Date: 20110411
Docket: IMM-4432-10
Citation: 2011 FC 444
Ottawa, Ontario, April 11, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ALISON MICHELE EVANS
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Applicant
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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 pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision made
on June 16, 2010 by the Refugee Protection Division of the Immigration and
Refugee Board, wherein it was determined that the applicant is not a Convention
refugee or a person in need of protection, pursuant to sections 96 and 97 of
the IRPA. For the reasons that follow, this application is allowed.
BACKGROUND:
[2]
The
applicant, a citizen of Guyana and Antigua, came to Canada on February
7, 2008 and filed for refugee status on February 14, 2008. She is 32 years old.
Her claim for protection was based on domestic abuse at the hands of her
ex-husband. Since the age of 16, the applicant reports having been physically,
sexually and emotionally abused.
DECISION UNDER REVIEW:
[3]
The
Board found, on a balance of probabilities, that the applicant engaged in an
“elaborate scheme of fabrication based on exaggerations and embellishments to
bolster her claim for refugee status”. In reaching this finding, the Board noted
that the applicant’s oral evidence regarding her reason for divorce was
inconsistent with her divorce decree; that she did not submit a police report
to support her claim; that she did not indicate in her personal information
form (“PIF”) that her ex-husband was arrested; and that the letter submitted
from the applicant’s friend used to support her claim was not corroborative
evidence. The Board also rejected the applicant’s testimony that she was forced
to stay with her husband for financial support and found that she embellished
the claim that her ex-husband did not allow her to have friends over or sit
outside.
ISSUES:
[4]
The
issues are as follows:
a. Did the Board
take into account the Gender Guidelines where required to do so?
b. Did the
Board err by making adverse findings of credibility in a perverse and
capricious manner?
c. As a whole,
was the Board’s decision reasonable?
RELEVANT STATUTORY
PROVISONS
[5]
Section
96 of the Act outlines the definition of a Convention refugee:
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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,
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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 :
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(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
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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;
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(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.
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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.
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[6]
Section
97 of the Act describes what is meant by “person in need of protection”:
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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
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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 :
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(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
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b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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
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(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard
of accepted
international standards, and
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(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,
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(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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(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.
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(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.
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ANALYSIS
Standard of Review
[7]
The
reasonableness standard applies to credibility findings made by the Board: Aguirre v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571. Because deference is owed
to the trier of fact, the Court must not intervene unless the Board’s
determination does not fall within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law: Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, 304
D.L.R. (4th) at paras. 52-62.
[8]
In
cases where a refugee claimant has alleged various forms of physical, sexual
and psychological abuse, this Court must review the Board’s decision with an
eye to the Guidelines issued by the Chairperson Pursuant to Section
65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related
Persecution
(“Gender Guidelines”). In such instances the Gender Guidelines “become
subsumed in the standard of review of reasonableness as applied to credibility
findings”: Hernandez v. Canada (Minister of Citizenship and
Immigration), 2009 FC
106 at para. 13; Higbogun v. Canada (Minister of Citizenship and
Immigration), 2010 FC
445 at para. 22.
(i)
Did
the Board take into account the Gender Guidelines where required to do
so?
[9]
The
Gender Guidelines acknowledge the difficulty for women in relaying certain
traumas to their community or to their state. Sexual abuse is one of those
traumas. At C.2 of the Gender Guidelines it says:
When considering whether it is
objectively unreasonable for
the claimant not to have sought the protection of the state, the decision-maker
should consider, among other relevant factors, the social, cultural, religious,
and economic context in which the claimant finds herself. If, for example, a woman has suffered gender-related
persecution in the form of rape, she may be ostracized from her community for
seeking protection from the state. Decision-makers should consider this type of
information when determining if the claimant should reasonably have sought
state protection.
[10]
The Gender Guidelines
also assist in ensuring that social, religious and cultural norms are
recognized and do not interfere with a correct assessment of credibility: Diallo
v. Canada (Minister of Citizenship and
Immigration), 2004 FC
1450 at para. 33.
[11]
Here,
a consideration of the religious and cultural norms of the Christian Guyanese
community is important for properly assessing the applicant’s evidence. In both
her PIF as well as in oral testimony, the applicant explained that she did not disclose
the fact that she was raped because she was embarrassed and ashamed, and
because she felt her community would not accept her, in large part for
religious reasons:
MEMBER: Now, your husband, according to your PIF, from when you
were 16 he has been taking advantage of you. Just tell me in your own words
why didn’t you go to the police.
CLAIMANT: Cause I’m a Christian, sir, and in my
family it’s all about - - the way my Mom always stressed that the way we’ve
been brought up. So it’s like a shame on my family. And I’m scared that
nothing is going to happen but then my character is going to be damaged,
because this is what like people in the village like they degrade you and
things happen instead of help you; they try to think it’s well, you wanted it
or it’s your fault. So I never said anything to my parents or to nobody
because I was embarrassed.
[12]
More than not being
able to tell anyone, the applicant felt as though she could not seek support
from anyone in her community. In fact, her family encouraged her to live with
Mr. Evans because he was the father of her child. She was 16 at the time. He
provided food, shelter and financial resources to the applicant, until she fled.
This was part of the reason why she commenced a relationship with Mr. Evans,
despite the rape:
MEMBER: Now let’s fast forward to a point where when
did he first - - apart from the first time when he raped you - - okay, because
you just testified that he became your boyfriend.
CLAIMANT: Well, I have the baby for him. So it’s
my baby Daddy. So I don’t have anywhere to go. I don’t have nobody to help me
support the baby. So he told me he’s going to pay for the room of his friend
and he comes sometimes. […].
[13]
Despite this
testimony, the Board came to the conclusion that the applicant was not
financially dependent on Mr. Evans and rejected the applicant’s claim that she
left him but had to return to him due to a lack of financial means. The Board
based this finding on the fact that the applicant worked from January 2006 to
June 2007 and so “had some assistance”, at least for a period of time. Although
the applicant may have enjoyed a certain level of financial autonomy during the
year and half in which she worked, it does not follow that she was not
dependent on her ex-husband throughout the duration of their 12-year
relationship. The Board failed to consider that the applicant was a vulnerable minor
when she began relying on Mr. Evans for financial support and that she appeared
to have done so because she could not rely upon her family, due to their
disapproval of pre-marital sex and pregnancy. In this way, the Gender Guidelines
were not applied by the Board to ensure adequate consideration of social,
religious and cultural norms.
[14]
The Board also placed
little probative value on a personal letter from a friend of the applicant, Ms.
Greene. This document gave some weight to the applicant’s claim. Although a
personal letter may have little value and may, in many cases, be self-serving, in
situations involving alleged domestic abuse, the Gender Guidelines instruct
that “where the claimant cannot rely on the more standard or typical forms of
evidence as "clear and convincing proof" of failure of state
protection, reference may need to be made to alternative forms of evidence to
meet the "clear and convincing" test.” The applicant testified that
she could not go to the police due to the treatment she would receive from her
community and so the letter should have been considered in light of this
evidence. In failing to do so, the Board also failed to properly apply the Gender
Guidelines.
[15]
So, while the Board did
state that the Gender Guidelines were considered, the analysis given in
this decision with respect to the applicant’s financial dependence and the
personal letter suggests they were not applied in a meaningful way. This Court
has held that it is not sufficient for a Board to simply say that the Gender
Guidelines were applied and then fail to demonstrate how they were applied:
Yoon v. Canada (Minister of Citizenship and Immigration), 2010 FC
1017 at para. 5; Myle v. Canada (Minister of
Citizenship and Immigration), 2006 FC 871.
(ii)
Did
the Board err by making adverse findings of credibility in a perverse and
capricious manner?
[16]
When
assessing refugee claims where the alleged ground of persecution is domestic
abuse and where claimants come from abusive and controlling relationships, the
Board must be mindful of the applicant’s background when making credibility
findings. See: Henry v. Canada (Minister of Citizenship and Immigration), 2006
FC 1060.
[17]
At
paragraph 18 of its decision, the Board made the following implausibility
finding, impugning the applicant’s credibility:
The panel also looked at the claimant’s
testimony that she was not allowed to have friends and even sit outside of the
house because that meant to her husband that she was looking for other men to
be exaggerations and embellishments. For example, this is the same man who
would force her to have sex with other men while he watches. As such the panel
finds that the claimant’s husband was hardly the kind of person to confine the
claimant because of jealousy.
[18]
This reasoning fails
to appreciate the
psychological dimensions of abuse and the many forms in which abuse manifests
in an abuser. It wrongly assumes that someone who is jealous or controlling
would not subject another to demeaning sexual acts. Forcing the applicant to
perform sex acts with his friends and business associates was another way for
Mr. Evans to assert control of her. Jealousy and controlling behaviour can
coexist. Both are rooted in control
and a lack of regard for the individual and her body. The logic of the Board on
this issue demonstrates both an insensitivity to the applicant’s situation and
a lack of awareness to the broader issue of domestic abuse and sexual assault. As
such, this finding of credibility was made in a perverse and capricious manner.
(iii)
As a
whole, was the Board’s decision reasonable?
[19]
Not all of
the Board’s findings were unreasonable. The applicant gave evidence that she
was severely assaulted by her ex-husband, passed out and was taken to the
police by her neighbour where she had to file a police report in order to
obtain the stitches she needed from the hospital. However, the applicant did
not produce a police report or a medical report, even when given extra time by
the Board to do so. The
Board was thus justified in drawing an adverse credibility finding. Failure to provide corroborating
documentation can be considered if the Board does not accept an applicant’s
explanation for failing to produce certain evidence: Amarapala v. Canada (Minister of Citizenship and
Immigration.),
2004 FC 12 at paras. 9-12.
[20]
The
applicant also testified that Mr. Evans was eventually arrested and kept in
jail for two days. In her PIF, she omitted such information. Although not every omission from a PIF will have a negative impact
on an applicant's credibility (Jones v. Canada (Minister
of Citizenship and Immigration), 2006 FC 405, 54 Imm. L.R. (3d) 128 at para. 22; K.I.N. v. Canada (M.C.I.), 2005 FC 282 at para. 23), in this instance, the arrest was an important piece
of information which the applicant ought to have included. It was therefore open to
the Board to make a negative credibility finding based on the inconsistency
between the applicant’s PIF and her oral testimony: Sun v. Canada (M.C.I.),
2008 FC 1255 at para. 5; Basseghi v. Canada (M.C.I.), [1994] F.C.J. No.
1867 (QL) at para. 33.
[21]
Finally, the
Board’s negative credibility finding regarding the divorce decree cannot be
held to be unreasonable. At the hearing, the applicant testified that the
reason for her divorce was abuse while the decree produced in evidence stated
that it was for malicious desertion. When asked about this contradiction, the
applicant said that her ex-husband had other girlfriends and children on the
side. It is therefore reasonable that the Board made an implausibility finding
regarding what was said by the applicant in her testimony and what was written
in an official document.
[22]
Despite
these conclusions, on balance, the errors made with respect to applying the Gender
Guidelines and the flawed reasoning regarding the abuse alleged by the applicant,
require that this decision be quashed and remitted to a differently constituted
panel for redetermination.
[23]
No
serious questions of general importance were proposed for certification.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is
granted, the decision of the Refugee Protection Division dated June 16, 2010 is
set aside and the matter is remitted to a differently constituted panel for
redetermination. No questions are certified.
“Richard
G. Mosley”
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