Docket: IMM-5467-15
Citation:
2016 FC 915
Ottawa, Ontario, August 10, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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SYBRINA LORINE
JOHN
AARON OWEN
HAZELWOOD JR
ARALINE SHATERA
HAZELWOOD
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Applicants
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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
[1]
This is an application for judicial review under
section 72(1) of the Immigration and Refugee Protection Act [IRPA] of a
decision by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board of Canada [IRB] dated November 10, 2015, determining Sybrina
Lorine John [the Principal Applicant], and her two children [collectively the
Applicants] were not Convention refugees and were not persons in need of
protection, and therefore rejecting their claims [the Decision].
[2]
The RPD accepted the evidence of all three
Applicants, and made no finding negative to their credibility either
specifically or generally.
[3]
Their evidence was to the effect that the
Principal Applicant was born in St. Vincent in 1972. In 1993, she met the
father of the two children with whom she is claiming refugee protection, a
person of Antiguan nationality. The pair fell in love and the Principal
Applicant agreed to move to Antigua. The Principal Applicant had a first born
child (she is unsure as to the father’s identity), who currently lives in St.
Vincent. The couple had fraternal twins in 1997; the fraternal twins join in
this claim.
[4]
The Principal Applicant alleges her spouse was
emotionally and physically abusive to her and the children. She alleges in one
incident, he used a machete and attacked her – she has a scar on her ankle from
this incident. The Principal Applicant went to the Antiguan police at the time;
the police told her if she had had sex with her spouse, this would not have
taken place. The Principal Applicant’s fear of her spouse increased, because of
his threats and his promises to find her and hurt her should she leave him and
go back to her family in St. Vincent. She testified that her spouse has family
members who are gang members in St. Vincent. The police turned the Principal
Applicant away at least two more times when she sought their help in Antigua.
[5]
The Principal Applicant eventually escaped by
sending the twins to live with relatives in St. Vincent while she traveled to
Canada in 2005. The Principal Applicant had no status in Canada for several
years, until she was informed of Legal Aid; she sought the help of a lawyer at
that time and filed a refugee claim in 2012.
[6]
The spouse however went to St. Vincent looking
for the Principal Applicant and uttering threats of cutting off her head. After
spending two years in St. Vincent, the twins were eventually sent to live with
their aunt in Antigua. The spouse abused them both emotionally and,
particularly his daughter, physically. The daughter has scars from the abuse,
namely from her father burning her with a hot iron on her wrist. Police were of
no assistance.
[7]
Eventually in 2008, the Principal Applicant was
able to bring the twins to live with her in Canada.
[8]
In terms of the standard of review in this
matter, in Dunsmuir v New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir],
the Supreme Court of Canada held that a standard of review analysis is
unnecessary where “the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a particular category of question.” It is well established
that reasonableness is the standard of review applicable to findings of weight
of the evidence: Aguebor v Canada (Minister of Employment and Immigration)
(1993), 160 NR 315 (FCA) at para 4; Bueso Trochez v Canada (Citizenship and
Immigration), 2013 FC 1014 at para 25.
[9]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[10]
The Applicants raised four issues: 1) an
erroneous finding that there was “no evidence”
that the spouse had relatives who were gang members in St. Vincent; 2) a
failure to properly assess a report of a psychologist; 3) inadequate assessment
of state protection; and 4) failure to apply the Gender Guidelines.
[11]
In my respectful opinion the determinative issue
is the first. There was evidence that the spouse had relatives in St. Vincent
who were gang members. This evidence was provided in the oral testimony of the
Principal Applicant in response to questions asked by the RPD itself.
[12]
In the absence of any finding or suggestion that
the Applicants lacked credibility, it is trite law that their evidence must be
accepted as truthful: Maldonado v. Canada ( Minister of Employment and
Immigration) (1979), [1980] 2 F.C. 302, [1979] F.C.J. No. 248 (F.C.A.) (QL)
[Maldonado] at para 5, which stands for the proposition that a refugee
claimant’s allegations are presumed to be true unless there are reasons to
doubt their truthfulness:
[20] Further, in evaluating
credibility, it must be borne in mind that a refugee claimant’s allegations are
presumed to be true unless there are reasons to doubt their truthfulness (Valtchev
v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267,
2001 FCT 776 at para. 6 (F.C.T.D.); see also Maldonado v. Canada ( Minister
of Employment and Immigration) (1979), [1980] 2 F.C. 302, [1979] F.C.J. No.
248 (F.C.A.) (QL) [Maldonado]).
[13]
I am therefore compelled to conclude that the
RPD’s finding in this respect constituted a finding contrary to and in the face
of evidence before the RPD. Notwithstanding the able efforts of Minister’s
counsel to persuade me otherwise, I cannot overlook this mistaken finding. Not
only was it wrong on its face, but it formed the first of a three-sentence
logical progression analysis which concluded with a two-fold finding: that
there was insufficient evidence that 1) the Applicants “would
face any difficulties” should they return to St. Vincent, and that 2) “the police in Saint Vincent, whom they have never
approached, would not protect them”.
[14]
Counsel for the Minister correctly categorized
this decision as ultimately one of state protection. However, it is not
apparent that is how the RPD viewed this case. State protection is not
mentioned except in the conclusory words of the last clause of one sentence,
quoted above. It is not analyzed in any meaningful manner. I recognize the need
for clear and convincing evidence, and the presumption of state protection, and
that the onus is on the Applicants to rebut the presumption. I agree there is
no formula for assessing the adequacy of state protection at the operational
level (the proper test in my view), but and with respect, the RPD carried out no
analysis of state protection at all. Not that the RPD has to deal with every
piece of evidence, but here it made no reference whatsoever to the country
condition material showing problems with state protection in the domestic
violence context. More fundamentally, even if what is recorded might pass for
an assessment of state protection (which in my view it does not), it was
fatally flawed at its outset by a denial of the threat itself, namely that the
spouse had relatives in St. Vincent who are gang members.
[15]
I am unable to tell what the RPD would have
concluded but for its mistaken view of the evidence and its erroneous and
unsupported “no evidence” finding. It is not
safe to rely upon it.
[16]
I am required to stand back and review the
decision as an organic whole, appreciating that judicial review is not a
treasure hunt for errors. On that basis it is my view that the decision is not
justified on the facts and law, and is therefore unreasonable per Dunsmuir.
Therefore, it must be set aside and re-determined by a differently constituted
panel.
[17]
Having come to this conclusion, it is not
necessary to deal with the other issues re the psychologist’s report and the
Gender Guidelines. However, in connection with the psychologist’s report, the
RPD appears to have rejected the psychologist’s report on grounds that were
directly and recently criticized by the majority of the Supreme Court of Canada
in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 (Kanthasamy).
The RPD states at paras 13-14 of the Decision:
[13] The panel, however, does not find [the
psychotherapist’s] assessment to be persuasive evidence and determines that
[the psychotherapist] is in no position to state categorically that the PC’s
mental and emotional state are the result of her alleged problems in
Antigua.
[14] (…) The panel finds that, although the
PC may be suffering from anxiety and depression, this may or may not be
related to the causes described by the PC in her evidence. Accordingly, the
panel gives the psychological assessment, no weight.
[emphasis added]
[18]
In Kanthasamy at para 49, the Supreme
Court rejected this approach to psychological reports:
And while the Officer did not “dispute the
psychological report presented”, she found that the medical opinion “rest[ed]
mainly on hearsay” because the psychologist was “not a witness of the events
that led to the anxiety experienced by the applicant”. This disregards the
unavoidable reality that psychological reports like the one in this case will
necessarily be based to some degree on “hearsay”. Only rarely will a mental
health professional personally witness the events for which a patient seeks
professional assistance. To suggest that applicants for relief on humanitarian
and compassionate grounds may only file expert reports from professionals who
have witnessed the facts or events underlying their findings, is unrealistic
and results in the absence of significant evidence. In any event, a
psychologist need not be an expert on country conditions in a particular
country to provide expert information about the probable psychological effect
of removal from Canada.
[emphasis added]
[19]
Neither party proposed a question to certify and
none arises.
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