Docket: IMM-332-16
Citation:
2016 FC 1087
Ottawa, Ontario, September 27, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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KAREN ANN MARIE GUTHRIE
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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.
Overview
[1]
The Applicant, Karen Ann Marie Guthrie, seeks
judicial review of a pre-removal risk assessment [PRRA] by a senior immigration
officer in which the officer determined that Ms. Guthrie would not be subject
to risk of torture, be at risk of persecution, or face a risk to life or risk
of cruel and unusual punishment or treatment if removed to Jamaica, her country
of nationality.
[2]
As explained in greater detail below, this
application is allowed, as I find that the officer erred in the articulation
and application of the test for considering the availability of state
protection in Jamaica.
II.
Background
[3]
Ms. Guthrie is a citizen of Jamaica and alleges
a fear of persecution in Jamaica at the hands of her former husband. She made a
refugee claim in Canada which was refused by the Refugee Protection Division
[RPD] on January 26, 2011. She submitted an application for a PRRA in 2015 and
on December 2, 2015 received the decision that is the subject of this judicial
review. This decision turned on the officer’s finding that Ms. Guthrie had not
provided sufficient evidence to persuade the officer that state protection
would not be forthcoming in Jamaica.
[4]
The Canada Border Services Agency issued Ms.
Guthrie an order requiring her to leave Canada on February 15, 2016. By an
order of the Federal Court issued on February 3, 2016, her removal was stayed
until the within application for leave and judicial review has been determined.
III.
Issues
[5]
Based on the arguments advanced by Ms. Guthrie,
I would articulate the issues for the Court’s consideration as follows:
A.
Did the officer fail to apply the correct test
for state protection?
B.
Did the officer reach unreasonable conclusions
as to the availability of state protection in Jamaica?
IV.
Analysis
[6]
Ms. Guthrie submits that, in considering whether
the officer identified the appropriate test for state protection, the
correctness standard is to be applied by the Court (see Gonzalez Camargo v
Canada (Minister of Citizenship and Immigration), 2015 FC 1044 [Gonzalez
Camargo]), although the standard of reasonableness applies to the Court’s
review of how the officer applied the test to the facts of the case. The
Respondent, the Minister of Citizenship and Immigration, agrees with this
position on standard of review, and I concur.
[7]
Ms. Guthrie argues that the officer erred by
reaching a conclusion on the adequacy of state protection based on an
assessment of serious efforts being made by the government of Jamaica to deal
with domestic violence, rather than by assessing the operational adequacy of
the protection available. The Minister does not dispute that the officer was
required to conduct the assessment from the perspective of operational adequacy
but argues that the officer did so.
[8]
I agree with Ms. Guthrie both that the officer
applied the wrong test for state protection and that the resulting state
protection analysis was unreasonable. As Ms. Guthrie submits, these two
findings are related, as the officer’s identification and application of the
wrong test are evident both from the articulation of the test in the decision
and the manner in which the test was applied.
[9]
As recently stated by Justice Gleeson in Gonzalez
Camargo, at paragraph 26, the fact that a state has undertaken serious
efforts at state protection is not determinative of the availability of state
protection. Rather, the appropriate test involves an assessment of the adequacy
of that protection at the operational level. Ms. Guthrie submits that there are
several places, in the course of the officer’s state protection analysis, where
the officer refers to “serious efforts” and “attempts” by the government of Jamaica to protect its
citizens against domestic and sexual violence:
A.
The officer refers to the documentary evidence
on domestic violence and finds that the government of Jamaica is making serious
efforts to deal with the issue of domestic violence within its territory;
B.
Following the recitation of that documentary
evidence, the officer states that it is very clear from the documentation
reviewed that the Jamaican authorities are making efforts to address the
violence and in particular violence against women within its territory;
C.
While acknowledging that violence against women
remains a problem in Jamaica, as it does throughout the world, the officer
concludes that, according to the documentary evidence, this is a problem that the
government of Jamaica is attempting to remedy.
[10]
Of course, efforts made by a government to
achieve state protection may be relevant to the question whether operational
adequacy has been achieved. Therefore, the fact alone that a PRRA officer
refers to government efforts does not necessarily mean the officer has applied
the wrong test. However, in the case at hand, a review of other elements of the
officer’s decision supports the conclusion that the officer did not identify or
apply the correct test.
[11]
The Minister refers to particular documentary
evidence, from the United States Department of State 2014 Country Reports on
Human Rights Practices and a 2015 publication from the United Kingdom Home
Office, relied on by the officer in the decision. The Minister notes that these
documents indicated:
A.
The law criminalizes spousal rape when the
parties have separated;
B.
Laws prohibit domestic violence and provide
remedies for victims including restraining orders and other non-custodial
sentencing;
C.
Breaching a restraining order is punishable by a
fine of up to $10,000 JMD and six month’s imprisonment;
D.
The authorities in Jamaica have conducted
domestic abuse sensitivity training for police officers in downtown Kingston;
E.
A victim support unit operates in 14 parishes in
Jamaica. It provides counselling, emotional support, and other services to
victims of gender-based violence. The support unit is located within the
Ministry of National Security;
F.
Several laws are currently being reviewed by the
government as a part of its efforts to intensify “its
drive to protect the nation’s women and girls and eliminate violence against
them”;
G.
A Joint Select Committee of Parliament is
reviewing the Sexual Offenses Act, the Offenses Against the Persons Act, the
Domestic Violence Act, and the Child Care Protection Act;
H.
The Prime Minister has made public statements
that the government will continue to put measures in place to provide greater
security and protection for women in the fight to eliminate violence against
them;
I.
Education campaigns are in place to educate
citizens and build public awareness of gender-based violence and violence
against women.
[12]
While this information amply supports the
officer’s conclusion that Jamaican authorities are making serious efforts to
address domestic and sexual violence, it is notable that none of this
information speaks to the effectiveness of these efforts and whether these
efforts are sufficiently effective to constitute adequate protection. In my
view, the nature of the information cited by the officer in the course of the
state protection analysis supports the conclusion that the officer was applying
a test that focused upon the state’s efforts at protection rather than the operational
adequacy of that protection.
[13]
The Minister relies on the Court’s decision in
Mudrak v Canada (Minister of Citizenship and Immigration), 2015 FC 188 [Mudrak],
at paragraph 56-57, to the effect that legislative and other measures should be
treated as evidence enhancing the presumption of adequate state protection, and
that it would be incorrect to impose on a government an obligation to
demonstrate the operational adequacy of its recently instituted protection
measures. Ms. Guthrie questions the authority of this decision. She notes that Mudrak
certified for appeal the question whether the RPD commits a reviewable
error if it fails to determine whether protection measures have been
demonstrated to provide operational adequacy. While the resulting appeal was
dismissed by the Federal Court of Appeal in Mudrak v Canada (Minister of
Citizenship and Immigration), 2016 FCA 178, Ms. Guthrie points out that the
dismissal was on the basis that the question should not have been certified.
The Federal Court of Appeal held at paragraph 31 that the certification of the
first question in Mudrak resulted from an incorrect inference that a
line of Federal Court jurisprudence supported a conclusion that an onus shifted
to the RPD to demonstrate operational adequacy of protection measures.
[14]
As I read the decision of the Federal Court of
Appeal, it does not alter the law on this issue which, in the context of
efforts to achieve state protection, requires consideration of whether those
efforts have translated into adequate state protection at the operational
level. I recognize the Minister’s argument, based on the reasoning in Mudrak,
that legislative changes reinforce the presumption of adequate state protection
and that evidence of the effects of newly instituted initiatives may not be
immediately available. However, in my view, this does not detract from the
requirement to analyse the country condition evidence, including evidence on
new initiatives and whatever effects they may have had, to assess whether
adequate state protection at an operational level has been achieved.
[15]
Ms. Guthrie cites information from the
documentary evidence to support her position that Jamaica has not achieved
adequate state protection at an operational level against domestic and sexual
violence. Analysis of this information is not evident from the officer’s
decision, other than perhaps through the reference to violence against women
remaining a problem in Jamaica. While the officer is entitled to deference in
analysing country condition documentation in support of the state protection
analysis, that analysis must apply the correct test. The focus upon the
government’s efforts, rather than operational adequacy through the success of
those efforts or otherwise, represents an error both in the selection of the
wrong test and a resulting analysis which is unreasonable because of the
misplaced focus.
[16]
I therefore find that the PRRA officer erred in
the state protection analysis, which requires that this application for
judicial review be allowed and the matter referred to another officer for
redetermination. Neither party proposed any question of general importance for
certification for appeal, and none is stated.
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