Docket: IMM-4543-11
Citation: 2012 FC 242
Ottawa, Ontario, February 22,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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DWANE ELON PHILLIP
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Dwane Elon Phillip, seeks judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated June 9, 2011. The Board found that he was neither a Convention
refugee nor person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
I. Facts
[2]
The
Applicant is a citizen of Grenada. He fears an abusive
stepfather who has been living with his mother since he was 14 years old.
[3]
The
Applicant claimed he had to depend on neighbours for food or stay hungry. He
described an incident where he tried to step in when his stepfather was hitting
his mother. His stepfather threw a vase at him. The neighbours called the
police and the Applicant’s mother begged him not to tell them what happened. For
a period following the incident, the Applicant slept under the house.
[4]
There
was also an incident where the stepfather chased the Applicant with a cutlass. He
filed a police report but his mother took his stepfather’s side. As a result,
he went to live with an aunt nearby. The Applicant insists that the stepfather
continued to threaten him and spread rumours that he was homosexual among his
classmates.
[5]
His
mother’s childhood friend living in Toronto, Patrice Grant, sent
the Applicant money to finish secondary school in Grenada. She also
helped him purchase a plane ticket for Canada.
[6]
On
July 30, 2008, the Applicant arrived in Canada on a
temporary resident visa at 17 years old. When that visa expired on January 29,
2009; however, the Applicant remained in the country working occasionally in
construction and keeping a low profile. He claims that Ms. Grant told him that
the only way for him to get permanent status was to get married and be
sponsored.
[7]
The
Canada Border Services Agency (CBSA) arrested the Applicant in March 2010. It
was at this time that the Applicant first made a refugee claim based on the
abuse experienced at the hands of his stepfather in Grenada.
II. Decision
Under Review
[8]
The
decision begins with an assessment of the Applicant’s credibility. The Board
did not believe, on a balance of probabilities, his story that he was abused by
an “unnamed, abusive, alcoholic stepfather.” He had failed to claim protection
on arrival in Canada and did not
do so until he was arrested by the CBSA in March 2010, almost 15 months after
his temporary resident visa expired.
[9]
The
Board also took issue with the Applicant’s initial failure to identify his
biological father, Dylon Phillip. It was only after being pressed that the Applicant
admitted to meeting him when he was 14 or 15 years old. He is a businessman
who travels a lot outside Grenada. The Board noted that
this would put his father in the picture at the beginning of the abuse but the Applicant
does not mention why he would not seek his help, rather than living on the
street and depending on neighbours for food. He also denied coming to Canada with his
father in 2008.
[10]
The
Applicant admitted obtaining a temporary resident visa to come to Canada at 15 years
old that would have required the help of his mother and father. According to
the Board, if the reference to “father” had referred to his stepfather it seemed
strange that an abusive man, who did not want him around, would assist him in
coming to Canada. In his
oral testimony, the Applicant admitted that his biological father applied for
him when he was 15. The Applicant insisted they had a falling out, although
this was not in his Personal Information Form (PIF) and they were clearly in
communication on at least two occasions.
[11]
The
Board also raised questions regarding the name of his abuser, who was only
referred to as “Forde” in the PIF without the clarification later provided in
oral testimony that he indicated his stepfather’s name was Knoxforde Smith.
[12]
At
the hearing, the Applicant testified that his stepfather “does drugs, sells
drugs, alcoholic, gangster and member of the Crips.” The danger posed by the
stepfather was not mentioned in his PIF and country documents did not suggest
the Crips operate in Grenada. Moreover, the police
letter provided did not refer to the stepfather as a gangster or member of the
Crips. As a consequence, the Board found that the Applicant had not provided
any credible or trustworthy evidence to advance his claim.
[13]
The
Board also determined that adequate state protection would be available to the Applicant
on returning to Grenada in the face of threats of violence or abuse at
the hands of his stepfather. Grenada is a parliamentary
democracy that criminalizes rape. Police and judicial authorities usually act
promptly in cases of domestic violence.
[14]
In
the Applicant’s case, he reported the abuse and police clearly responded. Although
the Board was prepared to accept a letter for what it stated as signed by the
Officer in Charge of the Western Division, Gouyave Police Station in St. John,
Grenada; it was not prepared to accept the handwritten letter of the constable
as it had not been written on official letterhead and did not contain the stamp
of the official police unit, except that it corroborated the police attended
when called.
[15]
On
the issue of state protection, the Board summarized its conclusion as follows:
Although I acknowledge that
there is conflicting information with respect to the level of responsiveness of
the authorities in Grenada to complaints of child abuse, the degree of
effectiveness of child violence legislation, and societal attitudes and
attitudes among the police towards minor victims of domestic violence, I find,
based on the preponderance of the most current and up to date information, that
adequate state protection would reasonably be forthcoming to the claimant if he
were to return to Grenada today and continue to face problems, threats,
violence, or abuse at the hands of his stepfather. Moreover, now that the
claimant is no longer a minor, there is no reason for him to live with his
mother and his stepfather and therefore, there is no longer any reasonable
possibility of persecution or other serious harm.
[16]
Following
this finding, the Board proceeded to consider the subjective basis of the Applicant’s
claim. It did not accept explanations as to why the Applicant delayed in
leaving his home country for seven months after he had secured a temporary
resident visa and failed to claim in Canada on arrival or for
months afterwards. He even allowed himself to become illegal. The Board did
not believe that the Applicant would not know that he should make a refugee
claim and none of his friends and relatives would suggest he do so, unless the Applicant
was merely an economic migrant seeking to better his life in Canada.
[17]
Finally,
the Board rejected the Applicant’s argument that the compelling reasons
exception of the IRPA would apply since there was no subjective fear and he had
not suffered from “atrocious” or “appalling” acts of persecution.
III. Issues
[18]
This
application raises the following issues:
(a) Did
the Board breach natural justice in stating that credibility was not an issue
and then proceeding to make negative credibility findings?
(b) Did
the Board err in determining the Applicant’s credibility based partly on his
delay in making a refugee claim?
(c) Did the Board ignore evidence in
its assessment of state protection?
IV. Standard
of Review
[19]
As
stated in Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43, questions of natural justice or procedural fairness
as raised by the first issue require the correctness standard.
[20]
However,
the remaining issues should be reviewed based on reasonableness. This was
confirmed by the Court for issues of credibility in Aguirre v Canada
(Minister of Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732
at para 14 and for the assessment of state protection in Mendez v Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] FCJ No 771 at paras
11-13.
[21]
Applying
the reasonableness standard, intervention is only warranted where the decision
fails to accord with the principles of justification, transparency and
intelligibility or falls outside the range of possible, acceptable outcomes
(see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para
47).
V. Analysis
A. Did
the Board Breach Natural Justice in Stating that Credibility was not an Issue
and then Proceeding to Make Negative Credibility Findings?
[22]
The
Applicant submits that the Board breached natural justice by suggesting that
credibility was not an issue in response to a question from counsel as to
whether he should focus on certain factors in making final submissions. As
instructed, counsel made submissions on the Applicant’s future fear and state
protection. However, the Board’s decision proceeded to make significant
negative credibility findings. According to the Applicant, he was entitled to
know this case against him.
[23]
The
Respondent acknowledges that the Board member’s negative credibility findings
contrary to his comments at the hearing are regrettable, but maintains that the
situation is not as clear-cut as the Applicant suggests. The Applicant was
questioned about several issues regarding his story, including the issuance of
a visa, the delay in claiming, his biological father, and his stepfather’s
occupation. The Board member gave the Applicant opportunities to clarify and
explain these issues.
[24]
Reviewing
the transcript of the hearing, the Board member signalled that future
subjective fear and state protection were his main concerns. He also made
comments regarding the credibility of the witness such as “I found him in many
ways a credible witness in the sense that he has been straightforward, he has
been consistent I am just left with those imponderable…or those ponderables.” This
phrase, among others, would seem to confirm that credibility was not a primary
issue. However, the reference to the “imponderable” would not necessarily
foreclose those concerns. There were also some questions raised regarding the Applicant’s
story which in part explains the counsel’s attempt to seek reassurances from
the Board member that credibility did not remain an issue. Indeed, counsel
continues to ask about the issue and the Board member expresses reluctance to
provide his decision at the time.
[25]
The
Respondent is correct to point out that the issue is not as clear as the Applicant
suggests, particularly in light of questions asked of the Applicant regarding
his story. Nevertheless, the authoritative statements made in favour of the Applicant’s
credibility, when contrasted with those in the final decision, remain undeniable.
[26]
This
Court has recognized that giving counsel the impression an issue is resolved
and proceeding to make an adverse finding on that same issue would amount to
denial of natural justice or procedural fairness since it deprived the
applicant of an opportunity to make further submissions (see for example Sivamoorthy
v Canada (Minister of Citizenship and Immigration), 2003 FCT 408, [2003]
FCJ no 591 at para 47; Bokhari v Canada (Minister of Citizenship and
Immigration), 2005 FC 574, [2005] FCJ no 717 at paras 5-6; Bondarenko v
Canada (Minister of Citizenship and Immigration), 2004 FC 306, [2004] FCJ
no 354 at para 72). More specifically, in Brown v Canada (Minister of
Citizenship and Immigration), 2011 FC 585, [2011] FCJ no 787 at para 29 it
was noted that “where the Board indicates on what issues submissions should be
made, it is a denial of natural justice to render a decision on issues other than
those which it mentioned.”
[27]
There
is some uncertainty in the case law, however, as to when a breach of this
nature would constitute a reviewable error. In Sivamoorthy, above at
para 46, where the issue of identity arose it was suggested that even when
there was a basis to support refusing the claim, “the denial of natural justice
in this case requires a new hearing irrespective of whether the ultimate
decision would have remained the same.”
[28]
In
other circumstances, the Court has stressed that the critical issue is whether
the breach is material to the claim. For example, Justice Anne Mactavish in Lahocsinszky
v Canada (Minister of Citizenship and Immigration), 2004 FC 275, [2005] FCJ
no 313 at paras 12-14 noted that “[h]aving advised the applicants that the only
issue under consideration at the hearing was credibility, particularly as it
related to their explanation for the late filing of their amended PIFs, it was
a breach of natural justice for the Board to then base its decision, in part,
on its finding that state protection was available to the applicants.” Nevertheless,
she was not convinced that this breach had any effect on the result of the case
and dismissed the application for judicial review.
[29]
In
reaching this conclusion, Justice Mactavish relied on previous jurisprudence
that only breaches of natural justice that affect the result will warrant a decision
being set aside (see for example Mughal v Canada (Minister of Citizenship
and Immigration), 2006 FC 1557, [2006] FCJ no 1952 at paras 39-41; Fontenelle
v Canada (Minister of Citizenship and Immigration), 2006 FC 1432,
[2006] FCJ no 1796 at para 15; Yassine v Canada (Minister of Employment and
Immigration), (1994), 27 Imm LR (2d) 135, [1994] FCJ no 949 at para 11
(FCA); Mobile Oil Canada Ltd et al v Canada-Newfoundland Offshore Petroleum
Board, [1994] 1 S.C.R. 202; [1994] SCJ no 14 at para 53).
[30]
Given
these principles, the Board member’s comments necessarily give rise to a breach
of natural justice. The question is whether that breach alone warrants the
Court’s intervention as a material aspect of the Applicant’s claim.
[31]
The
Respondent argues that this was not the case. State protection was an
alternate and determinative finding against the Applicant, notwithstanding the
inconsistency on the issue of credibility.
[32]
Although
it would appear that state protection and subjective fear are the dominant
findings, in this particular instance it appears that the concerns regarding
credibility permeated throughout the entire decision and impacted on an
assessment of the material aspects of his claim. Addressing the issue is not
as simple as the Respondent’s submissions imply.
[33]
In
the section on state protection, the Board faulted the claimant for not
providing sufficient “relevant, probative and reliable evidence” to show that
adequate state protection would be forthcoming. Similarly, in the section
addressing subjective fear, the Board’s analysis is focused on the Applicant’s
credibility. Not only are there inconsistencies regarding the decision and the
comments of the Board member during the hearing, but there are identifiable
contradictions or a lack of clarity in portions of the decision itself.
[34]
For
these reasons, I am prepared to find that the breach of natural justice in
suggesting that credibility was not an issue where it proved to be central to the
Board member’s assessment of the Applicant’s claim constitutes a reviewable
error. The Board member made significant negative credibility findings that the
Applicant’s story could not be believed and he had not provided any credible or
trustworthy evidence to advance his claim in direct opposition to his comments
at the hearing that the Applicant was a credible and straightforward witness.
[35]
Having
reached this conclusion on Issue A, it is unnecessary for me to address the
issues of delay and state protection. I do note, however, that the Board is
entitled to weigh these factors in assessing any applicant’s claim.
VI. Conclusion
[36]
Since
negative credibility findings served as the basis for the decision despite
indications at the hearing to the contrary, there was a breach of natural
justice that warrants the intervention of this Court. The application for
judicial review is allowed and the matter is referred back to a differently
constituted panel of the Board.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed and
the matter is referred back to a differently constituted panel of the Board.
“ D.
G. Near ”
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