Date: 20070720
Docket: IMM-5041-06
Citation: 2007 FC 762
Ottawa, Ontario, July 20,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NICOLE
AMANDA SIMMONS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant’s Pre-Removal Risk Assessment (PRRA) concluded that state protection
was available to her in St. Vincent and the Grenadines (St.
Vincent) in respect of the spousal abuse which she had suffered. This is the judicial
review of that PRRA decision.
II. FACTS
[2]
The
Applicant, a national of St. Vincent, came to Canada in 2002 at
which time she made a refugee claim. The Immigration and Refugee Board (Board)
found her story to be credible in regards to the spousal abuse claimed but
rejected her claim on the grounds of the availability to her of state
protection.
[3]
During
her PRRA process she filed an affidavit from her mother indicating that as late
as December 2004, the Applicant’s husband was still interested in her – presumably
not in a benevolent way. She also filed a statement from a doctor that given
her history (including her suicidal ideas) and the threats in St. Vincent, St. Vincent could not
offer her proper treatment and that she would not be safe.
[4]
The
PRRA Officer noted the Board’s conclusion as to state protection, the fact that
in response to the Applicant’s complaints of abuse, the police had taken action
and that her husband continued to have a malevolent interest in her. The
Officer determined that there was no new evidence on state protection since the
Board’s decision.
[5]
The
Officer accepted the doctor’s report but found that the principal focus of the
letter related to state protection. The report dealt with the state’s ability
to protect the Applicant from her wish to commit suicide. While acknowledging
that she might have attempted suicide, there was insufficient evidence of the
occurrence. Finally, the Officer noted that fear of committing suicide is not
itself grounds for relief.
III. ANALYSIS
[6]
The
standard of review of PRRA decisions is patent unreasonableness on issues,
fact, reasonableness on mixed questions of fact and law, correctness for issues
of law and finally, reasonableness when considering the decision globally.
23. As to the appropriate standard of review to be
applied to a decision of a PRRA officer, in Kim v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 540 (T.D.) at paragraph 19,
Mr. Justice Mosley, after conducting a pragmatic and functional analysis,
concluded that "the appropriate standard of review for questions of fact
should generally be patent unreasonableness, for questions of mixed law and
fact, reasonableness simpliciter, and for questions of law,
correctness". Mr. Justice Mosley also endorsed the finding of Mr. Justice
Martineau in Figurado v. Canada (Solicitor General), [2005] F.C.J. No.
458 (T.D.) at paragraph 51, that the appropriate standard of review for the
decision of a PRRA officer is reasonableness simpliciter when the
decision is considered "globally and as a whole". This jurisprudence
was followed by Madam Justice Layden-Stevenson in Nadarajah v. Canada (Solicitor General), [2005] F.C.J. No. 895 (T.D.) at paragraph 13. For the
reasons given by my colleagues, I accept this to be an accurate statement of
the applicable standard of review.
[7]
The
crux of the decision is whether the conditions in St. Vincent have changed as
regards state protection generally or in respect of the Applicant particularly.
The decision must be examined globally on a standard of reasonableness.
[8]
Despite
the Applicant’s argument that the Officer committed legal errors, I can find
none. The Officer did not require a nexus between s. 96 grounds and the s. 97
claim. The Officer found that there was insufficient evidence of fear that she
would cause herself harm.
[9]
It
was noted that the Applicant had suicidal ideas throughout her life. While
there was no assessment of the adequacy of psychological or psychiatric
counselling available, there was no evidence that she could not have access to
such counselling. To the extent that there was concern for the availability or
adequacy of such care, that concern would not be a s. 97 ground since that
concern is an exception to the risks covered by s. 97 in accordance with s.
97(1)(b)(iv).
[10]
The
Officer did not ignore documentary evidence that the police are not always
effective especially where the perpetrator is a police officer or friend of a
police officer. In fact, the husband, while alleged to have friends in the
police force, had assaulted a police officer – an action not likely to garner
friends in the police.
[11]
The
Officer did not conduct a review of the Board’s decision on state protection
nor was he/she required to do so. The Officer considered that finding along
with all the other evidence before him/her, as required.
[12]
The
Applicant criticizes the Officer’s weighing of the evidence but in my view, the
Officer did exactly what was mandated by examining all the evidence, nothing
was missed, and there is nothing unreasonable in the Officer’s approach to the
evidence. It is not for the Court to substitute its weighing for that of the
Officer.
[13]
Taken
as a whole, the Officer’s decision was reasonable and therefore this
application for judicial review will be dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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