Date: 20110902
Dockets: IMM-6226-10
IMM-6229-10
Citation: 2011
FC 1044
Ottawa, Ontario, September 2, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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PAMELA JOAN WILSON
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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
I. Overview
[1]
Ms.
Wilson has a complex and lengthy immigration history in Canada, but most of
it is irrelevant to these two applications for judicial review. In the first,
she is challenging a pre-removal risk assessment (PRRA) in which an immigration
officer concluded she had not proved she would be at risk of mistreatment in
her native Jamaica based on her
sexual orientation. In the second, she disputes the same officer’s dismissal of
her request for humanitarian and compassionate relief (H&C) because her
removal to Jamaica would not
cause her undue, undeserved or disproportionate hardship.
[2]
Ms.
Wilson advances two main arguments. First, she contends that the officer erred
in dismissing her PRRA application on credibility grounds without according her
an oral hearing. Related to that first argument is her submission that the
officer also erred in dismissing her H&C on similar grounds. Second, Ms.
Wilson maintains that the officer wrongly concluded that she had a duty to seek
state protection in Jamaica.
[3]
I
agree with Ms. Wilson that the officer made implicit adverse credibility
findings when he concluded that her evidence was insufficient to support her
claim to be at risk. Accordingly, the officer had a duty to hold an oral
hearing in respect of her PRRA. I also find that the officer erred in his
treatment of the issue of state protection.
[4]
With
respect to Ms. Wilson’s H&C, the officer did not have a corresponding duty
to convene a hearing, but the importation of the adverse findings against Ms.
Wilson caused the officer to render an unreasonable decision. Therefore, I must
allow both applications for judicial review.
[5]
There
are two main issues:
1. Did the officer make
adverse credibility findings against Ms. Wilson?
2. Did the officer err
on the issue of state protection?
II. The Officer’s Decisions
(1) PRRA
[6]
Ms.
Wilson had previously been found to be excluded from refugee protection, so the
officer had only to consider whether she was entitled to protection under s 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA](see
Annex).
[7]
Ms.
Wilson presented evidence, by way of a sworn statement, that she had been
beaten, gang-raped and threatened with death in Jamaica by persons
who suspected that she and the woman with whom she lived were lesbians. In
addition, she submitted letters written by her daughters corroborating her
claim. One of them recounted an incident where Ms. Wilson had been abused
because of “who she chose to date.” Assailants called her a “sadamite” (sic).
[8]
The
officer accepted that homophobia is a serious problem in Jamaica. Gays and
lesbians are exposed to human rights abuses, arbitrary detention, mob attacks,
stabbings, harassment and shootings. Often, police do not investigate these
crimes.
[9]
However,
the officer concluded there was insufficient objective evidence, beyond Ms.
Wilson’s own written narrative, supporting her claim to be at risk on return to
Jamaica. She found
that the evidence was insufficient in the following areas:
• that
Ms. Wilson would be perceived as a lesbian;
• that she would
personally be at risk of abuse; and
• that
there was any linkage between the abuse she received in Jamaica and her
sexual orientation.
[10]
In
addition, the officer concluded that Ms. Wilson provided insufficient evidence
to rebut the presumption that the state of Jamaica could
protect her against future attacks. Documentary evidence describing crimes
against gays and lesbians also made reference to the fact that police respond
to these events, although not always effectively. Further, Jamaica is a
parliamentary democracy, with security forces, an independent judiciary, and
freedom of expression. There is not a “total breakdown of state apparatus,
rendering the protection of individuals such as the applicant inoperable.”
[11]
Additional
documentary evidence described the risk of sexual assault and other forms of
violence in Jamaica, which the
officer found not to be relevant to Ms. Wilson.
[12]
In
conclusion, the officer found that it was “less than likely” that Ms. Wilson
would face a risk to her life or of cruel and unusual treatment or punishment
if she returned to Jamaica. There was insufficient objective evidence
supporting her claim.
(2) H&C
[13]
Ms.
Wilson’s H&C application was based on several factors: establishment in Canada, the best
interests of children, and risk upon return to Jamaica. However,
Ms. Wilson is only challenging the officer’s analysis of risk.
[14]
The
nature of the alleged risk was the same as was addressed in Ms. Wilson’s PRRA.
Accordingly, the officer noted that he had already found that she was not at
risk. However, the issue in an H&C is somewhat different – whether there
would be unusual, undeserved or disproportionate hardship if Ms. Wilson were
returned to Jamaica.
[15]
The
evidence filed on the H&C included a letter from an unidentified individual
indicating that Ms. Wilson had fled Jamaica fearing for her life
because she is a lesbian. The officer gave little probative value to this
document, finding that there was no evidence of the relationship of the author
to Ms. Wilson, and that its contents were vague.
[16]
The
officer also observed that there was no testimonial from Ms. Wilson or anyone
else about her being in a lesbian relationship, or the likelihood that she
would be perceived to be a lesbian if she returned to Jamaica.
[17]
An
Undertaking of Assistance had been filed by a Ms. Yonette Joris, whose marital
status was “common-law.” In it, Ms. Wilson was identified as the person being
sponsored, but neither Ms. Wilson nor Ms. Joris specifically corroborated the
nature of their relationship.
[18]
The
officer acknowledged the documentary evidence indicating that Jamaica is a deeply
homophobic society. Nonetheless, he found there was insufficient evidence
proving Ms. Wilson’s sexual orientation. He also found that there was
insufficient evidence supporting Ms. Wilson’s claim that she would not feel
safe in Jamaica.
[19]
The
officer concluded that Ms. Wilson had provided little evidence that she would
experience unusual, undeserved or disproportionate hardship if she had to
return to Jamaica and apply
for permanent residence from there.
III. Issue One – Did the Officer
Make Adverse Credibility Findings against Ms. Wilson?
[20]
A
PPRA applicant is entitled to an oral hearing on a PRRA only when there is a
serious issue relating to his or her credibility that is central to the
application and, if accepted, would justify allowing it (Immigration and
Refugee Protection Regulations, SOR/2002-227, s 167) [IRPR] (see Annex).
Here, as described above, the officer concluded that there was “insufficient
evidence” supporting Ms. Wilson’s application in key areas.
[21]
The
Minister contends that the officer simply discounted the value of the evidence
supporting Ms. Wilson’s application and did not make an adverse credibility
finding against her (as in Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067 [Ferguson]).
Accordingly, the officer had no obligation to hold an oral hearing.
[22]
However,
the officer rejected Ms. Wilson’s sworn written narrative about her sexual
orientation and the mistreatment she experienced in Jamaica because of
it. In Ferguson, above, the
applicant had not provided a sworn affidavit. By contrast, the officer here, in
finding a lack of evidence of Ms. Wilson’s sexual orientation and abuse,
clearly cloaked an adverse credibility finding with his conclusion in his use
of the words “insufficient objective evidence” (as in Liban v Canada
(Minister of Citizenship and Immigration), 2008 FC 1252, and Sayed v
Canada (Minister of Citizenship and Immigration), 2010 FC 796).
[23]
Accordingly,
I find that the officer made an adverse credibility finding against Ms. Wilson.
That finding was central to her claim and, had it not been made, Ms. Wilson’s
application might well have been successful. Accordingly, the officer was
obliged to hold an oral hearing.
[24]
In
addition, because those adverse credibility findings were also the
determinative issue in the officer’s rejection of Ms. Wilson’s H&C application,
I find that his rejection of the H&C was unreasonable – it did not
represent a defensible outcome based on the facts and the law.
IV. Issue Two – Did the Officer
Err on the Issue of State Protection?
[25]
Having
concluded that Ms. Wilson’s application was unsupported by credible evidence,
the officer did not conduct a serious analysis of state protection. He did not
deal with the ability of the state of Jamaica to respond to the particular
forms of mistreatment Ms. Wilson described because he did not believe that they
had actually occurred, or that there was a risk that they would occur in the
future if she returned to Jamaica.
[26]
A
conclusion that the state was willing and able to respond to an applicant’s
allegations of abuse would normally provide an independent basis for upholding
an officer’s dismissal of a PRRA. However, the officer’s state protection
analysis was tied to his credibility findings which, as explained, were made
without the required oral hearing. It follows that the officer’s state
protection finding cannot stand.
V. Conclusion and Disposition
[27]
The
officer made adverse credibility findings against Ms. Wilson that were central
to his dismissal of both the PRRA and the H&C decisions. Therefore, the
former was rendered in violation of s 167 of the IRPR and the latter was
unreasonable. The officer’s conclusion that state protection was available to
Ms. Wilson flowed from those impugned credibility findings and, therefore, was also
unreasonable. I must, therefore, allow this application for judicial review and
order a reassessment of Ms. Wilson’s PRRA and H&C applications. Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1. The
applications for judicial review are allowed. The matter is referred back to
the Board for reassessment by a different panel;
2. No question
of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
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.
Immigration
and Refugee Protection Regulations, SOR/2002-227
Hearing
— prescribed factors
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.
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Loi
de l’immigration sur la protection des réfugiés, LC 2001, ch C-27
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.
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Facteurs
pour la tenue d’une audience
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.
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