Date: 20110224
Docket: IMM-4032-10
Citation: 2011 FC 216
Ottawa, Ontario, February 24,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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CLIFFORNA CLEVORN TOUSSAINT
(A.K.A. CLIFFORNA CLEVO
TOUSSAINT
(TOUSSAINT, CLIFFORNA
CLEVORN)
(A.K.A. TOUSSAINT, CLIFFORNA
CLEVO)
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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 by Clifforna Clevorn Toussaint
challenging a decision by Refugee Protection Division of the Immigration and
Refugee Board (Board) dated June 18, 2010 by which her application for
refugee protection was refused.
Background
[2]
Ms. Toussaint
entered Canada from St. Vincent
and the Grenadines at the age of 18. She did not initiate her application for
refugee protection for 5 years, but when she did she claimed to be the victim
of several years of physical and sexual abuse both at the hands of her mother’s
common-law husband and her grandmother’s husband. She claimed to have sought
protection at the age of 15 from the local police but nothing meaningful was
done to stop the abuse. She came to Canada in July 2003 “to get
away from her mother’s husband, Gurney” who she alleged continued to be a
threat.
The
Board Decision
[3]
The
Board convened at Toronto on May 7, 2010. Most of Ms. Toussaint’s
testimony is not contained in the transcript of the hearing presumably because
the recording equipment was not turned on after an early off-the-record
discussion. According to a letter from the Board, the missing testimony was
given during a period of one hour and eleven minutes, representing most of the
hearing.
[4]
The
Board did not accept Ms. Toussaint’s testimony of abuse and it found her lacking
in credibility. It doubted her explanation for the delay in seeking protection
and concluded that she did not possess a subjective fear of anyone in “St. Lucia” [sic]. The
Board’s remaining credibility concerns were limited to three perceived inconsistencies
in Ms. Toussaint’s evidence and one response which it found implausible.
The Board found that Ms. Toussaint “was not abused as she alleges”. On
the issue of state protection, the Board noted that Ms. Toussaint had
presented no corroborative evidence of a complaint to the authorities but it
also acknowledged that she was “a minor while living in St. Vincent [and]
therefore cannot be faulted for not approaching the police more
persistently”. Surprisingly, later in its decision the Board found that
Ms. Toussant “did not make sufficient efforts to obtain state protection”
and, in the result, had failed to demonstrate “that adequate state protection
would not be available to her”.
Issues
[5]
What
is the legal significance of the Board’s failure to produce a complete
transcript of its hearing having regard to the Applicant’s challenges to the
reasonableness of the Board’s evidentiary findings?
Analysis
[6]
A
failure by the Board to produce a transcript of the evidence taken before it
may constitute a denial of natural justice if a reviewing court is unable to
properly dispose of the issues raised. A helpful summary of the relevant
authorities can be found in Canada v Liang, 2009 FC
955, [2009] FCJ No 1168, where Justice Robert Mainville stated the guiding
principle as follows:
24 The recent case law from the
Federal Court indicates that where the fundamental issues at stake concern the
reasonableness of the assessment of the credibility of a witness by an
administrative tribunal, and where the absence of a record of the testimony of
the concerned witness leads to the conclusion that the Court cannot deal
adequately with the concerns raised, then a new hearing may be required: Agbon
v. Canada (Minister of Citizenship and Immigration, 2004 FC 356, at paras.
3-4 (O'Reilly J.) ; Singh v. Canada (Minister of Citizenship and Immigration,
2004 FC 426, at para. 3 (Beaudry J.); Nguigi v. Canada (Minister of
Citizenship and Immigration), 2004 FC 432, at paras. 47-49 (Russell J.); Khaira
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1071, at
paras. 14 to 16 (Blais J., now C.J. F.C.A.); Vergunov v. Canada
(Minister of Citizenship and Immigration), (1999), 166 F.T.R. 94, at paras.
13-14 (Pelletier J.); Ahmed v. Canada (Minister of Citizenship and Immigration),
(2000), 182 F.T.R. 312, at para. 18 (Dawson J.).
25 In this case, there are serious
credibility issues raised by the Minister and confirmed by the Panel in regards
to the testimony of Mr. Qiang Liang, issues which seem to lead to the
conclusion that the Panel's decision is not reasonable in these circumstances.
However, the Court cannot fully and adequately review these issues since a
transcript of the proceedings is not available. Moreover, there are also
important credibility issues raised by the Immigration Officer in regards to
Ms. Rong Ji Zeng and, in the absence of a transcript of the proceedings before
the Panel, the Court has no basis on which to review how and why the Panel
disregarded these issues.
[7]
I
am satisfied that the evidentiary issues raised on this application cannot be
properly assessed in the absence of complete transcript of the evidence and
that this matter must therefore be returned to the Board for reconsideration.
[8]
Ms. Toussaint
has deposed that the Board was in error when it found that there was an
inconsistency between her Personal Information Form (PIF) and her testimony
about her age when her stepfather came into the household.. She claims that
there was no such inconsistency. She alleges a similar error with respect to
the Board’s finding of contradictory testimony as to her age when she was
threatened by her stepfather. Without a transcript, I cannot assess the
validity of these assertions.
[9]
The
Board did not accept Ms. Toussaint’s explanation for her delay in seeking
refugee protection. Ms. Toussaint says that this conclusion was
unreasonable in the face of her testimony. This is an issue which would
require the Court to assess her evidence and it is impossible to do justice to
the argument in the absence of a complete transcript.
[10]
Ms. Toussaint’s
arguments have added cogency, however, in the face of three clear errors by the
Board on the face of its record. Ms. Toussaint deposes that during the
hearing the Board asked her about what it perceived to be an omission from her
PIF about an incident of alleged sexual abuse. The Board was then advised by
counsel that the incident was documented in the PIF and the Board agreed. All
of this is verified in the limited transcript that was produced. Nevertheless,
the Board’s reasons repeat this error and impugn Ms. Toussaint’s
credibility on the basis of this supposed omission. This mistake is an
important aspect to the Board’s later conclusion that Ms. Toussaint was
never a victim of abuse.
[11]
A
small part of Ms. Toussaint’s testimony on the issue of delay was also recorded
and transcribed. This evidence concerned Ms. Toussaint’s knowledge of her boyfriend’s
immigration status in Canada. The Board was of the view that if Ms.
Toussaint’s boyfriend had been a refugee claimant, she would have been aware of
the process for seeking similar protection. The Board attributed testimony to
Ms. Toussaint that she did not know if he was a refugee claimant or not –
a statement it did not find believable. I accept that if Ms. Toussaint had
indeed testified that she did not know whether or not her boyfriend was a
refugee claimant the Board’s adverse inference would have been reasonable. But
what Ms. Toussaint actually said was that her boyfriend had come to Canada as a visitor
and that as far as she was aware he did not seek refugee protection. This is a
very different response than the bare statement attributed to
Ms. Toussaint that she had no appreciation for her boyfriend’s immigration
status.
[12]
A
significant part of the Board’s state protection analysis involved an
assessment of Ms. Toussaint’s testimony culminating in a finding that she
“did not make sufficient efforts to obtain state protection before leaving for
Canada” -- a statement that it repeated in its concluding remarks. This is in
contrast to the Board’s earlier finding that Ms. Toussaint “was a minor
while living in St. Vincent [and] therefore cannot be faulted for not
approaching the police more persistently”. This appears to be a material
inconsistency on the face of the Board’s reasons which casts real doubt upon
its state protection analysis. Once again, access to a transcript would have
assisted the Court in better understanding how the Board arrived at these
starkly different conclusions.
[13]
The
rest of the Board’s state protection analysis is a largely one-sided assessment
of country condition evidence. That analysis ignores a substantial body of
evidence in the record concerning the inadequacies of state protection in St. Vincent for victims
of domestic abuse. I do not agree with the Respondent that in this case the
issue of state protection can be neatly isolated from the evidence concerning
Ms. Toussaint’s risk narrative and profile. A proper state protection
analysis could only be based on a careful assessment of Ms. Toussaint’s
testimony. In the absence of a transcript, I am left to speculate about the
adequacy of the Board’s assessment of much of that evidence such that the state
protection analysis is rendered suspect.
Conclusion
[14]
In
the result, this application for judicial review is allowed with the matter to
be remitted to a different-decision maker for reconsideration on the merits.
[15]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed with
the matter to be remitted to a different-decision maker for reconsideration on
the merits.
“ R. L. Barnes ”
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