Date: 20090107
Docket: IMM-95-08
Citation: 2009 FC 20
Ottawa, Ontario, January 7, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
GRACEL BERNADET JESSAMY
and SADREENA GRACEL JESSAMY
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, S.C. 2001, c. 27 (Act) for judicial review of a
decision of a Pre-Removal Risk Assessment (PRRA) officer (Officer), dated
October 3, 2007 (Decision) refusing the Applicants’ application for protection.
BACKGROUND
[2]
Gracel
Jessamy (Principal Applicant) was born in St. Vincent and the
Grenadines
where she lived until the age of fifteen. The Principal Applicant believes that
she has lost her Vincentian citizenship as a result of being outside of St. Vincent for five
years or more.
[3]
The
Principal Applicant moved to Barbados and, at the age of
seventeen, she met Nigel Jessamy and they started dating. When the Principal
Applicant’s aunt moved away, she had little choice but to move in with Nigel.
The Principal Applicant’s son, Jason, was born on July 28, 1984 and her
daughter, Sadreena on September 23, 1991 in Barbados.
[4]
In
1987, the Principal Applicant and Nigel got married. Soon after their marriage
began, Nigel became physically and verbally abusive. The Principal Applicant
also discovered that Nigel had an addiction to marijuana and smoked it daily.
He was not employed throughout their marriage.
[5]
The
Principal Applicant was the sole income provider for her family. If there was
not enough money left over to buy drugs after the family purchased groceries,
Nigel would fly into a rage and hit the Principal Applicant. Sometimes there
was no money at all for groceries because Nigel would take it all to buy drugs.
[6]
The
Principal Applicant was with Nigel for fifteen years and over that time he took
a screwdriver and jabbed her leg with it, struck her on the forehead with a
hammer, hit her with a belt buckle, a vase and a shovel. He also placed a hot
cooking pot on her left arm and threatened her with an ice pick to her throat.
She was also threatened with a gun numerous times and her son was beaten quite
frequently. The Principal Applicant says she has numerous scars all over her
body as a result of this physical abuse.
[7]
The
Principal Applicant was also sexually assaulted by Nigel. She was so depressed
that she attempted to commit suicide by slashing her wrists.
[8]
She
attempted to escape Nigel’s violence many times and would go to the homes of family
and friends in Barbados. She also fled to St. Vincent and called the
police many times, but Nigel would always find her and force her to come home.
[9]
Nigel’s
drug habit progressed and he started owing money to dealers who would come to
the house and demand money. The dealers also threatened to hurt the Principal
Applicant and her children. Nigel even began taking his son’s money for drugs
when the boy started working.
[10]
In
August 2002, the Principal Applicant decided to leave for Canada with her
daughter Sadreena. They arrived on August 15, 2002 in Toronto. On November
17, 2002, she made a refugee claim and shortly after Christmas 2002, Jason
joined the Applicants in Canada. In support of their claim, the Applicants’
former lawyer submitted a psychological report, a medical report and some other
documents.
[11]
On
December 22, 2003, the Refugee Protection Division (RPD) heard the Applicants’
claim and on February 13, 2004, found that the Applicants were not Convention refugees.
The RPD found that the Principal Applicant lacked credibility because she did
not mention as many incidents of abuse in her Personal Information Form (PIF)
as she did in oral testimony.
[12]
The
Principal Applicant claims that she was so traumatized when she left Barbados that she
tried to forget the abuse and her near death experiences, which is why they
were not mentioned in her PIF. The psychologist’s report confirms this. The
medical report also confirms the Principal Applicant’s physical wounds.
However, because of the negative credibility finding, the RPD found those
reports not to be credible.
[13]
In
December 2004, the Principal Applicant wrote to the Queen Elizabeth Hospital in St. Michael, Barbados,
to try to obtain a copy of the hospital record from her stay there. On January
3, 2005, the hospital responded by requesting a $50.00 fee in order to release
the report. The Principal Applicant asked her brother to go to the hospital and
pay the $50.00, which he did, but the hospital still did not give him the
report.
[14]
In
December 2006, the Principal Applicant was asked to appear for an interview at
the Greater Toronto Enforcement Centre (GTEC). She was given a PRRA application
which she filled out on her own and sent to the GTEC. On January 17, 2007, with
the help of a friend, the Principal Applicant submitted a letter explaining why
she could not return to Barbados. Included with that
letter was a 1998 US DOS report, excerpts from more recent DOS reports, and a
photo showing the scar on her forehead from the attack with the hammer.
[15]
On
November 1, 2007, the Principal Applicant was asked to appear at GTEC to
receive the PRRA decision. Her son, Jason, had applied separately for his PRRA.
The Applicants’ PRRA decision was negative and the Principal Applicant and her daughter
were given a removal date of November 23, 2007.
[16]
On
November 13, 2007, present counsel submitted a request to defer the Applicants’
removal until the end of January so that Sadreena could finish her Grade 11
school term. About one week later, the enforcement officer phoned counsel and
told him that she would be granting the request to defer the Applicants’
removal. On November 30, 2007, the officer confirmed the deferral with an
e-mail to counsel.
[17]
On
December 24, 2007, the Principal Applicant’s son was removed from Canada. He left
behind his Canadian girlfriend and their six-month-old daughter.
[18]
The
Principal Applicant has spoken to Jason many times since his removal. Jason has
told the Principal Applicant that Nigel has contacted him and has been threatening
him. Nigel believes that the Principal Applicant is in a relationship with
another women and has threatened to kill her for taking the children away from
him.
[19]
On
January 8, 2008, the Principal Applicant filed an application for leave and for
judicial review of the PRRA Decision.
[20]
Jason
has tried to obtain the medical records from the Barbados hospital but
he was asked to pay $500.00 for their release because the Principal Applicant
is out of the country. If she was in Barbados, it would cost $300.00
to obtain the medical records.
DECISION UNDER REVIEW
[21]
The
Officer found that the risks described were basically the same as those that
were presented to the RPD panel. The RPD panel found that the Principal
Applicant lacked credibility due to the omissions in her PIF when compared to
her oral testimony. Her inability to provide corroborative evidence about the
attack by her husband with a hammer in 1998 and her subsequent treatment in the
hospital undermined her credibility. The RPD panel concluded as follows:
The panel considered all the protection
grounds under sections 96 and 97(1) of the IRPA and found that, as adequate
state protection is available to Gracel Bernadet Jessamy, there is no serious
possibility that the claimant and her daughter Sadreena Gracel Jessamy, who
relies on her mother’s testimony, will be harmed in Barbados or St. Vincent,
regardless whether the alleged harm would amount to persecution, a risk to
their lives, risk of cruel and unusual treatment or punishment, or a risk of
torture.
[22]
The
Officer would not accept the photo showing the scar on the Principal
Applicant’s forehead as new evidence that meets the requirements of section
113(a) of the Act. The scar on her forehead, according to the Principal
Applicant, was caused by her husband attacking her with a hammer in 1998. The
Officer found that the Principal Applicant could have presented the same photo
to the RPD panel when her refugee claim was heard in February 2004, but had
chosen not to.
[23]
The
Officer also did not accept that the Human Practices Report of 1998 had any new
evidence in it, as it was publicly available before the RPD decision and should
have been readily available before the RPD panel. Because it was released after
the RPD decision, the Officer accepted the US Department of State 2005 Country
Report on Barbados as new
evidence.
[24]
The
Officer stated that he had reviewed the Country Report and did not find it
supported the Principal Applicant’s subjective fear of being killed by her
husband. The Officer found that violence and abuse against women continue to be
a significant social problem in Barbados. The laws of Barbados prohibit
domestic violence, provide protection to all members of the family, including
men and children, and apply equally to marriages and common law relationships.
Victims can request restraining orders, which the courts often issue. Offenders
are jailed for breaching such an order.
[25]
The
Officer reviewed the latest version of the US reports concerning conditions in
Barbados and St. Vincent and Grenadines in 2006, and found that country
conditions had not substantially deteriorated since the RPD made its decision.
[26]
Based
on what the Officer read, he found that there was state protection in Barbados
and St. Vincent and Grenadines. He found that the Applicants had failed to
provide sufficient evidence that the police would not offer protection to her
and her daughter. Based on the Principal Applicant’s written evidence, the
Officer found that there was state protection available to the Applicants because
the police had responded to her phone call and had come to her house.
[27]
The
Officer concluded by finding that the Applicants did not face more than a mere
possibility of persecution as described in section 96 of the Act. There were no
substantial grounds to believe that the Applicants would face a risk of
torture; nor were there reasonable grounds to believe they would face a risk to
life or a risk of cruel and unusual punishment as described in paragraphs
97(1)(a) and (b) of the Act, if returned to Barbados or St.
Vincent and Grenadines.
ISSUES
[28]
The
Applicants raise the following issues:
1) Did the
Officer fail to assess whether there was new evidence of new risks before him?
2) Did the
Officer err with respect to the analysis of state protection?
3) Did the Officer
err in law by not according the Applicants an oral hearing?
STATUTORY PROVISIONS
[29]
The
following provisions of the Act are applicable in these proceedings:
Convention refugee
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.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
Application for protection
112. (1) A person in Canada, other than a person referred to
in subsection 115(1), may, in accordance with the regulations, apply to the
Minister for protection if they are subject to a removal order that is in
force or are named in a certificate described in subsection 77(1).
Consideration of application
113. Consideration
of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection
has been rejected may present only new evidence that arose after the
rejection or was not reasonably available, or that the applicant could not
reasonably have been expected in the circumstances to have presented, at the
time of the rejection;
(b) a hearing may be held if the Minister, on the
basis of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection
112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in
subsection 112(3), consideration shall be on the basis of the factors set out
in section 97 and
(i) in the case of an applicant for protection who is
inadmissible on grounds of serious criminality, whether they are a danger to
the public in Canada, or
(ii) in the case of any other applicant,
whether the application should be refused because of the nature and severity
of acts committed by the applicant or because of the danger that the
applicant constitutes to the security of Canada.
|
Définition de
« réfugié »
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.
Personne à protéger
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.
Personne à protéger
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
Demande de
protection
112. (1) La
personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
Examen de la demande
113. Il est disposé de la
demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des
éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable,
dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment
du rejet;
b) une audience peut être tenue si le ministre l’estime
requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3),
sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe 112(3), sur
la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire
pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait
que la demande devrait être rejetée en raison de la nature et de la gravité
de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
|
[30]
The
following provision from the Regulations (Immigration and Refugee Protection
Regulations SOR/2002-227) is also applicable:
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of the Act, the
factors are the following:
(a) whether there is evidence that raises a serious issue
of the applicant's credibility and is related to the factors set out in
sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with
respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the
application for protection.
|
167. Pour
l’application de l’alinéa 113b) de la Loi, les
facteurs ci-après servent à décider si la tenue d’une audience est
requise :
a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux
articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui
concerne la crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c) la
question de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
|
STANDARD OF REVIEW
[31]
In Dunsmuir v.
New Brunswick, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” (Dunsmuir at paragraph 44).
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[32]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[33]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to issues (1) and (2) to be reasonableness. When reviewing a
decision on the standard of reasonableness, the analysis will be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at paragraph 47). Put another way,
the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[34]
Issue
(3) raises issues of procedural fairness and should be reviewed on a standard
of correctness: Sketchley v. Canada (Attorney General), [2005] F.C.J.
No. 2056; Rahman v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1661; Suresh v.
Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.
ARGUMENTS
The
Applicants
New
Evidence
[35]
The
Applicants cite and rely upon Elezi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 240 at paragraphs 26-27 for the
rules applicable to new evidence under section 113(a) of the Act:
26 I am
prepared to accept that subsection 113(a) refers to three distinct
possibilities and that its three parts must be read disjunctively. If the use
of the word "or" is to be given meaning, the three parts of
subsection 113(a) must clearly be seen as three separate alternatives. While
the first part refers to evidence that postdates the Board's decision, the
second and third parts obviously relate to evidence that predates its decision.
Only evidence that existed before the Board's negative decision requires an
explanation before it can be admitted with a PRRA application. As for evidence
that arises after the Board's decision, there is no need for an explanation.
The mere fact that it did not exist at the time the decision was reached is
sufficient to establish that it could not have been presented earlier to the
Board.
27 That
being said, a piece of evidence will not fall within the first category and be
characterized as "new" just because it is dated after the Board's
decision. If that were the case, a PRRA application could easily be turned into
an appeal of the Board's decision. A failed refugee applicant could easily
muster "new" affidavits and documentary evidence to counter the
Board's findings and bolster his story. This is precisely why the case law has
insisted that new evidence relate to new developments, either in country
conditions or in the applicant's personal situation, instead of focusing on the
date the evidence was produced: see, for example, Perez v.
Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 1379, 2006 FC
1379; Yousef v. Canada
(Minister of Citizenship and Immigration), [2006]
F.C.J. No. 1011, 2006 FC
864; Aivani v. Canada
(Minister of Citizenship and Immigration), [2006]
F.C.J. No. 1231, 2006 FC
1231.
[36]
The
Applicants also cite and rely upon De Silva v. Canada (Minister of
Citizenship and Immigration) 2007 FC 841 at paragraph 17:
17 Although
the PRRA process is meant to assess only evidence of new risks, this does not mean that new evidence relating to old risks
need not be considered. Moreover, one must be careful not to mix up the
issue of whether evidence is new evidence under subsection 133(a) with the
issue of whether the evidence establishes risk. The PRRA officer should first consider
whether a document falls within one of the three prongs of subsection 113(a).
If it does, then the Officer should go on to consider whether the document
evidences a new risk. (Applicant’s emphasis)
[37]
The
Applicants say that the recent Federal Court of Appeal decision of Raza v. Canada (Minister of
Citizenship and Immigration) 2007 FCA 385 at paragraph 13 supports their
argument that the Officer erred in the present case. In Raza, the Court
held that evidence that provides proof of an event that occurred after the RPD
decision must be considered by the PRRA officer unless it is not credible,
relevant, new or material.
[38]
The
Applicants submit that they identified new risks that have arisen since the RPD
decision, including a renewed fear resulting from the husband’s belief that the
Principal Applicant is in a relationship with a woman. In addition, the husband
threatened to kill the Principal Applicant because she kidnapped their daughter
and encouraged their son to leave and turn against his father.
[39]
The
Applicants submit that the Officer erred in his assessment of whether the
evidence was new or not. The Officer failed to determine whether the evidence
falls within one of the three prongs of s. 113(a) of the Act before dismissing
it. Since the Applicants’ statement and evidence post-date the RPD decision,
the Officer should have gone on to determine if it establishes a new risk, or
new evidence of the same risk that was presented to the RPD. In doing neither,
the Officer erred.
[40]
The
Applicants point out that there is no mention of a risk to the Applicants’
lives in the Decision, which risk is based on the husband’s belief that the
Principal Applicant is involved in a relationship with a woman. Nor is anything
mentioned about a risk to her life due to her husband’s anger of having taken
their children out of the country. The Officer had a duty to assess whether
state protection would be adequate, should the Principal Applicant seek it. By
not doing so, the Officer erred.
[41]
The
Officer should also have consulted documentation on the situation in Barbados concerning
gays and lesbians. If the Officer had done this, he would have found that
relations between members of the same sex are prohibited and are punished by
imprisonment in Barbados. The Applicants submit that, given the
criminalization of homosexual activity in Barbados, it is
unlikely the Principal Applicant would obtain police protection. Since the
Officer never conducted this assessment, he erred in law.
[42]
The
Applicants also cite and rely upon Hassaballa v. Canada (Minister of
Citizenship and Immigration) 2007 FC 489 at paragraph 33 which discusses
the issue of whether a PRRA officer has a duty to notify applicants of updated
country reports that he/she relies upon, even if a decision is made two years after
the application is submitted:
First of all, it is important to
emphasize that the PRRA officer has not only the right but the duty to examine
the most recent sources of information in conducting the risk assessment; the
PRRA officer cannot be limited to the material filed by the applicant.
[43]
The
Applicants conclude that the Immigration Refugee Board (IRB) documents, which
the Officer failed to consult, post-date the US DOS report and address specific
issues: the availability of state protection for victims of domestic violence
and the treatment of homosexuals, including protection by the state.
State
Protection
[44]
The
Applicants submit that the Principal Applicant testified that she had called
the police numerous times, but they did not come every time. If they did come,
they would talk to her husband and then leave. The Applicants say that the
Officer neglects the fact that, if the police do come, they leave the abuser to
further torment the caller.
[45]
The
Applicants submit that the Officer erred in his assessment of the facts before
him. The fact of the police coming to the Applicants’ house does not mean that
the police offered protection. The case law provides that, for protection to be
adequate, it must be effective. The Applicants cite and rely upon Elcock v.
Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1438 (F.C.) at paragraph 15:
…I am satisfied that the same
result must follow here and that the CRDD committed a reviewable error in
failing to effectively analyse, not merely whether a legislative and procedural
framework for protection existed, but also whether the state, through the
police, was willing to effectively implement any such framework. Ability of a
state to protect must be seen to comprehend not only the existence of an
effective legislative and procedural framework but the capacity and the will to
effectively implement that framework.
[46]
Garcia
v. Canada (Minister of
Citizenship and Immigration) 2007 FC 79 at paragraphs 13-16 outlines
what is effective state protection:
13 With
respect to statement [4], the use of "serious efforts" in this
sentence is equated to a state's "due diligence" efforts to provide
practical state protection. However, there is a sharp difference between due
diligence in developing policy and giving education on a certain issue, and
putting the policy or education into actual operation. This point has
particular importance to protection against violence against women if the
sentence under consideration is extended to contexts other than terrorism.
14 It
cannot be said that a state is making "serious efforts" to protect
women, merely by making due diligence preparations to do so, such as conducting
commissions of inquiry into the reality of violence against women, the creation
of ombudspersons to take women's complaints of police failure, or gender
equality education seminars for police officers. Such efforts are not evidence
of effective state protection which must be
understood as the current ability of a state to protect women (see Franklin v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1508 at para. 21).
15 Further,
women are not protected by non-governmental agencies that advise or shelter
women from the violence. Indeed, the Refugee Board's Guidelines
issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act:
Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guidelines) agrees:
Also, the fact that the
claimant did or did not seek protection from non-government
groups is irrelevant to the assessment of the availability of state
protection.
(Section C.2)
[Emphasis added]
Therefore,
"serious efforts" must be viewed at the operational
level of the protection services offered by the state. As stated in Elcock v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. 1438 at para.15:
Ability of a state to protect
must be seen to comprehend not only the existence of an effective legislation
and procedural framework but the capacity and the will
to effectively implement that framework.
[Emphasis added]
16 For
example, when a woman calls the police at 3:00 am to say that her estranged
husband is coming through the window, the question is, are the police ready,
willing, and able to make serious efforts to arrive in time to protect her from
being killed? While it is true that even the best trained, educated, and
properly motivated police force might not arrive in time, the test for
"serious efforts" will only be met where it is established that the
force's capability and expertise is developed well enough to make a credible,
earnest attempt to do so, from both the perspective of the woman involved, and
the concerned community. The same test applies to the help that a woman might
be expected to receive at the complaint counter at a local police station. That
is, are the police capable of accepting and acting on her complaint in a
credible and earnest manner? Indeed, in my opinion, this is the test that
should not only be applied to a state's "serious efforts" to protect
women, but should be accepted as the appropriate test with respect to all
protection contexts.
[47]
The
Applicants submit that, given the police efforts in this case, there is no
effective state protection in Barbados. As well, the only
document relied upon by the Officer was the US DOS report, which presents a
different picture from the other documentation that was available. Nothing is
mentioned in the US DOS report that establishes the availability of state
protection. The Applicants submit that the Officer erred in mistaking the indicia
of protective improvements with proof of the adequacy of the implementation of
these measures. There was no evidence before the Officer that state protection
was adequately in place to protect victims of domestic violence in Barbados.
[48]
The
Applicants also cite and rely upon Garcia at paragraph 18 where the
Court analysed what constitutes “clear and convincing” evidence in light of the
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 decision
and concluded that Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J.
No. 1189 is no longer a valid point of law:
18
In my opinion, Ward
amends the decision in Villafranca in a particularly
important respect. Ward makes a clear statement on
the quantity and quality of the evidence which a claimant must produce to rebut
the presumption of state protection; that is, a claimant is only required to
provide some clear and convincing evidence.
Therefore, in my opinion, the statement in Villafranca
that "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" cannot any longer be applied as a point of law. Thus, evidence
of the failure of state authorities to effectively
respond to requests from women for protection from violent sexual predators,
exclusive of all other evidence, can be found to constitute some clear and
convincing evidence that rebuts the presumption of state protection. Whether
this finding is made depends on the quality of the evidence produced in the
judgment of the decision-maker involved.
[49]
The
Applicants submit that they did adduce clear and convincing evidence of the
state’s inability to protect them and that if the Officer had fulfilled his
duty to research the case before him and had consulted the IRB documents he
would have arrived at a different conclusion regarding state protection. The
Applicants also point out that Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 584 at para. 41
(F.C.A.) (Hinzman), relied upon by the Respondent, supports the
Applicants’ position that if an applicant calls the police many times and the
police respond once, ineffectively, the applicant can be said to have
unsuccessfully sought the protection of her home country.
Failure to
Grant a Hearing
[50]
The
Applicants cite section 167 of the Regulations which outlines the factors to be
considered when deciding whether an oral hearing is required. They submit that
the Officer erred by not granting the Principal Applicant an oral hearing to
determine credibility issues. The RPD found the Principal Applicant not to be
credible. The Officer reviewed the RPD’s decision and restated its credibility
findings and conclusion. No analysis of the RPD’s decision is conducted by the
Officer. Instead, the Officer refuses to take the Principal Applicant’s photo
of her forehead scar into account, stating that it could have been presented to
the RPD in February 2004. The Officer also makes no mention of the fact that
the scar was brought to the RPD’s attention, via medical and psychological
reports, but the RPD dismissed both.
[51]
The
Applicants further submit that there is no finding of subjective fear by the
Officer. The Officer only makes an objective fear finding based on the US DOS
report. The reason for this is that the Officer relied entirely on the RPD’s
negative credibility finding and never considered the evidence before him.
[52]
The Applicants cite and rely upon Latifi v.
Canada (Minister of Citizenship and Immigration) 2006 FC 1388 at paragraphs
49, 64 and 52-53. In that case the PRRA officer entirely adopted the RPD’s
credibility findings and erred in not making an independent assessment in the
PRRA application.
[53]
The
Applicants also cite Tekie v. Canada (Minister of
Citizenship and Immigration) 2005 FC 27 at paragraph 17 for the
proposition that deciding a PRRA application on grounds other than credibility
does not diminish the right to an oral hearing. The Applicants submit that the
Officer never reviewed the credibility finding of the RPD, or made a
credibility finding on his own. The RPD’s credibility finding was fully
imported into the Decision. By not giving the Principal Applicant an oral
hearing to address credibility concerns, the Officer erred.
The
Respondent
New
Evidence
[54]
The
Respondent submits that the Application Record in this application contains
several documents that were not before the Officer. These include:
(a)
Request
to defer removal dated November 13, 2007;
(b)
E-mail
from officer Tokunbo Famewo dated November 30, 2007;
(c)
To
Whom it May Concern Letters dated January 4 and 7, 2008;
(d)
United
States Officer of Personnel Management Investigation Service: Citizenship Laws
of the World.
[55]
The
Respondent argues that the Officer did not have the benefit of the information
contained in these documents. Evidence that was not before the Officer is not
relevant on judicial review: Asafov v. Canada (Minister of Employment and
Immigration), [1994]
F.C.J. No. 713 (F.C.T.D.); Franz v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 862 (F.C.T.D.); Barran v. Canada (Minister
of Citizenship and Immigration), [1999] F.C.J. No. 258 (F.C.T.D.); Singh
v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 566 and Lemiecha
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1333.
[56]
The
Respondent states that the only exception to this rule is that new evidence is
permissible on judicial review to show a denial of natural justice or a breach
of procedural fairness: Beci v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 584 and Qazi v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 2069.
The documents tendered do not fall within this exception; therefore, they
should be disregarded.
[57]
The
Respondent submits that the Decision under review is a risk assessment. Bearing
in mind the objectives of such an assessment, the Officer has the sole
jurisdiction over the facts and the Court should not re-weigh the evidence. The
Respondent also points out that a PRRA decision attracts significant deference:
Ahani v. Canada (Minister of Citizenship and Immigration) 2002 SCC 2
at paragraph 17 and Suresh at paragraph 39.
State
Protection
[58]
The
Respondent submits that the Applicants must provide sufficient evidence to
substantiate their claim. Two oblique references concerning two separate fears,
with no additional evidence, does not oblige the Officer to investigate
further. In the context of an H&C application, the Court of Appeal in Owusu
v. Canada (Minister of Citizenship and Immigration) 2004 FCA 38 at paragraphs
5, 8-9, found that applicants have a duty to provide sufficiently clear
evidence to support a positive obligation for a decision maker to render a
finding concerning a particular aspect of the application.
[59]
The
Respondent reminds the Court that the onus is on the Applicants to establish
their claim; it is not for the Officer to establish that the Applicants are not
entitled to protection in Canada. The Respondent cites Ward, where the
Supreme Court of Canada found that there is a presumption that a state is
capable of protecting its citizens, provided there has not been a complete
breakdown of the state apparatus. A claimant can only rebut this presumption by
providing “clear and convincing proof” of the state’s inability to protect.
[60]
The
Respondent submits that the Applicants have not provided “clear and convincing”
evidence that state protection is not available in accordance with Ward.
It is not enough for the Applicants to merely show that their government has
not always been effective at protecting persons in their situation. Evidence
that the protection being offered is “adequate though not necessarily perfect”
is not “clear and convincing proof” of the state’s inability to protect. The
Respondent cites and relies upon the Federal Court of Appeal in Villafranca v.
Canada (Minister of
Employment and Immigration) (1992), 99 D.L.R. (4th) 334 at
paragraph 7:
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…
[61]
The
Respondent goes on to cite and rely upon Hinzman at paragraph 41 where
the Court stressed that refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant
has unsuccessfully sought the protection of their home state. The Court in Hinzman
also emphasised the importance of seeking protection within the home state
before claiming refugee protection elsewhere. A failure to do so is fatal to a
refugee claim, at least in situations where the home state is a functioning
democracy with a willingness, and the necessary apparatus, to provide a measure
of protection to its citizens.
[62]
The
Respondent submits that it was open to the Officer to conclude that the
Applicants had failed to rebut the presumption of state protection. The
evidence before the Officer indicated that Barbados, where the
agent of persecution resides, is a multiparty, parliamentary democratic state
whose civilian authorities maintain effective control of its security forces.
The evidence before the Officer was that Barbados has made serious efforts in
combating domestic violence by creating victim support units within police
forces, providing the right to seek restraining orders and having orders
enforced beyond and above enacting laws prohibiting domestic abuse. As well,
according to the Applicants’ own evidence, the police responded, albeit once,
to her call.
[63]
The
Respondent submits that the existence of certain elements supporting the
Applicant’s position in the documentary evidence is not proof of an error. The
possibility of an opposing view in the documentary evidence is not a reason for
concluding that the Decision is unreasonable. A decision must be wrong on its
face: Conkova v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 300 at paragraph 5. None of the Applicants’ arguments
indicate that there is an overriding error in the Officer’s reasons and
conclusions. Therefore, it was reasonably open to the Officer to conclude that
the Applicants did not discharge the burden of proving a lack of state
protection.
Failure to
Call a Hearing
[64]
The
Respondent submits that the Officer did not err by not holding an oral hearing.
An oral hearing is only necessary when credibility is at the heart of a
decision, which was not the case on this application.
[65]
The
Respondent submits that the Officer simply preferred certain documentary
evidence, and this does not require a hearing to be held: Iboude v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1316 at paragraph 13; Sen v.
Canada (Minister of Citizenship and Immigration) 2006 FC 1435 at paragraphs
24-25; Selliah v. Canada (Minister of Citizenship and Immigration) 2004
FC 872, aff’d on other grounds 2005 FCA 160; subsection 167(a) of the
Regulations. The Respondent says that the Officer’s assessment is based on the
documentary evidence indicating the availability of state protection.
[66]
The
Officer did not make any credibility determinations and, therefore, no oral
hearing was required. Nowhere in the Decision does the Officer declare that the
application was denied on the basis of the Applicants’ lack of credibility. The
Respondent submits that it is not within the Officer’s jurisdiction to review
the reasonableness of the RPD findings, particularly a determination pertaining
to credibility.
[67]
The
Respondent concludes by stating that the Principal Applicant has asserted that
she was advised by her counsel that it is possible she may have lost her status
as a citizen in St. Vincent. The purpose of this information is unclear in
the Respondent’s view, as the information before the Officer was that she was a
citizen of Barbados and St. Vincent.
ANALYSIS
[68]
I
do not regard the issue of credibility as playing any role in the Officer’s
Decision. The Officer refers to the RPD decision which did make a finding on
credibility. But the Officer makes it very clear that the Decision is based
upon the fears which the Principal Applicant set out in her PRRA application to
the effect that “she and her daughter will be subjected to abuse and being
killed by her husband.” The Officer does say that he finds “the risks described
[in the application] are basically the same as those that have been presented
to the RPD panel,” but a reading of the Decision as whole makes it clear that
state protection is the deciding issue and that state protection is examined from
the perspective of the fears set out by the Applicants in their application.
This being the case, no oral hearing was required under section 113(b) of the
Act.
[69]
In
this regard, the facts of this case are very different from Latifi v. Canada
(Minister of Citizenship and Immigration) 2006 FC 1388 and Shafi v.
Canada (Minister of Citizenship and Immigration) 2005 FC 714 relied upon by
the Applicants. In the present case, the Officer did not simply accept
at face value the RPD’s credibility findings without asking whether the new
evidence could challenge such a finding, as alleged by the Applicants. The Officer
stated that the risks put forward by the Applicants were “basically the same as
those that have been presented to the RPD panel” and then examined whether
state protection was available to protect the Applicants against those risks.
No credibility finding was made either explicitly or implicitly.
[70]
The
Applicants also say that the Officer was wrong in his conclusion that there was
no new risk in this case because “the risks described … are basically the same
as those that have been presented to the RPD panel.” They say that the
application raised the following new risks:
a.
The
Principal Applicant’s husband was still attempting to discover her whereabouts
and would kill her because “he said I kidnap his daughter from him and
encourage his son to leave him and turn them against him”; and
b.
Her
husband was also accusing her “of having a relationship with a woman.”
[71]
The
Applicants say that the Officer should have dealt with this evidence of new
risks both from the perspective of what the husband would do to them upon their
return and from the perspective of the Principal Applicant being able to access
state protection in a country where homosexuality is a criminal offence.
[72]
First
of all, it is clear from the Decision that the Officer identified and examined
the Principal Applicant’s submission “that she fears that she and her daughter
will be subjected to abuse and being killed by her husband.”
[73]
The
fact that the husband may have thought up new motives for wanting to harm the
Applicants does not change the fact that the husband and his abuse are still
the cause of the Applicants’ fears. Whatever the reasons for the husband’s
conduct, the Officer accepted that he was still pursuing the Applicants. This
being the case, the Officer addressed state protection.
[74]
When
the Officer says that he “finds the risks … basically the same as those that
have been presented to the RPD panel,” this does not prevent the Officer from
considering those risks. As the Decision as a whole makes clear, the Decision
is based upon state protection and whether it is adequate to protect the
Applicants from the risk “of abuse and being killed by her husband.”
[75]
The
Applicants say that the husband’s accusation that the Principal Applicant was
“having a relationship with a woman” would affect their ability to access state
protection. But this is entirely speculative. The Principal Applicant is not
involved in any such relationship and there is no evidence to suggest that the
state authorities in Barbados would simply accept the
mere accusation of the husband. The Applicants are attempting to raise an
implication that the police in Barbados would simply accept the
husband’s accusation at face value and would be unable or unwilling to
ascertain the truth and act upon it. There is no evidence before me to support
such a position and there was no evidence before the Officer that a mere
accusation by an aggressive husband would impact the availability of police
protection.
[76]
As
the Court has pointed out on numerous occasions, it is the applicant who has
the burden of adducing proof of any claim upon which an application is based.
See, for example Owusu at paragraph 5.
[77]
The
central issue in this application is whether the Officer’s findings on state
protection were reasonable. On this issue, the Officer relies upon the findings
of the RPD but also looks at new evidence in order to determine whether it
established and supported the Principal Applicant’s fear of being killed by her
husband.
[78]
The
Officer accepted into evidence and examined the latest version of the US
Department of State Country Report which was put forward by the Applicants and
found that “country conditions in Barbados and Saint Vincent and
Grenadines have not substantially deteriorated since the RPD made its
decision.” The RPD found that “there is state protection available in Barbados” and, even
though the Applicants now say the RPD was wrong on this issue, they did not
challenge that decision when it was made.
[79]
Hence,
there was nothing unreasonable about the Board’s conclusion based upon the 2006
DOS report.
[80]
The
Applicants say, however, that the Officer had a duty to consult, and should
have consulted, the Response to Information Request of March 8, 2007.
[81]
I
agree with the Applicants that the Officer should have consulted this document
even though it was not brought forward by the Applicants. See Roger George
S. Rizk Hassaballa v. Canada (Minister of
Citizenship and Immigration) 2007 FC 489 at paragraph 33.
[82]
The
issue for me to decide, then, is whether, if the Officer had consulted the
Response to Information Request of March 8, 2007, it would have provided
contrary information that should have been taken into account on the state
protection issue. In Pinky Lourice Mark Adaina Theresa Tenisha v. Canada
(Minister of Citizenship and Immigration), a case decided by Chief Justice
Lutfy on March 4, 2008 and relied upon by the Applicants, the Chief Justice
made it clear that the RIR report at issue in that case was important because of
“its different emphasis on relevant issues.”
[83]
The
Respondent says that there is no real conflict between the 2006 DOS report and
the Response to Information Request in this case. They both say that there is a
cultural problem concerning domestic violence in Barbados. The
Applicants say there is a significant difference because the DOS report simply
deals with the framework of protective measures and not effectiveness and
implementation, while the Response to Information Request deals with
effectiveness and directly challenges the DOS conclusions that there is a
protective framework in place that actually works.
[84]
The
Response to Information Request refers to January 26, 2007 correspondence with
the Barbados Association of Non-governmental Organization (BANGO) that provided
information “on the recourse to the law available to women who are victims of
domestic violence in Barbados.” That correspondence
indicated the following:
a.
The
depth of the cultural rootedness of domestic violence “sometimes eludes” the
application of the Domestic Violence (Protection Orders) Act and the Sexual
Offences Act;
b.
The
courts tend to be lenient when sentencing perpetrators of domestic violence and
“very unsympathetic to the female victims”;
c.
A
man “against whom a restraining order was made, would still stalk, harass and
physically abuse or violate his victim with impunity”;
d.
Many
women are reluctant to report incidents of domestic violence for fear of
reprisal.
[85]
The
Response to Information Request adds that this information “could not be
corroborated by the Research Directorate among the sources consulted within the
time constraints of this Response” but it also refers to the Country Reports
on Human Rights Practices for 2005 which concludes that “even though
Barbados has laws and programs designed to protect women, abuse and violence
against women remain ‘significant social problems’ in the country,” thus
suggesting that the protective framework may not be effective.
[86]
Nevertheless,
this information strongly suggests that the Officer’s independent research
(i.e. the 2006 DOS Report) and the conclusions he draws from that research may
have yielded a different result if he had consulted the Response to Information
Request and its “different emphasis on relevant issues,” to use the words of
Chief Justice Lutfy in Thomas.
[87]
The
Officer should have consulted and considered the Response to Information
Request Information in his Decision. The fact that he did not do so renders
that Decision, on the facts of this case, unreasonable and it must be returned
for reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
Application is allowed and the matter is returned for reconsideration by a
different officer;
2. There is no
question for certification.
James
Russell