Introduction
[1]
Ms.
Brown Trimmingham (the “Applicant”) seeks judicial review of the decision of
Pre-Removal Risk Assessment Officer, N. Sturino (the “Officer”), dated
January 29, 2009. In that decision, the Officer determined that the Applicant
would not be subject to a risk of persecution, torture, risk to life or risk of
cruel and unusual treatment or punishment if returned to her country of
nationality, Saint
Vincent and the Grenadines.
Background
[2]
The
Applicant is a citizen of Saint Vincent and the Grenadines. She first
came to Canada and claimed
refugee protection on April 22, 1987. Her claim was denied and she was removed
from Canada on November
7, 1996.
[3]
Upon
her return to Saint Vincent, she began a relationship with one Oriel Yearwood
and on July 28, 1998, the Applicant gave birth to a son, Omar Yearwood.
[4]
The
relationship with Mr. Yearwood was abusive. The Applicant states that she tried
to leave him on many occasions but because Saint Vincent is so small,
she could not live safely and without fear that he would find her. The
Applicant left Saint Vincent and re-entered Canada on July 22,
2001. Mr. Yearwood followed her to Canada and on one occasion, he
abused the Applicant and her son in public, and was convicted of kidnapping the
son. Mr. Yearwood was convicted of offences in Canada and was
imprisoned for six months. Following his release from prison, he was deported
from Canada.
[5]
The
Applicant states that she has heard from family and friends that Mr. Yearwood
has continued his threats against her, including threats to her life.
[6]
The
Applicant filed her first Pre-Removal Risk Assessment (“PRRA”) application in
January 2006. The application was based upon the threats she faced at the hands
of Mr. Yearwood in Saint Vincent. While the officer acknowledged the threat, he
concluded that state protection would be reasonably forthcoming in Saint
Vincent.
A judicial review of that decision was dismissed in cause number IMM-5310-06 on
November 16, 2006.
[7]
In
May 2007, the Applicant filed an application for admission into Canada on
humanitarian and compassionate grounds (the “H&C application”), pursuant to
subsection 25(1) of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”). The H&C application was undecided as of
the filing of this application for judicial review.
[8]
The
Applicant filed her second PRRA application in June 2008. The basis for this
second application was the threat that she faces at the hands of Mr. Yearwood
in Saint Vincent and the fact that the Vincentian Government had confirmed that
it could not provide the kind of protection that was required in her situation.
In this regard, she provided a letter dated May 21, 2008 from Mr. Phillips, the
Consul General of Saint Vincent and the Grenadines to Canada.
[9]
In
the decision made on January 29, 2009, the Officer found that since the basis
for the Applicant’s application was the same as that given in her first PRRA
application, the Applicant had failed to provide any fresh evidence that would
lead him to a decision contrary to the one made by the first officer and the
second PRRA application was dismissed.
[10]
In
her affidavit filed in support of the present application for judicial review,
the Applicant states that following the denial of her first PRRA application,
she learned that Mr. Yearwood informed her aunt that he still intended to kill
her if she returned to Saint Vincent. The Applicant then
approached the representatives of the Government of Saint Vincent and the
Grenadines in Canada, for
protection from Mr. Yearwood.
[11]
The
Applicant was advised to report for removal on May 4, 2008 but did not do so.
On January 21, 2009, she was arrested. On February 6, 2009, she received
another direction to report for removal.
[12]
By
letter delivered by facsimile on February 10, 2009, Mr. Phillips again expressed
concern that the Applicant would not receive the protection in Saint Vincent
that she required. He also noted that the Officer had incorrectly referred to the
statements made in the May 21, 2008 letter when the Officer said that the
Government had indicated protection would be available.
[13]
The
Applicant was scheduled for removal from Canada on February
13, 2009. She applied for a stay of removal and by Order dated February 12,
2009, a stay was granted by Justice Barnes.
[14]
Upon
granting the Applicant the stay of removal on February 12, 2009, Justice Barnes
noted that there was a serious issue raised, given that the Vincentian
Government had expressed doubt as to its ability to offer adequate protection
to the Applicant, in spite of the Officer’s finding that state protection would
be available.
[15]
The
Applicant argues that the Officer committed a reviewable error by misconstruing
the evidence that was before him.
[16]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
Officer acted reasonably when he characterized the letter from the Consul
General as stating that Mr. Phillips believed that state protection would be
available for the Applicant in Saint Vincent. In support of his position, the Respondent
relies on the decision in Canada (Minister of Employment
and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.) [Villafranca],
and argues that no government can guarantee the protection of all of its
citizens at all times.
Discussion and
Disposition
[17]
Further
to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, decisions of
administrative decision-makers are reviewable upon one of two standards, that
is the standard of correctness or the standard of reasonableness. Where prior
jurisprudence has established the applicable standard of review, that standard
can be adopted.
[18]
Formerly,
decisions with respect to PRRA applications were reviewed upon the standard of
patent unreasonableness; see Rosales v. Canada (Minister of
Citizenship and Immigration), 2008 FC 257 at para. 12. Following the
decision in Dunsmuir, the standard of patent unreasonableness has been
merged with the standard of reasonableness. The present case raises the issue
whether the Officer misconstrued the evidence before him in reaching his
conclusion on state protection. This is a question of fact, that is with
respect to the question of state protection, and accordingly, the applicable
standard of review is that of reasonableness.
[19]
In
his letter of May 21, 2008, Mr. Phillips said the following:
It is with profoundest concern for the
well being of Leila Trimmingham Brown, a Vincentian, that I seek to solicit
your kindest humanitarian considerations in facilitating whatever means at your
disposal to help secure her safety.
With much discomfort I reviewed documents
submitted to me from the file of Leila who is presently under a deportation
order by Citizenship & Immigration Canada to her homeland St. Vincent &
the Grenadines. I have forwarded Leila’s
case to the Police authority there because her going home is potentially
dangerous, both emotionally and physically, to her and her son.
I believe that the Police in St. Vincent and the
Grenadines will treat
this matter with utmost seriousness and professionalism, but unfortunately,
given their limitations and challenges, a twenty-four hour daily protection,
which Leila will apparently need against this kind of perpetrator mentioned in
her documents, cannot be guaranteed.
[20]
The
Officer’s notes record that new evidence was submitted with the Applicant’s
second PRRA submission. The new evidence submitted by the Applicant
includes the affidavit of Elizabeth J. Cain. Ms. Cain is the maternal aunt of
the Applicant. She deposed that she had seen Oriel Yearwood in Saint Vincent in
2007, that is after the dismissal of the Applicant’s initial PRRA application.
At paragraphs 7 and 8 of her affidavit she said the following:
7. When he saw me in St. Vincent he was not friendly with me
and extremely angry with and wishes to seek “revenge” on Leila. He said, “St.
Vincent is not like Canada. If she come, I will pop her
neck!” He said this time he would “kill her and finish her off. Before the
police get here. Because by the time the police come, she already dead.” I just
walked away real fast because if he got violent with me, there is no one to
call for help.
8. Based on this experience and my
personal knowledge of Oriel Yearwood, I know he is serious about his threats
because if he could abuse my niece in public, in front of all the school and
teachers here in Canada, he will not think twice about killing her in St. Vincent.
[21]
The
PRRA Officer referred to the affidavit of Elizabeth Cain and the letter dated
May 21, 2008 from the Consul General of Saint Vincent and the Grenadines. The
Officer discussed this evidence as follows:
The applicant has submitted an affidavit
from Elizabeth J. Cain dated 05 June 2008. While I note that it contains
information of threats to the applicant which postdates the decision of the
original PRRA decision, I find that this is not evidence of a new risk
development as the previous officer considered this threat of risk.
The applicant submitted a letter from the
Consulate General of Saint Vincent and the Grenadines in Toronto dated 21 May 2008. This
letter expresses the concern of the government of St. Vincent and indicates that the author believes
that state protection will be available. This rebuts counsel’s contention that
state protection is not available for the applicant.
[22]
The
Officer apparently discounted this evidence. Ms. Cain stated her belief that
the Applicant would be at risk from Mr. Yearwood if she returned to Saint
Vincent. While Ms. Cain’s opinion may be influenced by the familial
relationship, the letter from Mr. Phillips, an envoy of the Government of Saint
Vincent and the Grenadines is a different matter. He provided a statement
on behalf of that Government as to the lack of protection for the Applicant in
her country of nationality. That statement was ignored by the Officer or
deliberately misunderstood.
[23]
The
Officer found that the Applicant had failed to rebut the presumption of state
protection. He relied on Mr. Phillips’ letter in that regard. In my opinion,
that finding is unreasonable since the letter from the Consul General is
evidence that would rebut the presumption of state protection. I am satisfied
that the Officer misunderstood the letter of May 21, 2008 and that is a
reviewable error
[24]
In Villafranca,
Mr. Justice Hugessen stated, at para. 6, that:
The
burden of showing that one is not able to avail oneself of the protection of
one’s own state is not easily satisfied. The test is an objective one and
involves the claimant showing either that he is physically prevented from
seeking his government’s aid…or that the government itself is in some way
prevented from giving it.
(emphasis
added).
[25]
Contrary to the
Officer’s reasons, the letter of Mr. Phillips was clear and convincing evidence
that the Vincentian Government is “in some way prevented” from giving the
necessary protection. In this letter the Vincentian Government itself stated
that, as a result of its “limitations and challenges,” it is incapable of
providing the necessary protection to ensure the Applicant’s safety. In my
opinion, it was not reasonable for the Officer to find that state protection
will be available on the basis of this letter.
[26]
Further, Mr. Justice
Hugessen at para. 7 proceeded to say that:
No
government that makes any claim to democratic values or protection of human
rights can guarantee the protection of all of its citizens at all times.
Thus, it is not enough for a claimant merely to show that his government has
not always been effective at protecting persons in his particular situation.
[27]
However, the
Applicant has not merely shown that the Vincentian Government has not always
been effective at protecting the victims of domestic violence. There is clear
evidence of her own state’s inability to protect her. This aspect of Villafranca
is not applicable in this case because the Applicant has shown that the
Vincentian Government cannot protect her.
[28]
In
the result, the application for judicial review is allowed and the matter is remitted
to a different officer to be re-determined in accordance with the law. There is
no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed and the matter remitted to a
different officer to be re-determined in accordance with the law. There is no
question for certification arising.
“E.
Heneghan”
Email this Content