Date: 20080620
Docket: IMM-5246-07
Citation: 2008 FC 770
Ottawa, Ontario, June 20,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
DARIO CRADMORE MATTHEWS
(BY HIS LITIGATION GUARDIAN,
CONSTANCE NAKATSU)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of Refugee Protection
Division of the Immigration and Refugee Board (the Board), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act), dated November 22, 2007, in which the Board found that the
applicant, Dario Cradmore Matthews, is not a Convention refugee or a person in
need of protection.
[2]
The
application for judicial review shall be allowed for the following reasons.
FACTUAL BACKGROUND
[3]
The
applicant is a citizen of St. Vincent. He is seven years old
and was born on August 25, 2000. His interests are represented by a designated
representative, Constance Nakatsu. The applicant’s claim was disjoined from
that of his mother and her partner, whose claims have failed. While in Canada, the
applicant’s mother was charged with assault in respect of her partner, and the
applicant is under the care of Children’s Aid Society, living with foster
parents.
[4]
The
applicant’s claim was based on abuse he suffered at the hands of his father,
who would beat him when his mother was not present. He fears that his father
would abuse or kill him if he returned to St. Vincent. He fears also to be
beaten by his extended family except his aunts (Tribunal's Record, page 198).
[5]
The
applicant consistently indicated to the designated representative that he had
been beaten 13 times by his father, using his hands and other objects. The
designated representative indicated that, to the best of her knowledge, the
applicant had not needed medical attention following the beatings.
[6]
The
applicant’s grandmother and aunts continue to live in St. Vincent.
DECISION UNDER REVIEW
[7]
The
Board determined that the applicant is neither a Convention refugee nor a
person in need of protection because of the availability of state protection in
St. Vincent. The following reasons were given in support of the decision:
a) The Board
noted that it took into consideration the Guidelines on Child Refugee Claimants
in reaching its decision.
b) The Board
reviewed the principles of state protection, and the burden an applicant must
meet to demonstrate that protection of his home state is not forthcoming.
c) The Board
reviewed the documentary evidence. Notably, it discussed evidence which was
contrary to its ultimate conclusion; the evidence indicated that there was no
government program available for abused children who cannot remain in their
household, or who require an alternative living arrangement to that of the
family home. The absence of legislation specifically addressing the needs of
abused children was noted.
d) The situation
of the applicant’s mother was examined by the Board. The Board noted that
though the applicant’s mother was charged with assault, no persuasive evidence
was presented to indicate that she was abusive toward the claimant, or an unfit
mother. The Board found no persuasive evidence that the applicant would not
remain in the custody of his mother upon return to St. Vincent.
e) The Board determined
that the applicant’s mother could seek protection from the state on his behalf.
It reviewed the documentary evidence dealing with the protection of children
who remained under the care of a parent, and the legislation in place, namely
the Domestic Violence Act. The Board concluded that it was not unreasonable for
the applicant, with the help of his mother, to approach the state of St.
Vincent for protection; he failed to rebut the presumption of state protection
with clear and convincing evidence.
ANALYSIS
Standard of Review
[8]
Whether
the Board erred in its assessment of state protection is reviewable on a
standard of reasonableness (Chaves v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 232, 2005 FC 193; Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paragraphs 55, 57, 62, and 64). For a decision to be reasonable
there must be justification, transparency and intelligibility within the
decision making process. The decision must fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir,
above at paragraph 47).
[9]
The
applicant first argues that the Board erred in its assessment of availability
of care for the applicant in St. Vincent. Specifically, the
applicant argues that the Board erred in finding that he was not a child in
need of alternative living arrangements to the family home, and that his mother
could approach the state for protection on his behalf. The applicant submits
that there was no evidence as to the outcome of the custody issue and that this
assumption by the Board was based on pure speculation, unsupported by the
evidence.
[10]
Second,
the applicant argues that the Board erred in its assessment of the documentary
evidence regarding the availability of state protection in St. Vincent. The
applicant submits that the Board selectively referred to portions of the
evidence that favour the conclusion that state protection is available. The
applicant argues that the Board did not provide reasons for preferring the
evidence that it did.
[11]
I
will deal only with the first argument because I think it is determinative in
this case. The Board wrote at page 9 of the Tribunal's Record:
… The claimant was in the custody of his
mother for the last few years prior to coming to Canada and seldom saw his father. There is no
persuasive evidence before the panel that the claimant will not continue to
remain in the custody of his mother upon return to St. Vincent, and that if the
claimant were to be the target of harm from his father, his mother, as his
primary care giver, would protect him or if necessary seek out state protection
for him. …
[12]
This
assumption is not supported by the evidence. First, the transcript from the
hearing (Tribunal Record, page 200) shows that in the event of a return to St. Vincent, the
applicant would live with is maternal grandmother. The applicant, through his
designated representative (Tribunal Record, page 198), said that he was beaten
by “everybody" except his aunts. I am therefore not convinced that the applicant
would be protected.
[13]
Second,
at the time of the Board's decision, the applicant's mother had lost legal
custody of her child. There is no evidence whatsoever in the file when she will
regain custody. I therefore find speculative the Board's assumption that the
applicant will continue to remain in the custody of his mother upon return to
St. Vincent. The conclusion to dismiss the applicant's claim cannot stand on
this reviewable error.
[14]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is allowed. The matter is remitted to a differently
constituted panel for redetermination. No question is certified.
“Michel
Beaudry”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-5246-07
STYLE OF
CAUSE: DARIO CRADMORE MATTHEWS
(BY HIS LITIGATION
GUARDIAN,
CONSTANCE NAKATSU)
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 18,
2008
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: June
20, 2008
APPEARANCES:
D. Clifford Luyt FOR
APPLICANT
Gordon Lee FOR
RESPONDENT
SOLICITORS OF RECORD:
D. Clifford Luyt FOR
APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR
RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
Email this Content