Ottawa, Ontario, April 10, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Shurnikya jones
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 3, 2005, wherein it was determined that Shurlyn Cathy Ann Jones (the Applicant) and her daughter, Shurnikya Shurnique Quashie-Jones, were not Convention refugees or persons in need of protection.
Background
[2] The Applicant and her daughter are citizens of Trinidad and Tobago (hereinafter Trinidad). The Applicant bases her refugee claim on an alleged fear of persecution by reason of her membership in a particular social group: women who suffer domestic abuse. The daughter's claim is subordinated to the Applicant.
[3] According to the Personal Information Form (PIF) of the Applicant, she entered into a relationship with a man named Roger Quashie in April 1999. The relationship graduated into violence over time, involving verbal, physical, and sexual abuse. She attempted to leave the relationship a number of times and tried, unsuccessfully, to engage the assistance of the police on a number of occasions.
[4] The Applicant began contemplating permanent escape after her daughter's birth on May 15, 2001. In February 2002, the Applicant secured a Canadian visitor's visa (CVV). She left Trinidad and came to Canada on February 27, 2003. The Applicant claimed refugee status on August 28, 2004.
Board Decision
[5] The Board's rejection of the Applicants' claim for protection appears to be based on three general conclusions. The first two described below are related, in that they both address the subjective component of the claim.
- Credibility. The Board raised concerns about inconsistency in the Applicant's testimony on attempts to escape from Roger. The Board also found that omission from her PIF of certain incidents at her work "detracts from the credibility of her assertions".
- Delay. The Board found that the Applicant's delay in leaving Trinidad and her delay in claiming protection once in Canada "are inconsistent with a well-founded fear of persecution or need for protection, further undermining her credibility".
- State protection. The Board found that, according to the documentary evidence, "there [are] serious and concerted efforts being made by the government to address the issue of gender violence" and that the Applicant "has several avenues she can, and should, approach, if she returns to Trinidad". Without expressly stating the conclusions that might follow, the Board appears to have been of the view that the Applicant had not made sufficient efforts to obtain state protection and, therefore, had not rebutted the presumption of state protection.
Issues
[6] The issues raised by the Applicant are the following:
- Did the Board deny the Applicants the right to a fair hearing by following the order of questioning set out in Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division (Guideline 7)?
- Did the Board err in its credibility findings, on the basis that:
(a) at the close of the hearing, the Board had not included the question of credibility in its concerns (in other words, had the Board taken credibility "off the table"); or
(b) the Board did not have regard to the Gender Guidelines (Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution); or
(c) the described omissions or inconsistencies were immaterial or non-existent?
- With respect to the question of delay, did the Board err by failing to consider the explanations of the Applicant for her delays in leaving Trinidad and in claiming for protection and by failing to take the Gender Guidelines into account?
- Did the Board err in its finding of state protection, on the basis that:
(a) it failed to have regard to the evidence before it; or
(b) it misapplied the test for state protection set out in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689?
[7] Guideline 7 was the subject of the decision of this Court in Thamotharem v. Canada(Minister of Citizenship and Immigration), 2006 FC 16. Following this decision, this judicial review and a number of others were consolidated for purposes of hearing and determining the Guideline 7 issue (Order dated February 20, 2006). That hearing was held before Justice Mosley on March 7 and 8, 2006 (the consolidation hearing). Accordingly, the hearing before me dealt exclusively with the other issues identified above.
Analysis
[8] With respect to the Board's findings of lack of credibility and subjective fear, there is no doubt that the Board is a specialized tribunal with complete jurisdiction to determine the plausibility of testimony, gauge the credibility of an account and draw the necessary inferences (Aguebor v. Canada (Minister of Employment and Immigration), (1993), 160 N.R. 315, [1993] F.C.J. No. 732 (QL) (F.C.A.). The Board should be afforded considerable deference for these findings. This Court should only intervene if the Board's decision is patently unreasonable or is based on erroneous findings made in a perverse or capricious manner or without regard to the evidence (Federal Courts Act, s. 18.1(4)(d)).
[9] The issue of the standard of review for findings of state protection has received considerable attention. I adopt the reasoning and conclusions of Justice Eleanor Dawson in Muszynski v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1329, 2005 FC 1075 at paras. 7 and 8:
In order to reach a conclusion with respect to the adequacy of state protection, the RPD is obliged to make certain findings of fact. Those findings of fact can only be set aside by this Court, if made in a perverse or capricious manner, or without regard to the material before the tribunal. See: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39, 2005 SCC 40 at paragraph 38.
Once those findings of fact are made, they must be assessed against the legal test articulated by the Supreme Court in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 724, namely do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption of state protection? This is a question of mixed fact and law. On the basis of the pragmatic and functional analysis conducted by my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, I accept that the appropriate standard of review of the decision as to the adequacy of state protection is reasonableness simpliciter.
[10] One further general comment should be made. Credibility concerns going to the existence of a subjective fear of persecution are determinative of a claim, as is a finding that adequate state protection is available to a claimant. Accordingly, for the Applicants to succeed in this judicial review, this Court must be satisfied that the Board erred in both issues.
Issue #2(a): Did the Board take credibility "off the table" and, therefore, err by making credibility findings?
[11] As noted, the Board had serious concerns with certain aspects of the Applicant's underlying story. In argument before me, for the first time, the Applicants submitted that the Board erred by making credibility findings. In raising this argument, they rely on the comments of the Board, near the close of the hearing, that:
In my view the determinative issue in this case would be state protection, organizations, the lack of effort to access assistance in her own country before seeking international protection, lack of effort to follow up with the police, delay in leaving and making her claim. These would be the determinative issues.
[12] Although further comments on the outstanding issues are contained in the transcript, they confirm that, at the end of the hearing, the Board was no longer concerned with any aspect of the Applicant's testimony other than the delay in leaving and making a refugee claim in Canada. This was obviously the understanding of the Applicants as the post-hearing written submissions to the Board contain no arguments related to the issue of credibility of the Applicant's underlying story. Had the Applicants understood that credibility was still an issue, they would almost certainly have made submissions on this issue and, possibly, insisted on the calling of a witness that was prepared to testify.
[13] The Respondent objected to the raising of this argument at this stage of the judicial review. While the argument appears to have significant merit and would likely result in a conclusion by this Court that the Board erred, I agree with the Respondent that it is simply too late to bring this argument. The alleged error is apparent from a review of the transcript of the Board hearing, to which the parties have had access since December 5, 2005. The Applicants had an opportunity to raise this issue in further memorandum of argument that was due on January 16, 2006; they did not do so. I will not consider this argument.
Issue #2(b): Did the Board fail to have regard to the Gender Guidelines?
[14] Above and beyond the merits of each individual discrepancy pointed out by the Board, I am concerned with the lack of sensitivity apparent in the Board's approach to the Applicant's testimony. In this case, the Applicant made detailed allegations of severe psychological, physical, and sexual abuse lasting over several years. It is apparent from the hearing transcripts that the Applicant had some difficulty recalling exact dates of incidents during her time with her boyfriend.
[15] The Board is obliged to take into consideration in cases such as these that victims of domestic abuse may exhibit symptoms of Post-Traumatic Stress Disorder (PTSD) or Rape Trauma Syndrome (Gender Guidelines), which may impair a claimant's memory or make it difficult for her to describe her trauma. This is particularly so where evidence is admitted, as in this case, describing the PTSD suffered by the Applicant.
[16] There are many indications in the hearing transcript of the Applicant's difficulty in sorting out the timeline of events between 1999 and 2003, prior to coming to Canada. Generally, memory gaps may be a reason to draw an adverse credibility inference, but when the claimant is a victim of severe domestic abuse, the Board must be alive to the possibility that these gaps are psychological in nature. Here, I see no indications that the Board took this into account. I find myself echoing Justice Tremblay-Lamer's comments in Keleta v. Canada(Minister of Citizenship and Immigration), 2005 FC 56, at para. 15:
In other words, substance prevails over form when considering whether the principles in the guidelines were properly applied and thus the fact that the guidelines were mentioned at the outset of the Board's decision in the present application does not preclude a priori an attack on the decision on this basis.
[17] Instead of exhibiting awareness of the Applicant's possible difficulties in recalling her past, the Board appears hypercritical of differences between the Applicant's testimony and PIF. This is despite that fact that the Board relies primarily on omissions rather than contradictions (which are more troubling), and that the Applicant explained at the hearing that she had emotional difficulty in completing her PIF (see for example Certified Tribunal Record at p. 373).
[18] In my view, with all of this in mind, the Board was obliged to consider whether the discrepancies it identified and relied on to undermine the Applicant's credibility were the result of psychological difficulties and not of a desire to fabricate evidence. While the Board was not bound to accept the testimony, it was obliged, in this case, to weigh the evidence with the Gender Guidelines in mind. In my view, it did not do so.
Issue #2(c): Did the Board err in its credibility findings, on the basis that the described omissions or inconsistencies were immaterial or non-existent?
[19] The Board relies on several identified omissions or inconsistencies to draw an adverse inference. The first of these is that the Applicant stated in her PIF that she "tried to escape several times throughout our relationship"; while at the hearing, she stated that her escape attempts all occurred in 2002. In all other respects, the Applicant's description of her escape attempts - the identities of the relatives she stayed with and the locations of their homes - are consistent. To my eye, there is no inconsistency between these two statements, beyond splitting very fine hairs. To focus solely on the word "throughout" as being inconsistent with escape attempts that took place over the course of a year within a three-to-four year long relationship, while ignoring the consistent description of those attempts, is a perverse and capricious approach to the evidence.
[20] Additionally, this area of questioning is one of the instances where the Board should have been most sensitive to the possible psychological problems of the Applicant. An excerpt from the hearing transcript is illuminating:
Presiding Member (Q): Okay. I read something out from your narrative. You told me earlier that all of this occurred in 2002. So, all of these questions are related to that, and that's why I asked how can you miss work continuously like this? In your narrative you say, "I tried to escape several times throughout my relationship." That's not quite what you've said orally. Orally you said it all occurred in 2002. What's your explanation for that?
Applicant (A): I don't know, bringing the information back out and it was a difficult time for me. It was a difficult test for me, like to bring out the information first hand, to tell it to - like the person I spoke to before who took down the information.
Q: No, I understand that. But, this is -
A: I know.
Q: These are specific things that you escaped. You went and stayed with people for a week, or two days, or three days. It involves something. That involves a physical activity, it involves taking a cab, it involves packing clothes.
A: Like at the time it happened it's just like trying to get away from a situation. I didn't like take mental record of the actual event; it was just like a survival tactics at the time. So, now that I have to recall all of this, especially at the time when I was trying to get that down on paper so that it could become the PIF, it was hard, like to get to the specifics, to actually record the incidents was very difficult for me.
[21] In the above quoted portion, the Board member makes reference to missing work continuously. This was another inconsistency indicated by the Board: that the Applicant testified, in response to questioning, that she had to miss work in order to make her escape attempts. The Applicant explained that she used sick time and asked for time off at first, and then later her absences became a problem for her employers and she was put on notice. The Board drew an adverse inference from this testimony only because it had not been mentioned in the Applicant's PIF. Again, this finding rises to the level of perversity and capriciousness.
[22] The Respondent argues that this omission was central to the Applicant's claim and that the Board was entitled to rely on it to impugn the credibility of the Applicant. I do not agree. This testimony cannot be regarded as revealing an important omission; instead, the Applicant adduced new, further evidence that fleshed out her claim, in response to specific questioning by the Board. Moreover, not every omission from a PIF will negatively impact an Applicant's credibility; the nature of the omission and context in which the evidence is provided must be considered (K.I.N. v. Canada(M.C.I.), 2005 FC 282 at para. 23). It was unreasonable to impugn the Applicant merely because she did not mention how her escape attempts affected her employment; this is not information that could reasonably be expected to be important to her claim, as it is only tangentially related to the fact of ongoing domestic abuse.
[23] The Board also relied on another omission. The Applicant testified, in response to questioning, that her boyfriend on occasion came to her workplace. The Board found this to be a material omission that impugned her credibility. Since the Applicant's PIF was long and detailed, the failure to include this fact was troubling to the Board.
[24] As discussed above, the nature of the omission and the context in which the new information is provided must be considered. Given the wealth of examples that the Applicant provided in her PIF, and also given the difficulty she faced in recounting her experiences, it cannot reasonably be inferred from a failure to mention this one piece of information that the Applicant is not credible.
Issue #3: Did the Board err by failing to consider the explanations of the Applicant for her delays in leaving Trinidadand in claiming for protection and by failing to take the Gender Guidelines into account?
[25] The Board concluded that the Applicant's delay undermined the Applicant's subjective fear of persecution. The Board was concerned about delay in two respects: first, that the Applicant had waited a year after obtaining a CVV to leave the country, and second, that the Applicant had waited over a year in Canada to claim refugee status.
[26] With respect to the delay in Trinidad, the Applicant explained that she needed to save up money secretly in order to afford flights for herself and her daughter. The Board stated that, according to the visa officer's notes, she had possessed sufficient funds when the visa was issued. The Applicant explained that she had borrowed money from the bank in order to meet the visa requirements and then returned the money immediately after. The Board did not believe the Applicant's explanations, since "at the time she was experiencing spousal abuse." The Respondent argues that the Board is entitled to reject explanations as was done here.
[27] For two reasons, I consider the Board's finding to be patently unreasonable. First, the Applicant provided explanations for her actions which were consistent with the fact that she was experiencing domestic abuse. The explanation that she had little money for her own private use, that she had to secretly hoard that money, and that she took a desperate act to essentially falsify her financial position in order to obtain a visa, are all very consistent with her abusive situation. The Board simply rejected the explanations without explaining itself. Neither the Applicant nor this Court has any idea of why these explanations were rejected. While it was open to the Board to reject the explanations, the Board is obliged to consider the testimony of the Applicant and to explain why it found them not to be reasonable (Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.), at para.11; Ahmed v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1296, 2004 FC 1076 at para.14). By failing to properly consider these explanations, the Board erred.
[28] Second, in considering the reasons for the delays, the Board failed to consider the context of the Applicant's situation and failed to exhibit sensitivity to the desperate and difficult situation she claimed to be in (Keleta, above). In particular, the Board's curt dismissal of the Applicant's explanation suggests that is was inconceivable that the Applicant would remain in an abusive relationship for any good reason and the fact that she did so must mean she is not telling the truth. The Supreme Court addressed implications such as these in relation to women suffering ongoing abuse in R. v. Lavallée, [1990] 1 S.C.R. 852, which is cited in the Gender Guidelines; in that case, this kind of implication was described as part of the "mythology about domestic violence." This is another clear example of how the Board failed to apply the Gender Guidelines in a meaningful way.
[29] On the issue of delay in Canada, the Applicant provided two explanations for failing to claim refugee status until August 2004. The first explanation, given at the hearing, was that she had been confused about the nature of her visitor's visa and believed she could remain in Canada until December 2004. The Board seized upon the fact that she had sought renewal of her visa in late 2003, which indicated that she might have known that she was not allowed to stay in Canada until December 2004. The Applicant explained that she sought renewal because, despite her belief, other immigrants that she knew had been required to seek renewals and so she did so out of safety. The Board drew a negative credibility inference from this explanation. What the Board did not discuss is that it came out through testimony that the Applicant had been at least somewhat wilfully blind to the possibility of her visa expiring. The Applicant explained that she remained hopeful, perhaps unreasonably so, that she could remain in Canada, even illegally, to avoid returning to Trinidad. The Applicant clearly stated that her only concern was getting away from Trinidad and that she did not think extensively about having to return. Once again, it would have been open to the Board to reject this explanation, but the Board should have acknowledged and discussed these comments.
[30] The Board's error in this regard is seriously compounded by its failure to address the second explanation given by the Applicant: that she was under the impression that refugee protection was for political asylum seekers and similar individuals, and not available to victims of domestic abuse. The Applicant testified that she only became aware of her ability to claim refugee status in August 2004, when she contacted a law firm about the impending expiry of her visa. The Board's failure to discuss this explanation is an error (Veres, above; Ahmed, above).
[31] Even if I am wrong and the delay findings can be upheld, I would add that, generally, delay cannot be determinative of a refugee claim (Basaa v. Canada(Minister of Citizenship and Immigration), 2005 FC 201 esp. at para . 11). In light of my considerable concerns relating to the adverse credibility findings made by the Board, there remains no foundation for the Board's conclusion that the Applicant lacked a subjective fear of persecution.
Issue #4(a): Did the Board err in its finding of state protection, on the basis that it failed to have regard to the evidence before it?
[32] The Applicants assert that the Board ignored documentary evidence indicating that police protection is becoming less effective in Trinidad and fewer counsellors are being retained by the government. While the Applicant concedes that the Board need not refer to all the evidence before it, in this case it failed to reference evidence that was pertinent and that should have been weighed against the portions quoted by the Board (Naqui, above; P.K.R. v. Canada (M.C.I.) (2004), 40 Imm. L.R. (3d) 311, 2004 FC 1460).
[33] The Respondent takes the position that the Board's decision is quite sound, based on the reasoning of the Federal Court of Appeal in Canada(Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130. The Respondent points out that the Board confirmed that Trinidad is a democratic state with a functioning judiciary, in control of its territory and of its civil authorities; based on the wording in Villafranca, this should be enough to find that state protection exists.
[34] In its reasons, the Board specifically footnoted the following two documents from the record before it:
- RPD Information Package, March 31, 2004, Section 2.1, U.S. Department of State Country Reports on Human Rights Practices for 2003;
- RPD Information Package, Section 3.1, Response to Information Request TT041519.E, May 2, 2003
[35] Four paragraphs from the second of these documents were reproduced in the reasons. No other documentary evidence was referred to or acknowledged. The Board follows with its conclusion:
The panel recognizes that gender violence continues to be a problem in Trinidad and Tobago. But the documents above also highlight that, while flawed, there is serious and concerted efforts being made by the government to address the issue of gender violence. As stated in [Zalzali v. Canada(Minister of Employment and Immigration), [1991] 3 F.C. 605 (F.C.A.)], the protection provided need not be perfect, but adequate. If the claimant considers herself to be at risk from her former spouse, the panel finds according to the documents above, she has several avenues she can, and should, approach, if she returns to Trinidad. As stated in Villafranca, no government can guarantee the protection of its citizens at all times. As stated in [Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689], nations should be presumed capable of protecting their citizens, and the claimant must approach his or her state for protection when such protection is forthcoming.
[36] The problem that I have with the Board's reasons is that there is no reference to any documents beyond the two cited in the reasons. For example, the Board does not refer to the more recent Amnesty International Report for 2004, a Response to Information Request dated 25 May 2004 or various Trinidad news reports. All of these documents were contained in the record and all refer to the disbanding, in 2004, of the Community Policing Division. This is of particular relevance because, in 2003, the Division's existence was credited with some success in addressing the issue of violence against women. In their post-hearing submissions to the Board, the Applicants specifically referred to these documents and the documented consequences arising from the disbanding of the Community Policing Division. I am left with a serious concern that the Board ignored the Applicants' post-hearing submissions and the documentary evidence relied on by the Applicants in their submissions. This documentation was relevant, reliable and contradictory, at least in part, to the Board's findings.
[37] As a general proposition, the Board is entitled to prefer some documentary evidence above others (Maximenko v. Canada (Solicitor General), [2004] F.C.J. No. 606, 2004 FC 504 at para. 18). It is also trite law to say that the Board need not refer to every piece of evidence before it (ibid.). However, if the Board fails to discuss important, contradictory evidence, then this Court may conclude that the Board ignored or misapprehended key facts and came to an erroneous decision (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) at para. 17). The question becomes whether, overall, this evidence is "so important and vital that failure to acknowledge it may constitute a reviewable error" (Johal v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1760 at para. 10 (T.D.)). In my view, the evidence that I have identified above falls into this category. The Board's failure to acknowledge and weigh this evidence is a reviewable error.
Issue #4(b): Did the Board misapply the test for state protection set out in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689?
[38] The Applicant submits that the Board took the wrong approach to determining the state protection issue, by focussing on the government's "serious efforts" to address domestic violence rather than on "effective state protection" (Ward, above; Elcock v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116 (T.D.) at 121; Molnar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1425, 2002 FCT 1081).
[39] Given my conclusion that the Board's determination of state protection cannot be sustained, for the reason that it was made without regard for the material before it, there is no need to address this second issue related to state protection. Had the Board considered the additional evidence, its reasons may well have indicated a different approach to the issue of the test for state protection.
Conclusion
[40] In conclusion, I am persuaded that this decision cannot stand. In summary form, I find that the Board's errors are as follows:
- In making its credibility findings, the Board failed to consider the testimony of the Applicant having regard to the Gender Guidelines;
- The credibility findings were perverse or capricious in that they cannot be supported by the evidence or are immaterial to the Applicant's claim;
- The Board failed to give reasons for rejecting certain of the explanations of the Applicant for the delays in leaving Trinidad and in claiming refugee status in Canada, failed to consider other explanations given by the Applicant and failed to apply the Gender Guidelines in a meaningful way; and
- The finding of adequate state protection was made without regard to the evidence.
[41] The Applicants request that I certify a number of questions related to the issue of what constitutes adequate state protection given the leading cases of Ward, above and Villafranca, above, which cases appear to have been applied in conflicting ways. While I agree that these questions raise important issues, they did not provide the basis for my reasoning or my determination in this matter. Accordingly, the proposed questions are not appropriate for certification in this application.
[42] As noted, this case is impacted by both the decision and certified questions in Thamotharem and the hearing of the Guideline 7 issues in this case in the consolidated hearing. Accordingly, it was suggested that the Board not re-determine this matter until any questions that may be certified by the Court arising from the consolidation hearing be disposed of by the Court of Appeal or the time period in which the parties must file their Notice of Appeal has passed without such notice being filed. In hearing before me, the parties agreed to this disposition of the matter in the event that I determined that the application should be allowed on the non-Guideline issues. I am satisfied that it is in the interests of justice to proceed in this manner and my Order will reflect this consensus.
"Judith A. Snider"
___________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1877-05
STYLE OF CAUSE: SHURLYN CATHY ANN JONES ET AL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 21, 2006
REASONS FOR ORDER
AND ORDER: Snider J.
DATED: April 10, 2006
APPEARANCES BY:
Rocco Galati FOR THE APPLICANTS
Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Galati, Rodrigues & Associates FOR THE APPLICANTS
Barristers and Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada