Date: 20120430
Docket: IMM-5171-11
Citation: 2012 FC 494
Ottawa, Ontario, April
30, 2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ANNETTA PROFITT
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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
I. Introduction
[1]
This
is an application by Annetta Profitt (Ms. Profitt), made pursuant to subsection
72(1) of the Immigration and refugee Protection Act, SC 2001 [IRPA],
for judicial review of the decision of the Immigration and Refugee Board (the
Board) dated July 6, 2011, whereby the Board concluded that the Applicant was neither
a Convention refugee under section 96 nor a person in need of protection under
sections 97 and 98 of the IRPA.
[2]
For
the following reasons, this application for judicial review is allowed.
II. Facts
[3]
Ms.
Profitt is a 49-year-old citizen of Guyana. At an early age, Ms
Profitt was adopted by Ms. Sheila Conway.
[4]
Ms.
Profitt is the mother of three children, Cleveland Gray, Tamica Blair and David
Blair.
Several years of abuse
[5]
In
1979, Ms. Profitt met Alex Beckles at a party; eventually, they commenced a
relationship. Mr. Beckles is a policeman. In 1980, Ms. Profitt moved in with
him and, after a year in their relationship, realized that Mr. Beckels was a
very aggressive man. She suffered verbal, physical and sexual abuse at the hands
of Mr. Beckles for several years. He often forced her to have sexual
intercourse with his colleagues or mistresses. If Ms. Profitt protested or
sought protection at a friend’s house, he would find her and mistreat her.
[6]
Mr.
Beckles forcibly confined Ms. Profitt for several months in 2001 and physically
and sexually abused her while forcing Ms. Profitt’s younger son, David, to watch.
Mr. Beckles also sexually abused David on occasions. Ms. Profitt unsuccessfully
attempted to file several complaints with the police.
Permanent resident
status in the US and criminal
convictions
[7]
In
1988, Ms. Profitt married Horriss Harding and acquired permanent resident
status in the United
States.
However, she lost her status after having been convicted of three criminal
charges. She was convicted of Grand larceny in the 3rd degree in
1992 and sentenced to a period of probation of 3 years. In 1995, she was
convicted for attempted grand larceny and was sentenced to 1 to 3 years of
imprisonment but served 6 months in a boot-camp instead. In 2006, Ms. Profitt
was charged with possession of forged instruments but was convicted of
falsifying business records. She was imprisoned for almost 2 years and deported
subsequently to Guyana.
Arrival in Canada
[8]
Ms.
Profitt was mistreated by Mr. Beckels for approximately 6 months in 2008. She
eventually disclosed her mistreatment at the hands of Mr. Beckels to her
parents. Ms. Profitt’s father obtained a false passport for her and bought a plane
ticket to Canada for her. She
arrived in Toronto on January
28, 2009, and immediately made her refugee claim.
Impugned decision
[9]
The
Board concluded that Ms. Profitt was neither a Convention refugee nor a person
in need of protection and rejected her application. It found that state
protection in Guyana would reasonably
be forthcoming and that law enforcement authorities would make serious efforts
to protect Ms. Profitt from her ex common-law partner if she returned to Guyana. It also
concluded there were serious reasons to consider that Ms. Profitt had committed
a serious non-political crime within the meaning of Article 1F(b) of the
Convention Relating to the Status of
Refugees [Convention] during her
stay in the US.
III. Legislation
[10]
The
applicable legislation is appended to this judgment.
IV. Issues and standard of review
A.
Issues
[11]
The
issues raised by this application are as follows:
1. Did
the Board provide sufficient reasons for its exclusion of Ms. Profitt under
section 98 of the IRPA?
2. Did
the Board err in excluding Ms. Profitt from refugee protection by concluding that
she had committed a serious non-political crimes under Article 1F(b) of the Convention?
3. Did
the Board err in its assessment of the adequacy of state protection in Guyana?
B. Standard
of review
[12]
The determination
of a serious non-political crime is a question of law and the appropriate
standard of review is that of correctness (see Pushpanathan
v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras 50 and 60 [Dunsmuir]; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at para 44) while the application of Article 1F(b)
of the Convention attracts a standard of reasonableness (Dunsmuir and Ivanov
v Canada (Minister of Citizenship and Immigration), 2004 FC 1210 at
para 6).
[13]
The
adequacy of state protection is a mixed question of fact and law and is
reviewable on a standard of reasonableness (see Carillo v Canada (Minister
of Citizenship and Immigration), 2008 FCA 94 [Carillo]; Ventura v Canada (Minister of
Citizenship and Immigration), 2012 FC 10 at para 29).
V. Parties’ submissions
A.
Ms.
Profitt’s submissions
[14]
Ms.
Profitt argues that the Board failed to provide appropriate reasons as to why
it preferred the Respondent’s submissions regarding the exclusion under section
98 of the IRPA and Article 1F(b) of the Convention. The
Board wrote in paragraphs 19 and 20 of its decision:
[19]
Based on the evidence and the text of the parties’ written submissions, I find
that I prefer the Minister’s case. Minister’s counsel has persuaded me, on
balance of probabilities, that there are serious reasons to consider that the
claimant has committed a “serious non-political crime”.
[20]Reliable
evidence provided by the Minister establishes serious reasons to consider that
the claimant committed grand larceny in the U.S. in 1991, attempted grand
larceny in the U.S. in 1995, and falsifying business records
in the U.S. in 2006. Moreover, Minister’s counsel
has persuaded me that the claimant’s 2006 falsify business records crime in the
U.S. falls within the definition of “serious criminality” in the IRPA,
and is therefore sufficient in itself to trigger a rebuttable presumption that
the claimant has committed a crime that falls within the meaning of “serious
non-political crime” under Article 1F (b) of the Convention.
[15]
Ms.
Profitt submits that the brief analysis of her mental health fails to
appreciate the significance of this evidence and its relation to the contextual
analysis required by Jayasekara v Canada (Minister of
Citizenship and Immigration), 2008 FCA 404 [Jayasekara]. In sum, she
argues that the Board did not provide adequate reasons nor did it properly
apply the criteria propounded by the Federal Court of Appeal in Jayasekara.
[16]
Furthermore,
Ms. Profitt submits that she was found guilty of minor class felonies. The
Board did not correctly determine the gravity of Ms. Profitt’s convictions and failed
to properly identify the equivalent Canadian offences and conduct a detailed
examination thereof, as required by Jayasekara. Article 1F(b) of
the Convention should only be applied in cases involving serious crimes.
Given the purpose of the IRPA and the nature of her crimes, Ms. Profitt
argues that she should be entitled to claim refugee protection in Canada.
[17]
Ms.
Profitt submits that the Board made three errors with respect to its assessment
of the adequacy of state protection in Guyana.
[18]
First,
it is submitted that the Board applied the wrong test as to the issue of state
protection. In Canada (Attorney General) v
Ward,
[1993] 2 S.C.R. 689 at para 49 [Ward], the Supreme Court of Canada stated that
“only in situations in which state protection “might reasonably [be]
forthcoming”, will the claimant’s failure to approach the state for protection
defeat his claim”. Mere willingness to provide protection on the part of the
state does not satisfy that requirement.
[19]
Ms.
Profitt reminds us that “in order for state protection to be adequate, it must
be effective at an operational level” (see Level v Canada (Minister of
Citizenship and Immigration), 2010 FC 251 at para 32; Mendoza v Canada
(Minister of Citizenship and Immigration), 2010 FC 119 at para 33; Wisdom
Hall v Canada (Minister of Citizenship and Immigration), 2008 FC 685 at
paras 8-9; Gilvaja v Canada (Minister of Citizenship and Immigration),
2009 FC 598 at paras 39-40; Avila v Canada (Minister of Citizenship and
Immigration), 2006 FC 359 at para 27).
[20]
In
the present case, the Board simply made a recitation of the legislation and
existing resources in Guyana without a qualitative
assessment of state protection.
[21]
Secondly
Ms. Profitt submits that the Board erroneously assessed the documentary
evidence regarding domestic violence in Guyana. Clear and convincing evidence can rebut a
presumption of state protection (see Ward cited above). The documentary
evidence before the Board showed the inadequacy of state protection afforded to
victims of domestic violence in Guyana.
[22]
In Persaud
v Canada (Minister of Citizenship and Immigration), 2010 FC 850 and E.B.
v Canada (Minister of
Citizenship and Immigration), 2011 FC 111, the Court determined that state
protection in Guyana was simply not
available or inadequate.
[23]
Ms.
Profitt also submits that the Board failed to consider her personal
circumstances. It ignored her previous attempts to seek state protection and
her exhaustive medical history. It also ignored the fact that Ms. Profitt’s
abuser was, and still is, a police officer. This failure to consider an
applicant’s situation is “even more serious given that the Board did not make
any negative credibility assessments” (see Farias v Canada (Minister of
Citizenship and Immigration), 2008 FC 578 at para 29) as alleged.
B.
Respondent’s
submissions
[24]
According
to the Respondent, in reaching its conclusion, the Board considered both the Respondent’s
and Ms. Profitt’s submissions. The Board reasonably assigned more weight to the
Respondent’s argument (see Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at para 11).
[25]
The Respondent
further argues that despite Ms. Profitt’s submission that she was convicted of
minor class felonies, she was actually charged with five class D felonies. Since
she entered a guilty plea on all three occasions, she was convicted of lesser
serious crimes. However, as Ms. Profitt was charged with possession of forged
instruments, the Board had serious reasons to believe that she had committed a
crime equivalent to the uttering of forged documents.
[26]
The Respondent
also submits that there were serious reasons to believe that Ms. Profitt had
committed a serious non-political crime. The Board considered all the mitigating
and aggravating factors, as required under Jayasekara. The Board
reasonably decided that Ms. Profitt was excluded from refugee protection under Article
1F(b) of the Convention.
[27]
The Respondent
further submits that the Board considered all the evidence adduced by Ms.
Profitt and determined that she had failed to rebut the presumption of state
protection in Guyana with clear and convincing evidence (see Ward, cited
above; Canada (Minister of Employment and Immigration) v Villafranca (FCA),
99 DLR (4th) 334; Carillo, cited above). This test is not met
merely because an applicant is able to demonstrate that state cannot provide
perfect protection to its citizens. Rather, the proper test is whether the
protection is adequate.
[28]
The
Board, according to the Respondent, is also presumed to have weighed all the
evidence and is not required to mention or refer to particular passages from
adverse documentary evidence (see Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 at paras 16-17). The
Respondent submits that, in this case, the Board weighed all the evidence and
reasonably determined that state protection is adequate in Guyana.
VI. Analysis
1. Did
the Board provide sufficient reasons for its exclusion of Ms. Profitt under
section 98 of the IRPA?
[29]
Ms.
Profitt argues that the Board failed to provide sufficient reasons explaining
why she was excluded from seeking refugee protection in Canada under section 98 of IRPA.
[30]
In Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board),
2011 SCC 62 at para 22, the Supreme Court of Canada held that “[i]t is true that the breach of
a duty of procedural fairness is an error in law. Where there are no
reasons in circumstances where they are required, there is nothing to review.
But where, as here, there are reasons, there is no such breach. Any
challenge to the reasoning/result of the decision should therefore be made
within the reasonableness analysis”. In Dunsmuir, cited above, at para 47, the Supreme Court wrote these often
quoted comments : “in judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”. Sufficient reasons must be given to enable the
reviewing Court to determine whether or not a decision-maker erred (see Via
rail Canada Inc v Lemonde, [2000] FCJ No 1685, [2001] 2 FC 25,
at para 19). It is the Court’s duty to review the decision and determine
whether or not it falls within the range of possible and acceptable outcomes.
[31]
The
Board did not provide adequate reasons explaining why Ms. Profitt was excluded
from refugee protection. The Board only stated that “Minister’s counsel has
persuaded me, on a balance of probabilities, that there are serious reasons to
consider that the claimant has committed a “serious non-political crime”” (see
para 19 of the Board’s decision). It also mentioned that “Minister’s counsel
has persuaded me that the claimant’s 2006 falsifying business records crime in
the U.S. falls within the definition of “serious criminality” in the IRPA,
and is therefore sufficient in itself to trigger a rebuttable presumption that
the claimant has committed a crime that falls within the meaning of “serious
non-political crime” under Article 1F(b) of the Convention” (see para 20 of the
Board’s decision).
[32]
While
some reasons were provided by the Board, the Court concludes that they are
insufficient in that the Board failed to conduct the proper analysis and apply
the appropriate test, as required by the Federal Court of Appeal in Jayasekara,
cited above, at para 44, or properly weigh the mitigating evidence adduced by
Ms. Profitt.
2. Did
the Board err in excluding Ms. Profitt from refugee protection by concluding that
she had committed serious non-political crimes under Article 1F(b) of the
Convention?
[33]
The adequacy
of reasons is fundamental in determining whether a decision-maker has properly
applied the jurisprudence or the law to the facts of the case. In this instance,
the Board did not apply the required criteria in order to determine if Ms.
Profitt’s crimes were serious enough to attract Article 1F(b) of the Convention.
[34]
In
paragraph 44 of Jayasekara, cited above, the Federal Court of Appeal
wrote: “I believe there is a consensus among the
courts that the interpretation of the exclusion clause in Article 1F(b)
of the Convention, as regards the seriousness of a crime, requires an
evaluation of the elements of the crime, the mode of prosecution, the penalty
prescribed, the facts and the mitigating and aggravating circumstances
underlying the conviction”. Even though the Board considered Ms. Profitt’s past
abuse as a mitigating factor, it still concluded that is was not sufficient to
rebut the serious non-political crime presumption. However, no evaluation of
the elements of the crime, the mode of prosecution and the penalty prescribed
were made by the Board. It is just not enough to make plain remarks on the
criminal history of an Applicant.
[35]
Furthermore, the Board failed to assess the circumstances surrounding
the crime. Ms. Profitt had suffered years of physical, sexual and mental abuse.
Several medical reports were adduced before the Board to demonstrate Ms.
Profitt’s medical condition and its relation to years of exploitation and
mistreatment. Dr. Celeste Thirlwell evaluated Ms. Profitt and found that she
“developed many symptoms which are consistent with Battered Woman Syndrome
(BWS), Post Traumatic Stress Disorder (PTSD) and Dissociative Identity Disorder
(DID)” (see page 73 of the Applicant’s Record, Volume I). Another report by Dr.
Linda Weber reveals that “Ms. Profitt suffers from Post Traumatic Stress
Disorder and Major Depressive Episodes. From August 2009-May 2010 she was seen
9 times by Dr. Meador with concerns of worsening suicidal ideation, nightmares,
flashbacks, hypervigilance and anxiety. Dr. Meador was very concerned about her
health and well-being and arranged an urgent psychiatric consultation with Dr.
Gotlib” (see page 78 of the Applicant’s record, Volume I). Dr. Les Richmond performed
a complete physical assessment of Ms. Profitt and concluded that she had
sustained several injuries consistent with her history of physical abuse.
[36]
According
to Dr. Thirlwell’s evaluation, “the crimes she committed in the United States were not premeditated
or meant to cause harm. They were examples of her maladaptive way of seeking help”
(see page 77 of the Applicant’s Record, Volume I). Even though Ms. Profitt
committed crimes in the US, the above factors were
not properly assessed or were simply ignored by the Board. Failure to follow
the Jayasekara doctrine gives rise to a reviewable error.
[37]
The
Court having concluded in favour of Ms. Profitt on the first two issues there
is no need to proceed to an analysis with respect to the issue of adequacy of
state protection in Guyana.
VII. Conclusion
[38]
The
Board has failed to provide give adequate reasons as to why it concluded that
Ms. Profitt was excluded under Article 1F(b) of the Convention, and
to follow the Jayasekara doctrine. Therefore, this application for
judicial review is allowed.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
This
application for judicial review is allowed; and
2.
There
is no question of general importance to certify.
“André
F.J. Scott”
Annex
Sections
96, 97 and 98 of the Immigration and refugee Protection Act, SC 2001 [IRPA]
read as follows:
Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
·
(a) is outside each of their countries of nationality
and is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
·
(b) not having a country of nationality, is outside
the country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
Person in need of protection
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
(i) the person is unable
or, because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be
faced by the person in every part of that country and is not faced generally by
other individuals in or from that country,
(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
Person in need of protection
(2) A person in Canada who is a member of a class of
persons prescribed by the regulations as being in need of protection is also a
person in need of protection.
Exclusion — Refugee Convention
98. A
person referred to in section E or F of Article 1 of the Refugee Convention is
not a Convention refugee or a person in need of protection.
Article 1F(b) of
the Convention
relating to the Status of Refugees reads as follows:
1F(b) He has
committed a serious non-political crime outside the country of refuge prior to
his admission to that country as a refugee;
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