Docket:
IMM-3570-11
Citation:
2012 FC 169
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, February 8, 2012
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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PETER DIEGO FANADO
KIRBY
JUSTIN CHRISTOPHER
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Applicants
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The applicants are two young brothers, citizens
of Saint Vincent and the Grenadines, who are now nineteen and twenty‑one
years old. They are challenging the lawfulness of a decision dated
April 29, 2011, in which the Refugee Protection Division of the
Immigration and Refugee Board (the panel) rejected their refugee claim.
[2]
The
credibility of the applicants’ narrative is not at issue.
[3]
We
note that the applicants fled their country because of an abusive father who abused
them physically and psychologically all their lives. They decided to leave
their country once and for all following a particularly serious incident that
occurred on May 27, 2010. That day, their father tried to rape their
mother while he was intoxicated. When the applicants intervened to stop him,
their father attacked them with a machete and threatened to kill them. The
applicants fled the house and never went back. They later learned that their
father has sworn to kill them if he finds them. At the time of this incident,
the older brother was nineteen, and the younger brother was only seventeen. The applicants arrived in Canada in June 2010 and claimed refugee status shortly thereafter.
[4]
The panel’s refusal was based solely on the fact
that the applicants should have sought state protection and that therefore they
had not rebutted the presumption that adequate state protection was available
in their country. However, the Court should intervene in this case because it
is clear that the panel did not consider all the documentary and testimonial
evidence and hence its finding that the applicants did not rebut the state
presumption was unreasonable. The decision must be set aside and a new hearing
held following a thorough review of the evidence.
[5]
The
panel appears to have criticized the applicants for not reporting their
father’s assaults and death threats to the police, not contacting the attorney
general’s office and not seeking a protection order from the family court.
However, at the hearing, the principal applicant, the older brother, provided
reasonable and plausible explanations for not contacting the police, but the
panel clearly did not consider this part of their testimony. It appears that
the father is a very violent man and that, by contacting the police, the
applicants could have put their lives in danger, an aspect that the panel did
not examine in its decision. Moreover, the older brother testified that they did
not expect that the police would intervene to protect them. He stated that
their mother had reported their father’s abuse to the police on many occasions
and that, each time, the police went to their home to speak to their father but
never intervened. After the police left, the father would take the opportunity
to beat the mother in retaliation.
[6]
It
is not for the Court to determine the adequacy or inadequacy of a refugee
claimant’s efforts to obtain state protection (Hinzman v
Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para
38). However, the panel may not arbitrarily ignore evidence that could be
favourable to the refugee claimant. In this case, the panel disregarded the
applicants’ vulnerability and their mother’s numerous attempts to seek state
protection. Given the applicants’ young age at the time, the panel should have
considered whether the previous appeals by the applicants’ mother could be
tantamount to them seeking protection (James v Canada (Minister of
Citizenship and Immigration), 2010 FC 546 at
para 18).
[7]
In
addition, the panel seems to have selectively read the documentary evidence by not
dealing with the evidence that was favourable to the refugee claim, in
particular, an excerpt from item 5.1 of the National Documentation Package
entitled “Domestic violence; the role of the Family
Court; procedure for applying for a protection or occupation order; services
for abused women (2006 - November 2007)”, which notes that the Family Court has
a limited ability to enforce its decisions and that offenders often ignore the
protection orders it issues. This omission by the panel is, in my view, all the
more problematic because it was the only ground for rejecting the applicants’
refugee claim.
[8]
As
this Court has emphasized on a number of occasions in previous decisions, it is
not sufficient to mention some general passages from the documentary evidence
on the state’s efforts in domestic violence cases. The panel must show an
understanding of the general situation in the country and the particular
circumstances of each refugee claimant. This is not an abstract exercise. In
this case, the panel did not really analyse the applicants’ personal situation.
It is therefore impossible for me to find that the decision is reasonable
“referring both to the process of articulating the reasons and to outcomes” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[9]
In
closing, I would like to specify that this is not a case where the panel’s
reasons could have been better written (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at para 22) but a case where the panel failed to
analyze an important part of the evidence, here, in a context where the
applicants always lived in a home where they and their mother were subjected to
their father’s violence and their appeals to the police were not heard. As the
Court recently stated in Nintawat v Canada (Minister of Citizenship and Immigration), 2012 FC 66 at paras 24‑26, this aspect of
the claim must be clear from the panel’s written reasons, otherwise it will
simply be impossible for the Court to review the impugned decision without having
to refer to the transcript of the hearing to look for the underlying reasons
for the decision.
[10]
For these reasons, this application for judicial review is
allowed. No question of general importance was proposed for certification, and
none will be certified.
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