Date: 20070130
Docket: IMM-213-06
Citation: 2007
FC 103
Ottawa, Ontario, January 30, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
SELMA CHARLES (A.K.A. SELMA KATHY ANN CHARLES)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1]
Upon Selma
Charles’ application for judicial review of the decision of the Refugee
Protection Division of the Immigration and Refugee Protection Board (RPD)
rejecting her claim under Sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[2]
Having
reviewed the material filed by the parties (including their post hearing
written representations) and considered their counsel’s representations at the
hearing.
[3]
Upon
noting that the applicant argues, among other things, that the RPD erred in its
conclusion on State protection in Grenada as well as in its finding that her
claim was abusive because she lacked subjective fear. The standard of review
applicable to the first question of mixed fact and law is reasonableness simpliciter:
Chaves v. Canada (Minister of Citizenship and Immigration), 2005
FC 193, [2005] F.C.J. No. 232 (QL). The second issue
relates to a finding of fact that is subject to the standard of the patently
unreasonable decision.
[4]
Upon
considering that the RPD at no time questions the applicant’s credibility. It
appears it took no issue with the applicant’s story that she was the victim of
child abuse since the age of 9 and endured this for almost 9 years. The abuser
was her cousin who lived in her family’s house and “put bread on the table” as
her father was blind and an invalid and her mother was away about six months
every year. She tried to tell her mother and much later her great-aunt but
they did not believe her. Then, when she was about 17 years old, she also went
to the police who told her that this should be dealt with at home as it was a
domestic dispute.
[5]
Instead,
the RPD found that the applicant had not rebutted the presumption of State
protection. In that respect, it says:
I find that she did not make a
determined effort. I believe that she, as a child, ought to
have asked other adults to help her, when her parents and her other family
members did not believe her story. I find that it was unreasonable for the
claimant not to have made a greater effort to seek protection. I also find it
was unreasonable for the claimant not to have taken additional steps or
measures to access the protection of the state of Grenada that was available to her. The claimant
is required to show that she has exhausted other avenues of protection.
(my emphasis)
[6]
This
reasoning is not only untenable, it is patently unreasonable. It shows a
surprising and unacceptable lack of consideration for the vulnerability and
trauma suffered by abused children. As this finding was clearly material to the
RPD’s reasoning and its final conclusion in respect of State protection, it
vitiates this conclusion.
[7]
Turning
now to the second issue, the RPD said:
I considered that the claimant
came to Canada as a visitor, but has remained continuously since her arrival in
Canada. I also considered that she
has never applied for nor received any extension to a visa. Therefore, I
consider this to be an abusive claim, made as a last ditch effort to remain in Canada.
(my emphasis)
[8]
The Court
agrees with the respondent that despite the strong language used, a review of
the transcript does not support the applicant’s allegation of bias. However,
having carefully reviewed the certified record including the transcript (in
which the RPO started her representations by saying that the claimant presented
herself in a credible fashion and that obviously something is still stressing
her and there is no reason to disbelieve the fact that she suffered what she
did) the Court must state that the sentence in bold above was not necessary. In
that respect, it is useful to always keep in mind the principle expressed by Justice
Carolyn Layden-Stevenson in Wang v. Canada (Minister of Citizenship and
Immigration)
2007 FC 77, at para.19:
…this language was
unnecessarily severe. Worse still, it does not reflect the degree of
professionalism that is expected of a quasi-judicial tribunal. Claimants are
entitled to respect and disparaging comments are unacceptable.
[9]
The Court further
notes that since her arrival in Canada,
the applicant worked and kept a low profile. She had not come to the attention
of the immigration authorities when she filed her refugee claim. It is thus somewhat
difficult to understand the RDP’s reference to a “last-ditch effort”.
[10]
That said,
harsh or inaccurate language alone does not justify setting aside a decision
unless the finding it embodies is also tainted by a reviewable error. The only
explanation given by the RPD for its finding is the length of the delay that
took place before the applicant made her claim and the adverse inference the
RPD draws from that delay. Before doing so, it rejected without any detailed comments,
the explanation provided by the applicant which is described simply as follows:
“She explained that her uncle suggested
to her to work and save some money so that she could hire a counsel before
making a claim.”
[11]
In certain
cases, a long unexplained delay alone may be sufficient to allow a reasonable
inference that an applicant does not have a subjective fear: Gamassi v. Canada (Minister of Citizenship and
Immigration) [2000]
F.C.J. No. 1841 (QL), at para. 6; Bhandal v. Canada (Minister of Citizenship and
Immigration) 2006
FC 426, [2006] F.C.J. No. 527(QL), at para. 29-31.
[12]
Here
however, the applicant was cross-examined at length on why she delayed the
filing of her claim. As noted, by Justice
Michel Shore in Myle v. Canada (Minister of Citizenship and
Immigration)
2006 FC 871, [2006] F.C.J. No. 1127 (QL), para. 41 and 42, when he was
reviewing a decision concerning an abused women from another island near
Grenada, reasons given for the delay require a careful examination,
particularly if the women involved have been traumatized and did not know of
the possibility of protection (see also Jones v. Canada (MCI) 2006 FC
405, [2006]
F.C.J. No. 591 (QL),
para. 25-30).
[13]
Many cases
of domestic abuse involve significant delay before the person seeks protection.
As noted by Justice Shore, “there should not be a blanket conclusion
without a substantiated examination” (Myle, above).
[14]
The
decision maker should be particularly alert and alive to the cultural context
and to the need to properly and genuinely apply the Chairperson’s Guideline
4, Women Refugee Claimants Fearing Gender-Related Persecution (the
Guideline), when it comes to assessing the inference to be made from even a
very long delay.
[15]
It is
evident from its description of the explanation (see para. 11 above) that the
RPD misapprehended the evidence put forth by the applicant at the hearing.
[16]
She said
that she absolutely needed to get out of Grenada. She asked her uncle for help, telling
him only that she needed to get to Canada
(certified record at pg. 128, line 24 – 40). The uncle told her that she
should come and that he would get her a job and sponsor her. When she arrived,
he told her that according to “the system”, she had to work and make sure that
she had enough money before she could “present herself to Canada” (pg. 121,
line 21 – 27). At the hearing she confirmed that she did not know if he meant filing
a refugee claim or something else because he only spoke of “presenting herself
to Canada”.
[17]
Her uncle
did not make good on his promise of sponsorship and in fact had to move away.
However, he did find her another job and told her again to put money aside and
to keep to herself. She did just that.
[18]
The Court
notes that as the uncle did not know of the sexual abuse and referred
specifically to sponsorship, he could not have been thinking of refugee
protection. Again, the testimony of the applicant on this issue was not put in
doubt.
[19]
In any
event, the applicant further testified that she only learned that women who had
been sexually abused could claim refugee protection from a friend who told her
of her own experience in 2004.
[20]
It is only
at that time and in that context that the applicant said that she then waited
to have enough money to hire counsel (page 122, line 28-30).
[21]
It may
well be that that the Refugee Protection Officer’s questions led to some
confusion in the RPD’s notes because in her questions, she kept mixing up the
issue of regularizing status with the filing of a refugee claim. But, whatever
the reasons, the RPD did not properly understand the explanations of the
applicant.
[22]
Finally,
there is also no indication that the RPD was alert and alive to the Guideline
and the considerations mentioned above in paragraphs 12 and 14 when it came to
making a proper inference. In fact, given its other finding in respect of the
behaviour of the applicant as a child (see para. 5 above), the Court concludes
that it only paid lip service to the Guideline.
[23]
In the
circumstances, the finding that the applicant lacked subjective fear must also
be quashed and the decision must be set aside.
ORDER
THIS COURT ORDERS that
the application is granted. The matter shall be
re-determined by a different panel.
“Johanne
Gauthier”
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