Date: 20071116
Docket: IMM-5310-06
Citation: 2007
FC 1201
Toronto, Ontario, November 16, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
LEILA BREHELIA TRIMMINGHAM BROWN
OMAR
TRIMMINGHAM
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Leila
Brehelia Trimmingham Brown (the “Principal Applicant”) and her son Omer
Trimmingham (collectively the “Applicants”) seek judicial review of the
decision of A. Curtis, a Pre-Removal Risk Assessment Officer (the “PRRA
Officer”), dated August 22, 2006. In that decision, the PRRA Officer determined
that the Applicants were not persons in need of protection within the meaning
of sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “IRPA” or the “Act”).
[2]
The
Applicants are citizens of St.
Vincent and the Grenadines
(“St. Vincent”). The Principal Applicant first came to Canada in 1987. She applied for Convention
refugee status pursuant to the former Immigration Act, R.S.C. 1985, c. I-2
and her claim was denied. Following her removal to St. Vincent in 1996, she entered into an intimate
relationship with one Oriel Yearwood and in 1998, gave birth to their son.
[3]
Oriel
Yearwood began to abuse the Principal Applicant; this abuse was physical,
sexual and emotional. In 2001, the Principal Applicant left St. Vincent with
her son and re-entered Canada. On May 8, 2002, the
Applicants filed an application for permanent residence in Canada on humanitarian and
compassionate grounds pursuant to sub-section 25(1) of IRPA. The application
was refused on July 6, 2004 and an application for leave and judicial review
was dismissed by the Court on January 4, 2005.
[4]
On January
28, 2006, the Applicants submitted their PRRA application. They alleged that
they would be at risk from Oriel Yearwood if returned to St. Vincent. The
Applicants’ application in this regard referred to the abuse suffered by them
at the hands of Mr. Yearwood, even in Canada,
in 2003 and 2004.
[5]
The PRRA
Officer dismissed their application on the basis that state protection was
available in St.
Vincent, having
regard to the availability of a police force, functional courts and domestic
legislation regarding domestic abuse. The PRRA Officer was not satisfied that
the Applicants would face more than a mere possibility of persecution or a risk
of cruel and unusual treatment or punishment in St. Vincent.
[6]
The first
matter to be addressed is the applicable standard of review based upon a
pragmatic and functional analysis. That analysis requires consideration of four
factors: the presence or absence of a privative clause, the expertise of the
tribunal, the purpose of the legislation, and the nature of the question.
[7]
The Act
contains no privative clause; this factor invites deference. The PRRA Officer
is experienced in dealing with pre-removal risk assessments and that experience
deserves deference. The broad purpose of the Act is to regulate the admission
of immigrants and persons at risk into Canada. The purpose of sub-section 97(1) is to
provide an avenue for persons at risk, who do not qualify as refugees, into Canada. This factor also attracts a
high degree of deference. Finally, there is the nature of the question.
[8]
In this
case, the nature of the question involves both law and fact. The PRRA Officer
is to assess the evidence of risk against the criteria described in sections 96
and 97. On balance, I conclude that the appropriate standard of review in this
case is reasonableness simpliciter.
[9]
The content
of that standard is addressed in the decision in Ryan v. Law Society of New
Brunswick, [2003] 1 S.C.R. 247 at paragraph 49 as follows:
49.
This
signals that the reasonableness standard requires a reviewing court to stay
close to the reasons given by the tribunal and "look to see" whether
any of those reasons adequately support the decision. …
[10]
The PRRA
Officer determined that state protection was available to them in St. Vincent. Upon the basis of the
material before the PRRA Officer, I am satisfied that this conclusion is supported
by the evidence. The PRRA Officer provided a coherent analysis of the evidence.
There is no basis for judicial intervention and the application for judicial
review will be dismissed.
[11]
Nonetheless,
I note that this may be a case where the Applicants may consider a further
application for the exercise of discretion by the Respondent on humanitarian
and compassionate grounds, pursuant to sub-section 25(1) of the Act.
ORDER
The application for judicial review is
dismissed, no question for certification arising.
“E.
Heneghan”
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