Date: 20071019
Docket: IMM-2761-06
Citation: 2007 FC 1079
Ottawa, Ontario, October 19,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
DENEIVA
OLIVIA RIGG
Applicant(s)
and
SOLICITOR
GENERAL FOR CANADA
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Deneiva Olivia Rigg from a pre-removal
risk assessment (PRRA) decision rendered on April 26, 2006 whereby Ms. Rigg was
found not to be at risk if she was deported to Jamaica.
Background
[2]
Ms.
Rigg came to Canada from Jamaica in 1975 with
her family. She was then 10 years old. Ms. Rigg became a permanent resident
in 1977 but she never obtained Canadian citizenship. She is now 42 years of
age and faces deportation to Jamaica because of a lengthy
history of criminality including convictions for prostitution, trafficking and
theft. Ms. Rigg has also been addicted to cocaine for most of the past 20
years and she contends that this addiction has been a "large
contributor" to her criminal record. She is also a lesbian who has been
quite open about her sexual orientation. She has no immediate family outside
of Canada.
[3]
On
March 29, 2006, Ms. Rigg made an application for a PRRA. In support of that
application, she submitted a substantial package of documentary evidence
describing her personal circumstances and the risks she would face as a lesbian
returning to Jamaica. Of
particular note in this submission was an 8-page letter from Amnesty
International Canada describing the profound risks faced by gays and lesbians
in Jamaica and offering
the following stark conclusion with respect to Ms. Rigg:
In view of these factors, Amnesty
International believes that it is highly plausible that Ms. Rigg's life would
be in great danger should she return to Jamaica. As a lesbian woman, she would not be
able to relocate safely within Jamaica. Ms. Rigg would be
considered an outsider in Jamaica since she has lived in Canada in the last over 30 years.
She will be easily identifiable and targeted for persecution including sexual
violence or death.
The PRRA Decision
[4]
The
PRRA Officer assessed Ms. Rigg’s risk in Jamaica primarily on
the basis of her sexual orientation. Indeed, the other aspects of her
vulnerability were largely dismissed as being either speculative or irrelevant
to the assessment of risk. In the result, her drug addiction, her lack of
family support and her lengthy absence from Jamaica were all
ignored in the risk analysis. In rejecting Ms. Rigg's claim to protection based
on her sexual orientation, the PRRA Officer concluded:
I accept that the applicant is who she
claims to be. I do not challenge her credibility with regard to her sexual
orientation, her drug addiction or her family situation. Having carefully
considered the evidence provided in support of her PRRA, I do not agree that
the applicant will face more than a mere possibility of persecution or likely
face a risk of torture or a risk to life or of cruel and unusual treatment or
punishment. I do not find that the applicant presents sufficient evidence that
she will be at risk as a lesbian in Jamaica.
In the absence of persecutory events in the past in Jamaica, her fear is based on speculation and I
do not agree that her risks in Jamaica reach the threshold necessary
for her to be considered a Convention refugee or a person in need of protection.
The documentary evidence indicates that
although Jamaica continues to encounter serious problems with criminal violence
and drug and gang-related violence and societal discrimination against
homosexuals, Jamaica is a Commonwealth country
with a constitutional parliamentary democracy and a generally independent
judiciary. DOS reports that the government generally respects human rights.
The applicant has failed to rebut the presumption
of state protection. While I acknowledge that societal discrimination against
homosexuals is a serious problem in Jamaica,
the applicant has never sought state protection in Jamaica, nor has she presented sufficient
evidence to persuade me that it would be unavailable to her. The Supreme Court
of Canada held in Ward that:
Absent some evidence, the claim should
fail, as nations should be presumed capable of protecting their citizens. Security
of nationals is, after all, the essence of sovereignty. Absent a situation of
complete breakdown of state apparatus, such as that recognized in Lebanon in
Zalzali, it should be assumed that the state is capable of protecting a claimant…Although
this presumption increases the burden on the claimant, it does not render
illusory Canada’s provision of a haven for
refugees. The presumption serves to reinforce the underlying rationale of
international protection as a surrogate, coming into play where no alternative
remains to the claimant. Refugee claims were never meant to allow a claimant
to seek out better protection than that from which he or she benefits already.
Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689 at p. 18 (internet version)
I acknowledge the evidence of ill
treatment of homosexuals and of reports of police inattention to the problems.
I find, however, that the applicant did not seek protection, and that the
evidence does have examples of police action to protect homosexuals from mob
violence. The evidence also indicates that the law does not mention lesbian
activities and that although society discriminates against homosexuals, there
is not evidence that lesbians generally face serious ill treatment:
Although it is not illegal to be
homosexual in Jamaica, the Offences Against Persons
Act criminalises homosexual intercourse between men, with a penalty of up to
ten years’ imprisonment with hard labour. The law also criminalises “acts of
gross indecency” between men – in public or in private. The number of prosecutions,
if any, brought under this legislation is not reported. Homosexual activity
between women is not mentioned. 23
[…]
There is no evidence that lesbians
generally face serious ill treatment in Jamaica and in the absence of evidence to the
contrary may be certified as clearly unfounded. Where a lesbian is able to
establish a real risk of treatment amounting to persecution or Article 3
treatment, sufficiency of protection cannot be relied upon. Where the
well-founded fear is a localised one it may be possible for the claimant to
avoid the threat by moving to a different part of Jamaica. However, only if it clearly could not
reasonably be argued that a claimant would experience persecution or
ill-treatment were she to relocate and it is clear that it would not be unduly
harsh for her to do so should a claim be certified on this basis. Where
exceptionally it is found that a lesbian does have a well-founded fear of
persecution in Jamaica and that she could not avoid
the threat by internal relocation or it would be unreasonable for her to do so,
as lesbians in Jamaica may be considered to be a
particular social group a grant of asylum would be appropriate. (January 2006 UK Operational Guidance Note)
[Quoted from original text]
Issues
[5]
(a) What
is the appropriate standard of review for the issues raised by the Applicant?
(b) Did
the PRRA Officer err in the treatment of the evidence?
Analysis
[6]
As
a general statement describing the standard of review applicable to PRRA
decisions, I would adopt the following passage from the decision of Justice Carolyn
Layden-Stevenson in Nejad v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1444, [2006] F.C.J. No. 1810 at
para. 14:
In Nadarajah v. Canada (Solicitor General) (2005), 48 Imm. L.R. (3d) 43,
I adopted Mr. Justice Mosley's pragmatic and functional analysis in Kim v. Canada (Minister of Citizenship and
Immigration)
(2005), 272 F.T.R. 62 regarding the standard of review applicable to PRRA
decisions. The standard of review for questions of fact is patent
unreasonableness, for questions of mixed law and fact, reasonableness, and for
questions of law, correctness. When the decision is considered "globally
and as a whole", as noted by Mr. Justice Martineau in Figurado v. Canada (Solicitor General), [2005] 4 F.C.R. 387 (F.C.),
the standard of review is reasonableness.
[7]
The
issues raised on behalf of Ms. Rigg do not involve pure factual findings but
involve the Officer’s treatment of the evidence generally. These are matters
of mixed fact and law for which the standard of review is reasonableness.
[8]
There
are several problems with this PRRA decision and I am satisfied that the
assessment must be redone.
[9]
In
some respects, the decision is strangely written. Despite the fact that Ms.
Rigg left Jamaica at the age
of 10, the decision contains two references to the fact that she did not seek
state protection before leaving. Given that her protection claim was based
primarily on her sexual orientation, the failure to seek protection before the
age of puberty was hardly unexpected and was irrelevant to the merits of her
claim. These references are somewhat ambiguous and could be interpreted as
attempting to state the obvious that Ms. Rigg had no personal risk experiences
in Jamaica. It is
difficult to understand, though, why such a point would be made indirectly by
referring to her failure to pursue state protection. Standing alone, I would
not be inclined to set aside this decision because of this awkward choice of
language. However, there are other more serious problems with the PRRA
Officer’s risk analysis. One of those is contained within the following
sentence:
In the absence of persecutory events in
the past in Jamaica, her fear is based on
speculation and I do not agree that her risks in Jamaica reach the threshold necessary for her to
be considered a Convention refugee or a person in need of protection.
[Emphasis added]
[10]
It
is not accurate to say that in the absence of personal experiences of
persecution, Ms. Rigg’s alleged fear was based on speculation. The
documentary evidence submitted on her behalf was not speculative. It came from
reputable evidentiary sources and it provided strong support for her stated
fear of persecution based on her sexual orientation. By treating this evidence
as speculative, instead of assessing its weight relative to the other country-condition
evidence, the Officer clearly erred.
[11]
This
decision is plagued by other problems. It was unreasonable for the Officer to
assess Ms. Rigg's sexual orientation risk without considering her personal
circumstances. As an isolated outsider with a drug addiction and a lengthy
criminal record, Ms. Rigg’s situation, were she to return to Jamaica, could only
be considered dire. It was naïve to suggest that homelessness and a relapse to
drug addiction would be speculative outcomes for her. Her risk of being a
target for violence and abuse in the highly homophobic society of Jamaica could not be
fairly assessed in isolation from the other obstacles she would face there. The
failure by the Officer to consider her sexual orientation risk in the context
of her personal circumstances was unreasonable and also constitutes a
reviewable error.
[12]
This
decision is also profoundly deficient in its assessment of the evidence
concerning the risks faced by lesbians in Jamaica. The
Officer's conclusion that "well respected country condition sources
indicate that lesbians are not generally targeted for abuse in Jamaica" is
supported only by an ambiguous and unsubstantiated statement in a 2006 United
Kingdom Operational Guidance Note which reported:
There is no evidence that lesbians generally
face serious ill-treatment in Jamaica and in the absence of
evidence to the contrary may be certified as clearly unfounded. Where a lesbian
is able to establish a real risk of treatment amounting to persecution
or Article 3 treatment, sufficiency of protection cannot be relied upon.
[Emphasis added]
[13]
It
is not at all clear what the authors of the above passage meant by their use of
the word "generally," but if it was intended to suggest that there is
no evidence that lesbians are at risk of severe physical abuse in Jamaica, it is
obviously wrong.
The documentary record before the PRRA Officer disclosed an appalling history
of persecution and intolerance directed at both gays and lesbians in Jamaica coupled with
a very troubling climate of police indifference and abuse. Included in that
evidence was the following:
Amnesty International
Amnesty International has received
consistent reports alleging that police officers routinely fail to take
seriously, to make reports on, and subsequently to investigate crimes reported
by gay men and lesbians, including homophobic attacks.
Police protection is often unavailable.
In some cases, the police have themselves tortured or ill-treated LGBT victims
of crime seeking assistance from the police. Often they fail to investigate
homophobic hate-crimes or do not take written or verbal reports of incidents.
Police appear to also target health care providers working with the LGBT
community and there have been several reports of nurses, social workers and
others being unlawfully detained and ill-treated by the police.
The reluctance of the victims of assault
to come forward is not, in Amnesty International’s view, the sole or main
reason for the pattern of inadequate investigation of such crimes. The failure
to adequately investigate crimes committed by citizens against gay men and
women is compounded by the authorities’ general inadequacy in investigating
reports of ill-treatment or torture by the police; as documented in numerous
Amnesty International reports.
…
Amnesty International believes that the
retention of the laws described below fosters impunity for police officers who
are commonly reported to ill-treat and torture men and women publicly
identified as gay, including through the use of rape or other forms of sexual
assault, and to inadequately investigate homophobic-related crimes.
…
Despite the fact that consensual same-sex
relations between women are not criminalised in law, Amnesty International
considers it important to note that the overwhelming public impression is that
all forms of homosexuality are illegal.
…
Lesbians in Jamaica remain at risk of suffering violence.
These risks include that of sexual violence. Given the reported prevalence of
this phenomenon in Jamaica, it is not implausible to
suggest that a lesbian woman could be singled out for such attacks on the
grounds of “mannish” physical appearance or other visible manifestations of
homosexuality.
…
In Jamaica, differences in social location can be
expected to result in qualitative as well as quantitative variations in the
expression or experience of violence in lesbian’s lives. It is not implausible
to suggest that such a person would be singled out for ill-treatment or
violence on account of her sexuality. In Amnesty International’s view, a young
lesbian from an inner-city area could face considerable risk of torture or
ill-treatment, possibly even death, as a result of her sexuality becoming known
to the community. Vulnerability to such attacks would be increased by the
familial and social isolation that may occur in an attempt to adhere to the
mores of the local community. Risk of violence includes that of sexual
violence.
…
It is important to state that Amnesty International
is also of the view that existing data on violence against lesbian women in Jamaica expressed only the tip of the
iceberg. Since so much shame and disbelief surrounds violence against the gay
community and against women – the number of women who report abuse is assumed
to be many times fewer that the number of actual incidents.
Violence against women in especially
stigmatised communities, such as women who have sex with other women, is an
especially hidden form of violence in Jamaica.
Even when men and women undergo similar violations, women’s cases are often
less visible and therefore less frequently condemned. We therefore image the
data to be the absolute minimum rather than a realistic estimate.
…
Human Rights Watch
…Women who have sex with women are also targets
of community violence and police harassment; and, as with men who have sex with
men, their complaints of violence are often ignored by police.
…
…Women who are or are perceived to be
lesbians are at an even greater risk of rape, as they may be targeted for
sexual violence based on both their gender and sexual orientation.
…
Police abuse is a fact of life for many
men who have sex with men and women who have sex with women in all of the
communities that Human Rights Watch visited in Jamaica. As in the incident described above,
homophobic police violence can be a catalyst for violence and abuse by others.
It is sometimes lethal. Police abuse is also profoundly destructive because it
creates an atmosphere of fear sending a message to other lesbian, gay,
bisexual, and transgender people that they are without any protection from
violence.
…
Women who have sex with women reported
that they were subjected to constant threats of sexual violence, in some cases
serious enough to force them to leave their homes and their neighborhoods.
Several women who have sex with women told Human Rights Watch that the message
they were given was clear: that they could be “cured” of their homosexuality
by having sex with a man.
[14]
It
is clear that the PRRA Officer's conclusion that Ms. Rigg would not be at
risk was based on a single ambiguous observation taken out of context. That
conclusion was also completely at odds with all of the other documentary
evidence which the Officer essentially ignored. This highly selective
treatment of the evidence also constitutes a reviewable error: see Babai v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1341, [2004] F.C.J. No. 1614 at
paras. 35 to 37.
[15]
While
Ms. Rigg is a person with a troubled and troubling background, she is entitled,
nonetheless, to a thorough and balanced risk assessment. It is also worth
remembering that her personal history was largely wrought in Canada and had
little, if anything, to do with her childhood in Jamaica. It is that
history that has led her to the threshold of deportation but it is the same
history that arguably creates for her an increased risk of persecution in Jamaica. She is
entitled to have that risk assessed on the same objective basis that would
apply to any other foreign national facing removal from Canada.
[16]
This
application for judicial review is allowed with the matter to be remitted for
reconsideration on the merits by a different decision-maker.
[17]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be remitted for reconsideration on the merits by a different
decision-maker.
“ R. L. Barnes ”
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