Date:
20121009
Docket:
IMM-2508-12
Citation:
2012 FC 1176
Ottawa, Ontario, October 9, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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SHANNON SHENIKA BIBBY-JACOBS
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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]
This is an application for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board [Board] who determined that the applicant, a citizen of Saint Vincent and
the Grenadines, was neither a Convention refugee nor a person in need of
protection within the meaning of sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [Act].
[2]
Given
that the determinative issues in this case are the absence of subjective fear
and the availability of state protection, the standard of review of
reasonableness applies (Cornejo
v Canada (Minister of Citizenship and Immigration), 2010
FC 261;
Hinzman v (Canada) Minister of Citizenship and Immigration, 2007 FCA 171, 282 DLR (4th) 413). The
present application must be allowed.
[3]
Assessing
the fear of persecution has two components: (1)
the claimant must subjectively fear persecution; and (2) this fear must be
well-founded in an objective sense (Ward v Canada (Minister of
Employment & Immigration),[1993] 2 S.C.R. 689, 103 DLR
(4th) 1). This test was articulated and applied in Rajudeen
v Canada (Minister of Employment & Immigration) (1984), 55 NR
129 (Fed CA) at
14:
The subjective component relates to the existence
of the fear of persecution in the mind of the refugee. The objective component
requires that the refugee's fear be evaluated objectively to determine if there
is a valid basis for that fear.
[4]
Guideline
No 4 on Women Refugee Claimants Fearing Gender-Related Persecution [Gender
Guidelines] can be very useful in the assessment of fear of persecution in the
case of woman refugee claimants. The Gender Guidelines are not law, nor are
they binding for the Board, they were
issued in order to assure a certain coherence in the tribunal’s decisions: when
the panel is faced with a case where the applicant has made a claim of
persecution based on her membership in a particular social group (i.e. women
victims of violence) in all fairness, the claim cannot be examined without
reference to the Gender Guidelines.
[5]
The
credibility of the applicant is not in issue. The applicant is a young woman who
has been victimized by a sexual predator, a prominent businessman in Saint Vincent [the businessman]. The latter comes from a rich and powerful family related
to the Prime Minister and his brother is an Ambassador. The businessman has
sexually harassed and assaulted the applicant over a period of three years
during which she was employed by him as an office clerk. The applicant fears
that if she publicly denounces the businessman in his home country, she will be
persecuted and at risk.
[6]
The
Board’s finding that the applicant has not been able to establish persecution
is unreasonable as it lacks proper motivation. Although the Board states that
“the claim must be determined based on an analysis of section 96 [of the Act]
in that the claimant alleges that she fears persecution”, there is a complete
failure in the impugned decision to grasp and address this key issue. The Board’s
corollary finding that section 97 is not involved in this case because a sexual
assault or sexual harassment cannot amount to persecution is untenable without
any form of rational analysis of the evidence and the law.
[7]
The
Board essentially based its conclusion of absence of well founded fear of
persecution or risk to life on the fact the applicant has continued to work for
the businessman after the alleged incidents. The Board concluded that this
strongly implied that the applicant did not have a subjective fear stating that
“if the risk were of a level of severity that could be described as
persecution, the claimant would have left her job.” This particular use of the
concept of “subjective fear” by the Board member is hardly applicable in a
sexual harassment case. In any event, the Board member has completely forgotten
to address in his reasons the plausible explanation advanced by the applicant
for not leaving earlier. The Board member missed the point and shows a complete
misunderstanding of the available options in a sexual harassment case.
[8]
In
the case at bar, the Board also fails to mention in the impugned decision the
Gender Guidelines. While a failure to consider the Gender Guidelines is not
necessarily a prelude to a successful judicial review, I find that in this
case, the Board member did not demonstrate the sensibility and understanding of
gender related persecution. It is apparent that key findings were made without
any regard to the applicant’s cultural, social and personal circumstances. It is
not sufficient to claim today that the Board member accommodated the applicant
at the hearing. The sensitivity must also be reflected in the rationale for
refusing the refugee claim.
[9]
Despite
the fact that the Board accepted the applicant’s story and found her credible,
one gets the impression that the Board member somewhat seeks to excuse the
persecution by an appalling trite characterization of the persecutor. Here, the
strong reliance by the Board on the fact that the businessman is now relatively
old – he is only 57 years old – and that he has prostate cancer is misplaced
and only provides further ground to question the Board member’s sensitivity to
gender related claims. Perhaps sexual assault or harassment is not uncommon but
their long lasting consequences on the victim should never be trivialized.
[10]
The
persecutor is not an agent of the state. Nonetheless, objectively speaking, the
Board was called to determine whether the applicant’s reasons not to approach
the state were unreasonable in the circumstances. I find that the conclusion that
the applicant did not rebut the presumption of state protection is untenable.
[11]
As
decided by the Supreme Court in Ward, above, absent some evidence, it
should be assumed that the state is capable of protecting a claimant. However,
a claimant is able to rebut the presumption by submitting relevant evidence of
the state’s inability or unwillingness to protect an individual in a given case
of persecution. This supposes that the Board looks at the situation of similarly
situated individuals, apart from the claimant’s reasons for not making a
complaint to the police, as the case may be. In this case, we are not dealing
with domestic abuse at home involving a husband and wife, but with sexual
harassment or assault at the workplace involving a prominent businessman and a
vulnerable young woman. Moreover, the persecution has taken place in a small
island of the Caribbean’s.
[12]
In
the case at bar, contrary to the factual situation described by the applicant
in her testimony, the Board gratuitously suggests that her understanding that
the state cannot protect her is “subjective”. In a generic way, the Board concludes
that state protection would be available because Saint Vincent makes claim to
democratic values and the protection of human rights; there is adequate
protection for victims of sexual assault because “rape, including spousal rape,
is illegal, and the government generally enforced the law”; and because police
are being trained to better deal with gender related assaults.
[13]
It
is apparent that the Board member’s so called “objective analysis” of the state
protection issue is itself the Board member’s own subjective view of the
situation in Saint Vincent. Indeed, the Board member’s reasoning appears
truncated and biased considering the totality of the evidence on record. There
is no real attempt in the Board’s decision to assess the evidence in light of
the personal circumstances of the applicant. However, there was ample evidence on
record supporting the applicant’s view that state protection would not be
reasonably forthcoming because of the persecutor’s social status and high
profile (see notably Tab 5.1 of the Saint Vincent National Package under the
subtitle “attitudes toward victims”). Moreover, sexual harassment, as stated by
the 2012 US Country reports, is not even a crime in Saint Vincent. In
selectively reading the documentary evidence, the Board committed a reviewable
error which taints the conclusion that state protection would be forthcoming.
[14]
For
these reasons, the application for judicial review will be allowed. Counsels
agree that no question of general importance arises in this matter.
JUDGMENT
THIS
COURT’S JUDGMENT is that the present
application of judicial review is allowed; the decision dated February 14,
2012, is set aside and the matter is remitted back to the Refugee Protection
Division of the IRB for reconsideration by a differently constituted panel. No
question is certified.
“Luc
Martineau”
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