Date:
20130626
Docket:
IMM-10661-12
Citation:
2013 FC 707
Ottawa, Ontario,
June 26, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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EYON AURELIEN
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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
[1]
The
applicant brings this judicial review to set aside a negative Pre-Removal Risk
Assessment (PRRA) dated September 28, 2012. For the reasons that follow the
application is granted.
[2]
The applicant
is a citizen of Saint Lucia, where she experienced abuse at the hands of her
boyfriend. The abuse escalated and in October of 2007, he beat her severely
and attacked her with a cutlass. The applicant did not report any of this violence
to the police because her boyfriend threatened to kill her. Instead, the
applicant fled to Canada and obtained a visitor’s visa. She did not know that
she could claim refugee protection; therefore, this PRRA is the first
assessment of her claim.
[3]
The
applicant has obtained medical treatment in Canada. A physician verified that
she has scars consistent with the attacks she described and a psychiatrist
diagnosed her with posttraumatic stress disorder and depression.
[4]
The
PRRA Officer accepted that the applicant had been the victim of abuse and that
her ex-boyfriend continued to inquire about her whereabouts. However, the
Officer concluded that the applicant had not rebutted the presumption of state
protection and therefore refused her application.
Issue
[5]
The
sole issue for this judicial review is whether the Officer’s conclusion on
state protection is reasonable. The Court is “concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process” and “whether the decision falls within a range of
possible, acceptable outcomes”: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, para 47.
Analysis
[6]
The
Officer’s conclusion on state protection does not satisfy this standard. There
are three critical errors.
The Applicant’s
Failure to Seek State Protection
[7]
The
Officer erred in treating the applicant’s failure to seek state protection as
being fatal to her refugee claim, effectively imposing a “duty to seek
protection prior to seeking international protection”. As Justice Russel Zinn
recently explained, it is an error to place a legal burden of seeking
state protection on a refugee claimant: Majoros v Canada (Minister of
Citizenship and Immigration), 2013 FC 421, paras 16, 20. It is an
evidentiary burden which, if met, displaces a legal presumption.
[8]
In
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, the Supreme
Court of Canada provided that “it would seem to defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a state, merely to demonstrate that
ineffectiveness.”
[9]
An
applicant need not seek state protection if the evidence indicates it would not
reasonably have been forthcoming. The Officer must consider whether seeking
protection was a reasonable option for the applicant, in her circumstances. When
the relevant circumstances include domestic abuse, the Supreme Court of Canada
has outlined specific considerations that must be taken into account, including
the psychological effects that abuse has on a victim. The issue as framed in R
v Lavallee, [1990] 1 S.C.R. 852, is what the applicant “reasonably perceived,
given her situation and her experience.” The test is thus subjective and
objective.
[10]
The
Officer had evidence of the three phases to the cycle of battery described in Lavallee:
(1) tension building, (2) the acute battering incident, and (3) loving
contrition. The applicant’s description of her relationship is
consistent with these phases. The cyclical nature of domestic abuse may lead
to the victim being able to predict the nature and extent of the violence and
notice signs which indicate an increased danger. As Wilson J. explained, for
battered women this understanding is a matter of survival.
[11]
Accordingly,
in considering whether the applicant’s failure to approach the police was
reasonable, the Officer must also have regard to the applicant’s subjective
belief that her boyfriend’s threats were real and imminent. The applicant
stated, “The tone of his voice and his anger really made me afraid that he
would actually kill me.” Nor did the Officer mention evidence in the record
which provides contextual, objective support for the applicant’s subjective
fear. For example, the Department of Justice’s fact sheet on spousal abuse
provides that a “woman’s risk of being killed increases after separation”.
Other affidavit evidence before the Officer to the same effect was not
considered.
[12]
Regarding
the effectiveness of state protection, the evidence before the Officer was that
out of 144 reported rapes in 2006 and 2007, the police made only 33 arrests and
only one case came before the courts (Immigration and Refugee Board of Canada
Responses to Information Requests LAC103195.E). The Officer did not consider
this evidence.
[13]
To
be clear, an applicant’s subjective fear will not be determinative of the
question of state protection. Rather, the jurisprudence requires that an
applicant’s perception be considered in light of the general country conditions
and factors such as the applicant’s age, social and cultural context.
[14]
The
Officer gave minimal consideration to the applicant’s subjective fear and the
possibility that she could face increased violence, or even death, if she
approached the police. The Officer had evidence in the record that women face
an acute risk of harm when they attempt to separate from their abusers. The
consideration of state protection cannot be separated from this essential
context and from the guidance of the Supreme Court of Canada in Lavallee.
Agencies Other than
the Police
[15]
The
Officer erred in relying on non-government agencies such as the Saint Lucia
Crisis Centre and the National Organization of Women, which offer advocacy,
referrals and shelter. These organizations do not provide protection.
[16]
This
Court has repeatedly emphasized that the police force is presumed to be the
main institution responsible for providing protection and in possession of the
requisite enforcement powers. Shelters, counsellors and hotlines may be of
assistance, but they have neither the mandate nor the capacity to provide protection:
Katinszki v Canada (MCI), 2012 FC 1326, para 15; MMC v Canada (MCI), 2011 FC 722, para 10; Zepeda v Canada (MCI), 2008 FC 491, paras 24-25.
[17]
It
is exceedingly difficult, from an evidentiary standpoint, to determine whether
a non-governmental organization can be a surrogate for the state to provide
protection. This is one of the policy considerations that underlies the
consistent requirement in the jurisprudence that the police provide
protection. Agencies have diffuse mandates and their effectiveness is hard to
measure. This case amply demonstrates the rationale that underlies the
jurisprudence.
[18]
Additionally,
the Officer relied on government organizations, such as the Ministry of Health,
without specifying how such a Ministry would provide protection. Indeed, the Officer
noted that doctors are legally obligated to report incidents of violence to the
police. Notably absent from this analysis is any acknowledgement that the
applicant’s physician did not report the attack after treating the applicant.
[19]
To
conclude on this point, the Officer noted that state protection was adequate
when the police services were viewed “in combination with” these other agencies
which address domestic abuse. This is an implicit admission that the police,
viewed on their own as they must be, do not measure up to the standard. Either
the police can provide state protection or they cannot.
Treatment of the
Evidence
[20]
Finally,
the Officer erred in disregarding relevant evidence on country conditions in Saint Lucia, most notably Flavia Cherry’s affidavit. Ms. Cherry is the founder of the
National Organization of Women, one of the non-governmental organizations that
the Officer relied on as demonstrating the adequacy of state protection.
[21]
Ms.
Cherry explained that police do not have the capacity to attend emergency calls
in a timely manner, due to limited staff and police vehicles. She also gave
evidence that perpetrators are not held pending investigations and that there
are long delays for court proceedings during which the perpetrator is on bail
and can intimidate victims. Additionally, discrimination and shame prevent
some women from seeking help. She described the financial and operational
limitations on agencies whose mandate is to help victims of domestic violence.
[22]
The
Officer did not give her affidavit “full weight” because it contained hearsay
and is generalized to all women in Saint Lucia, without details pertaining
specifically to the applicant’s situation. This evidence goes directly to
whether the state’s efforts to provide protection are adequate at the
operational level. The Officer’s failure to meaningfully engage with this
evidence renders the decision unreasonable.
[23]
Country
condition evidence is not tendered to demonstrate the personalized nature of a
claim. Rather, such evidence provides context for assessing whether an
applicant could reasonably expect state protection. Secondly, it is
inconsistent for the Officer to rely on certain country condition evidence,
which contains hearsay and generalized information, while rejecting Ms.
Cherry’s evidence because it contains hearsay.
[24]
I
need not point out the disconnect between the Officer’s reliance on the
existence of a non-governmental organization to bolster a conclusion of state
protection and the Officer’s rejection of the affidavit evidence of an executive
member of that very organization.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to Citizenship and Immigration
Canada for reconsideration before a different Pre-Removal Risk
Assessment officer. There is no question for certification.
"Donald J.
Rennie"
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