Date:
20130419
Docket:
IMM-6978-12
Citation:
2013 FC 390
Toronto, Ontario,
April 19, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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LESLIE ANNETTE HOLDER
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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AMENDED REASONS
FOR ORDER AND ORDER
[1]
The
present Application concerns a May 2012 decision in which the Applicant’s
request for permanent residence on Humanitarian and Compassionate grounds was
rejected. A principal ground advanced by the Applicant is that she suffered
sexual and non-sexual violence from her uncle and brother, respectively, in St.
Vincent. As a result, she holds a strong subjective fear of returning.
[2]
In
August 2009, the Applicant’s claim for protection based in part on the violence
was rejected by the Refugee Protection Division on a finding of state
protection. With respect to the decision presently under review, the H&C
Officer considered the RPD’s decision on the violence issue. Key paragraphs
from the RPD’s decision on this issue are as follows:
[2] The claimant alleges that beginning when
she was ten years of age her father’s cousin, John Warren (“Warren”), sexually
abused and assaulted her. She says that when she became a teenager she realized
that what was happening to her was wrong and she started to try to resist
Warren. She states that he then began to threaten her saying that if she told
her mother or anyone else he would kill her. She states that on one occasion he
raped her and cut her vagina with a knife. She alleges that the abuse,
including rapes, continued into and throughout her adult life until she left a
St. Vincent at age 41, although it occurred less frequently as she grew older.
[3] She states that she
never went to the police because Warren threatened to kill her if she did. She
also states that Warren was friendly with members of the police force. She
maintains that he would meet with them regularly and have drinks with them. The
fact that he had connections within the police force strengthened her fear that
he could easily have been granted bail if he was arrested for sexually
assaulting her. She believes that he would then kill her.
[4] The claimant alleges
that she also faced abuse from her brother Paul, a leader of a Rasta gang. She
maintains that he brought gang friends, who had drugs and guns, to the family
home. She states that she witnessed criminal activities but was unable to do
anything about them. She alleges that her brother would hit her and on one
occasion he threw hot milk on her face.
[…]
[20] In her revised Personal
Information Form (PIF) narrative for this hearing, the claimant stated that Warren used to hang out with the police and drink with them. She stated that she also did
not want to go to the police because of Warren’s friendship with the police.
When she was asked why Warren’s friendship with the police was not in her
previous PIF, she stated that her former lawyer did not ask her with whom
Warren associated. I do not accept this explanation. If one of the reasons that
the claimant did not go to the police was that Warren was friendly with them
she would have put this in her original PIF without being prompted by a
lawyer’s question about Warren’s friends.
[21] There was no persuasive
evidence that the claimant continued to fear her brother Paul or his friends
because of their Rasta gang activities. There was no persuasive evidence that
Paul continued to abuse her before she left St. Vincent.
(Tribunal Record, pp. 337 – 338;
pp. 343 – 344)
[3]
In
its decision the RPD made no negative finding of credibility with respect to
the Applicant’s evidence of the violence endured. Thus, while her evidence of
the violence was accepted, her claim for protection was rejected on the basis
of a finding that she failed to rebut the presumption of the availability of state
protection in St. Vincent.
[4]
However,
as set out in the following passages from the decision under review, the
H&C Officer states a different conclusion on the Applicant’s evidence of
violence:
Considering the availability of
protection, I find that Ms. Holder's reasons for not reporting physical and
sexual assaults that occurred for over 3 decades to be unreasonable. Objective
evidence has not been provided to support that the incidences occurred with
respect to her uncle, her brother and his friends. As a result, I find she
has not provided sufficient evidence in support of the hardships as cited by
her with respect to her uncle, her brother and his friends. I find that her
comments regarding her fears that they are going to treat her badly again if
they find out she is a lesbian to be speculative. She has not presented
evidence-to support why after her absence from St. Vincent for over eight years
that they would presently seek to cause her harm.
[Emphasis added]
(Decision, p. 6)
[5]
Two
considerations arise from the quoted findings: either the H&C Officer
misunderstood the RPD’s decision as summarized in paragraph [3] of these
Reasons; or a negative credibility finding was made against the Applicant’s
interests without a proper analysis being provided. Either way, the effect of
the findings was to erroneously remove the Applicant’s subjective fear of
violence from H&C consideration. In my opinion, the result is a serious
reviewable error that renders the H&C Officer’s decision unreasonable.
ORDER
THIS
COURT ORDERS that:
The decision under
review is set aside and the matter is referred back for redetermination by a
different H&C officer on the direction that the redetermination be
conducted on the facts that exist on the date of the redetermination.
There is no question to
certify.
“Douglas R. Campbell”
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