Docket: IMM-6318-13
Citation:
2014 FC 1229
Ottawa, Ontario, December 22, 2014
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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TERRENCE CORNELIUS GLASGOW
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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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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
Pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], the Applicant
seeks judicial review of a pre-removal risk assessment [the PRRA] that denied
his request for a stay of removal under section 112(1) of the Act. The
Applicant asks the Court to set aside the PRRA decision and return the matter
to a different officer for re‑determination.
[2]
The Applicant is a citizen of Saint Lucia who came to Canada on October 31, 2011. Upon arrival, the Canada Border Services Agency
[the CBSA] discovered marijuana and cocaine in the Applicant’s suitcase and he
was charged by the RCMP with importing a prohibited substance contrary to
section 6(1) of the Controlled Drugs and Substances Act, SC 1996, c 19.
The Applicant maintained that the suitcase had been given to him by a childhood
friend as his suitcase was ripped and he did not know about the drugs. The
Applicant was acquitted of the importation charge on August 20, 2012.
[3]
Subsequently, on September 25, 2012, the
Applicant applied for refugee protection, claiming that he feared that the man
who gave him the drugs would murder him for cooperating with Canadian
authorities. In his refugee protection application, the Applicant disclosed
that in 2008 he had pled guilty to a charge of assault causing bodily harm in Saint Lucia, for which he was fined $1,500.00, and hence the Applicant was referred to an
admissibility hearing. On March 13, 2013, the Immigration Division of the
Immigration and Refugee Board [the IRB] decided that the Applicant was
inadmissible under section 36(1)(b) of the Act for serious criminality.
His application for leave and for judicial review of the IRB decision was
dismissed by this Court on August 13, 2013, because he did not file his record
(Glasgow v Minister of Citizenship and Immigration, IMM-2017-13
(FC)).
[4]
Since the Applicant was inadmissible for serious
criminality, paragraph 101(1)(f) of the Act made him ineligible for
referral to the Refugee Protection Division of the IRB. Thus, the Applicant’s
only recourse was to seek a stay of removal by applying for a PRRA pursuant to
section 112(1) of the Act, and he did so by way of an application
received by Citizenship and Immigration Canada [CIC] on May 1, 2013.
[5]
Although the Applicant had been scheduled for
removal on October 10, 2013, his motion for a stay of his removal, until this
judicial review application was finally determined, was granted by this Court
on October 8, 2013.
II.
Decision under Review
[6]
On August 8, 2013, a senior immigration officer
[the Officer] rejected the Applicant’s PRRA application.
[7]
After summarizing the background facts, the
Officer dismissed some of the Applicant’s arguments as being irrelevant. Although
the Applicant had mentioned a number of sympathetic circumstances in his
narrative, including his daughter’s attempted suicide, the Officer determined
that, while such circumstances may be compelling grounds for humanitarian and
compassionate consideration, they were not risk factors and so were not within
the purview of the PRRA. For a similar reason, the Officer also rejected the
Applicant’s challenges to the decision of the IRB, stating that a PRRA is not
an appeal from an inadmissibility determination.
[8]
The Officer then assessed the allegations of
risk. Although the Applicant claimed that his friend would kill him for telling
the Canadian authorities about him, at no time in the interview with the CBSA
did the Applicant actually disclose his friend’s identity. The identity of the
intended recipient of the suitcase was disclosed by the Applicant, though there
was no evidence about whether this information led to any arrest.
[9]
The Officer assigned little weight to letters
from the Applicant’s cousin, brother and sister since they all had a personal
interest in the outcome of the Applicant’s case, and none of such letters
disclosed the basis for their belief that someone wanted to kill the Applicant.
The letter from the Applicant’s fiancée, Ms. Valery, however, did say that someone
had called her in September 2012 and threatened to kill the Applicant, but the
Officer also assigned this letter little weight. Ms. Valery’s letter did not
give any details about the phone call, such as the place, date or time when it
occurred, and there was no indication as to how the caller found out what the
Applicant told the CBSA. Moreover, Ms. Valery did not state in her letter
whether she did anything as a result of this phone call, such as file a police
report. Given that the Applicant’s fiancée also had a personal stake in the
outcome, the Officer assigned little weight to her statements.
[10]
Thus, the Officer was not convinced that the
person or persons responsible for the drug smuggling plot had made any threats
against the Applicant. In the Officer’s view, this was not a matter of
credibility but, instead, a failure by the Applicant to provide sufficient and reliable
evidence to establish the existence of a risk on a balance of probabilities.
[11]
Even if there was a risk to the Applicant’s
life, the Officer was not convinced that Saint Lucia would be unable or
unwilling to protect the Applicant if he was returned there. The Officer found
that the government of Saint Lucia was making efforts to reduce its high crime
rate by, for example, increasing patrols in problematic areas and updating
their surveillance technology. Also, there was little evidence that the alleged
threat made against the Applicant was ever reported to the police, and thus no
evidence that they would not take it seriously. Saint Lucia is a democracy with
a functioning judiciary, and the Officer said that the Applicant needed to
supply clear and convincing evidence to rebut the presumption of adequate state
protection and he had not done so. The Officer therefore decided that the Applicant
was neither a Convention refugee under section 96 of the Act nor a
person in need of protection under section 97(1) of the Act.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[12]
The Applicant argues that while it may have been
reasonable for the Officer to discount the evidentiary letters from his cousin,
brother and sister, it was unreasonable not to accept the letter from the Applicant’s
fiancée since that letter alone contained the death threat made against him.
According to the Applicant, it was not reasonable for the Officer to discount
and assign little weight to this letter on the basis that it did not have
enough detail and that the Applicant’s fiancée had a direct interest in the
outcome. The Applicant submits that supporting evidence cannot be dismissed
just because it comes from someone interested in the outcome of the Applicant’s
application.
[13]
Furthermore, the Applicant argues that the
letter from the fiancée cannot be dismissed on irrational grounds, and that not
knowing how the caller found out about the disclosure is not only irrelevant
but irrational. This cannot serve, the Applicant says, as grounds to reject the
evidence provided by the fiancée’s letter. Also, the Applicant says that
whether the fiancée reported the death threat to the police is not germane to
the matter at hand. According to the Applicant, the Officer’s decision with
respect to the evidence before him was not transparent, was unintelligible and was
not justified.
[14]
On the issue of state protection, the Applicant
submits that the Officer did not determine whether state protection was
objectively and likely available to the Applicant. The Applicant argues that
the Officer had a duty to analyze the availability of state protection
vis-à-vis the Applicant and that the Officer did not do this.
[15]
The Applicant says that it was not unreasonable
for the Applicant not to seek state protection because the fact of the matter
is that he is in Canada and his claim to protection is sur place since
the death threat was made after his arrival in Canada. The Applicant submits
that the Officer overlooked this fact.
[16]
The Applicant argues that the Officer did not
conduct a proper analysis of the state protection issue and ignored the
dictates in this regard from the Supreme Court of Canada in Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1 [Ward]. In
particular, the Applicant states that the Officer did not determine whether
state protection would be objectively likely to be forthcoming if the Applicant
sought state protection upon return to Saint Lucia. There is an inadequate
analysis of state protection here by the Officer, the Applicant says, since he
did not assess whether state protection was lacking on an operational level.
[17]
The Applicant states that the duty of the
Officer was to look further given the death threat made to the Applicant.
According to the Applicant, the evidence before the Officer was not inadequate.
The Officer knew what the risk faced by the Applicant was and at no point did
the Officer doubt the Applicant’s credibility. The evidence of inadequate state
protection was before the Officer but, according to the Applicant, the reasons
for his decision do not analyse this inadequacy. The Applicant submits that the
Officer’s failure in this regard makes the decision unreasonable.
B.
The Respondent’s Arguments
[18]
The Respondent states that the Applicant did not
provide sufficient evidence of any risk faced by him. The only evidence of the
risk faced by the Applicant was his fiancée’s letter, the Respondent says, and
this was insufficient for the Officer to consider that the Applicant faced any
risk. The Respondent notes that this letter has no precise date as to the date
of the phone call, and it would be reasonable for the fiancée to recall the
specific date, time and place of the claimed death threat.
[19]
According to the Respondent, any claim of a
death threat to the Applicant was sketchy at best and the evidence in this
regard was reasonably found by the Officer to be insufficient. In this case,
there was only an unsigned letter as to any death threat to the Applicant and
the Officer’s discounting of this evidence was reasonable in view of Sayed
v. Canada (Citizenship and Immigration), 2010 FC 796, paragraphs 21-22, and
Jiang v. Canada (Citizenship and Immigration), 2009 FC 794, paragraphs
16-17. In the Respondent’s view, the Officer did not discount the fiancée’s
letter merely because it was from an interested party but, rather, he looked to
the contents of the letter and found them to be insufficient evidence of the
risk faced by the Applicant.
[20]
On the issue of state protection, the Respondent
states that it was not unreasonable for the Officer to determine or inquire as
to why the fiancée did not contact the police. The Applicant, according to the
Respondent, needs to show clear and convincing evidence to rebut the
presumption of state protection. Without evidence that the police could or
would not assist him upon his return to St. Lucia, the Applicant’s claim of
inadequate state protection there is not founded. In short, the Respondent
states that the Applicant failed to satisfy the onus upon him to show an
absence of state protection for him.
IV.
Analysis
A.
What is the standard of review?
[21]
The Applicant argues that the Officer’s
assessment of the evidence was unreasonable. With regard to the state
protection analysis, the Applicant frames the issue in his memorandum of
argument as being whether the Officer’s analysis was “unreasonable
and/or wrong in law”. The Respondent argues that the standard of review
is reasonableness for every issue raised by the application now before this
Court.
[22]
The Officer’s assessment of the evidence before
him is entitled to deference and such assessment is a pure question of fact
which usually, if not automatically, attracts the reasonableness standard of
review (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 SCR
190 [Dunsmuir]). Moreover, the Officer’s assessment of the evidence
should not be disturbed so long as it was justifiable, intelligible,
transparent and defensible in respect of the facts and the law (Dunsmuir
at para 47). Those criteria are met if “the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes” (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 S.C.R. 708).
[23]
Determining the test for state protection is a
legal question about the interpretation of sections 96 and 97(1)(b)(i) of the Act,
while the application of that test to the facts of a case is a question of
mixed fact and law (Canada (Director of Investigation and Research) v
Southam Inc, [1997] 1 S.C.R. 748 at para 35, 144 DLR (4th) 1). In Raza v
Canada (Citizenship and Immigration), 2007 FCA 385 at para 3, 289 DLR (4th)
675 [Raza], the Federal Court of Appeal accepted that questions of law
decided by a PRRA officer should be reviewed on the correctness standard, while
questions of mixed fact and law should attract the reasonableness standard.
[24]
This Court has consistently held, even after Dunsmuir
and Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654 [Alberta Teachers], that
officers must apply the correct test for state protection when deciding PRRA
applications (see: e.g., Conka v Canada (Citizenship and Immigration),
2014 FC 984 at para 4 (available on CanLII); GM v Canada (Citizenship and
Immigration), 2013 FC 710 at para 27 (available on CanLII)). In Ruszo
v Canada (Citizenship and Immigration), 2013 FC 1004 at paragraphs 20-22
(available on CanLII) [Ruszo], Chief Justice Crampton stated that since the
jurisprudence has already settled on a clear test for state protection, it
should be excepted from the general rule set out in Alberta Teachers,
such that the question of whether the Officer here erred in interpreting the
test for state protection is reviewable on a standard of correctness.
Nevertheless, if the Officer’s decision turned instead on the application of
that test to the facts, then it is entitled to deference and to be assessed on
a standard of reasonableness (Ruszo at para 22).
B.
Did the Officer err by dismissing the letter
from the Applicant’s fiancée?
[25]
In order to attract the protection of paragraph
97(1)(b), the Applicant had to prove “that it is more
likely than not that [he] would be subjected, personally, to a risk to his life
or to a risk of cruel and unusual treatment or punishment if [he] was returned
to his country of nationality” (Li v Canada (Minister of Citizenship
and Immigration), 2005 FCA 1 at para 38, [2005] 3 FCR 239 [Li]).
[26]
The only evidence that the Applicant’s life
would be at risk in Saint Lucia was a letter from his fiancée, Ms. Valery,
dated May 7, 2013, stating that someone had called her and threatened to kill
the Applicant in September, 2012. The Officer assigned little weight to this
letter, since it offered little information about when or where she received
the call, did not say how the caller had found out that the Applicant told
Canadian authorities who gave him the suitcase, did not say whether she
reported this call to the police and, as the Applicant’s fiancée, she had a
personal stake in the outcome of the Applicant’s PRRA.
[27]
The Applicant argues that it is not reasonable
and defies common sense “to expect that a caller
delivering an anonymous death threat would embark on an explanation as to how
he had obtained the information which led to the death threat”.
Furthermore, the Applicant says, Ms. Valery’s failure to report the threat to
the police is irrelevant as to whether the threat was made. The Respondent says
that this letter raises unanswered questions that implicate the probative value
of it as evidence.
[28]
The Officer considered the fiancée’s letter
unreliable because it was authored by someone who has a personal relationship
with the Applicant. This can be a relevant consideration because, typically,
this sort of evidence requires corroboration if it is to have probative value (Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067, 74 Imm LR
(3d) 306) [Ferguson]. As my colleague Mr Justice Zinn stated in Ferguson (at para 27):
[27] Evidence tendered by a witness
with a personal interest in the matter may also be examined for its weight
before considering its credibility because typically this sort of evidence
requires corroboration if it is to have probative value. If there is no
corroboration, then it may be unnecessary to assess its credibility as its
weight will not meet the legal burden of proving the fact on the balance of
probabilities. When the trier of fact assesses the evidence in this manner he
or she is not making a determination based on the credibility of the person
providing the evidence; rather, the trier of fact is simply saying the evidence
that has been tendered does not have sufficient probative value, either on its
own or coupled with the other tendered evidence, to establish on the balance of
probability, the fact for which it has been tendered. That, in my view, is the
assessment the officer made in this case.
[29]
In this case, the Officer made a similar
assessment in respect of the fiancée’s letter (and, for that matter, the other
letters provided by the Applicant with his supplementary letter to CIC dated
May 14, 2013). Not only was this letter hearsay in nature, but its content was
not verified by way of any sworn statement or declaration as were the
statements from the family members considered in Rendon Ochoa v Canada
(Citizenship and Immigration), 2010 FC 1105 at para 10.
[30]
Also, in this case, the fact of whether the Applicant
was threatened with death was critical to his PRRA application, and it was open
and reasonable for the Officer to require more evidence or some corroboration
to satisfy the onus of proof upon the Applicant. The only evidence tendered by
the Applicant in support of that fact was his fiancée’s letter. This letter is
not a sworn affidavit or declaration, and other cases have held that it is
reasonable to reduce the weight assigned to evidence for such defects when
accompanied by other indications of unreliability (see: e.g. Garcia Cruz v
Canada (Public Safety and Emergency Preparedness), 2011 FC 853 at para 11,
393 FTR 286; also see: Ram v Canada (Citizenship and Immigration), 2010
FC 548 at para 19 (available on CanLII)). Furthermore, the Applicant did not
support his application with his own statutory declaration or a sworn affidavit
as to the death threat.
[31]
As in Ferguson, the Officer assessed the
evidence and its probative value and neither believed nor disbelieved the
Applicant, but was simply not satisfied that the Applicant had provided
sufficient probative evidence of the critical fact of the death threat. In my
view, it was reasonable for the Officer to determine that the Applicant did not
meet the legal burden of proving this critical fact on a balance of
probabilities.
C.
Did the PRRA officer err in assessing state
protection?
[32]
After observing that the Applicant bore the onus
to prove inadequate state protection and analyzing the country conditions on
crime in Saint Lucia, the Officer stated the following:
Given the lack of evidence of a complete
collapse of the St. Lucian state, and given the lack of evidence that the
applicant had made any attempt to seek state protection from the St. Lucian
authorities, I am unable to conclude that the applicant provided clear and
convincing evidence to rebut the availability of adequate state protection.
[33]
The Applicant contends that the Officer failed
to conduct a proper assessment of whether state protection was available to the
Applicant in accordance with the Supreme Court’s directions in Ward. According
to the Applicant, the Officer was wrong to rely on the fact that he had not
sought state protection; the threat to his life only occurred while he was in
Canada, so that was something he never had any opportunity to do. According to
the Applicant, the Officer never seemed to realize that and did not articulate
the nature of the inquiry required in these circumstances; thus, the Applicant
submits, that even the brief analysis of the country conditions conducted by the
Officer before the conclusion above cannot save the decision. In the
Applicant’s view, the Officer never considered whether protection would
objectively be available to the Applicant.
[34]
The Respondent disagrees, saying that state
protection need only be adequate, and it is the Applicant who must prove that
it is not. In this case, the Respondent says the Applicant did not supply any
objective evidence to show that the state would be unable or unwilling to
protect him, even though the death threat was allegedly received in Saint Lucia and could have been reported. Furthermore, the Respondent says the Officer
acknowledged that there was a crime problem in Saint Lucia, but the Officer
found that the state was acting to fix it. The Respondent says that it was reasonable
to conclude that the Applicant had not proven on a balance of probabilities
that state protection was inadequate.
[35]
It is useful to briefly set out the test for
state protection. Paragraph 97(1)(b) of the Act is only engaged if “the person is unable or, because of that risk, unwilling to
avail themself of the protection of that country” (Act, s
97(1)(b)(i)). Unless there has been a complete breakdown of the state
apparatus, “it should be assumed that the state is
capable of protecting a complainant” (Ward at 725). As such,
complainants bear the burden of proving inadequate state protection and their
claims should fail unless they provide “clear and
convincing confirmation of a state’s inability to protect” (Ward
at 724). This will usually require a claimant to show “that
they sought, but were unable to obtain, protection from their home state, or
alternatively, that their home state, on an objective basis, could not be
expected to provide protection” (Hinzman v Canada (Citizenship and
Immigration), 2007 FCA 171 at para 37, 282 DLR (4th) 413).
[36]
Perfect protection is not required (Canada
(Minister of Employment and Immigration) v Villafranca, 1992 CarswellNat 78
(WL Can) at paragraph 7, 99 DLR (4th) 334, 150 NR 232 (FCA)), but a state’s
attempts to protect a person will not be enough if an “objective
assessment established that they are not able to do this effectively” (Ward
at 724). Consequently, “it is not enough that a
government is willing to provide protection and is making efforts to do so. In
order for state protection to be present, the efforts made must adequately
protect citizens in practice” (Koky v Canada (Citizenship and
Immigration), 2011 FC 1407 at para 63, [2011] FCJ No 1715 (QL)). In other
words, “when examining whether a state is making serious
efforts to protect its citizens, it is at the operational level that protection
must be evaluated” (Toriz Gilvaja v Canada (Citizenship and
Immigration), 2009 FC 598 at para 39, 81 Imm LR (3d) 165).
[37]
The Applicant does not argue that the Officer
misstated the test for state protection in any of the foregoing respects. On
the contrary, the Officer accurately recited several elements of the test in
the first paragraph of page 7 of the decision. What the Applicant is instead
asking the Court to do is to infer that the Officer misunderstood or misapplied
the test from the conclusions that were drawn and, hence, failed to conduct a
proper analysis of state protection in light of the Ward formulation.
[38]
In my view, the Officer’s conclusions with
respect to state protection were reasonable in this case. The Applicant does
not fear drug-related violence generally; at best, he fears a specific person
that he has known since childhood and there is no evidence that this person is
involved with a larger organization. The Applicant would be safe if this
individual was arrested, and he and his fiancée have knowledge of at least two
crimes that this individual committed: (1) he arranged for the Applicant to
smuggle drugs out of the country; and (2) the Applicant’s fiancée said that
sometime around September, 2012, she “received a
private call informing me that if Terrence was to return to Saint Lucia he
would be killed, for giving up names to the Canadian authorities”.
Although the death threat was anonymous, the Applicant states in his written
arguments that the source was obvious; it was the person who set him up.
Despite this, neither the Applicant nor his fiancée ever reported either of
these crimes to the Saint Lucian police, who could have investigated the
matters and potentially arrested the person responsible for the alleged threat
to the Applicant’s life. While it is true that the Applicant was in Canada at
the time of the alleged death threat, the fact that neither he nor his fiancée
made any effort to report the crimes against them that occurred in Saint Lucia
was still a relevant fact for the Officer to consider.
[39]
As stated by the Supreme Court, it is “only in situations in which state protection ‘might
reasonably have been forthcoming’, will the claimant's failure to approach the
state for protection defeat his claim” (Ward at 724). The Officer
thus analyzed the country conditions and said the following at page 7 of his
decision:
High rates of violence in Saint Lucia are largely attributed to gang-related crimes, such as drug trafficking,
drive-by shootings, and armed robbery. At the same time, sources confirm that
the government of St. Lucia is making serious efforts to curtail the violence.
In 2012 the government of St. Lucia announced new strategies to combat crime,
including replacing the Commissioner of Police and starting 24-hour police
patrols in problematic areas. The Prime Minister of St. Lucia has started a
cabinet task force on crime, which he chairs, as part of the national strategy
to address crime. Sources report other plans to improve Saint Lucia’s capacity
to fight crime, including: installing closed circuit televisions in Castries,
acquiring new vehicles and boats for the RSLPF [Royal Saint Lucia Police
Force], developing a program to monitor returned criminal deportees, and
upgrading police equipment. The RSPLF reports that they installed a digital
video recorder in one police vehicle, enabling police officers to view and
record suspicious activities; the RSPLF plan to install them in all police vehicles.
[40]
Most of the foregoing details as found by the
Officer were derived from a Response to Information Request LCA103495.E, “Saint Lucia: Statistics on Crime and Crime Reporting;
Availability of State Protection for Victims and Witnesses” (6 July
2010). Admittedly, some of the measures, such as a plan to monitor returned
deportees, do not necessarily demonstrate adequate protection at an operational
level. However, it was not the Officer who had to prove that state protection
is adequate; it was the Applicant who had to prove the opposite, and he
supplied no evidence that the Saint Lucia police would not have investigated
the crimes of drug trafficking or uttering death threats, or that it lacks the
ability to protect people specifically targeted by such crimes.
[41]
In view of the foregoing, it is understandable
why the Officer decided that the Applicant had not provided clear and
convincing confirmation of Saint Lucia’s inability to protect him. The
Officer’s decision in this regard was reasonable and should not be disturbed by
this Court.
[42]
As a whole, I find the Officer’s decision
reasonable and defensible in respect of the facts and law, and within the range
of acceptable outcomes.
V.
Conclusion
[43]
In the result, therefore, the Applicant’s
application for judicial review is dismissed and there shall be no award of
costs. No serious question of general importance is certified.
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