Docket: IMM-3420-11
Citation: 2011 FC 1500
Ottawa, Ontario, December 22,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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SIKANDER BAKSH
NADIRA RAMKISSOON
KIMBERLEE KAMEEL BAKSH
(A.K.A. KIMBERLEE KAMEE BAKSH)
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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]
This
is an application for judicial review brought under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] seeking to set aside a
decision of the Refugee Protection Division [RPD or the panel] dated April 28,
2011. The RPD found that the Applicants were not Convention refugees or persons
in need of protection as set forth in sections 96 and 97 of the IRPA.
I. Facts Alleged
by the Applicants
[2]
Nadira
Ramkissoon, her husband Sikander Baksh, and their daughter Kimberlee Kameel
Baksh [the Applicants] are all citizens of Trinidad and Tobago [Trinidad] and
members of the country’s Indian ethnic group. Mr. Baksh is also a citizen of Guyana. Prior to
their arrival in Canada, the Applicants lived in Penal, on the island of
Trinidad.
[3]
On
May 25, 2009, while the Applicants were home, three black men [the assailants] broke
into the home, robbed it of several valuables, and, while holding Mr. Baksh
captive outside, the assailants sexually assaulted Ms. Ramkissoon one by one.
[4]
After
the assailants fled, the Applicants immediately contacted their family and the
police, who arrived an hour later only to advise the Applicants that they
should attend to the police station. After several hours of wait at the station,
the police took the Applicants’ statements, but Ms. Ramkissoon was only medically
examined the following morning. Though the Applicants were informed the police
had everything needed to proceed with an investigation, the Applicants were
never informed of any further developments or progress of any sort, despite
repeated enquiries.
[5]
For
more than six months after the attack, Ms. Ramkissoon did not return to her
home, living instead with her parents in a residence ten minutes away. Finally,
on December 10, 2009, the Applicants left Trinidad for Canada, where with
the assistance of family members, they eventually filed a refugee claim on May
19, 2010. It was heard on April 4, 2011.
II. Impugned
Decision
[6]
The
RPD identified credibility as the determinative issue in this case, raising
several concerns that it deemed material to the claim. Specifically, the panel questioned
Ms. Ramkissoon’s testimony that the robbery and sexual assault was motivated by
race when she had previously testified that it was a random attack (Trial
Record [TR] at 243, 245, and 249-250). When asked whether the assailants had
mentioned Ms. Ramkissoon’s ethnic background, she answered that they told her
they were from Laventil, “a place where there are only blacks,” and that they
would kill the Applicants because of this (TR at 247). The panel found the fact
the assailants were from Laventil, a predominantly black populated area two
hours from where the Applicants resided, did not establish that the attack was
instigated by or linked to race and concluded there was “no credible and
trustworthy evidence to indicate that the robbery and sexual assaults that
occurred on May 25, 2008 were motivated by race” (TR at 6, RPD Decision at para
12).
[7]
The
RPD also took issue with the following elements of the Applicants’ testimony that
were not included in Ms. Ramkissoon’s Personal Information Form [PIF], omissions
which they could not explain to the RPD’s satisfaction: a) the assailants were
from Laventil; b) Ms. Ramkissoon’s brother-in-law had been approached by an
acquaintance at his workplace informing him the assailants had said they would
kill the Applicants (TR at 251-253); c) Ms. Ramkissoon’s mother had repeatedly
gone to the police to enquire about the status of the police investigation; d) the
Applicants made a formal complaint to the national headquarters of the police
in Trinidad, and; e) the police told Mr. Baksh not to indicate in the
police report that he could identify the assailants.
[8]
Because
of discrepancies between Ms. Ramkissoon and Mr. Baksh’s testimony and the fact
the account was not included in her PIF, the panel did not believe that the
brother-in-law obtained any information from the assailants indicating that the
latter were threatening the Applicants if they contacted the police. Likewise, the
panel rejected the testimony regarding follow ups with police and complaints made
to it about the investigation, as well as the police’s alleged directions to
Mr. Baksh, because none of these had been included in the PIF and the panel was
not satisfied with the lack of explanation for their omission (TR at 6, 9, and
10, RPD Decision at paras 13, 14, and 25-27).
[9]
As
for the nearly seven months that elapsed between the attack and the Applicants
leaving Trinidad, the panel
was not satisfied with the Applicants’ reason for delaying her departure: in the
panel’s words, because of “the time it took to get ready to leave, get the
passports and arrange everything” (TR at 8, RPD Decision at para 20). The RPD
found that if they were in danger of being seriously harmed, it would have been
reasonable for the Applicants to leave earlier and this delay undermined their
subjective fear. In addition, the panel found it highly unlikely that the
assailants would want to harm the Applicants after the substantial period of
time that had elapsed since the attack (TR at 8, RPD Decision at para 21).
[10]
Overall,
the RPD noted that since the Applicants had never been the victims of any crime
or violence in Trinidad apart from the attack of May 25, 2009, the attack amounted
to an isolated incident and, given all the circumstances, there was no serious
possibility that it would reoccur. As a result, the RPD concluded that the Applicants
were not being persecuted and, if they were to return to Trinidad, there was no
other credible or trustworthy evidence to suggest that they would be pursued by
any agent of persecution (TR 8-10, RPD Decision at paras 22 and 28).
III. Parties’
Positions
[11]
The
Applicants have identified several issues which can be resumed as follows.
First, the Applicants question the RPD’s credibility findings. They argue the
panel failed to understand the evidence as a whole and in context, choosing
instead to examine the evidence with microscopic zeal and to take issue with
omissions that were not significant or central to the issue of whether the Applicants
reasonably demonstrated a serious risk of harm. Second, the Applicants submit
that the RPD ignored the Chairperson’s Guideline 4: Women Refugee Claimants
Fearing Gender-Related Persecution [Gender Guidelines] by failing to
consider the psychological impact caused by the attack on the responses given
by the Applicants to the panel’s questions, leading it to wrongfully impugn the
Applicants’ credibility. Third, in a closely linked argument, the Applicants
argue the panel failed to analyze whether the claim could be considered on the
basis of membership in a particular social group, namely gender. Finally, they
argue the panel’s overall decision is unreasonable given the oral and
documentary evidence adduced at the hearing of the claim.
[12]
For
its part, the Respondent is of the view that the RPD’s credibility findings are
reasonable and supported by the record before it, which includes the Applicants’
testimony. The Respondent points to jurisprudence from this Court confirming
that omissions in the PIF can lead to negative credibility findings and submits
that the Applicants have simply failed to provide any adequate reasons for
these omissions (Basseghi v Canada (Minister of Citizenship and Immigration),
[1994] FCJ 1867, 52 ACWS (3d) 165; Castroman v Canada (Secretary of State),
81 FTR 227, [1994] FCJ 962; Grinevich v Canada (Minister of Citizenship and
Immigration), [1997] FCJ 444, 70 ACWS (3d) 1059). Turning to the Gender
Guidelines, the Respondent contends these were applied and adds that they are
not intended to shield applicants from having their evidence tested (Newton
v Canada (Minister of Citizenship and Immigration), 182 FTR 294 at paras
17-18, [2000] FCJ 738 [Newton] and Karanja v Canada (Minister of
Citizenship and Immigration), 2006 FC 574 at paras 5 and 7, [2006] FCJ 717
[Karanja]). The onus remains on the Applicants to demonstrate a
well-founded fear of persecution based on an enumerated ground and the Gender
Guidelines do not entitle the Applicants to have their evidence accepted
without enquiry. The Respondent further states that the RPD appropriately
considered the basis for the Applicants’ claim and the evidence submitted, but
argues there was simply no evidence to support the claim that the attack was
based on a Convention ground or to indicate the Applicants were in need of
protection.
IV. Issues
[13]
The
parties have focused much of their written submissions on the issue of
credibility. However, it is this Court’s view that, despite what the RPD may
have indicated in its decision, credibility is not at the heart of this matter.
At no point in its decision does the RPD question the Applicants’ actual account
of the events that took place on May 25, 2009. Rather, it takes issue with some
of the Applicants’ testimony regarding what followed the attack, namely,
whether the police instructed Mr. Baksh to falsely indicate he could not identify
the assailants, whether Ms. Ramkissoon’s mother followed up with the police,
whether the Applicants complained to the police’s national headquarters about
the lack of investigation, and whether the assailants indirectly threatened the
Applicants through Ms. Ramkissoon’s brother-in-law’s co-worker when the brother-in-law
enquired with individuals he knew about the attack.
[14]
Apart
from this rather vague allegation of a threat from the assailants, the
credibility issue has very little to do with the RPD’s other findings that the
attack had been an isolated incident, that it was not racially motivated, and
that, given all the circumstances, there was no serious possibility that the Applicants
would suffer any related crime if they were to return to Trinidad. It is these
findings after all, and not the issue of credibility, which led to the RPD’s ultimate
conclusion that the Applicants were not Convention refugees or persons in need
of protection as set forth in the IRPA.
[15]
For
these reasons, this Court will focus its analysis not on credibility, but on whether
the RPD, in its examination of the Applicants’ claim: 1) considered the
claim on the basis of gender; 2) applied the Gender Guidelines
appropriately; and, 3) in light of the evidence, whether the panel’s finding
that the Applicants were not at risk of further attacks was reasonable.
V. Standard of
Review
[16]
Assessments
of credibility and questions of fact are within the panel’s area of expertise
and must be reviewed on a standard of reasonableness (Malveda v Canada (Minister of
Citizenship and Immigration), 2008 FC 447, [2008] FCJ 527). Where the
court must review the RPD’s decision with an eye to the Gender Guidelines, these
are also considered by the same standard of reasonableness (AME v Canada (Minister of
Citizenship and Immigration), 2011 FC 444 at para 8, [2011] FCJ 589). This
analysis will thus look for “the existence of justification, transparency and
intelligibility within the decision-making process [and] whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190 [Dunsmuir]).
VI. Analysis
[17]
The
Applicants argue that while the RPD examined their claim on the basis of race,
it never considered it on the basis of gender and this despite the issue being
explicitly raised both in the PIF and at the hearing. Indeed, the panel even recognized
in its decision that the principal Applicant testified the attack was a
“gender-based crime” (TR at 6, RPD Decision at para 12). Having examined the
RPD decision, it is clear the panel ably considered the claim on both the basis
of race and political opinion, arriving at a convincing determination that the
attack was not motivated by race or Ms. Ramkissoon’s very limited participation
in the Congress of the People political party. However, nowhere in its decision
does the panel indicate it has considered whether Ms. Ramkissoon belonged to a
particular social group, namely that of women from Trinidad who have
been raped.
[18]
The
evidence shows however that the principal Applicant, and to a certain extent
also the Applicants’ counsel, limited the claim to one of race, thereby
diminishing in no uncertain terms the gender claim. As noted by the RPD at
paragraph 10 of its decision, Ms. Ramkissoon testified that the robbery and
sexual assaults were random and part of the general criminality and violence
against women occurring in the country.
[19]
Later
on however, she testified that both the burglary and the sexual assaults were
motivated by race because she was of Indian descent and added that blacks in
Trinidad disliked people of Indian descent. Ms. Ramkissoon also testified that
if she would have been a black woman living in her neighbourhood (predominantly
composed of people of Indian descent), she would not have been sexually
assaulted (TR at 270). During final submissions, the Applicants’ counsel made
it clear that Ms. Ramkissoon suffered these sexual assaults because of her race
and how those of Indian descent are treated by the black majority. It was
submitted that had she been black, she would not have been raped (TR at 284).
[20]
This
should not be interpreted as relieving the decision maker of the obligation of
reviewing all claims made, including those not raised during the hearing by a
claimant. The jurisprudence is clear on that point (Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ 74, followed by Viafara v
Canada (Minister of Citizenship and Immigration), 2006 FC 1526 at para 6, [2006]
FCJ 1914). But referring to the evidence may explain why the panel did not deal
with the gender claim explicitly, but rather implicitly.
[21]
At
paragraphs 11 and 12 of the decision, the RPD determined that the evidence
presented did not support a claim based on race:
[11] The
Panel asked the principal claimant why she thought the incident of May 25, 2008
was motivated by race. She stated because the assailants were black and they
stated during the incident that they were from the town of Laventil, which is a predominantly a
black populated area. She stated that Laventil is a good distance from Penal
where she and her family live.
[12] The
Board finds that there was no credible and trustworthy evidence to indicate
that the robbery and sexual assaults that occurred on May 25, 2008 were
motivated by race. According to the principal claimant’s own testimony, the
assailants did not make any comments or racially derogatory statements to her
or the claimant during the incident. The Board finds that the fact that the
assailants said that they were from Laventil, a predominantly black populated
area, does not establish that the incident was instigated by or linked to race.
Further, the principal claimant did testify on more than one occasion that the
incident was a random act of violence against a woman, a gender-based crime,
not based on race. She also stated that black and white women were sexually
assaulted in Trinidad.
[22]
The
panel then went on to note the numerous PIF omissions that dealt with concerns
such as state protection issues, police involvement, any history of the Applicants
having been targeted, and so on. It considered the consequences of a return to
Trinidad. It mentioned at paragraph 22 that over a period of more than 30
years, the Applicants had not been victims of any crime or violence prior to
the attack of May 25, 2009. The panel also noted that in general, to constitute
persecution, the harm feared must occur with repetition or persistence and that
there was no other credible or trustworthy evidence to suggest that the Applicants
would be pursued by any agent of persecution.
[23]
During
the hearing, reference was made to documentary evidence dealing with the status
and protection of women in Trinidad (TR at 175, 2009 Human Rights Report: Trinidad and
Tobago
at 6), confirming that the panel was aware of the situation (TR at 244 and 287).
The gender claim was a subject covered during the hearing and was also referred
to by the Applicants’ counsel in its final submissions. There is no doubt that
a paragraph in the decision dealing specifically with the gender issue would
have been the proper course to follow. But in the present case, when reading
the decisions as a whole, the evidence presented, and the submissions made
before me, I come to the conclusion that the panel dealt explicitly with both
the race and gender claims.
[24]
To
the argument that the Gender Guidelines were not applied appropriately, the
Court takes note of paragraphs 6 and 7 of the decision, where the RPD wrote that
it has taken the Gender Guidelines into consideration and that it was cognizant
of the difficulties faced by the principal Applicant. In fact, the transcript
of the hearing shows that the panel dealt delicately with the examination of the
principal Applicant and at no time does it reveal a lack of sensitivity to what
Ms. Ramkissoon has had to live through.
[25]
It
is well established in the jurisprudence that the gender based-claim should not
be used as a reason for not being able to question the refugee claimant’s
evidence (Newton, above, at
paras 17-18 and Karanja, above, at paras 5 and 7). The only argument
made on this point by the Applicants was that the panel ignored the Gender
Guidelines in its assessment of the case. The decision rendered and the
transcript of the hearing show otherwise.
[26]
Therefore,
having had the opportunity to review the documentary evidence, the transcript
of the hearing, the submissions of the parties, and the decision rendered, I
find that the decision that the Applicants are not convention refugees pursuant
to section 96 of the IRPA or persons in need of protection under the meaning of
section 97 of the IRPA to be reasonable.
[27]
No
question for certification was submitted.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
question is certified.
“Simon Noël”
___________________________
Judge
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