PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
AUBREY LAKERAM BRIDJLALL
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review concerns a female citizen of Guyana who claimed refugee status/need of protection principally on the basis of spousal abuse.
I. Background
[2] The principal Applicant first came to Canada in 1999 to take her mother back to Guyana where she continued to live with her allegedly abusive husband. She next returned in 2001 to obtain medical help for her son (her co-applicant on this judicial review).
[3] For her 2001 return, she entered Canada on a visitor's visa for which extensions were granted. She then filed a H & C application and, in April 2003, a refugee claim. She claimed that she did not know that she could have earlier claimed refugee protection.
[4] The Immigration and Refugee Board (Board) decision of July 20, 2005 is principally based on findings of lack of credibility and implausibility in the Applicant's story of spousal abuse. The Board also found that state protection existed as it did not accept her assertion that "the police were anti-government and do not protect citizens".
[5] The Applicant grounds its judicial review on the basis that the Board committed at least 11 factual errors. The Respondent concedes in argument that some errors were made but that neither individually nor cumulatively did they strike at the heart of the decision. The Respondent urged the Court to take a "big picture" approach to a case which turns on credibility.
II. Analysis
[6] The standard of review in respect of the type of factual findings at issue is well established as patent unreasonableness. (Aguebor v. (Canada) Minister of Employment and Immigration, [1993] F.C.J. No. 732 (QL); Harb v. Canada (Minister of Employment and Immigration), [2003] F.C.J. No. 108 (QL), 2003 FCA 39.)
[7] While I accept the Respondent's argument that concerns about errors must be looked at in the broad context, there are sufficient problems with this decision and the nature and quality of the evidence to justify having the matter determined again.
[8] Four factual matters, a transcript quality issue, and a failure to exhibit consideration of Board Guidelines underpin the Court's conclusions. As this matter will be the subject of a re-determination on the facts, the reasons in this regard will be brief.
[9] The four areas of factual error, which went to the core of the finding of credibility, are:
· the finding that in respect of a vicious attack by her husband, the Applicant said that the "injuries were not much". The Applicant specifically rejected the Board's attempt to so characterize the injuries;
· the finding that the Applicant accused the police of being anti-government and therefore unwilling to help its citizens. The Applicant, in fact, said that the police considered her to be anti-government. This error is also germane to the Board's conclusion of adequate state protection;
· the conclusion that the Applicant had a daughter in Canada whereas the daughter has never left Guyana; and
· the finding of implausibility that, with her husband downstairs after a particularly serious incident in which she was cut, she was able to go to the police but not to her doctor. The evidence was that she had to wait until her husband left the house before she went to the police. It was unnecessary at this point for her to go to the doctor as she had been able to bandage her wound.
[10] In addition to these errors, I have concern about the quality of the record on which this decision was based. A review of the transcript shows that there were frequent "inaudible" notations at critical evidentiary junctures. The difficulty with recordings and transcription was acknowledged by the transcriber and was said to be due to problems with the microphones.
[11] Where credibility is in issue and where the precise words used are critical, there must be assurance that the record is accurate. The effect of these transcription problems is difficult to assess but it, in combination with the errors cited above, calls into question the whole of the Board's decision.
[12] Lastly, the Gender Guidelines are another area of concern. While the Board says that the Guidelines were considered, there is no evidence that either the rape trauma syndrome or the battered woman syndrome were considered in the decision, one way or the other.
[13] While failure to refer to the Guidelines is not necessarily a reversible error, where they are referred to and where the very subject matter covered by the Guidelines (in this case memory difficulties about specific abusive events) arises, the Board should explain the relevance of those Guidelines in those circumstances.
[14] Therefore, while not all of these matters would individually justify reversal of the Board's decision, taken cumulatively, I must conclude that this matter should be re-determined.
[15] The application for judicial review will be granted, the Board's decision quashed and the matter remitted to the Board for a new determination by a differently constituted panel. No question will be certified.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be granted, the Board's decision quashed and the matter remitted to the Board for a new determination by a differently constituted panel.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4955-05
STYLE OF CAUSE: BASMATTEE DHARAMLALL,
AUBREY LAKERAM BRIDJLALL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Ms. Ellen Woolaver
|
|
| Mr. Michael Butterfield
|
SOLICITORS OF RECORD:
| ELLEN WOOLAVER Barrister & Solicitor Toronto, Ontario
|
|
| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|