Date: 20080403
Docket: IMM-3273-07
Citation: 2008 FC 427
Toronto, Ontario, April, 3, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
LEWY ROSEN BENJAMIN SUKHU
EUNICE SUKHU
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), rendered on July 25,
2007, wherein the Board determined that they were not Convention refugees or
persons in need of protection. Their claim for refugee protection was based on
their membership in a minority group in Guyana, namely, the Indo-Guyanese.
[2]
For the
reasons that follow, I have determined that this application for judicial review
must succeed.
FACTS
[3]
The
applicants are Indo-Guyanese citizens of the Republic of Guyana. They claim that they have always been
harassed and insulted for being Indo-Guyanese by Afro-Guyanese, who form the
majority in this country.
[4]
More
specifically, in March 2001, they were threatened by a group of Afro-Guyanese
and chased to their home when they were passing out flyers and encouraging
voters to register and vote for the People’s Progressive party.
[5]
On July
28, 2002, Mrs. Eunice Sukhu was sexually assaulted at gun point by her
supervisor at work. He threatened to kill her and her family if she ever spoke
about the rape. Despite those threats, the applicant went to the police
station with her husband to report the incident. The police officers refused
to help her and sent them to another police station. They went to three
different police stations but none of them provided any assistance. The same
night, her husband saw one of the police officers to whom Mrs. Sukhu had tried
to report the rape drinking with the same supervisor who raped her. Therefore,
they believe that the supervisor bribed the police to ignore their complaint.
[6]
On July
31, 2002, Mrs. Sukhu returned to work where she made a complaint to the head
office of the company. Two weeks later, she followed up with the head office
but was advised that there would be no further investigation. When she
submitted a letter of resignation on August 15, 2002, her supervisor rejected
it and threatened her.
[7]
On October
2, 2002, she took her annual leave of absence from work to visit family in the United States in order to recover from her
depression and suicidal thoughts. On October 12, 2002, she returned to Guyana
as she was worried about her daughter and her husband who had stayed in Guyana.
[8]
The same
day, thieves broke into her house; her husband was severely beaten and she was
assaulted. After taking her husband to the hospital, Mrs. Sukhu went to the
police station. The police officer took her to a room but, instead of
recording her denunciation, he sexually assaulted her. He then told her to
leave the police station and go home. She did not report the rape as, by this
point, she had lost faith in the police authorities.
[9]
On October
18, 2004, Mrs. Sukhu and her husband traveled to Trinidad to apply for a
Canadian visa through the Canadian Embassy in Port of Spain. She obtained a six-month visitor visa
but her husband did not obtain one.
[10]
The
applicant therefore left Guyana and arrived in Canada on October 24, 2004. In May
2005, her application for an extension of her visitor visa was rejected. Her
husband arrived in Canada in August 2005. They left
their daughter in Guyana with relatives; she is
Christian but she dresses as a Muslim in order to avoid violence or
kidnapping.
[11]
The
applicants claimed refugee protection on July 14, 2006 but their applications
were rejected on July 25, 2007.
THE IMPUGNED DECISION
[12]
In a
two-page decision, the Board member found that the applicants’ fears were not
subjectively well-founded. He based his decision on three factors. First, he
considered implausible the fact that the applicant returned to Guyana without
asking for protection in the United
States, after
having been raped and unable to obtain assistance. He also drew a negative
inference from the one-year delay in making a refugee claim in Canada. In his view, those actions
were not compatible with those of a person fearing her return to Guyana.
[13]
Finally,
the Board member pointed out that the applicants had no documents to
corroborate their claim. He could not understand why Mrs. Sukhu had not
provided medical reports corroborating her rapes and he rejected her
explanation that she was ashamed. He also stated that they should have tried
to report the rape by the police officer to the Ministry of the Interior or to
the Attorney General.
THE ISSUES
[14]
The
applicants have raised four issues in their written and oral submissions. They
submit that the Board member made incorrect findings when he stated that Mrs.
Sukhu’s boss was Afro-Guyanese, that their daughter came to Canada on August 2005, and that the
applicants waited a year before making refugee claims. They argue that these
errors can be explained by the fact that the Board member was asleep during at
least part of the hearing, thereby depriving them of procedural fairness. Thirdly,
they contend that the Board could not question their subjective fears without
identifying credibility issues. Finally, they assert that the Guidelines
entitled Women Refugee Claimants Fearing Gender-Related Persecution (the
Gender Guidelines) were not mentioned nor considered by the Board member in
coming to his conclusions.
ANALYSIS
[15]
As a
result of the Supreme Court’s decision in Dunsmuir v. New-Brunswick,
2008 SCC 9, I believe the reasonableness standard is applicable to review
questions of fact and credibility. On the other hand, there is no need to
apply a standard of review analysis to the argument that the applicants did not
receive a fair hearing: if there has been a breach of procedural fairness, this
Court must intervene (Sketchley v. Canada (Attorney General), 2005 FCA 404).
[16]
Turning
first to the argument of procedural fairness, it is the applicants’ contention
that the Board member fell asleep or dozed off during portions of the hearing.
They rest their assertion on their own affidavits and that of a friend who was
not present at the hearing. This is a difficult argument to make, and I do not
think it has been made out in the circumstances of this case.
[17]
The
transcript clearly shows that the Board member did participate in the hearing,
asking a number of questions on different aspects of the claim. One can not
infer from the silence of the Board member at some points of the hearing that
he was not paying attention to what was going on. Moreover, there is no evidence
that the applicants, who were represented by counsel, raised an objection at
the hearing or immediately after to what they perceived to be a denial of
natural justice or procedural fairness. The applicants have therefore waived
their right to subsequently raise any such objection before this Court: Lopez
v. Canada (Minister of Citizenship and
Immigration),
[1997] F.C.J. No. 979 (QL).
[18]
As for the
Gender Guidelines, I agree with the respondent that the Board’s failure to
specifically mention them in its reasons is not fatal, as long as they have
been taken into consideration. I also accept that they are not meant to serve
as a cure for all deficiencies in an applicant’s claim or evidence. Having
said that, a careful reading of the Board member’s reasons leads me to believe
he did not pay sufficient attention to these Guidelines.
[19]
The
following considerations found in the Guidelines are of particular relevance in
the present case:
Decision-makers should
consider evidence indicating a failure of state protection if the state or its
agents in the claimant’s country of origin are unwilling or unable to provide
adequate protection from gender-related persecution...
When considering whether it is
objectively unreasonable for the claimant not to have sought the protection of
the state, the decision-maker should consider, among other relevant factors,
the social, cultural, religious, and economic context in which the claimant
finds herself…
In determining whether the
state is willing or able to provide protection to a woman fearing
gender-related persecution, decision-makers should consider the fact that the
forms of evidence which the claimant might normally provide as “clear and
convincing proof” of state inability to protect, will not always be either
available or useful in cases of gender-related persecution
[20]
The Board
member drew negative inferences from the fact that the applicant did not have
supporting documentation to prove “the two rapes because the female claimant
was too ashamed to seek medical attention”. It appears that in the Board
member’s mind, a female refugee claimant should not be too ashamed to obtain a
medical report after a sexual assault. Such an inference does not sit well
with the Gender Guidelines, which recognize that shame is a perfectly plausible
explanation. One would have expected, at the very least, an explanation
demonstrating that the Board member had considered the Gender Guidelines before
coming to his conclusion.
[21]
The same
can be said of the Board member’s view that the applicant should have denounced
the police officer who raped her to the Ministry of Interior or the Attorney
General. Her explanation that she had no more confidence in the police at that
point was perfectly reasonable, considering what she had gone through before.
After all, she had already tried to report a previous sexual assault to three
police stations, to no avail. There was also documentary evidence showing that
only 3% of the rape complaints make it to trial, and that the conviction rate
is below 1% (Tribunal Record, p. 174). Yet, the Board member does not discuss
any of this, thus showing insensitivity to the applicant’s plight and certainly
not demonstrating that he was familiar with the Gender Guidelines.
[22]
Before
leaving this part of the applicant’s argument, I must confess that I do not
know what to do with the Board member’s view that Mrs. Sukhu should have
reported the rape by the police officer to the Ministry of the Interior or the
Attorney General. What the Board member seems to be saying is that all
political party supporters should be aware of their respective Minister of the
Interior or their respective Attorney General, and that they should turn to
these office holders personally when assaulted by a police officer. This
clearly shows a lack of understanding of how these matters are dealt with, even
in a small and impoverished country like Guyana.
[23]
As to the
factual errors made by the Board member, I agree with the respondent that they
were not strictly speaking material to the decision. This is true, in
particular, of the confusion surrounding the ethnicity of the female
applicant’s boss and the location of the applicants’ daughter (who is
apparently still residing in Guyana, contrary to what the Board
member found). With respect to the explanation for the applicants’ delay in
claiming protection in Canada, I also agree with the
respondent that it is not open to the applicants to supplement or clarify their
evidence with affidavits filed in support of their leave application. After
having read the transcript, however, I believe the Board member did
mischaracterize the applicants’ testimony. Mrs. Sukhu did explain that she did
not ask for refugee protection immediately when she ran out of status because
she wanted to wait for her husband, to settle in and look for legal counsel to
advise them. She did not know that the delay would be an issue and she was not
in a rush to ask for refugee status as she was feeling safe for the first time
in a long period. Her counsel also noted that they were experiencing financial
problems having arrived in Canada and had difficulty finding
counsel. The Board member did not even mention these explanations.
[24]
Once
again, these factual errors may not have been significant in reaching the
conclusion. It is nevertheless troubling to find that many mistakes in such a
short decision. It tends to show, if nothing else, that the Board member may
not have been sufficiently familiar with the case.
[25]
Finally,
and more importantly, I take issue with the Board member’s essential finding
that the applicants’ fears are not subjectively well founded. Since the
decision of the Supreme Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689, it is well established that a claimant must establish both that he or she
subjectively fears persecution and that this fear is objectively well-founded.
A lack of evidence going to the subjective element of the claim will, in and of
itself, be sufficient for the claim to fail.
[26]
Nowhere
did the Board member question the credibility of the applicants. Accordingly,
the applicants’ testimony is presumed to be true. The explanations provided
during the hearing with regard to the three grounds of concern identified by
the Board member should in turn be presumed to be true unless there are clear
and specific reasons for disbelieving them. This is particularly true where
the Board member has not articulated any reason for rejecting the applicants’
explanations with regard to re-availment, delay in claiming and failure to provide
corroborative documents on certain points (M.B.K. v. Canada
(Minister of Citizenship and Immigration), [1997] F.C.J. No. 374 (QL); Camargo
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1434.
[27]
If the
Board member wanted to impugn the credibility of the applicants, he had to say
so explicitly and to provide an explanation. In the absence of such a finding,
it is difficult to understand why the Board member came to the conclusion that
the applicants’ fears were not subjectively well founded. If he accepts that
the female applicant has been twice sexually assaulted, how could she not have
a subjective fear to return to the location of her aggressors, in a country
where the authorities are unwilling and/or incapable to protect her? This is as
clear an illustration as one can find of the principle enunciated by the
Federal Court of Appeal that “it is almost always foolhardy for a Board in a
refugee case, where there is no general issue as to credibility, to make the
assertion that the claimants had no subjective element in their fear” (Shanmugarajah
v. Canada (Minister of Employment and Immigration), [1992] F.C.J.
No. 583 (QL)).
[28]
While
brevity is not always a flaw in legal reasoning, this case is a testimony to
the perils of not fully addressing the explanations provided by the parties.
Deference is still warranted when the Board makes findings of fact, but it is
not for this Court on judicial review to supplement cryptic reasons so that
they become intelligible and acceptable.
[29]
For all
the reasons set out above, this application for judicial review is allowed, and
the matter is referred back to a differently constituted Board for
reconsideration. No question of general importance was proposed, and none will
be certified.
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