Courts overriding immigration officials on deportation of fearful women

Posted by admin on Feb 28th, 2011

By Don Butler, Postmedia News, Feb. 28 2011

OTTAWA — The parallels in the five refugee cases are striking. All feature women seeking to remain in Canada because of well-founded fears for their safety in their home countries. All had their applications rejected by the Immigration and Refugee Board or officers of Citizenship and Immigration Canada even though, in 1993, Canada became the first country in the world to establish formal guidelines for refugee claims by women facing gender-related persecution. And in the past month, the Federal Court has overturned all five decisions and ordered new hearings.

Four of the recent cases involve women — two from the Caribbean island of St. Vincent, one from Brazil and one from Mexico — who are victims of spousal abuse. The other is a woman from Guyana who was raped in front of her children during a brutal home invasion.

In only one case was the applicant’s credibility an issue. In the others, the officials either ruled that adequate state protection exists in their home countries or found that deporting them would not cause “unusual, undeserved or disproportionate hardship.”

Three of the cases involved decisions by the IRB’s refugee protection division. The other two were rejections by Citizenship and Immigration officers of applications for permanent-resident status on humanitarian and compassionate grounds, known as H&C applications.

One of the women, 30-year-old Keisha Paul, fled to Canada in 2002 after her partner in St. Vincent beat her so badly she was hospitalized. Her son, now nine, joined his mother four years later.

In 2008, the IRB rejected her refugee claim because it said Paul had not availed herself of state protection in her home country.

Then, about a year ago, an immigration officer rejected her H&C application as well as her pre-removal risk assessment (PRRA) application. The officer adopted the IRB’s findings that state protection in St. Vincent was available and observed that Paul had failed to demonstrate steady employment or financial independence during her eight years in Canada.

Federal Court Justice Richard Boivin overturned the officer’s finding for failing to assess whether the risk to Paul would give rise to unusual, undeserved or disproportionate hardship — the required legal test.

The other St. Vincent woman, Anthea Cato, claimed refugee protection in 2008 after years of abuse by her husband. Cato, who has a three-year-old son, testified that she repeatedly reported the abuse to the island’s police authorities, who failed to act.

In rejecting her refugee claim, the IRB said Cato’s testimony lacked credibility and dismissed her argument that her memory problems resulted from post-traumatic stress disorder.

But Federal Court Justice Andre Scott said the board “misconstrued some key facts, and more importantly, ignored some key evidence” in concluding that Cato wasn’t credible.

In another IRB case, the board rejected a refugee claim from Rocio Angelica Flores Alcazar, finding that she didn’t make use of the available state protection in Mexico. Alcazar feared persecution from her former partner, a police officer in Mexico, who beat and raped her, twice sending her to hospital.

Justice Leonard Mandamin found the board failed to consider important aspects of Alcazar’s personal circumstances or properly evaluate contrary evidence about the adequacy of state protection in Mexico.

The third IRB case is that of Thatata Sousa, a Brazilian woman who came to Canada to escape her former spouse, a man described as “violent and in prey to psychiatric issues and substance abuse problems.”

After she was attacked and called police, her father-in-law hung up the phone and later told police the matter was nothing more than a couple’s quarrel. He threatened Sousa and told her he had connections within the police.

Again, the IRB found that Sousa didn’t present sufficient evidence that she couldn’t be protected in Brazil. Judge Simon Noel found that assessment was flawed and overturned the decision.

The final case is that of Estardi Beharry, who fled Guyana with her family for Canada in 2002 after she was beaten and raped in front of her two young children.

The family’s H&C submission described the ongoing trauma suffered by Beharry’s children — now in their teens — as a result of witnessing the vicious attack, and their fear of returning to the country where it occurred.

The officer rejected their application, saying Beharry hadn’t shown that returning to Guyana would have a “significantly negative impact” on the children.

But Judge Anne Mactavish said the officer failed to even address the impact that witnessing the attack has had on them, rendering the rest of the officer’s analysis unreasonable.

The disposition of the cases could suggest that the IRB and immigration officials are putting less weight on the 1993 gender guidelines than they once did.

If so, however, the trend is not yet apparent to those who work with or study refugee cases.

“I don’t know that it shows a shift. I hope not,” said Joan Simalchik, a former director of the Canadian Centre for Victims of Torture who now co-ordinates the University of Toronto’s Study of Women and Gender Program.

But the recent cases warrant attention to ensure that the “very important provisions” in the gender guidelines remain intact, she said.

Mitchell Goldberg, a prominent Montreal immigration lawyer and refugee advocate, didn’t want to “leap from individual cases to make a generalization. My experience is that the Immigration and Refugee Board is very sensitive to these issues. There’s obviously exceptions.”

The disposition of refugee claims depends in part on who hears the case, he said.

“When you walk into the Immigration and Refugee Board hearing room, to a great extent you know whether your client’s going to be accepted or refused depending on who walks into the room.”

The question of whether applicants can be adequately protected in their home countries “is an area of great controversy” in Federal Court case law, Goldberg said.

Making that assessment isn’t easy, said Toronto immigration lawyer Lorne Waldman.

“I think it’s one of the most difficult questions that confronts the IRB,” he said.

The Federal Court is generally more “scrupulous” in reviewing the documentation than the IRB or Citizenship and Immigration officers, Waldman said. “It doesn’t surprise me that on issues such as state protection, there are a lot of decisions getting overturned.”

The court has been especially robust in overturning decisions involving applicants from St. Vincent, a country where violence against women is a major problem. In many instances, according to the U.S. State Department, domestic violence goes unpunished there.

Under the Harper government, acceptance of refugee claims from applicants already in Canada has fallen sharply, from nearly 16,000 in 2006 to just more than 9,000 last year. The number of successful applicants on compassionate and humanitarian grounds, which had been averaging between 10,000 and 11,000 a year, fell to 8,848 in 2010.

Those numbers may reflect Immigration Minister Jason Kenney’s publicly expressed concerns about fraudulent refugee claimants, illegal migrants or other abusers of the system, said Audrey Macklin, a University of Toronto professor who specializes in immigration, refugee and citizenship law.

Kenney appoints IRB members, while those who assess H&C applications work for his ministry, Macklin noted. Given his message of “hostility and skepticism toward asylum-seekers,” she said, “one should be concerned that this may exert an illegitimate influence on decision makers.”

Earlier this month, Kenney accused the courts of “intrusive and heavy-handed” interference in decisions made by immigration officials. “The integrity of decisions made by my department is being questioned too often without sufficient justification.”

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