Federal Court Decisions

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Date: 20060327

Docket: IMM-3542-05

Citation: 2006 FC 384

Ottawa, Ontario, March 27, 2006

PRESENT:      The Honourable Mr. Justice von Finckenstein









[1]                The Applicant, a 21 year old Jamaican woman, alleges that her stepfather inappropriately touched her beginning at the age of six and sexually molested her on a weekly basis from 1995 (when she was 12 years-old) until she left Jamaica in 2001 (when she was 18 years-old).    He threatened to kill her if she told anyone about this. She did not inform her mother of any of this abuse although she believes her mother suspected it was occurring and the Applicant only reported it to a teacher who took no action other than comforting her.

[2]                Her father is an army officer with high rank. The Applicant believes that her father murdered her mother even though the police ruled it self-inflicted. The doctor concluded it was not suicide as the majority of the kerosene burns were on her back. Furthermore, subsequent to the Applicant leaving Jamaica, her father caused her sister to be arrested and, upon seeing him on the street, beat up her brother.

[3]                Her mother sent her to the United States to live with her half-sister in Brooklyn in July 2001. She stayed there for three months. Her application for a Canadian Visitor's Visa, so that she could visit an aunt, was refused. However, she still came to Canada in September 2001.

[4]                Once in Canada and informed of her mother's death and the lack of investigation by the police, the Applicant and her aunt decided she should marry a Canadian citizen in order to remain here to avoid her father. She became involved with a man and lived with him until July 2004. She thought he would help her get status in Canada. He became abusive and took her passport and said he would cause her to be deported if she left him. As result, she left and went to a women's shelter. She made her refugee claim in August 2004.


[5]                The Refugee Protection Division of the Immigration and Refugee Board (the "Board") held the two issues in this case to be: (1) whether the claimant's fear is well-founded and (2) the availability of state protection. The Board found that her failure to mention the abuse either in Jamaica or in Canada prior to completing her PIF belied her fear of persecution. It also found that she had not rebutted the documentary evidence establishing state protection is available in Jamaica.


[6]                The Applicant seeks judicial review of the decision contending that the Board erred in

a)        ruling that circumstances were not so "atrocious and appalling" as to require a compelling reasons analysis under s. 108(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA");

b)          finding that the Applicant lacked subjective fear by:

i.           holding that the Applicant, a child of 12 years when the rapes began, should have made some reasonable efforts to obtain protection; and

ii.           ignoring the expert evidence that victims of incest "normalize" the mistreatment and therefore it is not surprising that the Applicant failed to report it at the earliest opportunity; and

c)          misinterpreting the evidence of the availability of state protection.

Standard of review

[7]                In Chaves v. Canada(Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 58, 2005 FC 193 Justice Tremblay-Lamer found at para 11:

However, the nature of the question is key in this application and also brings into play relative expertise. Deciding whether a particular claimant has rebutted the presumption of state protection involves "applying a legal standard [i.e. "clear and convincing confirmation of a state's inability to protect": Ward, supra, at para. 50] to a set of facts", which according to the Supreme Court constitutes a question of mixed fact and law: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise with respect to the findings of fact and assessing country conditions. However, the Court has relative expertise with respect to whether the legal standard was met. Accordingly, the appropriate standard of review is in my view reasonableness simpliciter. This is consistent with the rulings characterizing the issue of state protection as a question of mixed fact and law

[8]                I fully concur with that analysis and consequently will apply a reasonableness simpliciter standard.


Compelling reasons

[9]                The Board's dealt with "compelling reasons" very briefly. It stated:

I considered the claimant's psychological condition and the circumstances of the claim, and I am unable to find evidence of persecution so "atrocious and appalling" that I should assess whether there are compelling reasons in this case.

[10]            Compelling reasons has its origin in s. 108 of IRPA which states:

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:


(e) the reasons for which the person sought refugee protection have ceased to exist.

(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

[11]            It is well established that "compelling reasons" considerations only apply once there is a finding of Convention refugee or person in need of protection. In this case, as the Board made neither finding, there was no need to consider "compelling reasons".

See Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (C.A.), [1992] F.C.J. No. 946

See also, Canada(Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.), (1992) 93 D.L.R. (4th) 144

Cihal v. Canada(Minister of Employment and Immigration) (2000), 257 N.R. 62 (C.A.), [2000] F.C.J. No. 577 at para. 20

Kudar v. Canada(Minister of Employment and Immigration), [2004] F.C.J. No. 778 , 2004 FC 648

Naivelt v. Canada(Minister of Employment and Immigration), [2004] F.C.J. No. 1543, 2004 FC 1261 at para. 37

[12]            The statement by the Board was superfluous and not necessary for its decision. It is therefore unnecessary for me to consider whether the Board properly applied Obstoj, aboveor whether it should have followed Suleiman v. Canada(Minister of Citizenship and Immigration), [2005] 2 F.C.R. 26, [2004] F C 1125 as suggested by the Applicant.

Lack of subjective fear.

[13]            The Board made the following finding:

I find that the claimant does not have a subjective fear. If her fear were well-founded, it could be expected that she might make some effort to seek help, assistance and relief before coming to Canada. In oral testimony, she testified that Lorne raped her over a six-year period, once or twice a week. She could have tried to obtain protection in Jamaica, but she did not make a determined effort. She could have applied for protection in the U.S. in 2001 before coming to Canada, but she did not. Further, she might have made efforts to obtain protection in Canada before she actually did. She delayed making a claim for over three years after she entered Canada illegally. Lastly, if her fear were well-founded, she ought to have mentioned the sexual abuse by her father in her Citizenship and Immigration (CIC) In-Person Refugee In-take, Record of Examination, but she did not. When she was asked about this significant omission, the claimant explained that she was scared and too ashamed to mention in at the time of her interview.


[14]            The Board then observed:

The panel acknowledges that she was only a child when the alleged abuse began. However, the panel believes that she ought to have made some reasonable effort to obtain protection. In oral testimony, she testified that she did not tell her mother about the abuse at anytime because she was afraid what her father might do. She explained that her mother might have suspected. She said that one of her sisters had told her that their father had "tried to come on to her sexually" (as well). However, she believed if she were to report her father's abuse to her mother, that for reasons unknown, her mother would have denied it.

Ms. Heila Ritter, the claimant's social worker at the Bethesda House (a woman's shelter), testified the claimant had told her in counselling sessions that she (the claimant) had told one of her teachers about the abuse. However, her teacher did not help her as the teacher did not report this to the police.

[15]            Ms. Pitter, a social worker of Jamaican origin, testified regarding "normalizing" at page 160 of the Tribunal Record:

Q:         Okay, do you have any comments about her...the fact that she did not directly disclose the sexual abuse?

A:          That is very, very, that's normal. It doesn't matter what country, it's normal for childhood victims not to disclose because of the shame around the issue, especially when it's incest.

            One it's sort of normalized and also there is a tremendous element of shame that goes with it when the child gets to the age where they realize that this is not normal, this is not happening to my friend next door. Then there's a whole element of shame, this is a big disgrace, I can't tell. And then there's also the, it's my fault, I did something wrong so they feel sometimes the blame along with the shame. So it's very very normal for that behaviour in terms of not disclosing and it takes some work to have that happen.

[16]            The Applicant contends that it is unreasonable to expect a scared child of twelve who is being raped twice weekly to do more than report the matter to her teacher. The Applicant further suggests that the Board completely ignored the evidence of Ms. Pitter who testified regarding the normalizing of incest by abused children.

[17]            Nowhere in its decision did the Board either state that it did not find the Applicant credible or that it rejected the evidence regarding normalizing by Ms. Pitter. Its reasoning, as above quoted, seems to suggest that a child needs to do more than tell her teacher about the abuse by her father. No rationale for this assumption is given.

[18]            The Board's decision is not reasonable, as Justice Muldoon observed in Zhu v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1251, 2001 FCT 884 at paragraph 28:

The reasonableness of the applicants' willingness to seek protection of the state, even if it were available, which is denied, must be assessed in light of their status as minors.    As children, the applicants may be less inclined to seek the protection of the state, particularly where this would require them going against their parents' directions.

(Evidence on this last argument is far from complete or compelling.)

[19]            Similarly, the evidence by Ms. Pitter regarding normalizing would fully explain the actions of the Applicant. The Board heard the argument but did not address it at all. Thus, we do not know why it was rejected by the Board.

[20]            Failure to address both these points, which are pivotal to the finding of lack of subjective fear, while at the same time not finding that the Applicant lacked credibility, and failing to explain why it rejected the expert advice amounts to a reviewable error. While the Board might still come to the same conclusion as it did, procedural fairness dictates that it is necessary that these two issues be addressed again.

State protection

[21]            In light of my finding on lack of subjective fear, there is no need to canvass the issue of state protection.

Certified Questions

[22]            The Applicant requested that I certify the following two questions:

1. Is a minor required to make a reasonable effort to seek state protection similar to that of an adult?

2. Is it necessary under s.108 (4) of IRPA that the past "treatment" be atrocious and appalling?

[23]            As I came to the same conclusion as Justice Muldoon in Zhu, above, the first question does not need to be certified. Furthermore, due to my finding that s. 108 is not applicable in this case, there is no reason to certify the second question.

[24]            Accordingly, this application will succeed.


THIS COURT ORDERS that the decision of May 17, 2005 be set aside and the matter be sent back to the board for reconsideration by a differently constituted Board.

                                                                                               "Konrad W. von Finckenstein"




DOCKET:                                                       IMM-3542-05

STYLE OF CAUSE:                           Daniella Chandya Lorne v. The Minister of Citizenship and Immigration


DATE OF HEARING:                       March 22, 2005


AND ORDER:                                    Justice von Finckenstein

DATED:                                              March 27, 2006


Michael Crane


Neeta Logsetty



Michael Crane


John H. Simms, Q.C.

Deputy Attorney General of Canada


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