Docket: IMM-5450-17
Citation: 2019 FC 42
Ottawa, Ontario, January 14, 2019
PRESENT: The Honourable Madam Justice Walker
| BETWEEN:
|
| LLANA MAGNOLA POMPEY
|
| Applicant
|
| and
|
| MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant, Llana Magnola Pompey, is a citizen of St. Vincent and the Grenadines. She seeks judicial review of a decision (Decision) of a senior immigration officer (Officer) at Citizenship and Immigration Canada refusing her Pre-Removal Risk Assessment (PRRA) application. This application for judicial review is brought pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For the reasons that follow, the application is dismissed.
I.
Background
[3]
The Applicant arrived in Canada on October 23, 2010 as a visitor and was authorized to stay in Canada for six months. She has since remained in Canada without legal status.
[4]
The Applicant left St. Vincent and the Grenadines to escape repeated abuse by her husband, Mr. King. Before leaving the island, the Applicant went to the police on one occasion to report the abuse. However, the nearest police station was managed by Mr. King’s cousin. The Applicant states that she was beaten by her husband upon her return from the police station. As a result, she felt that she could not seek further police assistance. With the help of her sister, Ms Rolle, the Applicant fled St. Vincent, leaving her two children in the care of her father.
[5]
On June 8, 2015, the Applicant was arrested at work by the Canada Border Safety Agency. An exclusion order was made against her on June 9, 2015 and the Applicant applied to this Court for judicial review of the exclusion order. Justice Russell dismissed her application on July 22, 2016.
[6]
The Applicant then sought a deferral of her removal pending the submission of a PRRA application. Her request for a deferral was refused. The Applicant applied for judicial review of the refusal. Justice Harrington granted a stay of removal of the Applicant on September 29, 2016. The Applicant subsequently discontinued her application for judicial review of the deferral refusal.
[7]
In September 2016, the Applicant submitted a PRRA application. The basis of the PRRA application was that Mr. King had a continuing intention to harm the Applicant if she were to return to St. Vincent and the Grenadines. Her application was refused on November 30, 2016 (First PRRA Decision). The Applicant challenged the decision in this Court. Justice Southcott set aside the First PRRA Decision and remitted the Applicant’s case for redetermination on August 11, 2017 (August 2017 Decision). Justice Southcott allowed the application for judicial review because:
(a) [T]he Officer erred in giving minimal weight to the evidence of the Applicant’s relatives, and in particular her daughter, in relation to the Applicant’s forward-looking risk, on the basis that they were not unbiased sources disinterested in the outcome of the application; and (b) the Applicant was prejudiced by her former[] counsel’s inadvertent failure to forward to the Officer affidavit evidence which spoke to the details of her abuse and her efforts to seek state protection.
[8]
On redetermination, the Officer considered all of the Applicant’s affidavit evidence but refused the Applicant’s PRRA application. The refusal is the subject of this application for judicial review.
[9]
In February 2018, the Applicant sought a stay of her removal from Canada pending the disposition of this application for judicial review. Her motion was dismissed on February 9, 2018 by Justice Mosley. The Applicant failed to report for removal and went into hiding.
II.
Decision under Review
[10]
The Decision is dated November 3, 2017. The Officer found that the Applicant did not face more than a mere possibility of persecution in St. Vincent and the Grenadines and did not meet the requirements of section 96 of the IRPA. The Officer also found that there was insufficient persuasive evidence in the record to conclude that the Applicant would be subjected personally to torture or a risk to life or to a risk of cruel and unusual treatment or punishment in St. Vincent and the Grenadines. Therefore, she did not meet the requirements of subsection 97(1) of the IRPA.
[11]
The Officer reviewed the following evidence submitted by the Applicant: the Applicant’s PRRA submissions dated September 15, 2017; the Applicant’s affidavit dated November 2015; an affidavit from Ms Rolle, the Applicant’s sister, dated September 14, 2015; three affidavits from the Applicant’s daughter, Omishca, from 2015, 2016 and 2017; country condition documentation for St. Vincent and the Grenadines; and, Justice Southcott’s August 2017 Decision returning the Applicant’s first PRRA application for redetermination. The Officer considered two issues: whether the Applicant faced a continuing risk from Mr. King and whether the Applicant would receive adequate state protection in St. Vincent and the Grenadines if required.
[12]
With respect to the issue of continuing risk to the Applicant, the Officer concluded:
Based on the totality of the information before me, I accept that the applicant was in an abusive relationship for fourteen years with her ex-common-law spouse. Moreover, I accept that the applicant went to a police station to report the assault at one time and given that her partner’s cousin managed that police station, he reported that to her partner and so when she got back home, she was beaten by him. However, based upon a totality of the evidence before me, I do not find that the applicant has provided sufficient objective evidence to persuade me that her ex-common-law spouse is still interested in causing her harm upon return to St. Vincent. Although I recognize that the applicant worries about the rationale behind her ex-common-law’s inquiries about her with her daughter, I do not find that there is sufficient evidence to indicate that the daughter’s interpretation of his statements indicate that he has an intent to do the applicant harm upon return to St. Vincent. Therefore, overall, I find there is insufficient evidence of probative value to establish, on a balance of probabilities, that the applicant’s ex-common-law spouse would cause her to be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to St. Vincent and the Grenadines.
[13]
The Officer then considered the issue of adequate state protection for the Applicant should she return to St. Vincent and the Grenadines and Mr. King were to attempt to harm her. The Officer cited at length from the United States Department of State 2016 Country Report on Human Rights Practices – St. Vincent and the Grenadines (US Report). The report noted that civilian authorities maintained effective control over the country’s security forces and that there was a functioning police service and independent judiciary that was generally respected by the government.
[14]
The US Report stated that the most serious human rights problems in St. Vincent and the Grenadines were gender-based violence, censorship and the isolated use of excessive force by police. The report found that rape, including spousal rape, was illegal. The authorities referred allegations of rape and abuse against women to the police, who were generally responsive to the allegations. However, there were reports that rape and violence against women remained serious issues on the island and that the police were reluctant to follow-up on domestic violence cases. This finding was corroborated by the Country Gender Assessment for St. Vincent and the Grenadines by the Caribbean Development Bank (July 2015) (CDB Report), also cited by the officer. The CDB Report reviewed the commitment of the government of St. Vincent and the Grenadines to address gender-based violence and the changes that had been effected in this regard.
[15]
The Officer concluded that the government of St. Vincent and the Grenadines was capable of providing adequate protection to the Applicant if required. The Officer did not dispute that St. Vincent continues to have serious issues of concern regarding violence against women but found that the existing state structures and institutions ensured the government was capable of protecting its citizens. The Officer was satisfied that the Applicant would have avenues of recourse available to her should she be subject to violence by Mr. King. The fact that she had approached the police on one occasion to report his abuse and had suffered reprisals due to his familial link with the local police officer did not constitute clear and convincing evidence that the state of St. Vincent would not be willing or able to protect her.
III.
Issues
[16]
I will first address the preliminary issue of whether this application should be dismissed because the Applicant has not come to this Court with “clean hands”.
[17]
If I resolve the preliminary issue in favour of the Applicant, the issue before me is whether the Decision was reasonable? There are two aspects to this issue. The Applicant argues that: (1) the Officer unreasonably concluded that there was insufficient evidence to establish Mr. King’s continued intention to harm the Applicant; and (2) the Officer’s state protection finding was unreasonable.
IV.
Preliminary Issue: Whether this application should be dismissed because the Applicant has not come to this Court with “clean hands”?
[18]
The principles applicable to my determination of whether this application should be dismissed without an assessment of its merits as the Applicant is not before the Court with clean hands are not in dispute. The parties agree that the principles were set forth by the Federal Court of Appeal in Canada (Citizenship and immigration) v Thanabalasingham, 2006 FCA 14 (Thanabalasingham), and have recently been considered and confirmed in Debnath v Canada (Minister of Immigration, Refugees and Citizenship), 2018 FC 332 (Debnath), a PRRA case decided by Justice Strickland of this Court. The parties differ in their assessment of the Thanabalasingham principles against the Applicant’s conduct and circumstances.
[19]
In Debnath, Justice Strickland stated (Debnath at paras 21-22):
[21] The leading decision on the application of the unclean hands doctrine is Thanabalasingham. There the Federal Court of Appeal considered a certified question being, when an applicant comes to the Court without clean hands on an application for judicial review, should the Court in determining whether to consider the merits of the application, consider the consequences that might befall the applicant if the application is not considered on its merits. The Federal Court of Appeal did not agree with the assertion by the respondent in that case that, if it was established that an applicant had not come to court with clean hands, then the Court must refuse to hear or grant the application on its merits. Rather, the Federal Court of Appeal found that the case law suggested, if satisfied that an applicant had lied or was otherwise guilty of misconduct, then the reviewing court may dismiss the motion without proceeding to determine the merits or, even though having found reviewable error, decline to grant relief. Further:
[10] In exercising its discretion, the Court should attempt to strike a balance between, on the one hand, maintaining the integrity of and preventing the abuse of judicial and administrative processes, and, on the other, the public interest in ensuring the lawful conduct of government and the protection of fundamental human rights. The factors to be taken into account in this exercise include: the seriousness of the applicant’s misconduct and the extent to which it undermines the proceeding in question, the need to deter others from similar conduct, the nature of the alleged administrative unlawfulness and the apparent strength of the case, the importance of the individual rights affected and the likely impact upon the applicant if the administrative action impugned is allowed to stand.
[22] The factors are not exhaustive and are not all necessarily relevant in every case.
[20]
The Applicant acknowledges that she does not come before this Court with clean hands as she ignored a valid order for her removal from Canada. However, she submits that I should nevertheless consider her application for judicial review of the Decision on its merits as four of the six Thanabalasingham factors favour her position. The Applicant argues that the serious nature of her conduct is ameliorated by the fact that her stay motion was denied the day before her scheduled removal from Canada. She states that the denial of her motion was inexplicable and may have been affected by bias. The Applicant also argues that the Officer committed one or more serious, reviewable errors and that she has a strong case in this application. Finally, the Applicant submits that the importance of her rights cannot be understated as she faces a life-and-death situation in St. Vincent and the Grenadines where she states it is likely she will be killed or maimed, or will suffer serious injury.
[21]
The Respondent submits that the Applicant’s conduct in failing to report for removal was very serious and is ongoing and that there is a need to deter others from similar conduct. The Respondent argues that the Applicant’s case lacks merit as the Officer considered all of the evidence and was not satisfied that her ex-partner had an ongoing interest in harming the Applicant.
[22]
In my view, it is clear that the Applicant comes before this Court without clean hands. Despite a valid deportation order and the dismissal of her stay motion, the Applicant failed to report for removal and went into hiding. The Applicant’s misconduct was very serious and undermined a valid removal process. There is clearly a need to deter others from similar conduct. Balanced against these findings is the fact that the abuse suffered by the Applicant at the hands of Mr. King in St. Vincent and the Grenadines is unquestioned. Further, in allowing the Applicant’s request for judicial review of the refusal of her first PRRA application, Justice Southcott found that the evidence submitted by the Applicant required substantive reconsideration and should not be discounted because it was provided by her relatives. The Officer has now completed that reconsideration and the Applicant has again requested that the refusal of her PRRA application be reviewed. In her unique circumstances and in the interests of finality, I will exercise my discretion and consider this application on its merits.
V.
Standard of review
[23]
The decision of a PRRA officer is reviewed by this Court against the reasonableness standard (Yang v Canada (Immigration, Refugees and Citizenship), 2018 FC 496 at para 14; Lakatos v Canada (Citizenship and Immigration), 2018 FC 367 at para 13 (Lakatos); Korkmaz v Canada (Public Safety and Emergency Preparedness), 2015 FC 1124 at para 9). This includes any state protection analysis as the question of adequate state protection is a question of mixed fact and law (Lakatos at para 13; Canada (Citizenship and Immigration) v Neubauer, 2015 FC 260 at para 11). The Court will only interfere if the decision lacks justification, transparency, or intelligibility, and falls outside the range of possible, acceptable outcomes which are defensible on the particular facts of the Applicant’s case and in law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
VI.
Analysis
1. Was the Officer’s conclusion that there was insufficient evidence to establish Mr. King’s continued intention to harm the Applicant reasonable?
[24]
The Officer concluded that the Applicant had not submitted sufficient, objective evidence establishing that Mr. King poses a continuing threat to her safety should she return to St. Vincent and the Grenadines. In other words, the Applicant had not established, on a balance of probabilities, that she would be at risk of persecution or violence upon her return. This conclusion was central to the Officer’s refusal of the Applicant’s PRRA application. The Applicant’s arguments contesting the Officer’s conclusion raise the distinction between opinion and factual evidence.
[25]
The Applicant submits that the Officer’s conclusion that there was insufficient evidence to establish Mr. King’s continuing intention to harm her was perverse and capricious. She relies on the three affidavits sworn by her daughter, Omishca, who continues to live in St. Vincent and the Grenadines. The Applicant argues that the Officer ignored Omishca’s consistent evidence and that Omishca is the person who best knows her father and should not be second-guessed by the Officer. The Applicant also submits that the Officer’s conclusion was not based on the insufficiency of the evidence submitted. Rather, it was a veiled credibility finding. She queries the reference to Omishca’s “interpretation” of her father’s inquiries. As this finding was central to her case, the Applicant argues that an oral hearing should have been held and that the Officer’s failure to do so was a breach of her right to procedural fairness.
[26]
The Officer’s conclusion regarding Omishca’s evidence was as follows:
However, based upon a totality of the evidence before me, I do not find that the applicant has provided sufficient objective evidence to persuade me that her ex-common-law spouse is still interested in causing her harm upon return to St. Vincent. Although I recognize that the applicant worries about the rationale behind her ex-common-law’s inquiries about her with her daughter, I do not find that there is sufficient evidence to indicate that the daughter’s interpretation of his statements indicate that he has an intent to do the applicant harm upon return to St. Vincent.
[27]
In order to assess the Officer’s conclusion, I have reviewed the three affidavits sworn by Omishca. The critical paragraphs from each affidavit are as follows:
Omishca King Affidavit – August 2015:
8. It was a memorable day in a very negative way when my father found out that my mother was missing. He saw me crying and he found out that my mother had left. I do not recall if I told him personally because that day, he went berserk. He went into her room and almost destroyed what she had left there. She had left only with few pieces of clothing and so it seems as if she just went down the road and was going to return.
9. My father swore that if he ever set eyes on my mother, she would be dead. The truth is I believe him.
10. My father has been inquiring of me if I have heard from my mother and I always play down that I don’t speak with her. He would walk away muttering. I know that my father ego is really hurt by what my mother did and I know that he will injure her if not kill her if he ever set eyes on her again.
11. My brother and I now reside with our grandfather in St. Vincent and now and then Dad comes by to visit. He is always so bitter. In fact, I would say he is possessed about my mother and what she did to him. Up to last Saturday, he came by and as usual, he asked if I heard form [sic] my mother. I lied and told him No. He said that “shew will pay”. I take that to mean that she will be injured or killed by him if she ever come home.
14. The point is, I sincerely believe that my Mom is not safe here. As long as my father is alive, she would be at risk.
Omishca King Affidavit – September 2016
3. The fact is, my father is still here on the island of St. Vincent and the Grenadines. He is still in the village and I see him often. I sincerely believe that unless my father dies or permanently leave the island, my mother’s life will always be at risk.
4. My father continues to ask me about my mother. I have refused to share information about her with them. However, each time he talks about her, his demeanor and his voice changes as he would remind me with words like “Pray God she nah cum back hay”… meaning “Pray God she does not return here”… meaning St. Vincent and the Grenadines.
5. I take this to mean that my father will not hesitate to hurt my mother if he gets the opportunity. I know for a fact that he had was humiliated when my mother, with my Aunt Cindy’s help in Canada secretly fled St. Vincent to get away from the violence at his hands.
9. I am pleading on behalf of my mother Llana Pompey that Canada gives her protection from a man whom I know for sure, as long as he is here, will seek revenge for what he thinks is an insult to his manhood and respect in the village. He angrily waits my mother’s return.
Omishca King Affidavit – September 2017
3. Since that affidavit [September 2016], nothing has changed. My father is still here on the island and when I see him from time to time, he would inquire about my mother but each time, you know it is not an inquiry that suggest that he wishes her well. It is always asked with an attitude.
4. Having heard from my father so many times go over and over again how he was embarrassed by my mother when she took off without him knowing and knowing how the folks in the village viewed him after the event, as I have stated in the two affidavits, there is no doubt in my mind, that as long as my father lives on this island of St. Vincent, my mother will be at risk. She will never ever be safe.
[28]
I have also reviewed the September 2016 affidavit of Ms Rolle, the Applicant’s sister. Ms Rolle’s affidavit focuses on the Applicant’s departure from St. Vincent and the Grenadines in 2010 and the reason the Applicant did not make a claim for refugee status upon her arrival in Canada. Ms Rolle does state that her sister continues to fear Mr. King based on communications from Omishca. However, Ms Rolle has no first-hand knowledge of Mr. King’s conduct since 2010.
[29]
As stated above, the Applicant characterizes the Officer’s conclusion regarding the insufficiency of Omishca’s evidence as perverse and capricious. In so doing, the Applicant relies on Omishca’s opinion that Mr. King’s inquiries regarding her mother and his reaction to her departure in 2010 indicate that he is likely to harm her mother if given the opportunity.
[30]
In terms of factual evidence, Omishca’s three affidavits establish the following:
1. In 2010, when he learned of the Applicant’s departure from St. Vincent and the Grenadines, Mr. King was irate and destroyed her remaining possessions in the family home. He swore that, if he saw the Applicant again, she would be dead.
2. In 2015, Mr. King asked Omishca if she had heard from her mother. He said that the Applicant would pay.
3. Mr. King remains on the island of St. Vincent and the Grenadines and continues to inquire about the Applicant. In addition, in 2016, he stated that he hopes she will not return to the island.
[31]
The remainder of Omishca’s statements are expressions of opinion or interpretations of her father’s conduct. There is no doubt that she is worried about her mother’s possible return to St. Vincent and the Grenadines. She is unwavering in this regard. However, with respect to Mr. King’s actual conduct, the affidavits establish only that, since 2010, Mr. King stated in 2015 that the Applicant would pay for her actions and that he continues to ask Omishca generally about her mother.
[32]
The Officer concluded that Omishca’s evidence was insufficient to establish a continuing threat to the Applicant by Mr. King. In my view, the Officer’s conclusion was reasonable. Although the reasoning is brief, it is clear that the Officer distinguished between the factual evidence set out in the affidavits and Omishca’s interpretation of her father’s conduct and her opinion as to its future implications. The Officer committed no error in doing so. The Officer was required to assess all of the evidence pertaining to Mr. King’s conduct and to make findings regarding its content and probative value in establishing the issue before him. The Officer’s role in that assessment was to draw his or her own conclusion on the implications of Mr. King’s conduct for any return by the Applicant to the island.
[33]
The Applicant submits that the Officer’s treatment of Omishca’s affidavits was the result of a veiled credibility finding, necessitating an oral hearing pursuant to paragraph 113(b) of the IRPA and section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations). The Respondent submits that the Officer made no credibility findings in the Decision and made no error in assessing the Applicant’s evidence for weight or sufficiency before considering the credibility of the evidence (Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067 at paras 26-27).
[34]
I find that the Officer did not question the credibility of either the Applicant or Omishca. The Officer accepted the Applicant’s evidence of her treatment at the hands of Mr. King in St. Vincent and the Grenadines prior to 2010. The refusal of her PRRA application was focused on prospective harm. The Officer did not question the truthfulness of the content of Omishca’s affidavits. The Officer did not suggest that the affidavits could be given more weight if their evidence was corroborated by other more reliable sources. The Decision in the present case is distinguishable from that in Abusaninah v Canada (Citizenship and Immigration), 2015 FC 234 at paragraphs 31-38, where the officer discounted the weight accorded to affidavits provided by the applicant’s family members on the basis that they had a vested interest in the applicant. The critical finding in the Decision before me was that Omishca’s affidavits contained insufficient evidence of Mr. King’s ongoing intention to harm the Applicant.
[35]
It is useful to contrast the Officer’s treatment of Omishca’s affidavits with the reasoning of the PRRA officer in the decision before Justice Southcott. In the First PRRA Decision, the officer gave minimal weight to the affidavits of Ms Rolle and Omishca that were before him because the two women were not unbiased sources and the affidavits were not supported by other corroborative evidence. Justice Southcott found that the absence of corroborative evidence was not a legitimate basis for what were clearly adverse credibility findings by the officer.
[36]
In contrast, in the Decision, the Officer made no actual or veiled credibility findings. The Officer’s conclusion was one of insufficiency of evidence in establishing the determinative issue in the case. The credibility of evidence rests on its truthfulness and reliability. If the evidence is credible, as in the present case, the sufficiency of the evidence in establishing an issue rests on its probative value. The probative value of evidence depends on the degree to which it establishes the facts in issue. The Officer found that the factual evidence (assumed to be true and reliable) in Omishca’s affidavits was insufficient to lead to the conclusion that Mr. King had a continuing intention to harm the Applicant. The Officer’s finding was one of probative value – the facts set out in Omishca’s affidavits did not establish, in the Officer’s opinion, the issue before him. As credibility was not in issue, no oral hearing was required pursuant to paragraph 113(b) of the IRPA and section 167 of the Regulations.
[37]
In summary, I find that the Officer’s conclusion that the Applicant would not be at risk in returning to St. Vincent and the Grenadines was not perverse or capricious. During the eight-year period since the Applicant left the island, the evidence established one instance in which Mr. King made a threatening comment concerning the Applicant to her daughter. I am mindful that the Officer’s assessment of the evidence is owed deference. Having carefully reviewed Omishca’s affidavits, I conclude that the Officer’s finding that the Applicant’s evidence was insufficient to establish an ongoing threat of violence was reasonable and intelligible and that the refusal of the Applicant’s PRRA application was within the range of possible outcomes for her case. There is no basis for this Court to intervene and set aside the Decision pursuant to paragraph 18.1(4)(d) of the Federal Courts Act, RSC 1983, and c F-7.
2. Was the Officer’s state protection finding was reasonable?
[38]
My finding that the Officer did not err in the consideration of the Applicant’s evidence or in concluding that the Applicant had not established a forward-looking risk of violence in St. Vincent and the Grenadines is determinative of this application. However, the Officer considered the issue of adequate state protection at length in the Decision and I will briefly address one principal aspect of the Applicant’s submissions in this regard.
[39]
The Applicant submits that the Officer committed a reviewable error when he ignored the content of the Shadow Report on the State Party (St. Vincent and the Grenadines) – Violence against women and girls (November 2014) (Shadow Report). She states that the Shadow Report established that St. Vincent is unable or unwilling to offer adequate protection to victims of domestic violence. The Applicant also submits that the Officer’s conclusion that adequate state protection would be available to the Applicant in St. Vincent and the Grenadines was unreasonable as Mr. King would be awaiting her arrival and she would face immediate violence. I will not address this latter submission in light of the Officer’s finding that the Applicant had not established Mr. King’s continued intention to harm her.
[40]
The Shadow Report describes serious concerns regarding the protection of female victims of domestic abuse in St. Vincent and the Grenadines. In the Decision, the Officer cited extensively from several sources concerning the issues faced by victims of domestic violence in St. Vincent: the US Report; the CDB Report; and, the Responses to Information Requests (RIRs) of the Immigration and Refugee Board (Canada) (IRB). The US Report stated that one of the most serious human rights problems in St. Vincent and the Grenadines is gender-based violence. The same report noted that civil society groups reported that violence against women remained a serious and pervasive problem. The CDB Report acknowledged the same issues.
[41]
The documentary evidence relied on by the Officer describes a country struggling to address significant gender-based and domestic violence. The Shadow Report speaks to the same issues. I find that the Officer was not required to reference the Shadow Report in the Decision as the reports cited by the Officer mirror the information in the Shadow Report. While the various reports, including the Shadow Report, emphasize different aspects of the state’s ability to combat gender-based violence and protect its citizens, they are not contradictory.
VII.
Conclusion
[42]
The application is dismissed.
[43]
No question for certification was proposed by the parties and none arises in this case.
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