MEKEISHA FEZINA DANIEL Applicant v. THE MINISTER OF CITIZENSHIP, 2011 FC 589

Federal Court Cour fédérale Date: 20110525 Docket: IMM-5217-10 Citation: 2011 FC 589 Ottawa, Ontario, this 25 th day of May 2011 Before: The Honourable Mr. Justice Pinard BETWEEN: MEKEISHA FEZINA DANIEL Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review of a decision of a member of the Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “Act”).

The Board determined that the applicant was neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Act. [ 2 ] Mekeisha Fezina Daniel, the applicant, is a citizen of St. Vincent and the Grenadines and was born in 1987. When she was 13 years old, her mother entered into a common-law relationship with a Mr. Calvert Cupid. In May 2003, Mr. Cupid is alleged to have sexually assaulted the applicant; a pattern of repeated attacks followed. In February 2005, the applicant allegedly sought police protection but the police simply talked with Mr.

Cupid, sharing jokes with him, and no arrest was made. Immediately following their departure, Mr. Cupid threatened the applicant. The assaults continued. The applicant’s mother, who is also the family breadwinner, continues to refuse to believe that her partner is a sexual predator. [ 3 ] In April 2008, the applicant contacted her aunt, Nyasha Ralph, who lives in the United Kingdom , and was convinced by her to go once more to the police. The applicant filed a police complaint and the police visited Mr. Cupid but no follow-up was made. Following this visit, Mr.

Cupid again threatened the applicant’s life. [ 4 ] The applicant went to the United Kingdom to stay with her aunt for three weeks, with the intention of staying there, but her aunt’s husband did not agree to this and she returned to St. Vincent .

[5] In June 2008, the applicant says she was raped and impregnated by Mr. Cupid. Her aunt informed her that there was awoman in Canada, Josette Davis, who might be able to help her. The applicant came to Canada on October 5, 2008. * * * * * * * * [6] This matter raises the following issues: a. Did the Board err by failing to apply the Board Chairperson’s “Guideline 4: Women Refugee Claimants Fearing Gender-relatedPersecution” (the “Gender Guidelines”) when it determined that the applicant’s testimony was not credible or plausible? b.

Did the Board err by determining that state protection was available to the applicant in St. Vincent? [7] The standard of review applicable to a Board’s finding on credibility is reasonableness. Therefore, the Board’s conclusionmust fall within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir v. NewBrunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para 47). [8] The standard of review applicable to a finding of state protection is likewise reasonableness (Buitrago v.

Minister ofCitizenship and Immigration, 2009 FC 1046 at para 14). * * * * * * * * [9] Firstly, the applicant submits that the purpose of the Gender Guidelines is to assist the Court in drawing contextualizedconclusions within refugee claims. She cites Griffith v. Canada (M.C.I.) (1999), (FC), 171 F.T.R. 240, an applicationbased on similar facts involving a female claimant from St. Vincent who was also refused based on an impeachment of credibility, a lackof subjective fear and the adequacy of available state protection.

Justice Douglas Campbell noted the need to consider the “pattern ofsymptoms” often exhibited by battered women (citing R. v.

Lavallee, (SCC), [1990] 1 S.C.R. 852), and that “the GenderGuidelines suggest that to assess the actions of a woman subjected to domestic violence is an essential tool to use in reaching a fair andcorrect judgment” (para 20). [10] Justice Campbell went on to hold at paragraph 25 that reasons must be given in the case of credibility findings that areresponsive to what is known about women in this condition, and that it is a pitfall to use the objective standard of the “reasonable man”when it is possible that a male norm is being unfairly applied (para 28).

The applicant submits that the Board in the present case fellvictim to the same pitfall, applying an objective standard with total disregard for the knowledge, understanding and sensitivity requiredto assess issues of credibility in such cases (as per para 27). [11] In Keleta v. Minister of Citizenship and Immigration, 2005 FC 56 at para 14, Justice Danièle Tremblay-Lamer noted that theBoard does not necessarily have to cite the Guidelines in the course of its reasons, but that it is incumbent on the Board to display theknowledge and sensitivity outlined in Griffith, above.

The applicant notes that the Board in the present case did not acknowledge theseGuidelines at all, but rather drew mechanical inferences based purely on implausibilities such as her failure to move out at a young ageand her failure to produce photos of her rapist. The applicant notes that she was 15 years of age when the pattern of abuse started and thatshe was still a minor when she first approached the police.

She argues that the Board’s complete failure to consider and apply theGuidelines tainted a true assessment of her allegations. [12] The respondent argues that the Guidelines cannot themselves be used to establish a claim where the applicant’s explanationsare not acceptable (S.I. v. Minister of Citizenship and Immigration, 2004 FC 1662 at paras 3-4). The respondent contends that the merefact that the applicant was disbelieved by the Board does not imply that the Board was insensitive (Vargas v. Minister of Citizenship andImmigration, 2008 FC 1347 at paras 15-16).

The respondent notes that there is no allegation that the Board lacked sensitivity in theconduct of the hearing itself. The respondent submits that in view of the fact that the applicant submitted no corroborative evidence toestablish her claim it was reasonable, not insensitive, of the Board to inquire about any possible evidence such as photographs. [13] In my view the Board’s decision displayed a lack of the sensitivity and contextualization called for by the Guidelines. While

the Board did not in fact need to explicitly mention the Guidelines, the jurisprudence establishes that the approach set out in theGuidelines should be taken into account in assessing the evidence in the case of an abused woman. The applicant’s claim was explicitlybased on gender-related violence in a country where such violence is commonplace.

I agree with the applicant that there is a distinctionbetween the cases cited by the respondent (S.I. and Vargas, above) and the present case, as in those cases the Board had found actualinconsistencies and contradictions in the applicant’s evidence which put into question the veracity of the allegations (Vargas, para 15). InS.I. the Board was in fact found to have applied the Guidelines correctly (para 8).

In the present case, the Board did not cite any actualcontradictions or inconsistencies in the applicant’s testimony, but rather found it implausible that she would have remained in an abusivesituation considering the fact that she was educated. This is exactly the manner of questionable finding referred to in the Guidelines andin Lavallee, above, and in my view demonstrates that the Board was not using the Guidelines, but was attempting to apply a strictlyobjective viewpoint as to what someone in an abusive situation should do.

The Board’s reasons were not, as required by Griffith, supra,responsive to what is known about women in this condition; I can find no evidence in the decision of an attempt to put the applicant’sactions in the context of a young woman who has been subjected to ongoing sexual assault and rape by a family member over the courseof several years.

While her testimony would presumably have been bolstered by expert evidence, there is no actual requirement for her tosubmit such evidence, and despite its absence I find that the Board’s conclusions are no more based on expertise, but rather on theBoard’s own sense of what an abused woman in the applicant’s position should have done.

While I accept that the lack of corroborationin the form of the police reports was an important factor, I find that the Board’s failure to apply the Gender Guidelines tainted itsanalysis and rendered its conclusions on credibility unreasonable. [14] Secondly, the applicant submits that the Board’s findings regarding police protection in St. Vincent are unreasonable. Theapplicant cites the following excerpt from a November 2008 Information Request: Most police officers have limited knowledge and skills on domestic and family violence, inclusive of procedures, but a selective few treatthe issue with seriousness.

Trained officers receive general training in policing which they apply in domestic and family violenceincidences and which lead to complications for the victim, who feels further victimized. In addition, when female victims go to make reports, they are served by gross, disrespectful, chauvinistic, young male officers who feelthat the victim asked for what she received. There are no specialized kits either. In most cases, the male police officers become impatientif the victim is hesitant in responding to questions.

Generally, the attitude of police officers, the open area for questioning and the overall ineffectiveness of the police and court, make thevictim reluctant to testify. [15] The applicant submits that the Board erred in not addressing this evidence which competed with its conclusion that it was theapplicant’s failure to act that caused her problems (Cepeda-Gutierrez et al. v. Canada (M.C.I.) (1998), (FC), 157F.T.R. 35).

She also argues that the Board’s inference must be weighed against the Gender Guidelines, as the Board, in concluding thatthe applicant’s passivity was a major factor in her problems, failed to consider the context of the applicant’s situation, namely being a 17-year-old girl in such an environment. [16] The respondent merely contends that state protection was not a determinative issue in the case at bar.

While the Board did notexplicitly mention state protection as a separate determinative issue, in my view it clearly made a finding that such protection would havebeen available to the applicant, and used this finding to impeach her credibility given that she did not effectively seek it out. On thispoint, I am in agreement with the applicant that the Board made its finding without addressing the contradictory evidence.

I find that itwas unreasonable of the Board to impeach the applicant’s credibility on this point, in light of the contradictory evidence showing thatwhile victim passivity can play a role, there are clear deficiencies in the protection available to such victims and the attitudes they mustface. I agree that a contextual, sensitive approach as mandated by the Guidelines would have taken this into consideration and explainedwhy the Board did not find this to be an important factor. * * * * * * * * [17] For the above-mentioned reasons, the application for judicial review is allowed.

The matter is sent back for reconsiderationby a differently constituted panel of the Immigration and Refugee Board.

JUDGMENT The application for judicial review is allowed. The decision of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”), dated August 16, 2010, is set aside and the matter is sent back for reconsideration by a differently constituted panel of the Board. “Yvon Pinard” Judge FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-5217-10

STYLE OF CAUSE: MEKEISHA FEZINA DANIEL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal , Quebec DATE OF HEARING: April 20, 2011 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: May 25, 2011 APPEARANCES : Me Ethan Friedman FOR THE APPLICANT Me Patricia Nobl FOR THE RESPONDENT SOLICITORS OF RECORD : Ethan Friedman FOR THE APPLICANT Montréal, Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada