Date: 20071018
Docket: IMM-1311-07
Citation: 2007 FC 1073
BETWEEN:
ROSITA VASCILCA MYLE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
HARRINGTON J.
[1]
St.
Vincent and the Grenadines does not have a good record when it comes to
protecting women from domestic violence. A number of such women have sought
refuge in Canada on the
ground that the state is unable to protect them. While the Refugee Protection
Division of the Immigration and Refugee Board has generally recognized that
violence against women has been and remains a serious problem in St. Vincent, many
panels thereof have found that serious efforts have been in the recent years to
provide protection. I come now to the case of Rosita Vascilca Myle.
[2]
This
is the second time her case has come before this Court on judicial review. The
first time the panel of the RPD determined that she had not provided credible
or trustworthy evidence and found she was neither a convention refugee nor a
person otherwise in need of international protection. The panel was of the view
that she lacked the subjective fear required under section 96 of the Immigration
and Refugee Protection Act (IRPA) and that, in any event, she had not
rebutted the presumption that state protection was available to her in St. Vincent. The lack of
subjective fear was based on the time delay in filing her claim.
[3]
Accompanied
by a most powerful set of reasons, Mr. Justice Shore granted judicial review
and referred the matter back for redetermination by a different panel (Myle
v. Canada (Minister of Citizenship and Immigration), 2006 FC 871, [2006]
F.C.J. No. 1127). This time around, her application was again dismissed, but
only one the grounds of state protection. This is a judicial review of that
decision.
[4]
The
second hearing was allegedly de novo, meaning new evidence could and
should have been considered (Canada (Minister of
Citizenship and Immigration) v. Qureshi, 2007 FC 1049). The RPD
found that Ms. Myle’s fear of persecution was by reason of one of the grounds
enumerated in the United Nations Convention i.e. her membership in a
particular social group defined by her gender as a woman. Her subjective fear
arising from her previous subjection to domestic violence at the hands of her
former common-law husband, and her fear that she would be seriously harmed or
killed by him, were not really considered. The challenge was on her allegation
that the police and government authorities in St. Vincent would be unwilling or
unable to protect her.
[5]
While
the panel accepted that domestic violence against women is a serious problem in
St. Vincent and the Grenadines, it was of the view that Ms. Myle had not
rebutted the presumption of state protection as per the decision of the Supreme
Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103
D.L.R. (4th) 1, with “clear and convincing evidence”. The panel considered
documentary evidence commencing in 1997 and ending with the U.S. Country
Report for 2004 published in February 2005. Particular reference was made
to a response to information request issued in July 2004 by the IRB’s Research
Directorate, which was based on a telephone interview the previous month with
the coordinator of the St. Vincent and the Grenadines Human Rights
Association (SVGHRA). The report was to the effect that the government had
finally set up a shelter for victims of domestic violence. However, it was then
currently under renovation and not yet open to the public. The coordinator did
not know how many victims would have access to the building which apparently would
only serve as a temporary shelter.
[6]
The
panel also found that police and government authorities in St. Vincent are now
making serious efforts to provide protection to victims of domestic violence,
albeit not always successfully. The panel’s conclusion was:
Based on the foregoing analysis, I find
there is insufficient evidence before me to establish that the claimant’s fear
of persecution in St. Vincent
and the Grenadines
for a convention ground is well founded. There is no serious possibility that
the claimant’s removal to St.
Vincent and the Grenadines
will subject her to persecution.
[7]
It
also said:
I prefer the foregoing more recent
documentary evidence to the claimant’s evidence as it comes from reliable and
independent sources with no interest in the outcome of these proceedings.
[8]
On
first reading the decision, the Court was of the impression that the “more
recent documentary evidence” was evidence which had not been before the first panel,
and that Ms. Myle’s evidence was older and did not come from reliable and
independent sources. Since the second decision was rendered in early 2007, one
would assume the shelter was now operational.
ISSUES
[9]
This
case presents the following issues:
a. what is the
applicable standard of review?
b. on a hearing de
novo is the evidence limited to that which was before the first panel?
c. did the panel
properly weigh the evidence it did consider?
d. did the panel
take into consideration all the relevant evidence? and
e. was the panel
justified in implying that Ms. Myle’s evidence came from unreliable,
non-independent sources who had an interest in the outcome of her case?
STANDARD OF REVIEW
[10]
It
is well established that the overall standard of review on humanitarian and
compassionate applications is that of reasonableness simpliciter (Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
[1999] S.C.J. No. 39). Other issues, however, might arise which could be
reviewed on a different standard (Canada (Attorney General) v. Sketchley, 2005
FCA 404, [2005] F.C.J. No. 2056). For instance, a pure finding of fact is
usually not disturbed unless patently unreasonable (Dr. Q. v.
College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226, 2003 SCC 19 and Law Society of New Brunswick v. Ryan,
[2003] 1 S.C.R. 247, 2003 SCC 20). On the other hand, breaches of natural
justice or procedural fairness are beyond the functional and pragmatic approach
to judicial review (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29). Put another way, in
such instances the Court owes the underlying tribunal no deference. The
decision must be correct (Sweet v. Canada (Attorney
General),
2005 FCA 51, 332 N.R. 87).
HEARING DE NOVO
[11]
The
panel acknowledged that the hearing was de novo. This means, within the
context of this case, that the decision on state protection should be based on
the information currently available, and not limited to the information
available to the earlier panel.
[12]
Indeed,
be it a determination on a refugee application, a pre-removal risk assessment,
or a humanitarian and compassionate application, de novo or not, the
decision maker has not only the right, but also the duty, to examine the most recently
available information.
[13]
It
often comes about that an applicant complains of not being put on proper notice
that certain documentation might be considered. Mr. Justice Blais put it well
in Hassaballa v. Canada (Minister of
Citizenship and Immigration), 2007 FC 489, [2007] F.C.J. No. 658, at
paragraphs 33 through 35:
[33]
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.
[34] In this case, the applicant is concerned by the use of
updated versions of the U.S. Department of States Human Rights Report (U.S. DOS
report) and the U.S. Department of States International Religious Freedom
Report (Religious Freedom report). In his own submissions, the applicant relied
on the 2003 U.S. DOS report and on the 2004 Religious Freedom report. The PRRA
officer, for her part, relied on the 2004 and 2005 U.S. DOS reports and on the
2004 and 2005 Religious Freedom reports.
[35]
There is no question that these updated reports are in the public domain,
that they originate from well-known sources, that they are general in nature,
and that they are frequently quoted by counsel involved in immigration cases on
both sides. In fact, they are part of the standard country documentation
packages relied on by immigration officers when considering various
applications under the Act.
[14]
In
this case, however, the complaint is not that the panel breached procedural
fairness by relying on updated documents and independent internet research,
without providing her with an opportunity to respond (Zamora v. Canada
(Minister of Citizenship and Immigration), 260 F.T.R. 155, 41 Imm. L.R.
(3d) 276, 2004 FC 1414 and Fi v. Canada (Minister of
Citizenship and Immigration), [2007] 3 F.C.R. 400, 56 Imm. L.R. (3d)
131, 2006 FC 1125). Rather, the issues are whether the panel considered
documents in the IRB’s own country documentation package at all, and whether it
properly considered the information provided by Ms. Myle.
WEIGHING OF THE EVIDENCE
[15]
One
of the documents relied upon by the panel was the IRB’s own response to
information request VCT41518 to support the proposition that state protection
was available. That very report was considered by Mr. Justice O’Keefe in King
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 774, [2005] F.C.J. No. 979. He
pointed out that there was contrary evidence in that report and that the
failure of the panel to refer to that evidence constituted a reviewable error.
He was of the view that the Board made a finding of fact without regard to all
the evidence.
[16]
In
his reasons, Mr. Justice Shore not only referred to King but also to the
decision of Mr. Justice Evans in Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425
where he said at paragraph 17:
However, the more important the evidence that is not
mentioned specifically and analyzed in the agency's reasons, the more willing a
court may be to infer from the silence that the agency made an erroneous
finding of fact "without regard to the evidence": Bains v. Canada
(Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.).
In other words, the agency's burden of explanation increases with the relevance
of the evidence in question to the disputed facts. Thus, a blanket statement
that the agency has considered all the evidence will not suffice when the
evidence omitted from any discussion in the reasons appears squarely to
contradict the agency's finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[17]
The
panel simply did not address the concerns of this Court as set out in King,
and in the first Myle decision.
[18]
This
Court owes deference to the Board because it is supposed to have more expertise
in country conditions. However, when time and time again this Court grants
judicial review on the same point, the Board must deal with those issues
squarely. That is part of the deference it owes to this Court. It must keep up
with the case law. This is not to say a particular result is dictated. The
Court has not interfered with findings that state protection in St. Vincent is
available, if the Board’s analysis was considered to be reasonable (Hutchins
v. Canada (Minister of Citizenship and Immigration), 2006 FC 367)
WAS ALL THE RELEVANT
EVIDENCE CONSIDERED?
[19]
The
tribunal record produced under rule 17 of the Federal Courts Immigration
Rules includes a letter from the Board dated 4 May 2005 addressed to Ms.
Myle’s solicitor with an enclosed list of exhibits. This is the same letter and
list of exhibits used in the first hearing! There is absolutely nothing in the
reasons for the panel’s decision to suggest that it looked beyond that exhibit
list to the Board’s own more recent information. The recent documentary
evidence that the government had purchased a women’s shelter, which was being
renovated in 2004, was only new in the sense that it was only first mentioned
that year. It was, nevertheless, before the first panel which did not see fit
to refer to it.
[20]
As
aforesaid, the panel had a duty to, at the very least, consider the information
in its own documentary package, most of which is readily available in the
Board’s own website. This matter was heard in February of this year.
[21]
In
response to information request VCT100481.FE dated 12 August 2005, based on an
interview with the SVGHRA coordinator on 15 July 2005: “The authorities
recently purchased a building that, once renovated, will serve as a shelter for
battered women.” Since the response to information the previous year said the
same thing, an inference that the shelter is operational cannot be justified.
Either there is a shelter or there is not. This is a readily ascertainable
fact, and the Board has contacts, not only with the government, but also with
NGOs such as SVGHRA and Marion House. If the shelter is operational, then it
will be a matter of opinion as to its effectiveness. The panel failed to
consider its own documentation.
[22]
In
response to information request VCT1000478.E dated 26 August 2005, the Board
reported:
In a July 2005 story, Kingstown-based newspaper, The
Vincentian, published the story of Morris Cupid, a Campden Park resident,
who had reportedly requested police intervention on numerous occasions for a
domestic dispute he was having with relatives (22 July 2005). The newspaper
stated that Cupid "got no assistance" from the police and he claimed
that he was living in an unsafe situation (The Vincentian 22 July
2005).
Also in July 2005, The Vincentian reported on the
acquittal of five suspects in a murder trial because "the police did not
carry out their investigations in conformity with the law" (28 July 2005).
Specifically, in addition to acknowledging their ignorance of arrest
procedures, the police reportedly beat the suspects and threatened them with
firearms (The Vincentian 28 July 2005).
WAS MS. MYLE’S EVIDENCE
UNRELIABLE?
[23]
If
one has begun to suspect that this was a “good news” decision, consider Ms.
Myle’s new evidence. In her affidavit she referred to a woman in Kingstown who had
complained to the police that she was being harassed, but they did not
investigate. She was killed in December 2006 in broad daylight at the bus
terminal. The man cut off her head. She said: “All of the country knows about
this, it is a national scandal that the police do nothing to help women like
me.” She referred to an article in The Vincentian newspaper which
corroborates the death and which implies that the police had not acted on a
complaint. The paper quoted the Chief Executive Director of the Caribbean
Association for Feminist Research and Action who said she was appalled that:
“The laws that exist in St. Vincent and the Grenadines inhibit the
action of the police with respect to acting on reports made of threats or
actual incidents of domestic violence or harassment.”
[24]
Since
the Board itself frequently refers to The Vincentian and to other
NGOs, how can the panel imply that Ms. Myle’s information does not come from
reliable and independent sources?
[25]
For
all these reasons, judicial review will be granted, and the matter referred
back to a new panel for redetermination. That panel is directed to consider the
most up-to-date information available on St. Vincent and the
Grenadines.
If the answer is not contained in that documentation, the panel is directed to
ascertain from SVGHRA or Marion House whether the proposed women’s shelter is
now operational and, if so, to assess its effectiveness.
[26]
The
Minister shall have until November 1, 2007 to pose a question or questions of
general importance for certification. Ms. Myle shall have one week thereafter
to reply.
“Sean Harrington”
Ottawa, Ontario
October
18, 2007
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