Docket: IMM-4459-15
Citation:
2016 FC 430
Fredericton, New Brunswick, April 19, 2016
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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ANNASACHA
DELINE KANDHA ANNEILA KANDHA
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP & IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Annasacha Deline Kandha and Anneila Kandha [the
applicants] seek judicial review of a decision of the Refugee Appeal Division
[RAD] in which the RAD dismissed an appeal of the Refugee Protection Division’s
[RPD] determination that the applicants are neither Convention refugees nor
persons in need of protection under ss 96 and 97(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act].
[2]
For the reasons set out below, I would allow the
application for judicial review.
II.
Background
[3]
The applicants are citizens of Trinidad and Tobago. The eldest, Annasacha, was born on April 1, 1990, and the youngest, Anneila,
was born on February 6, 1996. They both arrived in Canada with their mother,
Rena Seeragie Kandha [Ms. Kandha] in December 2014. The applicants’ and Ms.
Kandha’s refugee claims were heard together before the RPD on March 9, 2015. In
a decision dated April 8, 2015, the RPD accepted Ms. Kandha’s refugee claim based
on gender-related persecution, but rejected the applicants’ claims.
[4]
In March 2011, Ms. Kandha’s common law partner,
Mr. Manny Rooplal, moved in with Ms. Kandha and the applicants and took
responsibility for the household expenses. Mr. Rooplal worked as a senior
customs officer. Over time, Mr. Rooplal became verbally, physically and
sexually abusive toward Ms. Kandha. In her application to the RPD, Ms. Kandha testified
that Mr. Rooplal had repeatedly beaten her, attacked her with a hot frying pan,
raped her at gunpoint, and continuously harassed, assaulted and threatened her.
In October 2012, Mr. Rooplal forced Ms. Kandha outside, removed all of her
clothing, threw it in the yard and set it on fire along with other items. The applicants
were forced to watch and neighbors also witnessed the event. Later that
evening, Mr. Rooplal beat and raped Ms. Kandha, put a gun to her head and
pulled the trigger. Unbeknownst to Ms. Kandha, the gun was not loaded. However,
Mr. Rooplal threatened to load it and kill her family in front of her if she
told anyone about the incident.
[5]
In the community, rumours were spreading about
Mr. Rooplal’s alleged corruption and involvement in unlawful activities such as
drug and weapons trafficking, as well as his sexually abusive behavior toward Ms.
Kandha. Ms. Kandha and the applicants tried to leave in December 2012 at which
time they went to Ms. Kandha’s mother’s house. Following threats by Mr. Rooplal
to set fire to the house, Ms. Kandha and the applicants returned to him.
[6]
During the Christmas season in 2012, some of Mr.
Rooplal’s friends visited the marital home, became intoxicated and attempted to
rape the applicants in their bedroom. Ms. Kandha, who heard the screams, fought
off the assailants while the applicants ran out of the house. Mr. Rooplal chased
the applicants, pulled their hair, slapped them in the face and threatened to
kill them. When neighbors arrived at the scene, Mr. Rooplal dared them to call
the police.
[7]
Ms. Kandha attempted to report incidents to the
police several times in 2013. Each time, police officers refused to file a
report and refused to assist her. Ms. Kandha successfully filed a report to the
police in November 2014 when she began to receive phone calls from an unknown
person threatening to kidnap, rape and kill, her and the applicants. This time,
the police filed a report but nothing further was done.
[8]
Following the applicants’ and Ms. Kandha’s
departure, Ms. Kandha contends Mr. Rooplal has been looking for her at her
mother’s home and at her former neighbours’ residence in Trinidad and Tobago. Ms. Kandha testified that Mr. Rooplal threatened to kill her if she
does not return to him.
III.
Impugned Decision
[9]
The RPD accepted that the applicants and Ms.
Kandha are nationals of Trinidad and Tobago. It found Ms. Kandha to be a
credible witness and concluded that she provided credible and trustworthy
evidence to support her claim. The RPD also accepted that Ms. Kandha went to
the police on more than six occasions in 2013 and 2014. Given the circumstances
and the number of times she sought protection without success the RPD concluded
Ms. Kandha successfully rebutted the presumption of state protection. The RPD
therefore accepted Ms. Kandha’s claim that there is a serious possibility of
persecution on a Convention ground, that is, based on her membership in a
particular social group (as a woman fearing domestic violence). As for the
applicants’ claims, the RPD found they had not rebutted the presumption of
state protection and had failed to establish the existence of a serious
possibility of persecution on a Convention ground. The RPD also concluded the
applicants failed to establish, on a balance of probabilities, that they would
personally be subjected to a danger of torture or face a risk to their lives or
a risk of cruel and unusual treatment or punishment if they returned to Trinidad and Tobago.
[10]
The applicants appealed the RPD decision to the
RAD. They raised the following issues: (1) the applicants’ kinship to their
mother makes them vulnerable claimants; (2) the RPD erred in concluding that the
existence of democratic institutions is demonstrative of adequate state
protection; and, (3) the RPD erred in its analysis of the availability of state
protection.
[11]
With respect to the first issue, the RAD
rejected the applicants’ contention that the RPD had a judicial duty to assess
their claim through the lens of “vulnerable persons”
as that term it used in the Chairperson Guideline 8: Procedures With Respect
to Vulnerable Persons Appearing Before the IRB. The RAD noted that in order
to be provided with this procedural accommodation, an individual must be
identified as a vulnerable person by the Immigration and Refugee Board [IRB]. The
Guideline provides that this identification must be made as soon as possible,
and that counsel for the claimant is best placed to advance such a claim. The
RAD noted that the applicants did not submit any such claim and concluded, on the
basis of the audio recording of the hearing, that the applicants were “dealt with professionally” (RAD decision, Applicant’s
Application Record at p 12).
[12]
With respect to the state protection analysis,
the RAD concluded it was appropriate for the RPD to refer to the democratic nature
of the government of Trinidad and Tobago when assessing the availability of
state protection. It further noted that Ms. Kandha did not follow up on any of
the police reports. Furthermore, she did not communicate to the police her
suspicions regarding Mr. Rooplal’s criminal activities (drug and weapons
trafficking). The RAD concluded Ms. Kandha’s failure to disclose her suspicions
regarding drugs and weapons limited the ability of the state to respond. The
RAD also concluded that Ms. Kandha’s and the applicants’ fear of Mr. Rooplal do
not constitute a credible explanation for having failed to fully disclose all
relevant facts to the police. While the RAD accepted the contention that the
applicants and Ms. Kandha did not report the Christmas 2012 incident out of
fear and embarrassment, it pointed to documentary evidence demonstrating that legislation
prohibits rape and sexual assault and that assistance, police and otherwise, is
available to victims of such crimes in Trinidad and Tobago. The RAD concluded
that state protection need not be perfect, and that the state was making “serious efforts” to combat rape and sexual assault.
[13]
Finally, the RAD found that the applicants’
familial association with Ms. Kandha does not place them at an increased risk
of harm since they are both adults, they have a choice over where they will
reside in Trinidad, the most recent threats from Mr. Rooplal were not directed
at them specifically and they have a number of family members living in
Trinidad who are able to provide a support network.
IV.
Issue
[14]
In my view, the sole issue on this application
is whether the RAD’s conclusion on state protection meets the test of
reasonableness.
V.
Standard of Review
[15]
Because the issue of the adequacy of state
protection raises questions of mixed fact and law, it is to be assessed on the
reasonableness standard of review (Hinzman v Canada (Minister of Citizenship
and Immigration), 2007 FCA 171, [2007] FCJ No 584; Burai v Canada
(Minister of Citizenship and Immigration), 2013 FC 565, [2013] FCJ No 633
at para 26; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47 [Dunsmuir]). This Court will only intervene if the RAD’s
decision is not justified, transparent and intelligible, or if it falls outside
the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above at
para 47).
VI.
Analysis
[16]
The jurisprudence of this Court recognizes that a
board need not refer to every piece of evidence that was submitted (Hassan v
Canada (Minister of Employment and Immigration), 147 NR 317, [1992] FCJ No
946). If a board states it has considered all the evidence, that statement will
often suffice. Furthermore, a board is presumed to have reviewed all of the
evidence presented (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598). However, when important evidence that supports a claimant’s
position is not mentioned, reviewing courts may be less inclined to demonstrate
deference to the decision-maker (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 at para 17). In
the circumstances, I am not satisfied the RAD’s analysis on state protection
reveals a proper assessment of the evidence available on Trinidad and Tobago’s
ability to protect women in general, and the applicants in particular.
[17]
The RAD stated that documentary evidence
confirms the existence of legislation prohibiting rape and sexual assault and
the availability of assistance to victims of such crimes. However, the
applicants’ fear does not rest upon a lack of legislation to protect women
against domestic violence, or the lack of a procedural framework (Torres v Canada (Minister of Citizenship and Immigration), 2005 FC 660, [2005] FCJ No 812 at
para 13). Rather, the applicants’ fear rests on the ineffectiveness of the
legislation and the procedural framework, based on their mother’s prior
experience with the police, and, in this particular case, the apparent ability
of Mr. Rooplal to locate them in a small island country, and his apparent
immunity from prosecution due to his position as a law enforcement officer.
[18]
The RAD concluded that police take the issue of
sexual assault seriously and that there are support mechanisms in place for
victims. This assertion was not supported by country condition documentation. The
RAD failed to mention relevant passages of the US Department of State
Country Report on Trinidad and Tobago’s Human Rights Practices for 2013 which
addresses the ineffectiveness of the laws and procedures in place, especially
with regard to gender-related persecution. For example, the Report notes the
following:
Public confidence in the police was very low
because of high crime rates and perceived corruption;
Many incidents of rape and other sexual
crimes were unreported, partly due to perceived insensitivity of police,
exacerbated by a wide cultural acceptance of gender-based violence;
The law provides criminal penalties for
corruption by officials; however, the government has not implemented the law
effectively, and officials sometimes engage in corrupt practices with impunity;
Many community leaders asserted that abuse
of women, particularly in the form of domestic violence, continued to be a
significant problem;
While reliable national statistics were not
available, women’s groups estimated that as many as 50 percent of all women
suffered abuse;
The NGO Coalition against Domestic Violence
charged that police often hesitated to enforce domestic violence laws and
asserted that rape and sexual abuse against women and children remained a
serious and pervasive problem.
[19]
In my view the RAD focused its analysis on the
existence of legislation and on the country’s serious efforts to protect its
citizens. However, it failed to assess whether these frameworks actually
translate into effective and adequate protection for the applicants in their
particular circumstances. As a consequence, the RAD conflated the serious
efforts test with the adequate operational protection test adopted in recent
jurisprudence (Beri v Canada (Minister of Citizenship and Immigration),
2013 FC 854, [2013] FCJ No 908 at paras 35-37).
[20]
The RAD acknowledged that the applicants and Ms.
Kandha expressed their fear of Mr. Rooplal. However, it concluded this
explanation lacked credibility since Ms. Kandha had approached the police on
many occasions. I find this part of the analysis by the RAD to be unreasonable
for the following reasons. First, the RPD concluded that Ms. Kandha’s
credibility was not at issue. Second, Ms. Kandha and the applicants repeatedly
stated in their Basis of Claim narrative, as well as at the hearing before the
RPD, that they were scared of Mr. Rooplal because of his connections to the
police. Legitimate fear could explain the approach taken by Ms. Kandha in
failing to follow-up on her reports and the applicants’ failure to report. The
RAD did not consider this explanation. While refugee claimants are required to
take reasonable steps to obtain state protection, they are not required to
exhaust all avenues of protection (Jane Doe v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 1579). Third, Ms. Kandha reported
to the police, on several occasions, regarding Mr. Rooplal’s violent crimes – namely,
the beating and the rape. One would expect that the police would have acted to
protect Ms. Kandha and the applicants on the basis of those allegations alone. Instead,
the RAD raised the spectre of Ms. Kandha having failed to fully report by not
mentioning the alleged drug and weapons trafficking. If a country is unable or
unwilling to provide protection for violent and sexual crimes against women
without a link to other crimes (in this case, alleged trafficking of drugs and
weapons) it should be a clear indication that the country cannot provide
adequate protection from gender-related violence. In this regard, I note that
the RAD did not refer to the Chairperson Guidelines 4: Women Refugee
Claimants Fearing Gender-Related Persecution [Gender Guidelines]. While the
RAD is not required to explicitly mention the Gender Guidelines, it is expected
to know and apply advanced knowledge on the issue of gender persecution in the
dynamic of domestic violence (Keleta v Canada (Minister of Citizenship and
Immigration), 2005 FC 56, [2005] FCJ No 54 at para 14). In my view the
facts of this case demonstrate it failed in this regard.
[21]
Finally, I would note that one of the applicants
was 16 years old when she was the victim of the attempted rape in December
2012. In Zhu v Canada (Minister of Citizenship and Canada), 2001 FCT
884, [2001] FCJ No 1251 at para 28, Justice Muldoon explains that a claimant’s
reluctance to seek state protection must be assessed in light of his or her
status as a minor, and the fact that children may be more reluctant to seek
protection. I am of the view the RAD should have applied the same consideration
to the youngest applicant, especially since the persecutor, Mr. Rooplal, held a
position of authority in the household and in the country at large. The RAD
failed to consider this important factor in its analysis of state protection.
VII.
Conclusion
[22]
I am of the view the RAD’s finding on state
protection is unreasonable. The reasons, when read together with the outcome,
do not fall within the range of possible, acceptable outcomes as set out in Dunsmuir,
above at para 47, and Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708 at para 14. I would therefore allow the application for judicial review and
remit the matter to a different panel of the RAD for redetermination.
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