Date: 19980218
Docket: IMM-2923-97
BETWEEN:
PARBATIE BALKISSOON, DAMIEON DEODATH BALKISSOON,
INGA RESHMA BALKISSOON and KEENAN RAVI BALKISSOON
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McGILLIS, J.
[1] The applicants have challenged by way of judicial review the decision of a Post Claim Determination Officer ("PCDO") that they are not members of the Post Determination Refugee Claimants in Canada Class ("PDRCC").
[2] The applicant Parbatie Balkissoon ("applicant") is a thirty-four year old woman who is a citizen of Trinidad and Tobago. The remaining applicants are her minor children.
[3] The applicant arrived in Canada on July 14, 1995 on a visitor's visa. Approximately one month later, she made a claim for Convention refugee status based on the severe abuse which she had suffered in Trinidad at the hands of her husband Veejai Balkissoon.
[4] The applicant and her husband were married in 1980. Two years after their marriage, he developed a dependency on drugs and alcohol. After that point in time, he routinely beat, raped and abused her, and beat the children. He also threatened to kill them. At one point, he attempted to burn down their home while the applicant and children were inside. The applicant tried to escape from the abuse by going to her father's home, but her husband threatened to kill her father if he interfered.
[5] The applicant sought assistance from the police in Trinidad on six occasions. Although the police took a report each time, the applicant's husband was never charged with any offence. The applicant also sought protection from a woman's shelter in Trinidad. However, the shelter would not provide her with refuge unless she agreed to place her children in foster homes. Since the applicant was not prepared to give up her children, the shelter refused to provide her with assistance. As indicated earlier, she left Trinidad for Canada in July 1995.
[6] In July 1996, the applicant's husband arrived in Canada. Shortly thereafter, he beat her. He was convicted of the offence of assault with a weapon and was deported to Trinidad. The applicant's husband has also been convicted in Trinidad of possession of cocaine and assault on another woman.
[7] On November 18, 1996, the Immigration and Refugee Board ("Board") determined that the applicant and her children were not Convention refugees. In its reasons, the Board concluded, among other things, that the applicant did not avail herself of the protection available in Trinidad. An application for leave and for judicial review of that decision was dismissed by the Court.
[8] In her PDRCC application, the applicant indicated that she feared for her life and that there would not be adequate state protection afforded to her in Trinidad to protect her from her husband.
[9] In his decision dated June 16, 1997, the PCDO determined that the applicant and her children would not be "...subjected to a personal, objectively identifiable risk to their life [sic], of extreme sanctions or inhumane treatment, if required to leave Canada." In his analysis, the PCDO considered numerous factors, including the "Extract of Magistrates Case Book" which "...indicates that there are mechanisms in [Trinidad and Tobago] to proceed with criminal charges-specifically assault against a woman." In that regard, the PCDO stated that the applicant had not proceeded with criminal charges against her husband in Trinidad, that she did not apply to a magistrate for a restraining order or seek the protection of the courts, or that she did not file a complaint with a magistrate herself, despite the fact that "...another woman had proceeded in this manner...". The PCDO also noted that Trinidad has shelters for abused women, that her family could provide support, that there was no information concerning "recent contact" between the applicant and her husband, and that "violence against women exists in every country including Canada." As a result, the PCDO concluded that there was adequate state protection available to the applicant and her children in Trinidad.
[10] During the course of the hearing, counsel for the respondent fairly and properly conceded that the "Extract of Magistrates Case Book" did not constitute evidence that a criminal proceeding could be instituted in Trinidad by means of a private complaint. Indeed, a review of the information in the "Extract of Magistrates Case Book" indicates that a police officer was the complainant against the applicant's husband and another man in connection with an assault against another woman. That assault charge did not relate to spousal abuse. Furthermore, the female victim in that case did not lay the complaint; a police officer did. The finding by the PCDO that there are "mechanisms" in Trinidad by which a woman may institute criminal proceedings against her husband is not supported by the evidence in the record. Indeed, the evidence tends to indicate exactly the contrary, in that it appears to suggest that the police lay complaints to institute criminal proceedings in Trinidad. In the circumstances, the PCDO erred in law by drawing inferences from the "Extract of Magistrates Case Book" that were completely unsupported by the evidence. Furthermore, he compounded his error by repeating and relying on his erroneous finding several times in his analysis. In the circumstances, I am satisfied that the PCDO's error related to a matter that was a fundamental, integral aspect of his analysis, and that his decision cannot be permitted to stand for that reason alone. I also note that other aspects of the PCDO's decision, including his findings relating to the protection afforded by women's shelters in Trinidad and the protection available to the applicant from her family appear to have been made without regard to the totality of the evidence in the record.
[11] The application for judicial review is allowed. The decision of the PCDO is quashed. The matter is remitted to a different PCDO for redetermination. The case raises no serious question of general importance.
"D. McGillis"
Judge
Toronto, Ontario
February 18, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2923-97
| STYLE OF CAUSE: PARBATIE BALKISSOON, ET AL. |
- and -
| MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: FEBRUARY 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS, J.
DATED: FEBRUARY 18, 1998
APPEARANCES:
Mr. Yehuda Levinson
For the Applicants
Mr. James Brender
For the Respondent
SOLICITORS OF RECORD:
Levinson & Associates
410-212 King Street West
Toronto, Ontario
M5H 1K5
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
| Date: 19980218 |
| Docket: IMM-2923-97 |
| BETWEEN: |
| PARBATIE BALKISSOON, ET AL. |
| Applicants |
| - and - |
| MINISTER OF CITIZENSHIP |
| AND IMMIGRATION |
| Respondent |
| REASONS FOR ORDER |