Date: 20080724
Docket: IMM-2644-07
Citation: 2008 FC 903
Ottawa, Ontario, July 24,
2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
MICHAELA CECILE LAURINE FERGUSON,
ZACCARY CLAYTON CLOUDEN, TRAVISH
NATHANIEL
DENIS CLOUDEN AND DWAYNE MICHAEL FERGUSON
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Michaela
Ferguson (Michaela) and her three minor children (the Children and, collectively,
the Applicants) seek Judicial Review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2002, c. 27 (the Act) of a negative
decision (the Decision) made on May 8, 2007 by a Pre-Removal Risk Assessment
Officer (the PRRA Officer).
BACKGROUND
[2]
The
Applicants, all citizens of Grenada, arrived in Canada on visitors’
visas on October 12, 2004 and shortly thereafter made a refugee claim without
the assistance of counsel. They based their claim on the devastation Hurricane
Ivan had caused in Grenada in September 2004 including the destruction of
the Applicants’ home and Michaela’s business. In a decision dated July 21,
2005, their refugee claim was denied.
[3]
In
their claim, the Applicants did not allege that they also feared Michaela’s
former common-law spouse who is the father of two of the Children (the Spouse).
This fear was first mentioned in an application for permanent residence on
humanitarian and compassionate grounds which was submitted on August 10, 2006 (the
H&C Application). This fear was repeated in the Pre-Removal Risk Assessment
which is the subject of this Judicial Review.
[4]
Michaela
claims that her Spouse beat her and threatened to kill her, especially when he
was drunk or high on drugs. She also claims that he had beaten the Children and
that they feared him and had suffered emotional trauma as a result of his
violence. She provided a letter from the police confirming that on March 24,
2004 she reported an incident in which he had forcefully removed her from her
workplace, beaten her and threatened to kill her. She also provided a copy of a
doctor’s report that was made for the police following her report. It confirmed
that she had suffered a large bruise on her left arm.
[5]
Michaela
claims that if she were to return to Grenada, she would be forced to
depend on her Spouse. She states that because her home and business have been
destroyed and because all her other relatives are in temporary shelters, she will
have nowhere else to turn for financial support.
[6]
On
May 8, 2007, the PRRA Officer denied the Applicants’ H&C Application and
also made the Decision. The PRRA Officer found insufficient objective evidence
that the Applicants would be at risk if they returned to Grenada. The PRRA Officer
also found that, in any event, adequate state protection would be available.
ISSUES AND STANDARD OF
REVIEW
[7]
The
Applicants submit that the PRRA Officer made three reviewable errors. First, she
imposed too high a burden of proof. Second, she failed to address aspects of
the Applicants’ fears. And, finally, the Applicants submit that the PRRA
Officer erred when she concluded that they had failed to rebut the presumption
of state protection.
[8]
In
my view, according to the principles set out in Dunsmuir v. New
Brunswick,
2008 SCC 9, these are all questions to be reviewed using reasonableness as the
standard. The applicable burden of proof and the presumption of state
protection are legal matters within the expertise of the PRRA PRRA Officer and
the extent of the Applicant’s fears is a question of fact.
DISCUSSION
(i) Burden of
Proof
[9]
The
PRRA Officer stated “I do not find sufficient objective evidence to persuade me
that the principal applicant’s former common-law spouse is still interested in
harming her or the minor applicant should they return to Grenada at this
time.” Later in the Decision, the PRRA Officer adds “[t]he applicants had an
opportunity to submit any new evidence that would persuade me to arrive at a
different conclusion from the Refugee Protection Division of the Immigration
and Refugee Board, however, they have not done so.”
[10]
The
Applicants say that the PRRA Officer’s use of the word “persuade” suggests she
used a burden of proof greater than the balance of probabilities. I disagree.
“Persuade” like “show” or “satisfy” is a word which indicates that the decision
maker has found the evidence adequate and trustworthy. The word alone does not
suggest the burden of proof. Rather, one must look to the context to find the
burden of proof.
[11]
The
importance of context is illustrated in the decisions to which the Applicants
referred. For instance, in Petrescu v. Canada (Solicitor General)
(1993), 73 F.T.R. 1, Justice Danièle Tremblay-Lamer held that the Refugee
Division’s use of the word “persuade” in its decision meant in that context
“absolutely convinced” and thus imposed too high a burden of proof. However,
Justice Frederick Gibson concluded in his decision in Flores v. Canada
(Minister of Employment and Immigration) (1994), 77 F.T.R. 137, that the
Convention Refugee Determination Division’s (CRDD) use of “persuaded” in that
context did not impose too high a burden. The error that Gibson J. found was
not that the CRDD used the word “persuaded” but that it considered whether the
claimant “would be at risk”.
[12]
There
is no basis in the language used elsewhere in the Decision for concluding that
the word “persuade” is synonymous with “absolutely convinced” or otherwise sets
too high a burden of proof. Rather, in the Decision, the PRRA Officer described
the correct test which was whether the Applicant faced more than a mere
possibility of persecution for any of the Convention grounds (Chan v. Canada
(Minister of Employment and Immigration), [1995] 3 S.C.R. 593).
(ii) The Applicants'
Fears
[13]
In
her submissions to the PRRA Officer, Michaela claimed that “I will be forced to
depend on the father of my two younger children” if the Applicants returned to Grenada. The
Applicants’ fear was that this dependency would make them vulnerable to
Michaela’s Spouse. In the Decision, the PRRA Officer concluded that:
I do not find sufficient objective
evidence to persuade me that the principal applicant’s former common-law spouse
is still interested in harming her or the minor applicant should they
return to Grenada at this time. However, even
if the principal applicant’s former common-law spouse was still interested in targeting
her or the minor applicants upon return to Grenada, based upon objective documentary
evidence, it is my finding that adequate protection would be available for the
applicants if required.
[my emphasis]
[14]
Clearly,
whether Michaela’s Spouse is interested in targeting the Applicants is not
relevant on the facts of this case. I agree with the Applicants that it does
not matter whether he would target them if they are forced to go to him for
help.
[15]
However,
the use of the word “harming” in the above quotation does apply to
circumstances in which they seek his assistance. For this reason, I have concluded
that the PRRA Officer did address this aspect of the Applicants’ fears and decided
that there was no objective evidence that he would harm them if they sought his
help.
[16]
The
Applicants also claim that the PRRA Officer erred when she ignored the fact
that Michaela’s Spouse is the father of the two younger children. They argue
that he would want to remain in touch with his sons and thus would not leave
the Applicants alone. However, there was no evidence to suggest that the Spouse
has been trying to locate the Applicants.
(iii) State
Protection
[17]
The
PRRA Officer concluded that:
After a consideration of the facts of
this application and the documentary evidence in the reference, I find that the
government of Grenada would not be unwilling or
unable to provide the applicants with adequate protection if required.
[18]
The
PRRA Officer referred to the “Country Reports on Human Rights Practices – 2006”
on Grenada by the U.S. Department of State (the DOS Report) as well as a
Response to Information Request GRD100710.E to the Immigration and Refugee
Board of Canada dated December 6, 2005 (the Response).
[19]
In
addition to quoting at length from the DOS Report which largely supported the
view that state protection was available, the PRRA Officer quoted the Response’s
conclusion which stated that:
Grenada faces some serious challenges in the
area of domestic violence. Women in situations of abuse are not, however, without
resources. A woman can seek protection through her network of family and
friends, the police, an NGO such as the LACC, government-run programs such as
Cedars shelter, or with legal remedies such as pressing charges and seeking
protection orders in court.
[20]
The
problem is that the PRRA Officer did not refer to the discussion which preceded
this conclusion. It showed that there were limits to state protection available
for women and discussed the difficulties they faced when going to the
authorities. By simply quoting the positive conclusion without referring to the
analysis, the PRRA Officer essentially conveyed an overly optimistic impression
of the Response.
[21]
Having
identified this error, the question is whether this error is material given
that the DOS Report did support the PRRA Officer’s conclusions.
[22]
The
PRRA Officer also considered the Applicants’ own evidence about their
experience with the authorities. When Michaela told the police on March 24,
2004 that her Spouse had grabbed her and beaten her, the authorities considered
the matter seriously. They took her report and referred her for medical
treatment to confirm her injuries. No further action was taken because Michaela
asked the police not to pursue the matter.
[23]
The
PRRA Officer clearly stated that her conclusion about state protection was
based on a careful reading of “the facts of this application and the
documentary evidence”. The PRRA Officer was entitled to place considerable
weight on the Applicants’ evidence about their own positive experience. These
circumstances combined with the DOS Report meant, in my view, that the PRRA Officer
did not make a material error by failing to mention that the evidence in the
Response was equivocal.
CONCLUSION
[24]
I
am satisfied that the PRRA Officer made no reviewable errors. She applied the
correct burden of proof, properly considered the Applicants’ fears and based
her Decision about state protection on sufficient and proper evidence. For
these reasons, the application will be dismissed.
JUDGMENT
UPON reviewing the
material filed and hearing the submissions of counsel for both parties in Toronto on Monday,
February 25, 2008;
AND UPON being advised
that no questions are posed for certification;
NOW THEREFORE
THIS COURT ORDERS AND ADJUDGES that, for the reasons
given above, the Application is hereby dismissed.
“Sandra
J. Simpson”
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