Citation: 2007 FC 103
Ottawa, Ontario, January 30, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
SELMA CHARLES (A.K.A. SELMA KATHY ANN CHARLES)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Upon Selma Charles’ application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (RPD) rejecting her claim under Sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Having reviewed the material filed by the parties (including their post hearing written representations) and considered their counsel’s representations at the hearing.
[3] Upon noting that the applicant argues, among other things, that the RPD erred in its conclusion on State protection in Grenada as well as in its finding that her claim was abusive because she lacked subjective fear. The standard of review applicable to the first question of mixed fact and law is reasonableness simpliciter: Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL). The second issue relates to a finding of fact that is subject to the standard of the patently unreasonable decision.
[4] Upon considering that the RPD at no time questions the applicant’s credibility. It appears it took no issue with the applicant’s story that she was the victim of child abuse since the age of 9 and endured this for almost 9 years. The abuser was her cousin who lived in her family’s house and “put bread on the table” as her father was blind and an invalid and her mother was away about six months every year. She tried to tell her mother and much later her great-aunt but they did not believe her. Then, when she was about 17 years old, she also went to the police who told her that this should be dealt with at home as it was a domestic dispute.
[5] Instead, the RPD found that the applicant had not rebutted the presumption of State protection. In that respect, it says:
I find that she did not make a determined effort. I believe that she, as a child, ought to have asked other adults to help her, when her parents and her other family members did not believe her story. I find that it was unreasonable for the claimant not to have made a greater effort to seek protection. I also find it was unreasonable for the claimant not to have taken additional steps or measures to access the protection of the state of Grenada that was available to her. The claimant is required to show that she has exhausted other avenues of protection.
(my emphasis)
[6] This reasoning is not only untenable, it is patently unreasonable. It shows a surprising and unacceptable lack of consideration for the vulnerability and trauma suffered by abused children. As this finding was clearly material to the RPD’s reasoning and its final conclusion in respect of State protection, it vitiates this conclusion.
[7] Turning now to the second issue, the RPD said:
I considered that the claimant came to Canada as a visitor, but has remained continuously since her arrival in Canada. I also considered that she has never applied for nor received any extension to a visa. Therefore, I consider this to be an abusive claim, made as a last ditch effort to remain in Canada.
(my emphasis)
[8] The Court agrees with the respondent that despite the strong language used, a review of the transcript does not support the applicant’s allegation of bias. However, having carefully reviewed the certified record including the transcript (in which the RPO started her representations by saying that the claimant presented herself in a credible fashion and that obviously something is still stressing her and there is no reason to disbelieve the fact that she suffered what she did) the Court must state that the sentence in bold above was not necessary. In that respect, it is useful to always keep in mind the principle expressed by Justice Carolyn Layden-Stevenson in Wang v. Canada (Minister of Citizenship and Immigration) 2007 FC 77, at para.19:
…this language was unnecessarily severe. Worse still, it does not reflect the degree of professionalism that is expected of a quasi-judicial tribunal. Claimants are entitled to respect and disparaging comments are unacceptable.
[9] The Court further notes that since her arrival in Canada, the applicant worked and kept a low profile. She had not come to the attention of the immigration authorities when she filed her refugee claim. It is thus somewhat difficult to understand the RDP’s reference to a “last-ditch effort”.
[10] That said, harsh or inaccurate language alone does not justify setting aside a decision unless the finding it embodies is also tainted by a reviewable error. The only explanation given by the RPD for its finding is the length of the delay that took place before the applicant made her claim and the adverse inference the RPD draws from that delay. Before doing so, it rejected without any detailed comments, the explanation provided by the applicant which is described simply as follows:
“She explained that her uncle suggested to her to work and save some money so that she could hire a counsel before making a claim.”
[11] In certain cases, a long unexplained delay alone may be sufficient to allow a reasonable inference that an applicant does not have a subjective fear: Gamassi v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1841 (QL), at para. 6; Bhandal v. Canada (Minister of Citizenship and Immigration) 2006 FC 426, [2006] F.C.J. No. 527(QL), at para. 29-31.
[12] Here however, the applicant was cross-examined at length on why she delayed the filing of her claim. As noted, by Justice Michel Shore in Myle v. Canada (Minister of Citizenship and Immigration) 2006 FC 871, [2006] F.C.J. No. 1127 (QL), para. 41 and 42, when he was reviewing a decision concerning an abused women from another island near Grenada, reasons given for the delay require a careful examination, particularly if the women involved have been traumatized and did not know of the possibility of protection (see also Jones v. Canada (MCI) 2006 FC 405, [2006] F.C.J. No. 591 (QL), para. 25-30).
[13] Many cases of domestic abuse involve significant delay before the person seeks protection.
As noted by Justice Shore, “there should not be a blanket conclusion without a substantiated examination” (Myle, above).
[14] The decision maker should be particularly alert and alive to the cultural context and to the need to properly and genuinely apply the Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution (the Guideline), when it comes to assessing the inference to be made from even a very long delay.
[15] It is evident from its description of the explanation (see para. 11 above) that the RPD misapprehended the evidence put forth by the applicant at the hearing.
[16] She said that she absolutely needed to get out of Grenada. She asked her uncle for help, telling him only that she needed to get to Canada (certified record at pg. 128, line 24 – 40). The uncle told her that she should come and that he would get her a job and sponsor her. When she arrived, he told her that according to “the system”, she had to work and make sure that she had enough money before she could “present herself to Canada” (pg. 121, line 21 – 27). At the hearing she confirmed that she did not know if he meant filing a refugee claim or something else because he only spoke of “presenting herself to Canada”.
[17] Her uncle did not make good on his promise of sponsorship and in fact had to move away. However, he did find her another job and told her again to put money aside and to keep to herself. She did just that.
[18] The Court notes that as the uncle did not know of the sexual abuse and referred specifically to sponsorship, he could not have been thinking of refugee protection. Again, the testimony of the applicant on this issue was not put in doubt.
[19] In any event, the applicant further testified that she only learned that women who had been sexually abused could claim refugee protection from a friend who told her of her own experience in 2004.
[20] It is only at that time and in that context that the applicant said that she then waited to have enough money to hire counsel (page 122, line 28-30).
[21] It may well be that that the Refugee Protection Officer’s questions led to some confusion in the RPD’s notes because in her questions, she kept mixing up the issue of regularizing status with the filing of a refugee claim. But, whatever the reasons, the RPD did not properly understand the explanations of the applicant.
[22] Finally, there is also no indication that the RPD was alert and alive to the Guideline and the considerations mentioned above in paragraphs 12 and 14 when it came to making a proper inference. In fact, given its other finding in respect of the behaviour of the applicant as a child (see para. 5 above), the Court concludes that it only paid lip service to the Guideline.
[23] In the circumstances, the finding that the applicant lacked subjective fear must also be quashed and the decision must be set aside.
ORDER
THIS COURT ORDERS that the application is granted. The matter shall be
re-determined by a different panel.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-213-06
STYLE OF CAUSE: SELMA CHARLES (aka SELMA KATHY ANN CHARLES)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: January 24, 2007
AND ORDER: GAUTHIER J.
APPEARANCES:
Joel Etienne
Alexis Singer
SOLICITORS OF RECORD:
Joel Etienne
Barrister & Solicitor
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent