Date:
20120803
Docket:
IMM-6119-11
Citation:
2012 FC 967
Ottawa, Ontario, August 3, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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REGINA SAMUEL
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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, Regina Samuel, seeks judicial review of a decision by a Pre-Removal
Risk Assessment (PRRA) Officer, dated July 29, 2011. The Officer determined
that she would not be subject to risk of persecution, danger of torture, risk
to life or risk of cruel and unusual treatment or punishment if returned to her
country of nationality, Saint Lucia.
I. Background
[2]
The
Applicant arrived in Canada from Saint Lucia on March 9, 2008. She filed a
claim for refugee protection on August 17, 2009; however, the claim was
subsequently declared abandoned by the Refugee Protection Division of the
Immigration and Refugee Board for her and counsel’s failure to attend a
scheduled hearing.
[3]
She
first applied for a PRRA on March 11, 2011, claiming a fear of persecution and
that she would be at risk of being harmed or killed by her abusive, former
common-law partner, Trevor LaForce (also occasionally referred to as Mr.
Lafos).
[4]
Considering
her application and counsel’s submissions, the PRRA Officer found that the
Applicant had failed to provide sufficient objective evidence to support her
contentions of the abuse, three complaints to police and a conviction as well
as ongoing threats.
[5]
As
for the adequacy of state protection in Saint Lucia, the PRRA Officer found
there was no clear and convincing evidence that the authorities could not
protect the Applicant. The PRRA Officer was not persuaded that Mr. LaForce
would not have been arrested prior to the dropping of her first two complaints
or that “St. Lucian authorities did not respond and act in a reasonable way
after the applicant reported Mr. Lafos.”
[6]
Turning
to documentary evidence, the PRRA Officer recognized that domestic violence is
a serious problem in Saint Lucia and that there are instances of authorities
being ineffective in protecting some women. It was nonetheless found that,
although not perfect, protection would be available to the Applicant based on
efforts made in the past to protect her, new legislative measures and the
example of the Vulnerable Persons Team established by the police in 2007 to
oversee and provide advice in domestic abuse cases.
II. Issues
[7]
The
two issues raised by the Applicant are as follows:
(a) Did
the PRRA Officer breach the Applicant’s right to procedural fairness by not
affording her an oral hearing?
(b) Did the PRRA Officer err
in analyzing state protection?
III. Standard of Review
[8]
Decisions
of a PRRA Officer are generally subject to review based on reasonableness (see Hnatusko
v Canada (Minister of Citizenship and Immigration), 2010 FC 18, 2010 [2010]
FCJ no 21 at paras 25-26). This means intervention is only possible where the
decision fails to demonstrate the existence of justification, transparency and
intelligibility (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
at para 47).
[9]
Matters
of procedural fairness do, however, require the correctness standard (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339 at para 43).
IV. Analysis
A. Procedural
Fairness
[10]
Section
167 of the Immigration and Refugee Protection Regulations, SOR-2002-227
prescribes factors relevant to determining whether a hearing may be held in the
context of a PRRA application. It states:
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Hearing
— prescribed factors
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a) whether there is evidence
that raises a serious issue of the applicant's credibility and is related to
the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is
central to the decision with respect to the application for protection; and
(c) whether the evidence, if
accepted, would justify allowing the application for protection.
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Facteurs
pour la tenue d’une audience
167. Pour l’application
de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider
si la tenue d’une audience est requise :
a) l’existence d’éléments de
preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments
de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces
éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit
accordée la protection.
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[11]
Given
these factors, the Applicant asserts that the PRRA Officer erred in failing to
grant an oral hearing despite putting her credibility at issue in the decision.
By contrast, the Respondent maintains that there was no negative credibility
finding in this instance but merely an assessment of the sufficiency of the
evidence as presented by the Applicant. As a consequence, there was no need
for an oral hearing.
[12]
The
jurisprudence in this area recognizes a distinction between adverse credibility
findings and those questioning the sufficiency of corroborating evidence. While
this Court has admittedly suggested a need for an oral hearing in certain
instances where credibility was put at issue, it has only done so in the clearest
of cases (see for example Zokai v Canada (Minister of Citizenship
and Immigration), 2005 FC 1103, [2005] FCJ no 1359 at para 12; Latifi
v Canada (Minister of Citizenship and Immigration), 2006 FC 1388, [2006]
FCJ no 1738 at paras 54-60). In other circumstances, my colleagues have
stressed that there is no requirement for an oral hearing where a PRRA Officer
is assessing the weight or probative value of evidence without considering whether
it is credible (see for example Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, [2008] FCJ no 1308 at
paras 25-27, 32-33; Cromhout v Canada (Minister of Citizenship and
Immigration), 2009 FC 1174, [2009] FCJ no 1473 at paras 35-38; Cosgun v Canada
(Minister of Citizenship and Immigration), 2010 FC 400, [2010] FCJ no 458
at paras 34-41).
[13]
The
distinction ultimately rests on the nature of the PRRA Officer’s decision. The
passage of particular concern to the Applicant in this case reads as follows:
The applicant’s submissions state “Affidavits to
follow.” I have no affidavits or additional evidence before me. According to my
department’s electronic record, the applicant did not file any evidence
post-submissions.
According to the applicant’s PRRA application, the
applicant’s mother and the applicant’s four young adult sons all reside in St. Lucia. I note that the applicant has not provided any evidence from these family
members or friends regarding abuse at the hands of Mr. Lafos, recent threats
from Mr. Lafos, or responses from the authorities in St. Lucia. She has not
provided any objective evidence from the authorities in St. Lucia regarding complaints that were filed against Mr. Lafos or his conviction. I find that the
applicant has not provided sufficient objective evidence to support her
contentions.
[14]
Considering
this passage, I would agree with the position of the Respondent that the PRRA
Officer is focused on weighing objective evidence while raising concerns about
its sufficiency as opposed to indirectly challenging the Applicant’s
credibility. This leads me to conclude that the PRRA Officer did not breach
the Applicant’s right to procedural fairness in failing to grant her a hearing
– a decision always made on a discretionary basis – to consider credibility
issues that were not truly of concern to the PRRA Officer in assessing the
evidence.
[15]
In
support of this conclusion, I would reiterate the words of Justice Russel Zinn
in Ferguson, above at para 27 as they apply directly to the present
matter:
[27] […] If there is no corroboration, then it
may be unnecessary to assess its credibility as its weight will not meet the
legal burden of proving the fact on the balance of probabilities. When the
trier of fact assesses the evidence in this manner he or she is not making a
determination based on the credibility of the person providing the evidence;
rather, the trier of fact is simply saying the evidence that has been tendered
does not have sufficient probative value, either on its own or coupled with the
other tendered evidence, to establish on the balance of probability, the fact
for which it has been tendered. […]
[16]
In
weighing the evidence, it was not necessary for the PRRA Officer to provide an
oral hearing. As discussed below, I also consider the assessment of state
protection reasonable in the circumstances.
B. State
Protection Analysis
[17]
On
reviewing the decision, I see no basis for the Applicant’s position that the
PRRA Officer failed to provide sufficient analysis of contradictory documentary
evidence or explain why certain more favourable portions of the material were
given emphasis.
[18]
The
PRRA Officer conducted a relatively balanced analysis of the documentary
evidence related to domestic violence in Saint Lucia. The issue was recognized
as a “serious problem in St. Lucia and that some women have been killed in
recent years by their domestic partners.” The PRRA Officer also recognized
that “there have been instances where the authorities have not been effective
in protecting some women.” This information was, however, contrasted with the
Applicant’s situation that following her third complaint Mr. LaForce was
arrested and convicted. The PRRA Officer was also not persuaded that
authorities had failed to respond and arrest him after the two initial
complaints. Finally, the PRRA Officer identified some of the changes
implemented in Saint Lucia to help address the problem of domestic violence. The
PRRA Officer is not required to refer to each and every piece of documentary
evidence (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ no 598 (CA); Hassan v Canada (Minister of Employment and
Immigration) (1992), 147 NR 317, [1992] FCJ no 946 (CA)).
[19]
While
the protection was not considered perfect, it would be adequate. Given the
assistance provided by authorities to her in the past and measures taken to
address the issue by the state, the Applicant simply failed to provide clear
and convincing evidence to rebut the presumption that state protection would be
inadequate for victims of domestic violence in a democratic state such as Saint
Lucia (Carillo v Canada (Minister of Citizenship and Immigration), 2008
FCA 94, [2008] FCJ no 399 at para 38).
V. Conclusion
[20]
For
these reasons, her application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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