Docket: IMM-3266-15
Citation:
2016 FC 278
Ottawa, Ontario, March 4, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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HETTY
SUTHERLAND
CORNEISHA SUTHERLAND
CORNEICE SUTHERLAND
and MICHAEL SUTHERLAND
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] challenging an Immigration officer’s [the Officer]
decision refusing the Applicants’ Pre-Removal Risk Assessment [PRRA]. The
Applicants are seeking to have the decision set aside and sent back for
redetermination by a different officer.
[2]
For the reasons that follow, the application is
dismissed.
I.
Background
[3]
The Applicants are citizens of both Grenada and
Saint-Vincent and the Grenadines [Saint-Vincent]. The Principal Applicant,
Hetty Sutherland, and her three dependent children, Corneisha, Corneice and
Michael all allegedly fear abuse at the hands of the Principal Applicant’s
former domestic partner and the minor Applicants’ father, Cornelius Hector, who
resides in Saint-Vincent.
[4]
The Principal Applicant and her two daughters, Corneisha
and Corneice, arrived in Canada from Grenada in July 2009 on a visitor’s visa
and requested refugee protection in November 2009. Their claim was refused in
December 2010. Soon after, the Principal Applicant’s son, Michael, arrived in Canada
and independently applied for refugee protection, which was denied in November 2011.
The Applicants’ respective applications for leave and for judicial review to
the Federal Court were denied.
[5]
The Applicants first PRRA was refused in October
2013. However, Citizenship and Immigration Canada consented to have the
application re-determined by another officer in January 2015. Updated
submissions were provided by the Principal Applicant in March 2015 and a decision
was made on May 28, 2015 denying their PRRA application. This second PRRA
refusal is the subject of this judicial review.
II.
Impugned Decision
[6]
The Officer determined that the Principle
Applicant would not face more than a mere possibility of persecution, or
probable grounds of irreparable harm upon return to either Saint-Vincent or
Grenada, the latter being where the Principal Applicant had been residing since
2004 prior to her arrival in Canada. The Officer also rejected the minor
Applicants’ claims as they rested on those of their mother, in addition to
finding little indication that the children would rely on their father or that
he would harm them upon their return.
[7]
After reviewing various letters submitted by the
Principal Applicant, the Officer found that the cumulative effect of the
discrepancies found in these letters lessened their probative value. As a
result, the Officer found there was insufficient evidence to establish Mr.
Hector’s on-going pursuit of the Principal Applicant since 2013.
[8]
The Officer further found that while it is
possible that the Principal Applicant may encounter gender-based discrimination
and violence in the future if she returned to either Saint-Vincent or Grenada,
she would have recourse to adequate state protection in Grenada to protect her
from serious harm despite reported shortcomings.
III.
Issues
[9]
The following issues arise in this application:
1.
Did the Officer err by failing to explain his
departure from the previous PRRA decision?
2. Did the Officer err by making veiled credibility findings?
3. Did the Officer err by ignoring or misconstruing evidence?
IV.
Standard of Review
[10]
The question of the proper interpretation of the
requirement for new evidence in section 113 of the Act is a question of law to
be determined on a standard of correctness: Dhrumu v (Minister of Citizenship
and Immigration), 2011 FC 172 at paragraph 20. Otherwise the standard of reasonableness
applies to the PRRA Officer’s factual determinations.
V.
Analysis
A.
Did the Officer err by failing to explain his
departure from the previous PRRA decision?
[11]
The Applicants submit that although the Officer
is entitled to depart from a previous conclusion, based on Justice Phelan’s
reasons in Siddiqui v Canada (Minister of Immigration and Citizenship),
2007 FC 6 [Siddiqui], the Applicants, as a matter of fairness have a
right to an explanation of why a particular officer, reviewing the same
documentation on the same issue, could reach a different conclusion. To similar
effect, the Applicants also rely upon the decisions in Burton v Canada (Minister
of Citizenship and Immigration), 2014 FC 910 [Burton] and Mendoza
v Canada (Minister of Citizenship and Immigration), 2015 FC 251 [Mendoza].
[12]
The Respondent submits that the decisions cited
by the Applicants are highly distinguishable in that the previous PRRA decision
was not analyzed in the same fashion as the PRRA under review, nor was it based
on the same evidentiary record, as well as being set aside on consent. Moreover,
the second PRRA Officer’s findings were consistent with the previous PRRA
application determination, as the Officer found it possible that the Principle Applicant
may encounter gender-based discrimination and violence, but would have recourse
to adequate state protection in Grenada.
[13]
In this matter, the Applicants have filed
extensive additional evidence on the issue of risk. In my view, this
demonstrates that they were not prepared to rely upon the previous PRRA
determination of risk and felt that it had to be supplemented. By introducing
new risk evidence, the PRRA Officer had no alternative but to consider all the
evidence together to make a fresh determination.
[14]
In any event, the cases cited by the Applicants
are highly distinguishable. In Siddiqui, the facts in the two PRRAs were
identical. In Burton, there was a specific direction from the Court,
where as in this matter there was a reconsideration made on consent with no
agreement or understanding that the PRRA should not be conducted as a de
novo application. In Mendoza, the Refugee Protection Division reached
a different result from that of another panel regarding a claim by a family
member under identical circumstances, again not resembling the circumstances of
this matter.
[15]
I find no reviewable error in the PRRA Officer
conducting a form of de novo evidence analysis based on all the evidence
before him, including the Applicants’ new evidence.
B.
Did the Officer err by making veiled credibility
findings?
[16]
The Applicants submit that the Officer’s
insufficient evidence findings are veiled credibility findings due to the use
of word such as “vague” and “contradictory.” In addition, when an Officer
states that there was “insufficient objective evidence” to support an
assertion, the Officer is indicating that he disbelieves the Applicants, which
can only be remedied through submitting corroborating objective evidence (Liban
v Canada (Minister of Citizenship and Immigration), 2008 FC 1252, para 14).
[17]
I find that the Officer analyzed the evidence
from the perspective of its probative value in support of Ms. Sutherland’s
circumstances and evidence. Her evidence was significantly dated since she had left
Grenada in July 2009. In the case of the supplementary corroborating evidence,
the Officer examined each element of proof, and while according it some probative
value, described limitations that reduced the assigned weight.
[18]
I find no reviewable error in the Officer’s
analysis and conclusion that there was insufficient evidence to support a
finding of long-term continuous death threats or harassment of Ms. Sutherland from
her former conjugal partner in the intervening six years spent in Canada. These
were not findings of credibility, but rather an assessment of the probative
value of the weight of the evidence of the corroborating witnesses on a forward
looking basis, which the Officer found were insufficient to establish the alleged
risk.
C.
Did the Officer err by ignoring or misconstruing
evidence?
[19]
The Applicants submit that the Officer ignored
relevant evidence in the assessment of state protection by failing to consider
Ms. Sutherland’s specific situation and her perpetrator’s profile as a
marijuana grower and seller with easy access to Grenada. For example, the
Applicants submit that the Officer ignored or misconstrued the letter from
Officer Gerald Prince of the Grenada Police Force, which contradicted the
Officer’s conclusion in stating that there are no penalties for men who engage
in domestic violence and in turn, there is no adequate protection for women who
are victims of such violence.
[20]
The reasons demonstrate that the Officer
specifically considered letters from the police officers and acknowledged
reports that those involved in the trade of narcotics commonly enter and exit
Grenada. However, the Officer concluded that very little suggested that Ms.
Sutherland’s ex-spouse intends to evade Grenadian officials in order to harm
her. I find that the Officer reviewed all the evidence, including the
additional submissions made by the Principal Applicant prior to concluding that
the Applicants could return to Grenada.
[21]
I conclude that the Applicants’ complaint, in
effect, is that they do not agree with the Officer’s risk assessment and are
asking the Court to reweigh the evidence. This is not the Court’s task. Rather
it is to assess any reviewable unreasonable errors, or alternatively consider
the quality of the reasons in terms of the justification, intelligibility and
transparency of the decision based on the facts and law.
VI.
Conclusion
[22]
The Officer’s decision and reasons meet the
requirements of justification, transparency and intelligibility and fall within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and the law.
[23]
Accordingly the application is dismissed. No
questions were certified for appeal.
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