Date: 20110525
Docket: IMM-5217-10
Citation: 2011 FC 589
Ottawa, Ontario, this 25th
day of May 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
MEKEISHA FEZINA DANIEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the
Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
The Board determined that the applicant was neither a Convention refugee nor a
person in need of protection pursuant to sections 96 and 97 of the Act.
[2]
Mekeisha
Fezina Daniel, the applicant, is a citizen of St. Vincent and the
Grenadines
and was
born in 1987. When she was 13 years old, her mother entered into a common-law
relationship with a Mr. Calvert Cupid. In May 2003, Mr. Cupid is alleged to
have sexually assaulted the applicant; a pattern of repeated attacks followed.
In February 2005, the applicant allegedly sought police protection but the
police simply talked with Mr. Cupid, sharing jokes with him, and no arrest was
made. Immediately following their departure, Mr. Cupid threatened the
applicant. The assaults continued. The applicant’s mother, who is also the
family breadwinner, continues to refuse to believe that her partner is a sexual
predator.
[3]
In
April 2008, the applicant contacted her aunt, Nyasha Ralph, who lives in the United Kingdom, and was convinced by
her to go once more to the police. The applicant filed a police complaint and
the police visited Mr. Cupid but no follow-up was made. Following this visit,
Mr. Cupid again threatened the applicant’s life.
[4]
The
applicant went to the United Kingdom to stay with her aunt for three weeks,
with the intention of staying there, but her aunt’s husband did not agree to
this and she returned to St. Vincent.
[5]
In
June 2008, the applicant says she was raped and impregnated by Mr. Cupid. Her
aunt informed her that there was a woman in Canada, Josette Davis, who might be able to help
her. The applicant came to Canada on October 5, 2008.
* * * * * * * *
[6]
This
matter raises the following issues:
a.
Did the Board err by
failing to apply the Board Chairperson’s “Guideline 4: Women Refugee Claimants
Fearing Gender-related Persecution” (the “Gender Guidelines”) when it
determined that the applicant’s testimony was not credible or plausible?
b.
Did the Board err by
determining that state protection was available to the applicant in St. Vincent?
[7]
The
standard of review applicable to a Board’s finding on credibility is
reasonableness. Therefore, the Board’s conclusion must fall within the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[8]
The
standard of review applicable to a finding of state protection is likewise
reasonableness (Buitrago v. Minister of Citizenship and Immigration,
2009 FC 1046 at para 14).
* * * * * * * *
[9]
Firstly,
the applicant submits that the purpose of the Gender Guidelines is to assist
the Court in drawing contextualized conclusions within refugee claims. She
cites Griffith v. Canada (M.C.I.) (1999), 171 F.T.R. 240, an application
based on similar facts involving a female claimant from St. Vincent who
was also refused based on an impeachment of credibility, a lack of subjective
fear and the adequacy of available state protection. Justice Douglas Campbell
noted the need to consider the “pattern of symptoms” often exhibited by
battered women (citing R. v. Lavallee, [1990] 1 S.C.R. 852), and that
“the Gender Guidelines suggest that to assess the actions of a woman subjected
to domestic violence is an essential tool to use in reaching a fair and correct
judgment” (para 20).
[10]
Justice
Campbell went on to hold at paragraph 25 that reasons must be given in the case
of credibility findings that are responsive to what is known about women in
this condition, and that it is a pitfall to use the objective standard of the
“reasonable man” when it is possible that a male norm is being unfairly applied
(para 28). The applicant submits that the Board in the present case fell victim
to the same pitfall, applying an objective standard with total disregard for
the knowledge, understanding and sensitivity required to assess issues of
credibility in such cases (as per para 27).
[11]
In Keleta
v. Minister of Citizenship and Immigration, 2005 FC 56 at para 14, Justice
Danièle Tremblay-Lamer noted that the Board does not necessarily have to cite
the Guidelines in the course of its reasons, but that it is incumbent on the
Board to display the knowledge and sensitivity outlined in Griffith,
above. The applicant notes that the Board in the present case did not
acknowledge these Guidelines at all, but rather drew mechanical inferences
based purely on implausibilities such as her failure to move out at a young age
and her failure to produce photos of her rapist. The applicant notes that she
was 15 years of age when the pattern of abuse started and that she was still a
minor when she first approached the police. She argues that the Board’s
complete failure to consider and apply the Guidelines tainted a true assessment
of her allegations.
[12]
The
respondent argues that the Guidelines cannot themselves be used to establish a
claim where the applicant’s explanations are not acceptable (S.I. v.
Minister of Citizenship and Immigration, 2004 FC 1662 at paras 3-4). The
respondent contends that the mere fact that the applicant was disbelieved by
the Board does not imply that the Board was insensitive (Vargas v. Minister
of Citizenship and Immigration, 2008 FC 1347 at paras 15-16). The
respondent notes that there is no allegation that the Board lacked sensitivity
in the conduct of the hearing itself. The respondent submits that in view of
the fact that the applicant submitted no corroborative evidence to establish
her claim it was reasonable, not insensitive, of the Board to inquire about any
possible evidence such as photographs.
[13]
In
my view the Board’s decision displayed a lack of the sensitivity and
contextualization called for by the Guidelines. While the Board did not in fact
need to explicitly mention the Guidelines, the jurisprudence establishes that
the approach set out in the Guidelines should be taken into account in
assessing the evidence in the case of an abused woman. The applicant’s claim
was explicitly based on gender-related violence in a country where such
violence is commonplace. I agree with the applicant that there is a distinction
between the cases cited by the respondent (S.I. and Vargas, above)
and the present case, as in those cases the Board had found actual
inconsistencies and contradictions in the applicant’s evidence which put into
question the veracity of the allegations (Vargas, para 15). In S.I. the
Board was in fact found to have applied the Guidelines correctly (para 8).
In the present case, the Board did not cite any actual contradictions or
inconsistencies in the applicant’s testimony, but rather found it implausible
that she would have remained in an abusive situation considering the fact that
she was educated. This is exactly the manner of questionable finding referred
to in the Guidelines and in Lavallee, above, and in my view demonstrates
that the Board was not using the Guidelines, but was attempting to apply a
strictly objective viewpoint as to what someone in an abusive situation should
do. The Board’s reasons were not, as required by Griffith, supra,
responsive to what is known about women in this condition; I can find no evidence
in the decision of an attempt to put the applicant’s actions in the context of
a young woman who has been subjected to ongoing sexual assault and rape by a
family member over the course of several years. While her testimony would
presumably have been bolstered by expert evidence, there is no actual
requirement for her to submit such evidence, and despite its absence I find
that the Board’s conclusions are no more based on expertise, but rather on the
Board’s own sense of what an abused woman in the applicant’s position should
have done. While I accept that the lack of corroboration in the form of the
police reports was an important factor, I find that the Board’s failure to
apply the Gender Guidelines tainted its analysis and rendered its conclusions
on credibility unreasonable.
[14]
Secondly,
the applicant submits that the Board’s findings regarding police protection in St. Vincent are unreasonable. The
applicant cites the following excerpt from a November 2008 Information Request:
Most
police officers have limited knowledge and skills on domestic and family
violence, inclusive of procedures, but a selective few treat the issue with
seriousness. Trained officers receive general training in policing which they
apply in domestic and family violence incidences and which lead to
complications for the victim, who feels further victimized.
In
addition, when female victims go to make reports, they are served by gross,
disrespectful, chauvinistic, young male officers who feel that the victim asked
for what she received. There are no specialized kits either. In most cases, the
male police officers become impatient if the victim is hesitant in responding
to questions.
Generally,
the attitude of police officers, the open area for questioning and the overall
ineffectiveness of the police and court, make the victim reluctant to testify.
[15]
The applicant
submits that the Board erred in not addressing this evidence which competed
with its conclusion that it was the applicant’s failure to act that caused her
problems (Cepeda-Gutierrez et al. v. Canada (M.C.I.) (1998), 157 F.T.R.
35). She also argues that the Board’s inference must be weighed against the
Gender Guidelines, as the Board, in concluding that the applicant’s passivity
was a major factor in her problems, failed to consider the context of the
applicant’s situation, namely being a 17-year-old girl in such an environment.
[16]
The
respondent merely contends that state protection was not a determinative issue
in the case at bar. While the Board did not explicitly mention state protection
as a separate determinative issue, in my view it clearly made a finding that
such protection would have been available to the applicant, and used this
finding to impeach her credibility given that she did not effectively seek it
out. On this point, I am in agreement with the applicant that the Board made
its finding without addressing the contradictory evidence. I find that it was
unreasonable of the Board to impeach the applicant’s credibility on this point,
in light of the contradictory evidence showing that while victim passivity can
play a role, there are clear deficiencies in the protection available to such
victims and the attitudes they must face. I agree that a contextual, sensitive
approach as mandated by the Guidelines would have taken this into consideration
and explained why the Board did not find this to be an important factor.
* * * * * * * *
[17]
For
the above-mentioned reasons, the application for judicial review is allowed.
The matter is sent back for reconsideration by a differently constituted panel
of the Immigration and Refugee Board.
JUDGMENT
The application for judicial
review is allowed. The decision of the Refugee Protection Division of the
Immigration and Refugee Board (the “Board”), dated August 16, 2010, is set
aside and the matter is sent back for reconsideration by a differently
constituted panel of the Board.
“Yvon
Pinard”
Email this Content