Docket: IMM-168-16
Citation:
2016 FC 922
Ottawa, Ontario, August 12, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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SHERRY-ANN
BOYCE
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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
[1]
The applicant seeks judicial review of the
decision of the Refugee Appeal Division of the Immigration and Refugee Board
[RAD] dated December 11, 2015, which dismissed her appeal of the decision of
the Refugee Protection Division [RPD]. The RAD confirmed that the applicant is
neither a Convention refugee nor a person in need of protection. The RAD found
that the applicant was not credible and that she had not rebutted the
presumption of adequate state protection.
[2]
On judicial review, the applicant submits that:
the RAD breached procedural fairness by not conducting an oral hearing; and,
the RAD erred in its review of the RPD decision and made unreasonable findings
with respect to: the assessment of the psychotherapist’s report, the
application of the Chairperson’s Gender Guidelines [Guidelines], and the
analysis of state protection.
[3]
For the reasons set out below, I find that the
RAD conducted an independent assessment of the evidence on the record. The RAD
did not err in not holding an oral hearing and no breach of procedural fairness
resulted. The RAD reasonably found that the RPD considered the applicant’s
stress as noted in the psychotherapist’s report in its assessment of her
evidence, but the report could not cure the deficiencies and the resulting
credibility findings. The RAD also reasonably found that the RPD had applied
the Guidelines to the conduct of the hearing. Similarly, the RAD’s independent
findings regarding the psychotherapist’s report, the Guidelines and the
applicant’s credibility are reasonable. As a result, the application for
judicial review is dismissed.
I.
Background
[4]
The applicant, Ms. Boyce, a citizen of Saint
Lucia and Barbados, last arrived in Canada in March 2013. She remained in
Canada after her status expired in September 2013 and made a claim for refugee
protection in June 2014.
[5]
The applicant’s claim is based on her fear of
gender-based violence from her former boyfriend, Leslie Lashley, and because
she is bisexual.
[6]
The applicant alleges that she faced violence
and death threats from Mr. Lashley in Barbados. She first came to Canada in
October 2008 when he was jailed in Barbados. She returned to Barbados
approximately three months later and reunited with Mr. Lashley. She recounts
that the violence continued.
[7]
She returned to Canada again in 2011 on a work
permit. She recounts that she had a lesbian relationship while in Canada. She
returned to Barbados in December 2011 and ended her relationship with Mr.
Lashley. She alleges that she engaged in another lesbian relationship while in
Barbados. Mr. Lashley discovered this relationship, came to her apartment,
threatened to kill her and attacked her girlfriend. She claims that the police
did not respond and that Mr. Lashley continued to threaten her after this
incident.
II.
The RPD Decision
[8]
The RPD found that the determinative issues were
credibility and the availability of state protection in Barbados and concluded
that the applicant is not a Convention refugee or person in need of protection.
[9]
The RPD noted omissions of key details from her
Basis of Claim form [BOC] which she raised in her testimony. The RPD noted
several major inconsistencies between her oral and written testimony and her
inability to consistently answer basic questions about her claim. The RPD also
noted the lack of corroborative evidence. The RPD found that her delay in
making a refugee claim after losing status in Canada in September 2013 was not
reasonably explained. The applicant claimed that she did not know about the
refugee process; however, she was living with a relative who had made a refugee
claim, also on the basis of bisexuality. The RPD ultimately found that there
was no credible evidence that any of the events that the applicant recounted
regarding Mr. Lashley in the last five years were true. The RPD also found that
the applicant has never been in a lesbian relationship.
[10]
The RPD also found that the applicant had not
rebutted the presumption of state protection with clear and convincing
evidence, noting that a person in her situation in 2008 could have sought
protection from the authorities in Barbados and that if she were to return,
there is ample evidence that the state has both the ability and willingness to
protect her.
III.
The RAD Decision under Review
[11]
The RAD decision is lengthy and addresses all
the arguments raised by the applicant on appeal.
[12]
The RAD considered new evidence submitted by the
applicant: a letter from a friend and a letter from the Deputy Commissioner of
the Royal Barbados Police Force. The RAD found that the letter from a friend
was not relevant and could have been sent prior to the RPD hearing, as it was
simply an expanded version of a previous letter submitted to the RPD. The RAD
found that the letter from the Deputy Commissioner, which states that Mr.
Lashley was convicted of threatening the applicant in 2008 and was charged with
assaulting the applicant in 2008, but these charges were dropped, could have
been provided before the RPD hearing. Nonetheless, the RAD considered its
relevance and admitted it as new evidence.
[13]
With respect to the applicant’s argument to the
RAD that the RPD had failed to assess her psychological report, which would
have explained her stress-related memory problems, the RAD found that the RPD
had considered the assessment of Natalie Ribick, a psychotherapist, which noted
that the applicant demonstrated post-traumatic stress disorder [PTSD],
generalized anxiety and major depressive disorder. The RAD also noted that the
RPD had reviewed the governing jurisprudence regarding such reports, had not
disputed the overall diagnosis or condition, and had found that PTSD could be
based on “any number of matters in the [a]ppellant’s
life.” The RAD found that the RPD had taken into account the potential
stress of the hearing due to the conditions described by the psychotherapist.
The RPD demonstrated an awareness of the problems outlined in the
psychotherapist’s report, gave the applicant an opportunity to verify her
answers, repeated the questions and put the questions to her in a
straightforward way. The RAD concluded that the low weight attached to the
report by the RPD with respect to the claim was sound.
[14]
The RAD also made its own finding, attaching
little weight to the “story given to the
psychotherapist” due to the egregious credibility issues and because the
applicant self-reported the events to the psychotherapist.
[15]
With respect to the applicant’s argument that
the RPD failed to take notice of the psychology of abused women, in accordance
with the Guidelines, the RAD found that the RPD was aware of the Guidelines.
However, the egregious credibility issues, including the inconsistencies
between the documentation and testimony, could not be explained by the
Guidelines or the psychology of abused women.
[16]
The RAD also considered the credibility findings
made by the RPD.
[17]
With respect to the RPD’s adverse credibility
inferences arising from the applicant’s failure to consistently indicate how
many lesbian relationships she had, the RAD found, based on its review of the
RPD transcript, that nothing suggests that she misunderstood the questions. The
RAD found that it was not credible that she would not respond accurately, given
that being in a lesbian relationship would have been a breach of cultural norms
in her country and was a key aspect of her claim. The RAD also found that she
was inconsistent about her lesbian relationship in Barbados.
[18]
The RAD found that the applicant was vague about
when her lesbian relationship in Canada occurred and that it was not credible
that she would forget when her first lesbian experience occurred.
[19]
The RAD found that there was no evidence
produced to support the existence of the applicant’s lesbian partners or
relationships. The RAD, therefore, found that the applicant is not bisexual and
did not participate in a lesbian relationship, noting that this was supported
by its other credibility findings.
[20]
The RAD did not accept the applicant’s argument
that the credibility findings related to her allegations of violence by Mr.
Lashley were based on a minor mistake in recounting dates. The RAD agreed with
the RPD that the omission of two alleged rapes by Mr. Lashley from the
applicant’s BOC and her inconsistent evidence regarding when his abuse began
led to an adverse credibility finding, given that these issues go to the basis
of her claim.
[21]
The RAD noted that the new letter from the Deputy
Commissioner indicates that the applicant reported an assault and threats in
2008. The RAD found that it was not credible that she would not have also
reported to the police in 2005 or 2011, after the alleged rapes.
[22]
The RAD then addressed additional credibility
findings that were not challenged by the applicant in her appeal to the RAD.
For example, the RAD referred to the applicant’s extensive testimony regarding
an October 2008 incident of abuse by Mr. Lashley. The RAD noted that the new
evidence, the letter from the Deputy Commissioner, indicated that Mr. Lashley
was charged with threatening and assaulting the applicant in August 2008, was
convicted for threatening the applicant in September 2008, and was imprisoned
for six months. The RAD found that it was, therefore, not possible for the
applicant to have been beaten by Mr. Lashley in October 2008, because he would
have been in prison at that time.
[23]
The RAD also found that the applicant’s
testimony was inconsistent about whether she went through official channels or
through a friend in the police force to report the October 2008 incident to the
police.
[24]
The RAD confirmed the RPD’s credibility findings
based on inconsistencies regarding how the applicant reported the October 2008
incident to the police, the details of the incident at her home perpetrated by
Mr. Lashley and her address in Barbados.
[25]
The RAD concurred with the RPD’s overall finding
that there was no sufficient credible and trustworthy evidence of any of the
events alleged regarding Mr. Lashley, noting that the applicant was not
consistent regarding alleged beatings by Mr. Lashley, specifically when she
went to the police, whether she had friends in the police force, why she went
to the police and the police response.
[26]
With respect to the applicant’s delay in
claiming refugee protection, the RAD noted that the circumstances of the delay
and any reasonable explanation must be considered. The RAD agreed that it was
not credible that she would not have been aware of her relative’s refugee claim
on the basis of his bisexuality. The RAD noted that despite the applicant’s
alleged fear of Mr. Lashley, she returned to Barbados several times from
Canada. The RAD found that given the nature of the delay, the RPD was entitled
to draw an adverse inference and to find that the applicant lacks subjective
fear.
[27]
With respect to state protection, the RAD
reviewed the objective country condition evidence and found that state
protection would be available for the applicant in Barbados upon her return.
The RAD also noted that the letter from the Deputy Commissioner confirmed that
the applicant had availed herself of the state protection of the police in the
past.
IV.
The Issues
[28]
The applicant argues that the RAD erred in
finding that she had not requested an oral hearing, erred in not convoking an
oral hearing and breached procedural fairness as a result of not convoking an
oral hearing.
[29]
The applicant also argues that the RAD erred in
its assessment of her psychological report because it provided an explanation
for her inconsistent testimony and omissions and, therefore, should have been
considered in assessing her credibility.
[30]
The applicant further argues that the RAD erred
in finding that the RPD applied the Guidelines and that the RAD also erred in
not applying the Guidelines.
[31]
The applicant finally argues that the RAD erred
in its state protection analysis.
V.
The Standard of Review
[32]
In Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93, [2016] FCJ No 313 (QL) [Huruglica],
Justice Gauthier clarified that the RAD should fulfill its appellate role and
apply the standard of correctness when reviewing an RPD decision, noting that
the level of deference to be given to findings of credibility will depend on
the circumstances and the jurisprudence of the RAD will develop.
[33]
Although the RAD decision preceded the decision
in Huruglica, the requirement for an independent assessment of the
evidence does not differ from the guidance of the Federal Court, which the RAD
applied. In the present case, the RAD conducted a thorough assessment of the
record and reached independent findings which were consistent with those of the
RPD.
[34]
On judicial review, if issues of procedural
fairness arise, the standard of review is correctness. The issues regarding the
RAD’s exercise of discretion to hold an oral hearing, the assessment of the
psychotherapist’s report, the assessment of credibility and the application of
the Guidelines are matters of fact or mixed fact and law and are reviewable on
the reasonableness standard.
[35]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
The RAD did not err by not holding
an oral hearing in accordance with subsection 110(6)
[36]
The applicant argues that she requested an oral
hearing and the RAD erred, first, by finding that no such request had been made
and, second, by not convoking an oral hearing given that the new evidence
related to a key credibility finding.
[37]
The applicant acknowledges that her request for
an oral hearing was included only in her affidavit which stated: “I am requesting an oral hearing pursuant to subsection
110(6) of [the] Act if the Division deems it necessary.”
[Emphasis added.]
[38]
The applicant also acknowledges that her
submissions to the RAD did not address the request for an oral hearing, why
such a hearing was necessary or how the criteria in subsection 110(6) of the Immigration
and Refugee Protection Act, SC 2001, c 27 had been met, as required by the Refugee
Appeal Division Rules, SOR/2012-257 [the Rules].
[39]
The applicant submits that regardless of her
failure to comply with the Rules, the RAD has the discretion, bordering on an
obligation, to convoke an oral hearing on its own motion. The applicant argues
that the RAD should have exercised its discretion in the circumstances of this
case.
[40]
The applicant points to Zhuo v Canada
(Minister of Citizenship and Immigration), 2015 FC 911, [2015] FCJ No 922
(QL) [Zhuo], in which Justice O’Reilly found that where the conditions
within subsection 110(6) have been met, the RAD should generally be required to
hold an oral hearing. The applicant submits that this is analogous to an
obligation to hold an oral hearing where the conditions are met.
[41]
The applicant argues that she was denied
procedural fairness by the RAD’s failure to hold an oral hearing. She submits
that an oral hearing would have provided her with an opportunity to address the
letter from the Police Commissioner and explain that, although Mr. Lashley was
convicted of threats in September 2008, his six month jail sentence may not have
commenced at that time and, therefore, her testimony that he assaulted her in
October 2008 should not have resulted in an adverse credibility finding.
[42]
I find that, although the RAD misstated that no
oral hearing had been requested, this oversight does not result in any breach
of procedural fairness. As acknowledged by the applicant, the request for a
hearing was included only in the affidavit and only “if
deemed necessary.”
[43]
The issue is, therefore, whether the RAD erred
by not convoking an oral hearing on its own motion.
[44]
As noted by the respondent, the recent decision
of Justice Hughes in Ejere v Canada (Minister of Citizenship and
Immigration), 2016 FC 749 addressed the same issue, the request was framed
the same way and no submissions were provided as required by the Rules. Justice
Hughes noted that subsection 110(6) provides that the RAD may hold a hearing in
certain circumstances and that it is not obliged to hold a hearing because one
is requested (citing Sow v Canada (Minister of Citizenship and Immigration),
2016 FC 584 at paras 33-34, [2016] FCJ No 583 (QL)[Sow]). Justice Hughes
then considered whether the RAD should have held a hearing on its own volition
and concluded, on the facts of that case, that there was no need for a hearing.
[45]
In Sow, Justice Heneghan addressed the
applicant’s argument that procedural fairness was breached and disagreed,
noting at para 33, that “[t]he acceptance of new
evidence by the RAD does not automatically mean that an oral hearing will be
accorded.” Justice Heneghan added, at para 34:
[34] In my opinion, this provision
gives the RAD discretion whether to allow an oral hearing, when it accepts new
evidence. Since it has a discretion, it is not obliged to conduct an oral
hearing, arguably on the grounds that it is satisfied that it can determine the
relevant issue without a hearing.
[46]
In Zhuo, relied on by the applicant,
Justice O’Reilly found, on the facts of the case before him, and noting that
the RAD had acknowledged that the criteria for holding a hearing had been met, that
the RAD should have held an oral hearing before making adverse credibility findings.
He stated at paras 9-11:
[9] The legislation clearly states
that the RAD “may” hold a hearing where the statutory criteria are met. In my
view, however, an oral hearing will generally be required when the statutory
criteria have been satisfied.
[10] In an analogous context, officers
conducting a pre-removal risk assessment must generally hold an oral hearing in
similar circumstances (under s 113(b) of IRPA, and s 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227). Even though the language
is equally permissive (“a hearing may be held”), this Court has held that an
oral hearing will usually be required where there are serious credibility
issues before the officer that are central to the decision (Strachn v Canada
(Minister of Citizenship and Immigration), 2012 FC 984, at para 34).
[11] I believe the same should apply
here. Where the conditions for holding an oral hearing are present, the RAD
should generally be required to convene one. Obviously, the RAD retains a
discretion on this question but that discretion must be exercised reasonably in
the circumstances. In particular, the mere fact that a party has not requested
a hearing will generally not be sufficient reason to justify a refusal to
convene one when the circumstances appear to require it. While the RAD
rules allow an appellant to request a hearing, IRPA does not actually impose a
burden either to request, or to satisfy the RAD that the circumstances merit,
an oral hearing (see Refugee Appeal Division Rules, SOR/2012-257, Rule
5(2)(d)(iii)). The onus rests with the RAD to consider and apply the statutory
criteria reasonably.
[Emphasis added.]
[47]
It is important to note that in Zhuo,
Justice O’Reilly highlighted that the discretion to convoke an oral hearing
must be exercised reasonably. Where the new evidence submitted meets the
criteria of subsection 110(6), which include that the evidence would justify
allowing or rejecting the claim, it could be argued that refusing to hold an
oral hearing is an unreasonable exercise of discretion. However, that argument
does not apply in the present case.
[48]
Unlike in Zhuo, the RAD did not
acknowledge that the criteria of subsection 110(6) had been met. The RAD decision
conveys that it did not find that the new piece of evidence from the Deputy
Commissioner would have led it to another conclusion with respect to the
applicant’s credibility. Contrary to the applicant’s argument, I do not agree
that the letter raised an issue that was central to the decision of the RPD or
that would have justified allowing or rejecting the claim. The letter addressed
one incident of abuse by Mr. Lashley in 2008 that was not in dispute. The
applicant now submits that if she had had an oral hearing she could have
explained that Mr. Lashley’s six month sentence did not “necessarily” commence at the time of his conviction
and, as a result, her testimony that he assaulted her again in October 2008,
when he was under sentence, should not have resulted in an adverse credibility
finding. However, she did not provide any such evidence to the RAD along with
the letter from the Deputy Commissioner to establish that this was in fact what
occurred. Moreover, the RPD and RAD made numerous credibility findings and the
explanation she could have offered, if it was factual, could not have changed
the overall findings regarding the credibility of her allegations, which were
based on inconsistencies, omissions and other discrepancies.
[49]
As a result, the criteria of subsection 110(6)
were not satisfied. The RAD did not err in failing to exercise its discretion
to convoke an oral hearing.
The RAD did not err in its
assessment of the RPD’s findings regarding the psychotherapist’s report or in
its own assessment of that report.
[50]
The applicant submits that both the RPD and RAD
erred in attaching little or no weight to the psychotherapist’s report on the
basis of the applicant’s credibility, because the report set out clinical
observations regarding her condition, including stress and its impact on her
memory. The applicant submits that the report was based in part on objective
and independent testing and could have explained the problems in her evidence
which led to negative credibility findings (Mendez Santos v Canada (Minister
of Citizenship and Immigration), 2015 FC 1326 at para 19, [2015] FCJ No
1392 (QL) [Mendez Santos]).
[51]
The respondent submits that neither the RPD nor
the RAD erred in its assessment of the report, which was based only on the
applicant’s account of events, which was reasonably found not to be credible.
[52]
I note that, contrary to the applicant’s
submission, the report of the psychotherapist was not based on any independent
or clinical testing, but states that it was based on one interview with the applicant,
on the events recounted by the applicant and on the psychotherapist’s
observations of the applicant in accordance with her professional experience.
Some of the jurisprudence relied on by the applicant to argue that the report
could provide corroborative evidence relates to expert medical reports that
report on independent and objective testing and the resulting clinical
observations, which are not related to the applicant’s recounting of events.
That is not the situation here.
[53]
As I recently noted in Moya v Canada
(Minister of Citizenship and Immigration), 2016 FC 315, [2016] FCJ No 335
(QL):
[57] Other jurisprudence has also
cautioned that the recounting of events to a psychologist or a psychiatrist
does not make these events more credible and that an expert report cannot
confirm allegations of abuse. For example, the RAD referred to Rokni v
Canada (Minister of Citizenship and Immigration), [1995] FCJ No 182 (QL),
53 ACWS (3d) 371 (FCTD), and Danailov v Canada (Minister of Employment and
Immigration), [1993] FCJ No 1019 (QL), 44 ACWS (3d) 766 (FCTD), which note
that opinion evidence is only as valid as the truth of the facts upon which it
is based. The same caution was noted by Justice Phelan in Saha v Canada
(Minister of Citizenship and Immigration), 2009 FC 304 at para 16, 176 ACWS
(3d) 499: “It is within the RPD’s mandate to discount psychological evidence
when the doctor merely regurgitates what the patient says are the reasons for
his stress and then reaches a medical conclusion that the patient suffers
stress because of those reasons.”
[54]
Similarly, in Egbesola v Canada (Minister of
Citizenship and Immigration), 2016 FC 204, [2016] FCJ No 204 (QL), Justice
Zinn addressed arguments that the report of a psychologist had not been
considered. Justice Zinn noted at para 12:
[12] As submitted by the respondent,
the “facts” on which the report is based are those told to Dr. Devins by the
principal applicant, and thus are not facts until found to be so by the
tribunal. What can be reasonably taken from the report is that the principal
applicant suffers from PTSD, and that she requires medical treatment for it.
[55]
The applicant also submits that the RAD erred in
not considering that the psychotherapist’s report, which noted her condition
and its impact on her memory and testimony, should have been considered by and
should have guided the RPD in making its credibility findings, and also by the
RAD in confirming the credibility findings.
[56]
In Khatun v Canada (Minister of Citizenship
and Immigration), 2012 FC 159, [2012] FCJ No 169 (QL), the applicant made a
similar argument that the RPD had failed to take her psychological state into
account when it assessed her credibility. Justice Russell noted:
[86] The RPD clearly acknowledged the
Pilowsky Report and the Applicant’s specific psychological state. The RPD also
noted that the PIF was prepared by the Applicant with the aid of counsel and
that the Applicant affirmed that her PIF was complete, true and correct. Just
because the Applicant may suffer from cognitive and psychological problems does
not mean that credibility is not an issue or that all inconsistencies can be
attributed to those problems. The RPD must still assess credibility, and
provided it takes into account the evidence of cognitive or emotional
impairment, the Court must be loath to interfere because the Court does not
have the advantage of seeing and hearing the witness testify.
[57]
Justice Russell added at para 94:
[94] In this case, the Applicant tries
to rely on the Pilowsky Report and the RPD’s alleged ignorance of it to explain
away all of the negative credibility findings. However, as stated by the
Respondent, no psychological report could act as a cure-all for deficiencies in
the Applicant’s evidence.
[58]
In Mendez Santos, relied on by the
applicant, Justice Boswell found that the RPD’s credibility findings were not
reasonable because the psychological condition described in two doctor’s
reports provided an explanation for the applicant’s vague and contradictory
testimony. In that case, the reports assessed the mental capacity of the
applicant with objective and independent medical testing and found serious
cognitive deficiencies. Justice Boswell found that the RPD conducted its
analysis backwards and should have relied on the psychological reports in
assessing the applicant’s credibility.
[59]
The applicant’s argument in the present case,
that the RAD proceeded backwards in its credibility assessment, cannot succeed.
In this case, unlike Mendez Santos, there was no independent medical
testing conducted of the applicant and there was no independent medical
diagnosis of cognitive deficiencies. The report did not go so far as to state
any diagnosis of cognitive impairment; the psychotherapist’s report is based on
what the applicant reported and what the psychotherapist notes is consistent
with such experiences.
[60]
The report was based only on observations of the
applicant and the applicant’s recounting of the events, the vast majority of
which the RPD and RAD found to be not credible.
[61]
Nevertheless, the RPD and the RAD accepted the
overall conclusion of the psychotherapist that the applicant experienced PTSD
and generalized anxiety. The RAD found that the RPD had taken into account the
applicant’s potential distress due to her condition as described in the report.
This is a reasonable finding by the RAD and is supported by the evidence on the
record, including the transcript of the RPD.
[62]
The RAD’s own finding that it “gives little weight to the story given to the
psychotherapist because of the number of egregious issues of credibility
outlined in [the RAD] decision and the nature of the self-reported story given
to the psychotherapist” [emphasis added] is also reasonable and
consistent with the jurisprudence which, in a nutshell, provides that a
psychological report based on a discredited story cannot rehabilitate that
story.
[63]
Moreover, the weight attached to evidence is
within the purview of the RAD and it is not for the court to re-weigh evidence
that has been carefully considered by the RAD.
The RAD did
not err in its application of the Gender Guidelines
[64]
The applicant argues that the RAD erred in
finding that the RPD had applied the Guidelines and that the RAD failed to
assess her evidence in accordance with the Guidelines. In particular, it failed
to account for her social, cultural and economic context in Barbados as a
domestic violence victim. She adds that the RAD’s credibility findings arising
from her testimony about Mr. Lashley’s attack on her and her girlfriend should
have been assessed through the lens of the Guidelines.
[65]
I do not agree that the RAD erred in finding
that the RPD had applied the Gender Guidelines or in its own application of the
Guidelines.
[66]
In Diallo v Canada (Minister of Citizenship
and Immigration), 2004 FC 1450 at para 32, 259 FTR 273, Justice Mactavish explained
that the Guidelines alert the decision maker “to the
effect that social, cultural, traditional and religious norms can have on the
testimony of those claiming to fear gender-based persecution.”
[67]
The Guidelines are intended to guide the conduct
of the hearing and encourage the decision maker to consider the applicant’s
testimony in accordance with her circumstances as a domestic abuse victim in
her society or country of origin. The Guidelines do not cure reasonable
credibility findings and cannot buttress the state protection analysis.
[68]
The RAD conducted an independent assessment of
the evidence on the record, including a transcript of the RPD hearing. The RAD
reasonably found that the RPD’s conduct of the hearing was consistent with the
Guidelines and that the RPD had considered the psychology of abused women. The
RAD also reasonably found that the applicant’s credibility was undermined by
her own testimony and that the inconsistencies in her evidence could not be
explained by the Guidelines.
The RAD did not err in its state
protection analysis
[69]
The applicant argues that the RAD’s assessment
of the objective evidence of state protection was flawed because it focused on
efforts and aspirations. However, the evidence notes that at the operational
level, the state fails to protect victims of domestic abuse in Barbados. The
applicant notes that it is against the law to engage in homosexual acts in
Barbados and that the evidence relied on by the RAD regarding possible
protection for her must be considered in this context.
[70]
The RAD concurred with the RPD’s finding that
the applicant was not bisexual, but conducted a state protection analysis with
respect to the applicant’s allegations of domestic violence.
[71]
The RAD noted the state protection analysis
conducted by the RPD, which was extensive and balanced. The RPD had
acknowledged that, although the laws prohibited domestic violence and imposed
strong penalties, there were difficulties in responding to and treating
domestic violence victims. The RPD had found that although the documentary
evidence was mixed, women in the applicant’s situation in 2008 would have
sought protection – in other words, there would be no justification for the
applicant not to seek state protection based on an inability or unwillingness
to protect on the part of the state.
[72]
In its own analysis, the RAD noted that state
protection need not be perfect, but must be adequate, and concluded, on a
forward looking assessment, that state protection would be available to the
applicant if she sought protection upon her return.
[73]
The RAD’s assessment of state protection
reflects the key principles from the jurisprudence and the objective evidence,
which notes some challenges, but reasonably supports the conclusion that state
protection is adequate and would be available to the applicant should she
return to Barbados and seek state protection.
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