Date: 20110407
Docket: IMM-3289-10
Citation: 2011 FC 434
Ottawa, Ontario, April 7,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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CAROL JOAN GRIFFITHS
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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 the decision of Pre-Removal Risk
Assessment Officer T. N’Kombe (the Officer) dated April 26, 2010, wherein the
Officer determined that the Applicant would not be subject to risk of torture,
be at risk of persecution, or face a risk to life or risk of cruel and unusual
treatment or punishment if removed to Jamaica.
[2]
Based
on the reasons below, this application is allowed.
I. Background
A. Factual
Background
[3]
The
Applicant, Carol Joan Griffiths, is a citizen of Jamaica. She
arrived in Canada in May 2006
on a Temporary Resident Visa. On April 4, 2007 the Applicant was found to be
inadmissible as she intended to establish permanent residence in Canada and did not
hold the visa required to do so. A section 44 report was prepared and a
departure order was issued against the Applicant. The same day the Applicant
filed a claim for refugee protection.
[4]
The
Applicant’s refugee claim was heard August 18, 2009. The Applicant based her
claim on the harassment she suffered at the hands of a man named Mickey.
Mickey raped the Applicant in 1985. She became pregnant and was forced to give
the baby up for adoption. Mickey continued to harass her and also physically
attacked the Applicant once after the birth of the baby. To avoid further
harassment the Applicant went to St. Martens in 1997 and stayed there for a few
years. She returned to Jamaica in 2002, but was again
approached by Mickey in 2002 and 2006. As a result she fled to Canada. The
Applicant’s claim was rejected on October 13, 2009. The Board cited
credibility and the availability of state protection as the determinative
issues.
[5]
On
December 8, 2009 the Applicant made a Humanitarian and Compassionate (H&C)
application for permanent residence. That decision is still pending.
[6]
On
March 12, 2010 the Applicant submitted a Pre-Removal Risk Assessment (PRRA)
application. The PRRA application was refused April 26, 2010. This is the decision
under review.
B. Impugned
Decision
[7]
The
PRRA Officer determined that the Applicant had not rebutted the findings of the
Immigration and Refugee Board, but had presented a new set of risks having to
do with violent criminals robbing and raping the citizens of Jamaica. The PRRA
Officer noted that these risks were not unknown to the Applicant at the time of
her refugee hearing, and yet she did not bring them up then. Nevertheless, the
PRRA Officer was of the opinion that the new risk feared was generalized and
not personal to the Applicant. While the documentary evidence showed that
violence is a problem in Jamaica, the Applicant had not
presented clear and convincing evidence of the state’s inability to adequately
protect her. The PRRA Officer was satisfied that the country conditions had
not deteriorated since the Immigration and Refugee Board’s (IRB) rejection so
as to place the Applicant at risk of persecution or cruel and unusual treatment
or punishment.
II. Issues
[8]
This
application raises only one issue:
(a) Did
the PRRA Officer disregard important evidence?
III. Standard
of Review
[9]
The
appropriate standard of review to apply to findings of fact, or mixed fact and
law in a PRRA decision is reasonableness (Hnatusko v Canada (Minister of
Citizenship and Immigration), 2010 FC 18 at para 25). Judicial
deference to the decision is appropriate where the decision demonstrates
justification, transparency and intelligibility within the decision making
process, and where the outcome falls within a range of possible, acceptable
outcomes (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47).
IV. Argument
and Analysis
A. Did
the PRRA Officer Disregard Important Evidence?
[10]
The
Applicant submits that the PRRA Officer ignored evidence before him alleging
that the Applicant had been branded as an informer because of various reports
she had made to police in Jamaica.
[11]
The
section of her PRRA narrative detailing this claim read:
Ms. Griffiths has been raped
and beaten on different occasions. She reported these assaults to the police
and because of this, she was branded an informer. Informers don’t fare well in
Jamaica. And police remained passive
and inactive.
Reporting a crime or a personal assault
to Jamaican police is really not a good option. It’s extremely difficult to
trust the police because the information that is provided to the people who
should be protecting you is relayed to the criminal element. The thugs will
take revenge and punish the person who reported the crime or punish their close
family members.
[12]
The
Applicant made no mention of her status as an informer in her prior refugee
hearing. As such, it is indeed a new risk. The Applicant submits that nowhere
in the decision is there an analysis of the risk faced by the Applicant because
she has been accused of being an informer.
[13]
The
Respondent submits that the Applicant has failed to identify any error with
respect to the PRRA decision. The Applicant provided no evidence to support
the contention that she had been branded an informer. Furthermore, she
provided no evidence to explain the surrounding circumstances or to show that
she only found out about this allegation after her refugee hearing. The
Respondent disputes that this allegation was even disregarded by the PRRA Officer
as he found that other individuals in a similar situation as the Applicant
share the same risk.
[14]
I
must disagree with the Respondent. The decision makes no mention of the
Applicant’s alleged status as an informer. The PRRA Officer finds that the risk
the Applicant describes as refusing, “to be victimized again by the violent
criminals who are indiscriminately robbing, raping and murdering the innocent
victims of Jamaica…” is a generalized
risk. Indeed, by the Applicant’s own description, it was reasonable for the
Officer to conclude that this “indiscriminate” violence is a generalized risk.
However, nowhere in the decision is it clear that the Officer considers the risk
faced by an alleged police informer to be similarly non-personalized. It is
not obvious that the PRRA Officer turned his mind to this alleged risk.
[15]
I
am unable to accept the Respondent’s characterization of the informer
allegation as a risk that was merely mentioned in passing. In reading the PRRA
narrative, it is clear that the Applicant was alleging a specific new risk
which was significantly different than the claims put before the IRB during the
Applicant’s refugee hearing. Was any corroborating evidence provided by the
Applicant? Does the Applicant explain that she was only branded an informer
after the refugee hearing, or that this information was not reasonably
available at the time of the hearing? Does the Applicant provide any kind of
explanation for this claim? Does any of the documentary evidence provided by
the Applicant address the risks faced by police informers in Jamaica? The
Respondent mentions these issues in his submissions and certainly it would have
been reasonable for the PRRA Officer to point to these questions, the lack of
answers to which might cast doubt on the Applicant’s seemingly convenient
allegation. Raising any of these issues would also have clearly brought into
focus the fact that the Officer considered all of the evidence that was before
him. However, absent any kind of indication that he did consider the claim
that the Applicant was an informer, the decision is not reasonable in that it
is not transparent, intelligible or justifiable. Neither I, nor the Applicant
knows why the PRRA Officer did not find that being an informer would put the
Applicant at risk.
[16]
The
Respondent cited the Federal Court of Appeal decision Owusu v Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 FCR 635 at paras 9
and 10 in support of his contention that there is no reviewable error:
[9] The half-sentence
on page four of the seven-page letter, quoted above in [6], said only that Mr.
Owusu would be unable to support his family financially if he was deported was
too oblique, cursory and obscure to impose a positive obligation on the officer
to inquire further about the best interests of the children. The letter did not
say that Mr. Owusu had been supporting his children from the money he earned
while in Canada, and that they were
financially dependent upon him and would be deprived of that support if he was
deported. Nor was there any proof before the officer of any of these facts.
[10] Counsel argued that the officer
should have inferred from what the letter did say that Mr. Owusu's children
would be deprived of the financial support on which they depended if their
father was deported. In the circumstances, the officer is not to be faulted for
failing to draw this inference. Hence, the immigration officer did not err in
rejecting the H & C application without analysing the likely impact of her decision
on Mr. Owusu's children.
[17]
In
that case the applications judge decided to dismiss the judicial review even
though he found that the immigration officer erred in law in not being
sufficiently attentive to the best interests of the children. He nonetheless decided
not to set the decision aside because the claimant had not provided any
evidence to support the allegation that his deportation would be contrary to
the best interests of his children and because if the matter were remitted for
redetermination by another officer on the same material, the application was
bound to be rejected. On appeal, however, the Federal Court of Appeal upheld
the outcome but based its decision to do so on the claimant’s failure to
discharge his onus of providing a sufficient evidentiary basis on which the
officer could make a decision with regards to the best interests of the
children,. However, that case is distinguishable from the present matter. The
half-sentence on which the claimant based his application for judicial review in
Owusu, above, read:
Should he be forced to return
to Ghana [Mr. Owusu] will not have any
ways to support his family financially and he will have to live every day of
his life in constant fear.
[18]
The
claimant, Mr. Owusu, ostensibly based his H&C application on establishment
in Canada and not the
best interests of the child. In essence, the claimant was requiring the
officer to go looking for evidence. This “hint” in the letter was, as
described by the Court of Appeal, oblique, cursory and obscure. The
Applicant’s reference to being an informer in the present matter is not couched
in comparable obscurity. Her allegation was quite clear, if not credible.
That credibility of the statement would have been for the PRRA Officer to
determine.
[19]
It
is trite law that the officer is presumed to have considered all of the
evidence before him and that the assessment of weight to be given to the
evidence is a matter within the discretion and expertise of the officer. But,
in the present case, absent some kind of acknowledgement of the risk alleged by
the Applicant, the decision cannot be said to be justifiable, transparent or
intelligible. Therefore the judicial review will be granted, the PRRA decision
is quashed and the matter remitted back to be heard by a different officer.
V. Conclusion
[20]
No
question was proposed for certification and none arises.
[21]
In
consideration of the above conclusions, this application for judicial review is
allowed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
“ D.
G. Near ”
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