Date: 20050117
Docket: IMM-8463-03
Citation: 2005 FC 51
Ottawa, Ontario, this 17th day of January, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
OLGA GOODLUCK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Goodluck seeks judicial review of a decision of the Refugee Protection Division, Immigration and Refugee Board (the "Board"), reasons dated October 2, 2003, that found her three children to be Convention refugees but determined that she was neither a refugee nor a person in need of protection.
[2] Mrs. Goodluck was born in the Ukraine but gained Guyanese citizenship through marriage to a native of that country. One of her children was born in the Ukraine, and the other two were born in Guyana after she had moved there with her husband. Mrs. Goodluck claimed that she had experienced abuse at the hands of her husband in Guyana and was not accepted by his family. She did not seek protection from the Guyanese authorities. The family relocated to Barbados in 1998 for employment reasons. Mrs. Goodluck testified that the abuse continued there and that in July 2001, when her husband began divorce proceedings and threatened to take custody of the children, she took advantage of an opportunity to escape with the children and came to Canada via the United States. Upon arrival she claimed a well-founded fear of persecution in the Ukraine by reason of her marriage to a black person and in Guyana because of her membership in a particular social group - women subject to abuse by their spouses. She alleged that Guyana was unwilling or unable to protect her. The children's claim was based on their relationship to their mother.
[3] The applicant seeks judicial review on the grounds that the Board erred in its assessment of her credibility and on the availability of state protection to her in Guyana.
[4] The Board did not reject Mrs. Goodluck's story of spousal abuse and it accepted her evidence that the children had been ill-treated by their father. However, it found that overall Mrs. Goodluck was not a credible witness as there were numerous inconsistencies and implausibilities in her explanation as to how she had managed to leave Barbados. The applicant objects to that finding as being based on a microscopic examination of irrelevant or peripheral issues.
[5] This case turns, in my view, on the availability of state protection in Guyana. The Board found that the 1996 Domestic Violence Act ("DVA") would provide protection to the adult claimant but that it was not meant to assist children. The lack of social services for children meant that they would not receive protection and would be at risk of harm from the father. It found that the presumption of state protection had been overcome with respect to the children but not for the mother. Given that finding, it did not address the claim against Ukraine.
[6] Mrs. Goodluck argues that this finding was patently unreasonable as it ignored significant evidence to the contrary. The Board cannot do this without erring in law: Owusu v. Canada (Minister of Citizenship and Immigration)[1995] F.C.J. No. 1505 (T.D.); Lai v. MEI (1989), 8 Imm. LR (2d) 245 (CA); Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[7] According to the documentary evidence, the applicant argues, the DVA has done little to protect women. For example, the 2002 United States Department of State Report states that domestic violence was widespread in Guyana and the police were often hesitant to interfere. While the DVA defined domestic violence as a crime and provided for protection orders, the legislation "frequently was not enforced".
[8] The Board relied on only one item of documentary evidence, a Response to Information Request dated August 9, 1999 which noted that the enactment of the DVA was a critical point in assessing the capacity of Guyana to offer protection from domestic violence. The report concluded:
In cases of domestic abuse, where there is evidence that the government is taking steps to protect women, in absence of evidence to the contrary, it must be presumed that these steps will be effective.
[9] The respondent submits that it was open to the Board to find that Mrs. Goodluck would receive effective state protection while her children would not. The Board did not ignore significant evidence. It need not make reference to every specific passage that supports the applicant's case: Sashitharan v. Canada (Minister of Citizenship and Immigration) 2004 FC 1021; Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 at 108; Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). Polgari v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 263 (T.D.); Mohacsi v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 771 (T.D.).
[10] The applicant in this case is not a native of Guyana and would not have the support network that might be expected in one's own country. She testified that she had not been accepted by her husband's family or the community when she lived there. I have difficulty understanding the Board's conclusion that state protection would be extended to her but not to her children if they were to return to Guyana.
[11] While it was open to the Board to conclude that the applicant's explanation for how she came to leave her husband and to make her way to Canada with the children was implausible, I am left with the sense that the Board's negative credibility finding unduly influenced its analysis of the availability of state protection to Mrs. Goodluck in Guyana.
[12] In my view, the Board erred in not expressly addressing her particular situation in that country. Moreover, it engaged in what appears to have been a selective review of the documentary evidence. The Board need not refer to every piece of evidence, but evidence that directly contradicts its findings must be acknowledged: Ragunathan v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 229 (C.A.). In fact, the Request for Information relied upon by the Board explicitly acknowledges this principle.
[13] Accordingly, this application will be allowed. No question of general importance was proposed and none is certified.
ORDER
THIS COURT ORDERS that the Board's decision of October 2, 2003 is set aside and the matter is remitted to the Board for redetermination by a differently constituted panel.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8463-03
STYLE OF CAUSE: OLGA GOODLUCK and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 6, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: January 17, 2005
APPEARANCES:
Waikwa Wanyoike FOR THE APPLICANT
Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
WAIKWA WANYOIKE FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario