Docket: IMM-2481-17
Citation:
2018 FC 2
Ottawa, Ontario, January 03, 2018
PRESENT: The
Honourable Mr. Justice Ahmed
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BETWEEN:
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KIRK NICHOLAS
JACK
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review by
Kirk Nicholas Jack (the “Applicant”) pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, c 27 (“IRPA”). The Applicant applied for permanent residence
from within Canada on humanitarian and compassionate (“H&C”)
grounds, which was denied by a Senior Immigration Officer (the “Officer”) by way of a decision (the “Decision”) dated May 30, 2017.
[2]
In denying the claim, the Officer considered
three H&C factors: establishment, the best interest of the child, and risk
should the Applicant return to his native Saint Vincent and the Grenadines (“St. Vincent”). The Applicant contends that the
Officer erred with respect to the third factor by failing to consider the
totality of the evidence about the risk and hardship that he would face should
the Applicant return to St. Vincent.
II.
Facts
[3]
The Applicant is a 42 year old man and citizen
of St. Vincent. In 1998, he was involved in a motor vehicle accident that
seriously injured “Nicholas,” a notorious gang
member. Nicholas demanded that the Applicant pay compensation for the accident,
and when he refused to pay, Nicholas began threatening the lives of the
Applicant and his family. For instance, one day in 2000, Nicholas showed up at
the Applicant’s mother’s home and girlfriend’s home with a gun, threatening the
Applicant’s life should he fail to pay. In December 2004, Nicholas threatened
the Applicant at his workplace. The Applicant reported the threats to the police
on multiple occasions, but to no avail. The police indicated that they could
not act because no actual harm was done to the Applicant or his family members.
[4]
As a result of the threats, the Applicant sent
his common law partner and young son to Canada. The Applicant came to Canada shortly
thereafter, arriving in May 2005.
III.
Issues
[5]
Did the Officer err in assessing the totality of
the evidence with regard to the hardship the Applicant will face if returned to
St. Vincent?
IV.
Analysis
A.
Standard of Review
[6]
The Officer’s finding is reviewable upon a
standard of reasonableness. As the Supreme Court of Canada explained in Dunsmuir
v New Brunswick, 2008 SCC 9 at para. 62, where the appropriate standard of
review is established in jurisprudence, a full analysis of the standard is
unnecessary. This Court has found that H&C determinations by immigration
officers are normally reviewable upon a standard of reasonableness: Ahmad v
Canada (Citizenship and Immigration), 2008 FC 646 at para. 11. I shall
adopt this standard in the case at bar.
[7]
In Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 15, the
Supreme Court of Canada affirmed that a reviewing court may examine the record
to assess the reasonableness of a decision.
[8]
The Respondent, relying upon Persaud v Canada
(Citizenship and Immigration), 2012 FC 274 (Persaud), notes that
judicial review should not involve a microscopic analysis of the country
context evidence in search of evidence to support the Applicant’s case. Conversely,
the Applicant relies upon Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration, [1998] FCJ No 1425 (QL) to illustrate the
circumstances in which a decision-maker will be found to have made a finding of
fact without regard to the evidence. In Herrera Andrade v. Canada
(Citizenship and Immigration), 2012 FC 1490 at para. 9, Justice Gleason
provides useful insight into how these cases are to be interpreted:
As Justice Hughes stated in Persaud…Justice
Evans' decision in Cepeda-Gutierrez does not stand for the
proposition that failure to analyze evidence that runs contrary to a tribunal's
conclusion necessarily renders a decision unreasonable. Rather, in Cepeda-Gutierrez
Justice Evans held that failure to consider specific evidence must be viewed in
context and will lead to a decision's being overturned only where the
non-mentioned evidence is critical, contradicts the tribunal's conclusion and
the reviewing court determines that its omission means that the tribunal did
not have regard to the material before it.
[Emphasis in original]
[Citation omitted]
B.
Consideration of the Evidence
[9]
In the Decision before me, the Officer concludes
that the Applicant provided “insufficient evidence”
that the family had approached the authorities with respect to Nicholas’
threats, and “insufficient objective evidence”
that the authorities would not be forthcoming in providing assistance should
the need arise (Decision, p. 5). In order to know whether this conclusion is
reasonable, it is necessary to review the evidence before the Officer.
[10]
As a preliminary matter, I wish to note that the
Officer considers “the risk [the Applicant] would face
in returning to St. Vincent” as a factor in granting H&C relief
(Decision, p. 3). Throughout the Decision, the language of both “risk” and “hardship”
appear to have been used interchangeably to consider how country conditions in
St. Vincent will be a source of hardship for the Applicant, specifically as it
relates to the threats by Nicholas. Therefore, the analysis that follows
proceeds with the understanding that the Officer employed the term “risk” in a general sense, but actually analyzed the hardship
that the Applicant faces due to the “risk”
associated with Nicholas’ threats.
[11]
First is the sworn affidavit of the Applicant. Unless
there are reasons to doubt its truthfulness, the affidavit is presumed to be
true: Maldonado v Canada (Minister of Employment and Immigration),
[1979] F.C.J. No. 248 at para. 5. The affidavit speaks of threats that the
Applicant received beginning in 2000, as well as threats against his mother and
girlfriend. The affidavit furthermore stipulates that the Applicant contacted
the police on multiple occasions and that no assistance was forthcoming. Finally,
it states that the Nicholas threatened the Applicant at his workplace in
December 2004.
[12]
Next are six letters that discuss the nature of
the threats against the Applicant. The Honourable Selmon Walters, Minister of
Rural Transformation, Information, The Postal Services and Ecclesiastical
Affairs for St. Vincent, writes that Nicholas went to visit him at his office
in 2002, and that Nicholas threatened to kill the Applicant should he fail to
be compensated (Certified Tribunal Record (“CTR”)
at p. 55). Mr. Walters furthermore stipulates that he subsequently met with the
Applicant and his mother to discuss the threats. Constable Vandy Bruce, who was
with the Applicant at the time of the 1998 accident, provides a letter that describes
the accident and subsequent threats against the Applicant, his girlfriend and
his mother (CTR, p. 57). Levi Shallow’s letter affirms that Nicholas was
actively looking for the Applicant, and that Nicholas was prepared to rob Mr.
Shallow at gunpoint after he failed to provide information on the Applicant’s
whereabouts (CTR, p. 58). Totsy Jack, the Applicant’s mother, writes about the motor
vehicle accident, a 2004 incident in which Nicholas attacked the Applicant to
the point that he was hospitalized, and threats made in 2014-2015 which forced
Ms. Jack to flee her home (CTR, p. 60). Kenson Matthews, the Applicant’s
cousin, writes of a threat he personally witnessed in 2004 and subsequent
attack that left the Applicant hospitalized. More importantly, this letter also
confirms that the case was reported to the police (CTR, p. 62). Finally,
Allison Bullock, a family friend who the Applicant has known since childhood,
wrote a letter relaying her knowledge of the motor vehicle accident, as well as
threats made by Nicholas against the family as recently as the summer of 2014
which forced Ms. Totsy Jack to stay away from her home (CTR, p. 64).
[13]
Finally, there is the objective documentary
evidence. The US State Department report provides a general overview of the human
rights situation in St. Vincent; two paragraphs of the entire report are
devoted to the role of the police and security apparatus, and there are no
references to gang violence. Conversely, there are two Responses to Information
Requests (“RIRs”). One provides detailed
information about gangs in St. Vincent and the extent to which the government
is able to protect those targeted by gang violence. The other is exclusively
about victims of death threats in St. Vincent. I wish to highlight a few
passages of the RIRs that appear particularly relevant to the Applicant’s circumstances:
If gang members cannot find the persons they
are looking for, they will seek out the families of people they are “after,”
and may kill them. […]
[CTR, p. 68]
The [St. Vincent and the Grenadines Human
Rights Association, (“SVGHRA”)] stated that “Vincentians targeted by gang members,
shot at or threatened are provided no protection by the state” and usually stay
silent and do not even tell their family and friends for fear of “possible
threat” on their lives or those of persons associated with them. […]
[CTR, p. 70]
[…] The SVHGRA representative added that
there is “risk” in reporting crimes to the police, as victims would be “marked”
and “wanted” by the perpetrator and his associates.
[CTR, p. 70]
The Assistant Superintendent indicated that
the police go to see the person who made the threats…According to the representative
of the SVGHRA, the police sometimes act as an intermediary and issue warnings
to people who make threats…The Assistant Superintendent indicated that if there
is enough evidence against the person making threats, he or she is arrested and
taken to court.
[CTR, p. 73]
The Representative of the SVGHRA stated that
authorities typically do not prosecute people who make threats if there is no
bodily harm to the victim. She expressed the opinion that authorities do not
attach the appropriate level of seriousness to complaints of death threats. […]
[CTR, p. 73]
[14]
The Applicant’s documentary evidence also
contains a newspaper article, as well as an excerpt from a book that provides
general information about gangs in the Caribbean.
[15]
I have substantial concerns about the Officer’s
consideration of the evidence available on the record. Let me begin with the
letters. I am unable to identify any portion of the Decision that substantively
analyzes the letters as they relate to risk and hardship to the Applicant. Other
than acknowledging their existence, the Officer makes no reference to them. Faced
with this silence, I am left to wonder whether they were contemplated at all
and, if they were, what weight they were afforded. Considering that the Officer
raised no credibility issues, in conjunction and the serious, corroborative
elements they evoke, these letters constitute substantial evidence that appears
to have been disregarded by the Officer. For the reasons provided, I find that the
evaluation of the aforementioned letters was conducted in reviewable error.
[16]
I also have concerns about the treatment of the
documentary evidence. The Officer claims to have “…reviewed
that documents (sic) provide (sic) by counsel in addition to conducting me
(sic) own independent research on country conditions in St. Vincent as they
relate to the applicants (sic) personal circumstances” (Decision, p. 5).
The Officer then makes specific reference to a single report – the US
Department of State Report – and on this basis finds that St. Vincent has a “… functioning government, is in control of its territory,
has a police force and an independent judiciary system that are capable of
protecting its citizen’s (sic) criminal violence” (Decision, p. 6). The
Decision makes no mention of the RIRs, despite the fact that they contain
information that pertains directly to the Applicant’s circumstances as a target
of gang violence. Instead, the Officer appears to have passed over this
evidence in favour of the information in the US Department of State report. How
was all of the documentary evidence, taken together, weighed by the Officer in
order to reach the conclusion that the police would be forthcoming in providing
assistance should the need arise? How was this documentary evidence balanced
against the Applicant’s sworn affidavit and letters provided by family members
and friends, which affirm that the incidents were reported to the police, but
nevertheless led the Officer to the opposite conclusion? On the basis of the
reasons provided in the Decision, one has to only wonder! As I am unable to
follow the line of analysis between the evidence on the record and the
Officer’s conclusion, I find the Decision to be unintelligible.
[17]
In conclusion, I find that the Decision is
deficient in its consideration of the totality of the evidence. The Applicant’s
sworn affidavit and letters from family and friends are left unanalyzed. My
review of the Applicant’s materials did not require a microscopic analysis of
reams of country condition evidence; on the contrary, a reading of the salient
provisions of the RIRs – which, in their entirety, are no more than 8 pages
combined – reveals information that not only largely corroborates the
Applicant’s experience with the gang member Nicholas and the St. Vincent
police, but plainly runs contrary to the Officer’s conclusion that assistance
would be forthcoming should the Applicant report to the police. While the
Officer was entitled to reach his or her own conclusions on the basis of the
evidence, the Officer was also bound to provide reasons for those conclusions. In
this case, the Officer’s failure to do so suggests that the totality of the
evidence was not considered which constitutes a reviewable error.
V.
Certification
[18]
Counsel for both parties was asked if there were
questions requiring certification, they each stated that there were no
questions arising for certification and I concur.
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