Date: 19980122
Docket: IMM-1236-97
BETWEEN:
CAROL SHALINI D'MELLO
GABRIELLE QUEENIE D'MELLO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning ascribed to that term in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 10th of March, 1997.
[2] Carol Shalini D'Mello (the "principal applicant") was born in India in 1966. She is a citizen of that country. Gabrielle Queenie D'Mello (the "minor applicant") is the principal applicant's daughter. The principal applicant experienced an atmosphere of family violence during her childhood. At the age of nine, her parents separated. After that time, she grew up in the company of her father and her two brothers. At age 16, she moved to Dubai in the United Arab Emirates where her mother was then living. She is well-educated and had a significant employment record in Dubai.
[3] In 1989, the principal applicant married. The marriage took place in India. Her husband was also a citizen of India. She and her husband resided in Dubai where the minor applicant was born. After the birth of the minor applicant, both applicants were abused by the principal applicant's husband. In 1995, both were severally beaten by him. That same year, the applicants fled to Canada and claimed Convention refugee status on the ground of their membership in particular social groups, that of abused women in the case of the principal applicant and that of members of the families of abused women in the case of the minor applicant. The claims were asserted against India as the country of the applicants' nationality, notwithstanding that the principal applicant's husband continued to reside in the United Arab Emirates.
[4] As to the principal applicant's evidence regarding her fear of persecution if she were required to return to India, the CRDD wrote:
| As a single woman, she would not be welcomed by Indian society. Her situation would become worse with her infant daughter as she would be looked upon with disdain by the community. The claimant further testified that she would not be able to obtain a job. Her daughter would also suffer. Basicly, the claimant said that the facilities and amenities she now enjoys will not be available to her in India if she returns. Further, her husband who was involved in politics has connections in India and would follow her because of his daughter. He would take her away. The claimant said that her husband would also harm or kill her and she would be unable to obtain police protection. |
[5] After a brief analysis of the applicants' claims, the CRDD concluded:
| There must be a large number of single women in India with children, and in the absence of evidential proof, we cannot speculate that the claimant, as a single person, will face a serious possibility of persecution and not be able to access state protection were she to return to India. The claim of the child also fails in view of the finding against the claimant. It would, again, be speculative to find that the claimant's husband would unlawfully seize the child from the custody of the claimant and there would be no redress for doing so. |
[6] While the CRDD found a single element of the principal applicant's testimony not to be credible and her testimony regarding the abuse that she had suffered at the hands of her husband in Dubai to be credible, it did not otherwise comment on the credibility of her testimony. In the circumstances, I can only conclude that the CRDD had no reservations regarding the credibility of the rest of the principal applicant's testimony. Similarly, the CRDD did not anymore than acknowledge that the principal applicant called an independent witness, associated with the South Asia Family Support Organization in Canada, who had observed the applicants while they attended classes provided by the organization. No analysis of the independent witness's evidence is provided. No indication as to the weight, if any, given to her evidence that tended to corroborate the principal applicant's fears is provided.
[7] Thus, given the lack of a finding against the credibility of the principal applicant's fears of persecution if she and her daughter were to return to India, as supported by the independent witness, it is impossible on the face of the CRDD's reasons to determine why it found against the principal applicant's claim to a fear of persecution in India on the basis that it was speculative. There was no "absence of evidential proof", in the words of the CRDD. It may be that the CRDD found the evidence to be insufficient to establish a reasonable possibility of persecution on the basis of the evidence before it. If that in fact was the finding of the CRDD, it is not disclosed by the reasons given.
[8] The CRDD did examine the question of state protection. It wrote:
| The documentary evidence does show that domestic violence is prevalent in India and that the police do not offer the protection they should. But, it would be sheer speculation to condemn the security authorities in India for being unable to provide protection to the claimant where she has never sought such protection and it was not forthcoming. India is a democracy with a judicial system based on the rule of law patterned after the English legal system. |
[9] In Canada (Attorney General) v. Ward2, Mr. Justice Laforest for the Court, wrote at pages 724-725:
| ....moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. |
| Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming" will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. |
| The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. ... Where such an admission [of the state's inability] is not available, .... clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant may advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail as nations should be presumed capable of protecting their citizens. ... |
[10] Here there was, of course, some evidence regarding India's inability or unwillingness to protect women from domestic violence, that of the principal applicant herself and of her independent witness. That testimony was not direct testimony of "similarly situated individuals let down by the state protection arrangement" nor was it testimony regarding the claimant's past personal experience of failure of state protection in India. Nonetheless, it was "some evidence". Further, it was supported by extensive documentary evidence, as acknowledged by the CRDD. The CRDD would appear to have gone beyond the guidance provided by the Supreme Court of Canada in Ward in concluding that: "....it would be sheer speculation to condemn the security authorities in India for being unable to provide protection to the claimant when she had never sought such protection and it was not forthcoming". In the foregoing passage from Ward, Mr. Justice Laforest made it clear that a claimant should not be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.
[11] The CRDD relies upon an excerpt from Human Rights Briefs, Women in India3 as authority for the proposition that there is, in India, a legislative and procedural framework to which women subject to domestic violence can have recourse. What the CRDD fails to do is make reference to paragraphs following immediately after the citation upon which it relies that reflect on the difficulties encountered by women in relying on that framework and thus, its ineffectiveness. Those difficulties are reflected throughout other portions of the documentary evidence that was before the CRDD.
[12] In Penelova v. Canada (Solicitor General)4, I wrote:
| The CRDD here concluded, largely from a selective use of documentary evidence concerning country conditions, that the applicant's fear of persecution in Bulgaria was not subjectively well-founded. In so doing, it would appear to have misconstrued the basis of the Applicant's claim and therefore to have relied upon a selection of documentary evidence that ignored the elements of that evidence that were most germane to the Applicant's fear. |
[13] The same might be said here. The principal applicant's fear did not rest on the lack of a legislative and procedural framework in India to protect women abused by their husbands or agents of their husbands, but rather on the lack of police support to such women and the difficulty, given the lack of such support, in effectively taking advantage and having recourse to the existing legislative and procedural framework of state protection in India.
[14] On the basis of the foregoing, I conclude that, while the CRDD's conclusions with respect to the applicants' claims might have been reasonably open to it, and I make no determination in that regard, it erred in a reviewable manner in reaching those conclusions on the basis of an entirely inadequate analysis of the totality of the evidence before it and the applicable law. For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[15] Neither counsel recommended certification of a question in respect of this matter. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
January 22, 1998
FEDERAL COURT OF CANADA
Date: 19980122
Docket: IMM-1236-97
BETWEEN:
CAROL SHALINI D'MELLO
GABRIELLE QUEENIE D'MELLO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1236-97
| STYLE OF CAUSE: CAROL SHALINI D'MELLO |
| GABRIELLE QUEENIE D'MELLO |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JANUARY 20, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: JANUARY 22, 1998
APPEARANCES: Ms. Marie-Claude Rigaud
For the Applicants
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD:
Ms. Marie-Claude Rigaud
Barrister and Solicitor
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
__________________
3 Research Directorate, DIRB, Ottawa, Canada, October 1995, pp. 39-40