
reasonableness.
[26]
The
Board acknowledged the country conditions evidence on state protection was
mixed. The applicants had the onus of proving the Barbadian state was unwilling
to protect them and the Board found they did not meet this onus.
[27]
The
Board reasonably found that the principal applicant had not established the
lack of state protection through her complaints to the police. The excerpts
provided by the applicants from the NDP demonstrate there are difficulties in
responding to gender based violence and that protection available in Barbados is not always perfect. The Board acknowledged this in its decision.
[28]
The
Board did consider the principal applicant’s daughter’s claim. There was no
requirement that a separate state protection finding be made. The country
conditions excerpts referred to by the applicants do not negate the Board’s
finding that protection was available.
Analysis and Decision
[29]
Issue
1
What is the standard of
review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[30]
Assessments
of the adequacy of state protection raise questions of mixed fact and law and are
reviewable on a standard of reasonableness (see Hinzman v Canada (Minister
of Citizenship and Immigration), 2007 FCA 171 at paragraph 38, [2007] FCJ
No 584). Similarly, the weighing of evidence and the interpretation and
assessment of evidence are reviewable on a standard of reasonableness (see Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38, [2009] FCJ No 1286).
[31]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraph 59).
[32]
Issue
2
Did the Board
adequately consider the principal applicant’s daughter’s claim?
The principal applicant’s
daughter’s claim was based on sexual assault by her father who is the principal
applicant’s husband. Thus, both mother and daughter had the same agent of
persecution but there was different conduct by the husband and father towards
each. The Board did not do a separate analysis for the daughter’s claim for
protection but based the daughter’s claim on her mother’s claim.
[33]
I
also agree with the principal applicant that her daughter’s claim was not
properly considered. There was no mention of the Chairperson’s Guidelines on
Child Refugee Claimants. There was no consideration of any country conditions
evidence relating to child victims of abuse. There was no analysis of those
factors that would apply to the principal applicant but not to her daughter,
such as the return to Barbados in 1994. Given the Board’s acceptance of the principal
applicant’s allegations that her daughter was an independent victim of their
abuser, a full analysis of her claim was clearly warranted. This position is
fully supported by the jurisprudence of this Court (see PDB v Canada (Minister of Citizenship and Immigration) 2011 FC 1042, [2011] FCJ No 1335).
[34]
The
failure of the Board to carry out a separate analysis of the daughter’s claim,
on the facts of this case, was unreasonable.
[35]
Issue
3
Did the Board
err in rejecting the applicants’ claim?
The Board, in paragraph 9 of
its decision, stated, “Based on this testimony, I find that the Claimant has a
very subjective fear . . .”. In paragraph 11 of its decision, the Board stated,
“Accordingly, I find that the Claimant does not have a subjective fear.”. The applicants
state these conclusions are contradictory. As well, the applicants state,
relying on the Federal Court of Appeal, that it is foolhardy to doubt
subjective fear without an adverse credibility finding. There was no adverse
credibility finding made in this case (see Shanmugarajah v Canada (Minister of Employment and Immigration), 34 ACWS (3d) 82, [1992] FCJ No 583).
[36]
The
Board found that the applicants did not have an objective basis for their fear
because it gave little weight to the evidence from members of her church
congregation that her husband had communicated a threat to kill the principal
applicant. There is no explanation as to why the Board gave this evidence
little weight.
[37]
I
am of the view that the Board’s findings on the applicants’ subjective fear and
the objective basis for the fear to be unreasonable.
[38]
With
respect to the Board’s finding that state protection was available for the
applicants, I would note the following points.
[39]
The
applicants have submitted that the Board selectively referred to documentary
evidence in order to make its finding that state protection was available to
the applicants. The Board is presumed to have considered all of the evidence
before it (see Oprysk v Canada (Minister of Citizenship and Immigration),
2008 FC 326 at paragraph 33, [2008] FCJ No 411). However, the more important
the evidence that is not mentioned, the more willing a court may be to infer
from silence that the tribunal made a finding of fact without regard to the
evidence (see Pinto Ponce v Canada (Minister of Citizenship and Immigration),
2012 FC 181 at paragraph 35, [2012] FCJ No 189).
[40]
The
excerpts from the NDP raised by the applicants are extremely significant. The
2009 study the Board relied upon for domestic violence statistics included
findings such as “perpetrators and potential perpetrators are aware and
emboldened by the knowledge that they will likely escape prosecution”,
“[r]espondents found fault generally with the adequacy of state responses”, and
“[t]he police are untrained in methods of dealing with reports of domestic
violence, such that male and female victims are often ridiculed when reporting
crimes to stations”.
[41]
The
Board stated that the principal applicant did not press charges against her
husband. However, a review of the transcript shows that the statement that she
did not press charges related to the sexual assault of the principal
applicant’s son, not to the principal applicant’s telephone calls to the police
when she was assaulted. On these occasions, the police told her they would come
to her house but they never did.
[42]
The
Board did not do a state protection analysis for the principal applicant’s
daughter. I would simply note the extent of protection for children in Barbados as outlined at pages 290 and 291 of the certified tribunal record.
[43]
While
the Board did not completely fail to mention negative aspects of the country
conditions evidence, these omissions are very serious as they go to the heart
of the applicants’ contention that state protection is unavailable for victims
of domestic violence. The Board’s silence on these facts rises to the level
described in Pinto above, and I therefore infer the Board made its
finding without regard to these facts. As a result, the Board’s finding that
state protection was available to the applicants was unreasonable.
[44]
As
a result of my findings, I am of the view the application for judicial review
must be allowed and the matter referred to a different panel of the Board for
redetermination.
[45]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[46]
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the Board is set aside and the matter is referred to a
different panel of the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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.
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.
|
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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.
|
Email this Content