Date:
20131218
Docket:
IMM-9659-12
Citation:
2013 FC 1262
Ottawa, Ontario,
December 18, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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SHERISA SHERMIKA PATRICIA
MODESTE
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of
the Refugee Protection Division of the Immigration and Refugee Board [RPD or
the Board], dated 17 August 2012 [Decision], which refused the Applicant’s
application to be deemed a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a ten-year-old citizen of Saint Lucia who arrived in Canada with her mother on 11 December 2011. The Applicant’s mother, Agatha Shermain Gabriel
[Agatha] made a successful refugee claim based on gender-related persecution in
the form of physical, sexual and psychological violence perpetrated by her
common law husband, who is also the Applicant’s father, and the failure of the
state to protect her from that violence. Agatha claimed that her common law husband
raped her at gunpoint, pistol whipped her, attacked her with a knife, beat her
with a walking stick, and repeatedly threatened and assaulted her, and that the
police failed to intervene despite many requests for help. Based on the
evidence presented, the RPD found that Agatha’s evidence was credible and that she
is a Convention refugee. However, the Board determined that the Applicant was
not a Convention refugee or a person in need of protection, as she had not
personally been subjected to violence or threats.
[3]
The
Applicant’s refugee claim was heard together with her mother’s claim, and the
Applicant’s mother acted as her designated representative. Therefore, the
Applicant did not give oral testimony at the hearing. Rather, the RPD member
asked questions of Agatha relating to the Applicant’s claim. Agatha testified
that the Applicant and her father “were close,” and that the Applicant had not
been physically assaulted by her father, nor did she personally “have problems
with anyone” in Saint Lucia (Transcript at p. 15-16). However, Agatha’s
Personal Information Form [PIF] stated that the Applicant had witnessed some of
the violence of her father towards Agatha, and that both of them had been
“forced to live like fugitives with the fear of being killed hanging over our
heads each day” (PIF at para 2, 12). When asked at the hearing what the
Applicant would have to fear if she returned to Saint Lucia, Agatha replied:
“She would have to fear losing her mother” (Transcript at p. 16).
DECISION UNDER
REVIEW
[4]
The
RPD’s written reasons focused primarily on the claim of Agatha. The Board found
that she was a credible witness and was persuaded that, on a balance of
probabilities, she had been the victim of horrendous domestic violence over a
prolonged period of time in Saint Lucia. The Board also found that Agatha had
rebutted the presumption of state protection, as her oral testimony and the
documentary evidence before the Board provided “clear and convincing proof that
state protection in Saint Lucia is inadequate for victims of domestic
violence.” While there is legislation in place to deal with domestic violence
in Saint Lucia, the Board found that it was not being effectively implemented,
and that Agatha had complained to police many times with no resulting arrest or
charges against her common law husband. As such, the Board found that Agatha
had met her burden of proof, establishing a serious possibility of persecution
in Saint Lucia on a convention refugee ground related to her gender and
membership in a particular social group as a victim of domestic violence, and
was therefore a convention refugee.
[5]
The
Board then turned to the Applicant’s claim and provided the following reasons
for rejecting it:
[42] The minor claimant was not physically
harmed by her father while she resided in Saint Lucia. The principal claimant
described the relationship between the minor claimant and her father as close.
The principal claimant indicated that the minor claimant had witnessed the
domestic violence but the minor claimant had been treated well by her father.
[43] The minor claimant has not met her burden
of proof. There is insufficient evidence to support a finding that the minor
claimant faces a serious possibility of persecution on a convention refuge
[sic] ground should she return to Saint Lucia.
[44] Nor has sufficient reliable evidence been
presented to establish on a balance of probabilities that it is more likely
than not that the minor claimant would be subjected to a danger of torture or
face a risk to life or a risk of cruel and unusual punishment upon her removal
to Saint Lucia.
[45] The claims of the minor claimant are
rejected. Sherisa Patricia Modeste is neither a convention refugee nor a person
in need of protection.
ISSUES
[6]
The
Applicant raises the following issues in these proceedings:
a. Was
the Decision unreasonable, in that the RPD failed to consider whether the
Applicant, as a minor female from Saint Lucia and the daughter of an individual
found to have subjected Agatha to domestic violence, would face a risk of gender-based
violence if returned to Saint Lucia?
b. Did
the RPD provide inadequate reasons for its conclusion that there was
“insufficient evidence” to support the Applicant’s claim?
STANDARD OF
REVIEW
[7]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is settled in a satisfactory manner by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless, or where the relevant precedents appear to
be inconsistent with new developments in the common law principles of judicial
review, must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis: Agraira v Canada (Public Safety
and Emergency Preparedness), 2013 SCC 36 at para 48 [Agraira].
[8]
The
Respondent submits that the question of whether a claimant has a well-founded
fear of persecution is reviewable on a standard of reasonableness (Kulasingam
v Canada (Minister of Citizenship and Immigration), 2012 FC 543 at para 23;
Guerrero Moreno v Canada (Minister of Citizenship and Immigration), 2011
FC 841 at para 7; Jean v Canada (Minister of Citizenship and Immigration),
2010 FC 1014 at para 9), and that determinations under section 97 are also
reviewable on a standard of reasonableness (Luna Pacheco v Canada (Minister
of Citizenship and Immigration), 2012 FC 682 at para 12; Guerilus v Canada
(Minister of Citizenship and Immigration), 2010 FC 394 at para 9. I agree
that the determinations at issue here are questions of mixed fact and law that are
reviewable on a standard of reasonableness: Dunsmuir, above at para 53.
[9]
With
respect to the issue of inadequate reasons, in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 [Newfoundland Nurses], the Supreme Court of Canada held at para 14 that the adequacy of reasons is not a stand-alone basis for quashing
a decision. Rather, “the reasons must be read together with the outcome and
serve the purpose of showing whether the result falls within a range of
possible outcomes.” As such, this issue will be considered in the context of
the reasonableness of the Decision.
[10]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
para 47,
and Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
STATUTORY
PROVISIONS
[11]
The
following provisions of the Act are applicable in these proceedings:
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Convention
refugee
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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.
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
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.
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ARGUMENT
Applicant
[12]
The
Applicant argues that the Decision was unreasonable because the Board failed to
consider whether her profile as a minor female from Saint Lucia and the
daughter of an abusive male placed her at risk of gender-related persecution if
returned to Saint Lucia. The Board’s findings regarding the violence suffered
by Agatha and the absence of state protection made such an analysis mandatory
in this case. The Applicant also argues that the RPD failed to provide adequate
reasons for rejecting her claim.
[13]
It
is well-established, the Applicant argues, that if objective evidence
demonstrates that a particular group is at risk, the RPD is required to
determine whether the applicant fits that profile in assessing a claim under subsection
97(1) of the Act. The failure to conduct such an analysis is a reviewable
error: Alemu v Canada (Minister of Citizenship and Immigration), 2004 FC
997 at para 46, citing Ramirez v Canada (Solicitor General) (1994),
88 FTR 208 (FCTD), Burgos-Rojas v Canada (Minister of Citizenship and
Immigration) (1999), 162 FTR 157 (FCTD), and Kamalanathan v Canada
(Minister of Citizenship and Immigration) (2001), 15 Imm LR (3d) 55 (FCTD).
Here, there was extensive evidence regarding the risk of violence faced by
women and children in Saint Lucia, and of the inadequacy of state protection
for victims of domestic violence, and this very evidence was accepted by the
RPD in granting Agatha’s refugee claim. Notwithstanding this evidence, the RPD
failed to consider whether the Applicant would face such a risk if returned to Saint Lucia.
[14]
The
RPD’s explanation for rejecting this aspect of the Applicant’s claim was that
her father had not yet physically abused her. However, the determinative issue
was whether there was a serious possibility that such harm would come to pass
based on the Applicant’s profile. In light of the horrific violence perpetrated
by the Applicant’s father against the Applicant’s mother, and the inability of
the state to protect women in Saint Lucia against such abuse, the failure of
the RPD to answer this determinative question makes its ultimate conclusion
unsafe and unreasonable.
[15]
The
Applicant argues that the reasons provided by the RPD are inadequate because
they fail to explain in clear and unmistakable terms why the Applicant’s
profile as a minor female does not put her at risk of gender-related
persecution. The explanation that there was “insufficient evidence” to support
the Applicant’s claim fails to indicate why this was the case and what evidence
in particular was missing: Gallardo v Canada (Minister of Citizenship and
Immigration), 2006 FC 1331 at paras 11-16; Mohacsi v
Canada (Minister of Citizenship and Immigration), [2003] 4 FC 771.
Respondent
[16]
The
Respondent argues that the Applicant has failed to demonstrate any error in the
RPD’s Decision. Rather, the Decision fully addresses the Applicant’s risk, the
reasons sufficiently explain the RPD’s analysis, and the Decision itself is
reasonable.
[17]
The
Applicant’s mother testified that the Applicant had never been abused by her
father, that the two had a close relationship, and that there was no one else
the Applicant feared in Saint Lucia. Furthermore, there was no evidence that
the Applicant objectively faced a risk of domestic violence in Saint Lucia. Before counsel for the Applicant made oral submissions, the RPD gave notice of
its concerns regarding this aspect of the claim, and counsel failed to make any
persuasive argument that the Applicant faced a legitimate risk of domestic
violence.
[18]
The
Respondent argues that the RPD is not required to conduct separate analyses
under sections 96 and 97 where no claims have been made or evidence adduced
that would warrant such a separate analysis: Valez v Canada (Minister of
Citizenship and Immigration), 2010 FC 923 at paras 46-48; Sida v Canada
(Minister of Citizenship and Immigration), 2004 FC 901 at para 15; Kandiah
v Canada (Minister of Citizenship and Immigration), 2005 FC 181 at para 16;
Brovina v Canada (Minister of Citizenship and Immigration), 2004 FC 635
at paras 17-18 [Brovina]. Here, the evidence underlying both claims was
the same: the Applicant witnessed her father’s violence towards her mother, and
there was country condition evidence that victims of domestic violence cannot
access state protection in Saint Lucia. However, the Respondent argues, the
Applicant did not establish that she herself faced a risk of domestic violence
in Saint Lucia.
[19]
As
in Brovina, above, the RPD in this case made a “brief but defensible”
finding that the Applicant faced no risk under section 97. That provision
requires that the individual’s removal “would subject them personally”
to a danger or risk. Evidence regarding country conditions alone cannot
establish such a personalized risk: Singh v Canada (Minister of Citizenship
and Immigration), 2009 FC 1070 at para 25; Ayaichia v Canada (Minister of Citizenship and Immigration), 2007 FC 239 at para
21-22. The Applicant failed to establish a tangible connection between her
personal situation and the general prevalence of domestic violence in Saint Lucia. The onus was on the Applicant to establish her section 97 claim on a balance
of probabilities (Karsoua v Canada (Minister of Citizenship and Immigration),
2007 FC 58 at para 35), and the Applicant failed to meet that onus. The RPD’s
findings were therefore reasonable.
[20]
The
Respondent argues that the RPD’s reasons meet the standard of justification,
transparency and intelligibility. The governing principle in reviewing a
decision on the standard of reasonableness is deference. The Court must not
review reasons in a vacuum but rather in the context of the evidence,
submissions and process. Reasons need not be perfect or comprehensive: Newfoundland Nurses, above, at paras 1, 14, 18; Dunsmuir, above, at
para 47. Here, the Decision informs the Applicant why her claim was refused and
how the RPD weighed the evidence leading to its conclusion. The reasons were
therefore adequate: Ragupathy v Canada (Minister of Citizenship and
Immigration), 2006 FCA 151 at paras 13-15; Via Rail Canada Inc. v
National Transportation Agency, [2001] 2 FC 25 (CA) at paras 17, 19.
ANALYSIS
[21]
As
counsel pointed out, this is a somewhat strange case in which the Applicant was
not granted refugee protection when her mother was.
[22]
It
seems to me that the principal reason for this is that Agatha, the Applicant’s
mother, testified at the hearing that the Applicant and her father were close
and he had not harmed the Applicant in the way he had harmed Agatha.
[23]
A
reading of the PIF places the evidence given by Agatha at the hearing in a slightly
different light. In her PIF, Agatha said that:
Patrice Modeste has an uncontrollable desire for sex
and violence after abusing alcohol and drugs. My daughter and I have been
forced to live like fugitives with the fear of being killed hanging over our
heads each day.
[24]
Agatha
also said in her PIF that:
My daughter developed an instinctive fear of Patrice
such that, the mention or reference to him, generated visible unease to her.
[25]
These
statements are somewhat inconsistent with the statements made by Agatha in oral
testimony and neither the RPD nor Applicant's counsel explored the issue with Agatha,
so that it is difficult to understand what was the real relationship between
the Applicant and her father.
[26]
The
applicant was 10 years old at the time of the hearing and it is of concern that
her fate was in the hands of others who, perhaps, did not make clear what the
real risk was.
[27]
I
think, however, that the RPD should have been alive to these concerns. The
Board’s reasons for rejecting the Applicant's claim are brief and, in my view, entirely
miss what is of real concern in this case.
[28]
It
is true that the oral evidence from Agatha was that the Applicant had not been
physically harmed by her father and that she had a close relationship with him.
[29]
However,
the evidence was also that the Applicant had been forced to witness the
horrendous physical and psychological abuse of Agatha by her father. The record
shows that that abuse was truly shocking and violent. The RPD acknowledges all
of this and made no adverse credibility findings.
[30]
What
is left out of account, however, is the Applicant’s having to live under these horrendous
circumstances and to witness what was done to her mother, which was also a
severe form of abuse of the Applicant by her father. And this is the risk that
should have been assessed. For a child to have witnessed this kind of
appalling violence is abuse of the child.
[31]
The
closeness between the Applicant and her father exacerbates the risks she faces.
If returned, she would have to face a man who is violently abusive towards
women and, if she is close to him, she will be forced to witness more of the
same. This will again be violent abuse of the Applicant herself, even if her
father does not harm her physically, and given the evidence, this man may well
eventually turn upon his own daughter.
[32]
The
problem here is not that the RPD failed to consider the extremely disturbing
country documentation on domestic abuse in Saint Lucia. The problem is that the
RPD failed to understand that the Applicant had already been abused by her
father when he made her witness the terrible things he did to Agatha, and that
the Applicant faces a continuation of that abuse if she is returned to Saint
Lucia. She will confront a father with whom she has had a close relationship,
and who will, no doubt, abuse his daughter again by exposing her to the extreme
violence against others of which he is eminently capable.
[33]
In
fact, if she is returned to Saint Lucia, there is a real prospect that the
Applicant may have to witness further violence by her father against her
mother, as there is little chance the latter will let her return on her own.
Agatha testified at the RPD hearing that her mother is unemployed and that “I
don’t have anyone that I could send my daughter back to in St. Lucia right now”. This raises the frightening prospect that the Applicant, who is eleven years
old, would have to live with her father, who has a demonstrated propensity for
extreme domestic violence, or that to avoid this eventuality, her mother would
have to return to Saint Lucia despite the risks she faces there.
[34]
The
Applicant is now eleven years old and her vulnerability is obvious. According
to the country documentation, domestic violence against women and children is
rampant in Saint Lucia and there is no adequate state protection. The personal
risks to the Applicant of further exposure to her father are, in my view,
terrifying. I think it was unreasonable of the RPD not to fully appreciate
these risks and not to assess them under sections 96 and 97. In my view, this
matter must be returned for reconsideration. As part of its reconsideration,
the RPD will assume the following:
(a)
The
Applicant has already been the victim of severe abuse at the hands of her
father because she has been forced to witness the severe and degrading violence
imposed upon her mother by her father in a household marred by drunkenness and
violence;
(b)
The
Applicant will again be exposed to her father’s violence;
(c)
There
is no adequate state protection for women and children against domestic
violence in Saint Lucia where such violence is rampant.
[35]
The
RPD should consider and assess the Applicant’s claim under both section 96 and
97 of the Act and, in so doing, should also consider the dangers of the father
harming her physically and psychologically through direct violence, in addition
to what she faces by being exposed to his violence against others.
[36]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD, in accordance with my
reasons.
2.
There
is no question for certification.
"James
Russell"
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