Date: 20060131
Docket: IMM-5410-04
Citation: 2006 FC 99
Ottawa, Ontario, Tuesday, the 31st day of January, 2006
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
DIONNE RITCHIE
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application attacks the May 26, 2004 decision of the Refugee Protection Division ("RPD") in which it was decided that the Applicant's gender-based claim for protection under s.96 and s.97 of the Immigration and Refugee Protection Act (the "IRPA") should be rejected. In the decision under review, the presiding RPD member made this critical finding:
The claimant has set out in her PIF a long account of the abuse she suffered from [her common law husband abuser] Mr. Holder. After considering this evidence and the claimant's testimony I am not persuaded that the claimant's evidence of that abuse is credible.
This finding is based on several inconsistencies in the evidence, the absence of adequate supporting documentation, and implausibilities.
(Tribunal Record, p.4)
Thus, by this finding, the RPD member concluded that the Applicant lied in presenting her story of horrific abuse at the hands of her common law husband.
[2] For the reasons which follow, I find that this pervasive negative credibility finding is directly, and fundamentally, linked to the failure of the RPD member conducting the hearing to recognize the importance of the Guidelines "Women Refugee Claimants Fearing Gender Related Persecution" issued by the Chairperson of the Immigration and Refugee Board (Applicant's Application Record, pp.88-105), the relevant portion of which is "D. Special Problems at Determination Hearings" quoted in the Appendix to these reasons ("the Guidelines").
[3] While the Guidelines are not law, the Chairperson delivered them with the expectation that, to ensure that a fair and just hearing is provided on a gender-based protection claim, they should be followed. In the decision presently under review, the RPD did not mention the Guidelines, and, in my opinion, did not apply their terms or their intent. This failure caused a breach of natural justice; the Applicant did not have the fair hearing to which she was entitled.
I. Evidence of denial of natural justice
[4] The Applicant is a 37-year-old citizen of both Guyana and St. Lucia who presented evidence before the RPD of repeated physical and mental abuse over many years perpetrated by a Mr. William Holder; her Personal Information Form ("PIF") precisely details incidents of being cut by a cutlass, smashed on the head with a bottle, and beaten to unconsciousness. In 2002, with four of her six children, the Applicant fled Guyana for St. Lucia where her sister lives. In the following months, Mr. Holder contacted her twice by telephone promising to find her and kill her, and so she left, on her own, for Canada.
[5] In her affidavit filed in the present Application, the Applicant states why she feels that she did not receive a fair hearing:
5. At the hearing, my worst fears came through [sic]. I was terrified that I would be asked to explain why my husband abused me and that I would not be able to control my emotions at the hearing. It was very difficult for me to re-live the many years of abuse, and one can imagine that I was very tearful and nervous.
6. The member who examined me showed outright disbelief of my story. He often gestured with his hands that I should hurry up. When I discussed a horrific incident of abuse, he asked me to explain why my partner would want to kill me? He went off the record and yelled at me for crying. He also stated that my tears were not influencing him on the record. However, I had no control over the fact that I was crying. I tried very hard not to cry but could not control it. The Member became increasingly upset and agitated at the fact that I was in pain.
(Applicant's Record, pp.13-14)
[...]
7. The member was very unkind and not very compassionate to me. He accused me of abandoning my children. Even when I told him that I did not abandoned [sic] my children he pressed on and said "it sounds like it to me." I began crying hysterically in the hearing. From that point on I could not control myself, I kept thinking about whether my children were back in the Caribbean thinking that I had abandoned them. I could no longer concentrate and felt extremely sad that I had not tried to wait and get them all to Canada. I thought about whether my children would ever forgive me and I feared that my children may grow up and never understand why I had to leave them behind. No human being has a right to be so unkind, and even if he believed that I abandoned my children, he did not have to say that to me in the hearing. I was very hurt!
(Applicant's Record, pp.14-15)
[...]
I was so confused. The transcript does not capture the tone and rude expressions on the Member's face. He facetiously used words like "any luck" and constantly stated that "I'll give you one more chance". I felt so pressured and unsafe.
(Applicant's Record, p.19)
A. Insensitive questioning
[6] The Guidelines state reasons why RPD members should provide a sensitive hearing experience for women who have suffered violence. The Applicant argues that the following passages disclose that the RPD member conducted his questioning of the Applicant in an insensitive manner:
PRESIDING MEMBER: Why, why delay? Like why not go as soon as you got your permit, why did you delay?
CLAIMANT: I didn't have money to pay for my children.
PRESIDING MEMBER: Madam, I know you are upset but you should try and compose yourself.
CLAIMANT: I didn't have money - - -
PRESIDING MEMBER: No, no, in terms of your tears and being upset, you should try and compose yourself because we are going to be going for a while longer.
CLAIMANT: Yeah, okay.
PRESIDING MEMBER: I am just encouraging you to try and feel a little bit more comfortable.
(Tribunal Record, p.240)
and:
Presiding Member: Okay. Counsel, madam, okay. It is just very difficult to understand you with all this crying. I am trying to figure out what is going on and the tears, I'm sorry to say, it doesn't, you know tears doesn't really help your case, it really doesn't. It's the information, it's the reasons why, it's not the tears. You could come in here and cry and cry and cry and nothing could be true as far as I am concerned, okay? So the tears are not helping, okay? If you need to cry that's up to you but it just seems that you are going through a very difficult time and I just want you to know that as far as I am concerned the tears really are neither here nor there, okay? So you just try and compose yourself so that you can feel a little bit better today.
(Tribunal Record, p.246)
[7] I do not accept Counsel for the Respondent's argument that, by the words used, the RPD member was just trying to help the Applicant communicate her evidence. In my opinion, the words expressed can be reasonably interpreted as the use of superior power to stop a phenomena which should be expected in a hearing of a claim of the nature of the one presented by the Applicant; that is, crying while giving difficult emotion laden evidence.
[8] I agree that the control approach assumed by the RPD member was highly insensitive, and inappropriate. The RPD member could very easily have used the appropriate step of standing down for as long as it took for the Applicant to regain her composure.
B. Use of inflammatory language
[9] The Applicant testified that because of her subjective and objective fear of Mr. Holder, she was forced to leave St. Lucia without her young son. It is not difficult to understand that being forced to take this action would have deep-seated emotional effects on the Applicant. Therefore, there can be no doubt that this topic should have been approached by the RPD member with great caution and with an open and empathetic mind. Indeed, the Board member was required to consider the entirety of the evidence of the Applicant's situation with the Guidelines in mind, before arriving at any conclusions with respect to the Applicant's conduct. What did transpire does not meet these expectations.
[10] The following passage from the transcript deals with the issue of the Applicant leaving her son:
PRESIDING MEMBER: Now, if that's the case why do you think it took your ex-husband two months to call you? What I am thinking is you leave - sorry, go ahead.
CLAIMANT: Because he didn't know where I was.
PRESIDING MEMBER: But that's what doesn't make much sense to me, madam. Your son is left behind. Did you tell Kenson that you were going?
CLAIMANT: No.
PRESIDING MEMBER: Why not?
CLAIMANT: Because the day that I leave Kenson was not with me, he was like on holiday. I didn't want him to know about it and know everything.
PRESIDING MEMBER: So you just abandoned your son?
CLAIMANT: No, I did not abandon him.
PRESIDING MEMBER: Sounds like it.
CLAIMANT: I run for my life.
PRESIDING MEMBER: Right. But you abandoned your son, you left the country, you didn't tell your son where you were going?
CLAIMANT: Because he was not with me the day I leave.
PRESIDING MEMBER: Yes, but madam, you knew you were going to Guyana - to St. Lucia before the day you left.
CLAIMANT: Because I think he would have told his father to stop me.
(Tribunal Record, p. 253)
[11] The use of the inflammatory term "abandoned", read in context, implies that the RPD member felt that either the Applicant should be criticized as a poor mother for leaving her son behind, or she was not telling the truth about why she left her son behind. Whatever was in the mind of the RPD member, his conduct left the former impression on the Applicant which she says had a disruptive effect on her evidence giving. I find that the RPD member's approach in the questioning, and the use of the term "abandoned" was highly inappropriate, and, in my view, when judged against the Guidelines, constitutes unfair treatment.
C. Asking unanswerable questions
[12] In both her PIF and in her testimony, the Applicant testified to Mr. Holder's acts of extreme violence against her, including threats to kill her. A knowledgeable treatment of this evidence by the RPD member, as a well documented phenomena common in spousal abuse cases, should show an understanding that the violence and the threats are likely a feature of an imbalance of power between Mr. Holder and the Applicant, and Mr. Holder's violent actions are an intentional use of this power to subvert and control the Applicant. However, in the present case, the RPD member's conduct during the hearing shows no such knowledgeable treatment, or any understanding at all. Instead, the RPD member required the Applicant to describe Mr. Holder's state of mind, and found her inability to answer to be a factor to be taken into consideration in making a negative credibility finding with respect to the whole of the Applicant's evidence.
[13] During the course of the hearing, the Applicant was questioned as follows:
PRESIDING MEMBER: Okay. Why do you believe your ex partner would kill you?
CLAIMANT: Why I believe because the brutality I go through with him, I know that he would have killed me.
PRESIDING MEMBER: No, why though, why - and perhaps he is not thinking about you at all? Like what makes you think that he is not just thinking about you but he is going to kill you?
CLAIMANT: Because if he get me he is going to kill me.
PRESIDING MEMBER: Yes. I am not going to ask this again, I have asked you twice, why?
CLAIMANT: Because the incident that I get from him I know he would have killed me.
PRESIDING MEMBER: Okay. I am going to move on. But I still have no answer as to why he would kill you but I am going to move on. Okay. Now, madam, you say you were in the hospital several times?
(Tribunal Record, pp.247-248)
As a result, this finding was made in the decision under review:
The claimant was asked more than once why Mr. Holder wanted to kill her. She has no explanation. This is not credible. The claimant should have some opinion as to why Mr. Holder wants to kill her, given her intimate knowledge of him since 1992.
While the claimant was generally able to testify to events described in her Personal Information Form, the inconsistencies noted above and her inability to give an opinion as to why Mr. Holder had acted in such a persistent violent manner leads me to doubt the credibility of her evidence.
[Emphasis added]
(Tribunal Record, p.7)
[14] With respect to the RPD member's effort to use the Applicant's inability "to give an opinion" with respect to Mr. Holder's violent conduct as a factor to be used in assessing her credibility, there are two further important examples. The argument with respect to the first example is set out in Counsel for the Applicant's Memorandum of Fact and Law as follows:
16. With respect to the threats she received in St. Lucia, Ms. Ritchie testified that she went to St. Lucia in March and received her first phone call from her spouse in May. Her spouse stated that she should come home and she declined. He also stated that if he came for her she would return to Guyana dead or alive. She received another call in June in which her spouse stated that "You don't want to come, I could pay a passage anytime and come to St. Lucia. And you won't know when I'm coming. I'm coming for you." The Applicant began to make immediate plans to flea [sic] St. Lucia. The Member erred in requesting that the Applicant explain why her spouse did not come between May and July 3rd when she left for Canada.
The transcript of the evidence referred to reads:
COUNSEL: Okay. What did you think that this meant?
CLAIMANT: I was so scared because I go through a lot of abuse and I know if he come he would get me.
PRESIDING MEMBER: So - but I think what your counsel is getting at is what do you think he was getting at, like he is saying he can come and get you at any time but he never did.. So why do you think he is just calling you but not actually doing what he says he could do?
CLAIMANT: Because he said if he comes he would carry me back, he would take me back.
PRESIDING MEMBER: Right. So why do you think he never did?
CLAIMANT: Because I didn't know when he would come.
PRESIDING MEMBER: No, but you wouldn't have to know, he knew, he knew where you were and he said he could come and get you at - - -
CLAIMANT: He said - - - .
PRESIDING MEMBER: Hang on. He said he could come and get you at any time but he never did. So why do you think?
CLAIMANT: The last call said that you don't know when I would be coming.
PRESIDING MEMBER: That's right.
CLAIMANT: Yeah.
PRESIDING MEMBER: But he never came.
CLAIMANT: I don't know when he would be coming.
PRESIDING MEMBER: Okay. Whether you knew or not , anyway, Counsel?
COUNSEL: But what did you think that this meant?
CLAIMANT: Because I went through the abuse, I think he would have killed me if he come and get me.
COUNSEL: Okay. And that was in June?
CLAIMANT: Yeah.
COUNSEL: Okay. And when did you leave St. Lucia?
CLAIMANT: I leave St. Lucia the 3rd of July 2002.
COUNSEL: Okay. After the call in June were there any other calls?
CLAIMANT: No.
COUNSEL: Okay. So after the call in June essentially what did you do?
CLAIMANT: I was so afraid for what I went through and I know him, okay. So I asked my friends to help me, I called my aunt. She have an aunt in Canada and I called her and I asked her to help me. I want to come, I don't know what to do and I travelled on the 3rd or 4th.
(Tribunal Record, pp.244-245)
[15] The second example concerns a violent incident which occurred when the Applicant found Mr. Holder at a movie theatre with another woman. This incident is described in her PIF as follow:
One day I went to movie with my aunt, my partner came to the show and grabbed me and drag me on the road for one mile I had so many bruises and he began kicking me. My sister who was there could not help me because he threatens her also.
(Tribunal Record, p.33)
The RPD member questioned the Applicant about her evidence as follows:
PRESIDING MEMBER: Okay. Now, madam, you are - now why, you are saying that he did that because he was going to the theatre with his girlfriend.
CLAIMANT: Yeah.
PRESIDING MEMBER: And you were there. So why would he bother?
CLAIMANT: Because he didn't want me to come and see he was having this affair with this woman.
PRESIDING MEMBER: Why, he was just sitting in a movie with his girlfriend, like why would he - - -
CLAIMANT: Because he didn't want to me to see.
PRESIDING MEMBER: Why not?
CLAIMANT: I don't know.
PRESIDING MEMBER: Okay. It just seems extremely, extremely dramatic response that he gave to simply, you know, he is going - I don't know. He is going to a movie with his girlfriend, he knows he is married with you but clearly that doesn't mean that much to him because he is going to the movie with his girlfriend. He sees you at the movie, why does he care?
(Tribunal Record, pp.256-257)
[16] In the process of taking the Applicant's inability to answer into consideration in making the negative credibility finding, the RPD member makes a key finding with respect to the content of the Applicant's evidence about the movie theatre incident. This passage from the decision reads as follows:
The claimant's attention was drawn to the incident describe in her PIF where Mr. Holder attacked her in a movie theatre because he was there with another woman. The claimant could not explain why Mr. Holder attacked her in these circumstances. The claimant was asked whether her evidence that Mr. Holder dragged her on the road for one mile on that occasion was an exaggeration. The claimant strongly denied so. She explained that Mr. Holder dragged her for a mile because he did not want a fight with her. This is not credible given the obvious violence caused by his dragging her for one mile. I draw a negative inference concerning the claimant's general credibility.
[Emphasis added]
(Tribunal Record, p.6)
It appears that the RPD member took the Applicant's use of the word "drag" literally, which conjured up in his mind a picture of a women being scraped along the ground for hundreds of yards. It seems that the fact that there was no medical evidence presented as a result of this happening played a role in the negative credibility finding. However, it is important to note that there is no firm evidentiary basis for this interpretation. In her testimony at the hearing, the Applicant described her assailant's actions as "pulling". In my opinion, the change in the description does not lead to the conclusion that the event did not occur; it calls for clarification which was not obtained.
[17] I find that the RPD member's unsubstantiated suspicion arising from the Applicant's account of the theatre event, twisted together with the unreasonable demand on the Applicant to meet the RPD member's expectations respecting Mr. Holder's state of mind, produced a capricious negative credibility. Since this credibility finding had a strong impact on the outcome of the Applicant's claim, I find the process by which it was obtained was unfair.
[18] It is very obvious from the transcript that the Applicant tried her best to answer the RPD member's questions, but could not meet the evidentiary standard he expected. It appears that the RPD member wanted the Applicant to precisely describe Mr. Holder's motive for the violence, and, when she could not do so, believed she was lying. In the Applicant's claim, the assailant's motive is not an issue; the issue was whether the Applicant is in need of protection from a very violent man. The RPD member should have approached the Applicant's evidence with an understanding that Mr. Holder's motive in delivering the abuse is well known: suppression and control of the person most familiar to him by any means necessary. In the decision under review, there is no evidence that the RPD member approached the claim with this understanding, which, in my opinion, works a fundamental injustice to the Applicant.
II. Conclusion
[19] Given that the hearing of the Applicant's claim was unfair, and, therefore, constitutes a denial of natural justice, I find the decision under review to be patently unreasonable.
[20] In the decision rendered, the RPD member cited a number of inconsistencies in the evidence upon which he put weight. Given the Applicant's unchallenged evidence in her affidavit that the RPD member's conduct had a significant detrimental effect on her ability to accurately state her evidence during the hearing of her claim, the conclusions based on the inconsistencies are open to doubt which can only be resolved by a redetermination.
ORDER
Accordingly, I set aside the RPD's decision, and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
__________________________________
Judge
Appendix
GUIDELINE 4:
WOMEN REFUGEE CLAIMANTS FEARING GENDER-RELATED PERSECUTION
Guidelines Issued by the Chairperson Pursuant toSection 65(3) of the Immigration Act
D. SPECIAL PROBLEMS AT DETERMINATION HEARINGS
Women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy. Some of the difficulties may arise because of cross-cultural misunderstandings. For example:
1. Women from societies where the preservation of one's virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonour their family or community. 28
2. Women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers may find themselves in a difficult situation when questioned about the experiences of their male relatives.29
3. Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome 30 and may require extremely sensitive handling. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify.31 In some cases it will be appropriate to consider whether claimants should be allowed to have the option of providing their testimony outside the hearing room by affidavit or by videotape, or in front of members and refugee claims officers specifically trained in dealing with violence against women. Members should be familiar with the UNHCR Executive Committee Guidelines on the Protection of Refugee Women.32
[¼]
[ENDNOTES]
28. The UNHCR Executive Committee notes that decision-makers should refrain from asking women refugee claimants for details of sexual abuse. They note that, "the important thing in establishing a well-founded fear of persecution is to establish that some form of it has occurred." Guidelines on the Protection of Refugee Women, supra, footnote 10, at p. 27.
29. In two cases in the Federal Court of Canada, the issue of the woman's place within her society and her lack of knowledge about the activities of male family members was addressed. In Roble v. M.E.I. (1994), 25 Imm. L.R. (2d) 186 (F.C.T.D.), the Court stated that in Somali culture it is often the case that a wife is not privy to information concerning her husband's occupation. In Montenegro, Suleyama v. M.C.I. (F.C.T.D., no. IMM-3173-94), MacKay, February 29, 1996, the Court faulted the CRDD for ignoring the claimant's explanation that her knowledge of her husband's political involvement in El Salvador was based entirely on what he had been willing to tell her, pointing out that "within their social order wives were not expected to question their husband's activities."
30. The UNHCR Executive Committee Guidelines on the Protection of Refugee Women, supra, footnote 10, at p. 27, discuss the symptoms of Rape Trauma Syndrome as including "persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, a pervasive feeling of loss of control, and memory loss of distortion."
31. F. Stairs & L. Pope, supra, footnote 5, at p. 202, stress that decision-makers should be,
¼sensitive to the fact that women whose children are attached to their claim may also be reticent to describe the details of their persecution in front of their children. Further, if the claimant's culture dictates that she should suffer battering silently, the use of an interpreter from her community may also intimidate her.
For a discussion of the battered woman syndrome see R. v. Lavallee, [1990] 1 S.C.R. 852. In Lavallee, Madame Justice Wilson addressed the mythology about domestic violence and phrased the myth as "[e]ither she was not as badly beaten as she claims, or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it." The Court further indicated that a manifestation of the victimization of battered women is a "reluctance to disclose to others the fact or extent of the beatings". In Lavallee, the Court indicated that expert evidence can assist in dispelling these myths and be used to explain why a woman would remain in a battering relationship.
32. It should be noted that Amnesty International, in Women in the Front Line: Human Rights Violations Against Women, supra, footnote 1, at p. 54, recommends that:
In procedures for the determination of refugee status governments should provide interviewers trained to recognize the specific protection needs of women refugee and asylum-seekers.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5410-04
STYLE OF CAUSE: DIONNE RITCHIE v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 25, 2006
REASONS FOR ORDER: Campbell J.
APPEARANCES:
| Mr. Leslyn A. Lewis
|
FOR THE APPLICANT |
| Ms. Ann Margaret Oberst
|
FOR THE RESPONDENT |
| Leslyn A. Lewis Toronto, Ontario
|
FOR THE APPLICANT |
| John H. Sims, Q.C., Deputy Attorney General of Canada |
FOR THE RESPONDENT |