Date: 20050210
Docket: IMM-2750-04
Citation: 2005 FC 218
Toronto, Ontario, February 10th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
NICOLE JOSETTE WRIGHT
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present case concerns a female citizen of Antigua, who bases her claim of a well founded fear of persecution on the ground of gender, being as a result of sexual abuse perpetrated upon her by her step-father while she was living in Antigua. The Refugee Protection Division ("RPD") accepted the Applicant's evidence of the abuse that she suffered, but also found that, should she return to Antigua, state protection would be available to her.
[2] In its decision, the RPD made the following finding of fact with respect to the Applicant's prospective fear:
In the opinion of the panel member, there is no credible and trustworthy evidence before the panel, that her stepfather, Carl Chris, would be interested in persecuting the claimant today.
(Tribunal Decision, p.2)
[3] The Tribunal Record provides cogent evidence that a threat has been made by the Applicant's step-father that he is presently looking for the Applicant and her mother and, if he finds them, he will kill them (Tribunal Record, p. 111). Given the evidence on the Record, Counsel for the Respondent properly agrees that the RPD's finding of fact is lacking. However, Counsel for the Respondent argues that the RPD's decision should not be set aside given the finding that state protection is available to the Applicant should she return to Antigua.
[4] In my opinion, the erroneous finding of fact made by the RPD is so central to the Applicant's claim for refugee protection that a finding of state protection cannot stand without considering the truth of the nature and level of risk the Applicant would face should she return to Antigua. On this basis, I find that the proper and just result in the present case is to set aside the RPD's decision, and to refer the matter back for redetermination, but only on the existing record, and only on certain issues.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back for redetermination before a differently constituted panel.
I direct that the redetermination be on the following terms:
1. The redetermination be based on the existing evidentiary record, and on the basis that the Applicant's testimony in the first hearing before the RPD is credible and trustworthy;
2. The issue of the possibility of prospective persecution under s.96 of the IRPA, and risk under s.97, be properly determined;
3. The issue of state protection be determined on the basis of the findings with respect to s.96 and s.97; and
4. The applicability of s.108 of the IRPA be determined.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2750-04
STYLE OF CAUSE: NICOLE JOSETTE WRIGHT
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: FEBRUARY 9,2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: FEBRUARY 10, 2005
APPEARANCES BY:
Ali Amini For the Applicant
Sharon Stewart-Guthrie For the Respondent
SOLICITORS OF RECORD:
Ali Amini
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent