Federal Court Decisions

Date: 20060216

Docket: IMM-1981-05

Citation: 2006 FC 165

Ottawa, Ontario, February 16, 2006

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

ELIZABETH JOSEPH

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

OVERVIEW

[1]                The Gender-Related Guidelines serve as a barometer reading of a fundamental human right by which to determine the risk facing women fleeing gender-specific persecution.

JUDICIAL PROCEDURE

[2]                This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7 of a decision of a Pre-Removal Risk Assessment (PRRA) Officer dated February 11, 2004 (which should have been dated as February 11, 2005, had an inadvertent error not ensued, as was recognized by both parties in open Court, wherein it was determined that the Applicant was not a person in need of protection).

BACKGROUND

[3]                The Applicant, Ms. Elizabeth Joseph, is a citizen of Grenada who fled to Canada in order to escape a violent, fifteen-year common law relationship. She made her claim for protection on the ground that there is more than a mere possibility that she would face gender-based persecution as a woman subjected to domestic violence. She also based her claim on the substantial risk that she would face torture and cruel and unusual treatment at the hands of her former common law spouse.

[4]                Ms. Joseph was born on August 23, 1960 in St. George's, Grenada. She left Grenada when she was approximately 17 years old and went to Trinidad to be with her mother, who was a resident there. Ms. Joseph stayed in Trinidad until March 1994.

[5]                Ms. Joseph met Peter Henry in Trinidad in 1981 and they started a relationship. Peter Henry has citizenship in both Trinidad and Grenada.

[6]                Their relationship was abusive from the beginning. He was physically, verbally and sexually abusive to Ms. Joseph. As a result of the abuse, Ms. Joseph lost her first baby during the pregnancy in 1981. Ms. Joseph wanted to leave Peter Henry but she was afraid. She became pregnant again and they moved in together in 1982.

[7]                Ms. Joseph and Peter Henry have four children together: Krystal, born on May 9, 1983, Peter Junior, born on April 8, 1986, Roshawn, born on September 20, 1988 and Réjeanne, born on April 2, 1991.

[8]                During their relationship, Ms. Joseph tried to leave Peter Henry many times. He always looked for her and eventually found her. When he did, the abuse would begin again. She has many scars and some permanent injuries resulting from the abuse she suffered by Peter Henry.

[9]                After one incident in which Ms. Joseph's eyes were injured, she was hospitalized for one week. Ms. Joseph's sister told the police what happened. They refused to do anything about the incident because they did not wish to get involved in a "man and woman's business".

[10]            In early February or March 1994, after making arrangements with a friend who would keep her children, Ms. Joseph left on a boat to return to Grenada. She lived with friends. A few months later, Peter Henry found her. He threatened to kill her and the children. He followed her everywhere and threatened her. Ms. Joseph was scared he would kill her. On November 5, 1996, she fled to Canada.

[11]            Since she came to Canada, Peter Henry has contacted her several times and threatened her. He has also told their oldest daughter Krystal, that he will hurt or kill Ms. Joseph if she returns to Grenada.

[12]            Ms. Joseph came to Canada as a visitor in 1996 and was granted status as a visitor for six months. She was then granted one extension of her visitor status which expired a few months later. Ms. Joseph's complete PRRA application with submissions and evidence was received on April 26, 2004. She was advised on March 29, 2005 that her PRRA application had been denied and that removal arrangements had been made for April 13, 2005. Ms. Joseph brought a motion for a stay of removal which was heard on April 8, 2005 and granted.

DECISION UNDER REVIEW

[13]            The PRRA Officer accepted Ms. Joseph's evidence that she was a victim of domestic violence at the hands of her abusive common-law spouse. He found, however, that she had not rebutted the presumption of state protection, having failed to provide clear and convincing evidence of the state's inability to protect her.

[14]            Due to this failure to rebut the presumption of state protection, the PRRA Officer found that Ms. Joseph was not a Convention refugee or a person in need of protection per sections 96 and 97 of IRPA.

ISSUES

[15]            Did the PRRA Officer err by failing to assess the gender-based nature of Ms. Joseph's claim?

[16]            Did the PRRA Officer err by ignoring evidence that Grenada does not provide state protection from violence against women?

ANALYSIS

Did the PRRA Officer err by failing to assess the gender-based nature of Ms. Joseph's claim?

[17]            It is an established principle that the refugee definition as a whole should be interpreted with an awareness of possible gender dimensions in order to determine accurately claims for refugee status. For treatment to amount to persecution, it must be a serious form of harm that detracts from the claimant's human rights. The UNHCR guidelines on gender-related persecution state that:

There is no doubt that rape and other forms of gender-related violence, such as ... domestic violence ... are acts which inflict severe pain and suffering - both mental and physical - and which have been used as forms of persecution, whether perpetrated by State or private actors. [1]

[18]            The UNHCR Guidelines also recognize that there is scope within the refugee definition to recognize both State and non-State actors of persecution. Serious discriminatory or other offensive acts committed by the local populace, or by individuals, can also be considered persecution if such acts are knowingly tolerated by the authorities, or if the authorities refuse, or are unable to offer effective protection. (UNHCR Guidelines above, at para. 19)

[19]            The Gender Guidelines created by the Immigration and Refugee Board provide a useful approach to determining questions of risk facing women fleeing domestic violence. The Federal Court has described the guidelines as "...a positive, enlightened, and necessary effort by the Immigration and Refugee Board to ensure knowledgeable and sensitive consideration of the evidence of women claiming refugee status because of violence within a relationship." (Griffith)[2] The Guidelines apply to the Immigration and Refugee Board but they can also be considered and applied by the PRRA Officer.

[20]            The fact that violence against women is universal is irrelevant when determining whether gender-specific crimes constitute forms of persecution. The real issues are whether the violence is a serious violation of a fundamental human right for a Convention ground, and in what circumstances can the risk of that violence be said to result from a failure of state protection. Women have an internationally protected right to protection from domestic violence and failure to give that protection is a form of gender-related discrimination. (IRB Guidelines)[3]

[21]            According to the 2003 US Department of State report, violence against women remains a serious problem in Grenada.[4]

[22]            Ms. Joseph attempted to obtain her medical records however, the General Hospital in Port-of-Spain reports that all inactive medical records are destroyed after seven years. As a result, her medical records are not available.

[23]            In addition, Ms. Joseph has provided a letter from her family doctor at Women's Health in Women's Hands. Dr. Rajora is a family physician working primarily with women. She wrote:

On her face, she has a 2 cm scar on her left frontal area, and a 1 cm scar above her upper lip. There are 4 cm and 3 cm scars on her left arm, an 8 cm scar on the posterior aspect of her left upper thigh, and a 1 cm scar below it. In addition, her left fourth digit has a mallet finger deformity. Ms. Joseph states that these injuries are a result of various assaults by her ex-partner in Trinidad. She states that these injuries are a result of wood, knives and bottles during the assaults which occurred from 1982 to 1996. In my opinion, the scars and their stages of healing could be consistent with a history of physical assault/domestic violence.[5]

[24]            Ms. Joseph has established that she was subjected to ongoing, serious violence at the hands of her spouse. She has provided powerful affidavit evidence, as well as evidence from her sister, Patrice Williams, and statements from her daughter, Krystal Joseph. This evidence demonstrates that not only has Ms. Joseph been subjected to gender-related persecution in the past, but that there is more than a mere possibility that it will continue in the future if she returns to the region.

Did the PRRA Officer err by ignoring evidence that Grenadadoes not provide state protection from violence against women?

[25]            The Supreme Court of Canada held that in order to rebut the presumption of state protection, a refugee claimant must provide clear and convincing evidence of the state's inability to protect him or her. (Ward)[6]

[26]            The IRB Guidelines on gender-related persecution recognize that there may be little or no documentary evidence available with respect to the inadequacy of state protection as it related to gender-related persecution. In such situations, the decision-maker must rely on evidence of similarly situated women and the claimant's own experiences. (IRB Guidelines above, at page 11) Similarly, the UNHCR Guidelines state that:

...It is important to recognise that in relation to gender-related claims, the usual types of evidence used in other refugee claims may not be as readily available. Statistical data or reports on the incidence of sexual violence may not be available, due to under-reporting of such cases, or lack of prosecution. Alternative forms of information might assist, such as the testimonies of other women similarly situated in written reports or oral testimony, of non-government or international organisations or other independent research. (UNHCR Guidelines above, at para. 37)

[27]            If the claimant can demonstrate that it was objectively unreasonable for her to seek the protection of the state, then the failure to approach the state for protection will not defeat her claim. When considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the decision-maker should consider, among other relevant factors, the social, cultural, religious and economic context in which the claimant finds herself. (IRB Guidelines above, at p. 9)

[28]            Otherwise positive changes in country conditions may have no impact, or even a negative impact, on a woman's fear of gender-related persecution. An assessment should be made of the claimant's particular fear and of whether the changes are meaningful and effective enough for her fear of gender-related persecution to no longer be well-founded. (IRB Guidelines above, at p. 12)

[29]            Domestic violence is vastly underreported throughout the region. According to ECLAC-CDCC/CIDA, the persistence of the traditional response by police is rooted in historical views concerning the role of women, as property, and the characteristic of submissiveness they are expected to possess. In spite of increased police training on the issue, entrenched attitudes of police to domestic violence remained a problem. In small Caribbean countries, there is some reluctance on the part of police to arrest perpetrators of gender-based violence who happened to be family members or friends.[7]

[30]            A report from the Canadian International Development Agency states that: "Women's groups in Grenada were frustrated by the police on domestic violence issues. Few cases reached the courts. There was a feeling the police were indifferent..." The report describes a workshop on domestic violence for 20 police officers as well as frontline workers. This is one step in trying to address the fact that "Police officers have been singled out throughout the Caribbean as being indifferent to domestic violence issues." Although a training session for 20 police officers organized by the Canada-Caribbean Gender Equity Fund demonstrates some effort, it cannot be considered a solution to the problem, particularly where later documentation demonstrates that the problems associated with police response to domestic violence are ongoing.[8]

[31]            Legislation protecting women in Grenada was not enacted until 2001, with the Domestic Violence Act. A recent evaluation of the implementation of domestic violence legislation found an absence of due diligence on the part of the police to intervene as law enforcers in cases of domestic violence. Further, the effectiveness of the implementation of the Domestic Violence Act (2001) in Grenada is undermined by the paucity of counselling services that are available. There is also a lack of structures as to how victims can report to the police, and limited cooperation and support from the social services. (Report of the ECLAC-CDCC/CIDA above, at pages 6, 8, 25)

[32]            This is a case unto itself within its most specific fact pattern and the particular circumstances facing Ms. Joseph wherein the credibility of Ms. Joseph was not at issue with respect to her subjective evidence. The objective evidence demonstrates that the situation with respect to protection for abused and battered women is not clear-cut. Due to the credibility accorded by the PRRA Officer to Ms. Joseph with respect to her personal evidence, it cannot be concluded that she wouldn't be at risk, but that is for a PRRA Officer to determine or redetermine if necessary. The situation of Ms. Joseph is such that it warrants redetermination by a PRRA Officer. It is not for this Court to reach a decision on this matter but for the entity that is specialized therein to do so. Had there been a doubt in respect of the credibility of Ms. Joseph's evidence, the decision of this Court may have been different.

[33]            The test for leave has been met; Ms. Joseph has succeeded in that there has been an arguable case. Although the determination of risk on return necessitates a fact-driven inquiry with respect to the country in question and although the PRRA Officer determination should be accorded due deference, nevertheless, recognizing that the standard of review of the merits of a PRRA Officer decision, when high, would necessitate a patently unreasonable decision, it becomes patently unreasonable when the country condition evidence is not as clear-cut as espoused by the PRRA Officer.

[34]            If, as according to the PRRA Officer, Ms. Joseph is credible, then the most recent information with respect to the continuing threats is that they have not diminished. What is significant is that the PRRA Officer has not in any way countered or contradicted the most recent information provided by Ms. Joseph with respect to the risk she would still be facing from her former common law spouse if returned to Grenada.

CONCLUSION

[35]            Combining the objective and subjective evidence, it is recognized by this Court that the PRRA Officer's finding necessitates the decision being returned for redetermination by a PRRA Officer due to the discrepancies in the logic, which is inherently evident, on face value, when examining the file. The inherent logic of the PRRA Officer is not consistent within itself based on the information of the subjective evidence of Ms. Joseph which has not been contradicted and the objective evidence which shows a picture different from that constituted by the PRRA Officer. As a result, the matter is to be remitted for reconsideration.   

ORDER

THIS COURT ORDERS that

1.          The Application for Judicial review be allowed;

2.          The matter be remitted to a different PRRA Officer for redetermination.

"Michel M.J. Shore"