By Sukhram Ramkissoon
A divorced woman was recently successful in the Federal Court as the judge set aside her negative Pre-Removal Risk Assessment decision and granted another assessment by a different officer.
Ms B is an Indonesian citizen who arrived in Canada in 2006 and applied for permanent residency in 2009. While in Canada, she entered a common-law relationship and had a daughter in December 2016. She returned to Indonesia with her daughter for five months between May and November of 2017. In November 2018, she was convicted of assault with a weapon arising from an incident involving her common-law partner. She was sentenced to 18 months probation. In March 2019, she was determined to be inadmissible to Canada for serious criminality. Her application for permanent residence was denied in May 2019, and the PRRA was also refused in November 2019.
Ms B declared that she was at risk of gender-based violence and discrimination in Indonesia. Her profile as a single mother placed her at risk. She further declared her daughter faced a risk of racial bullying, sexual abuse, and pollution in Indonesia.
The PRRA Officer found there was insufficient evidence to show that Ms. B would not receive adequate state protection against the risk of gender-based violence in Indonesia. The Officer noted that Indonesia is an electoral democracy with established law enforcement agencies and a functioning judiciary. The Officer acknowledged the documentary evidence reflected police corruption but noted that its presence does not apply to all Indonesian police being corrupt to the point of being unable to adequately protect Ms. B.
With respect to gender-based discrimination, the Officer acknowledged that there are human rights abuses in Indonesia and certain legal and cultural inequities for Indonesian women, especially for single divorced mothers. However, the Officer concluded the treatment of single divorced mothers did not amount to the treatment described in immigration law and noted that she experienced no such discrimination during her extended visit to Indonesia in 2017 with her young daughter.
Ms B argued that the PRRA Officer unreasonably concluded that she had failed to rebut the presumption of state protection.
In assessing the risk of gender-based violence, the Officer acknowledged that the documentary evidence demonstrates that many women become victims of violence in Indonesia, that one-third of women between the ages of 15 and 64 have experienced violence, and that domestic violence is the most common form of violence against women in Indonesia. The Officer cited documentary evidence detailing the significant underreporting and poor documentation of gender-based violence as well as the light sentences often given to convicted sexual offenders.
Based on this evidence, the Officer concluded that gender-based violence is a serious problem in Indonesia but found the presumption of state protection had not been rebutted. In reaching the state protection conclusion, the Officer found “Indonesia is making serious efforts to combat the issue of gender-based violence…that Indonesia is making active efforts to improve the capacity and efficiency of its state protection apparatus.”
The judge ruled that it is well established in the jurisprudence that the adequacy of state protection cannot be assessed solely based on state efforts. Instead, a decision maker must consider the operational adequacy of the protection is actually available.
Ms B submitted to the Officer, and cited documentary evidence reporting that single and divorced women in Indonesia are discriminated against in accessing basic needs, including housing, employment, and credit. The Officer acknowledged “divorcees and widows are often affected by poverty and can face stigmatization” and found the “objective documentary evidence before him demonstrated that single divorced women could face societal discrimination in Indonesia.” The Officer concluded the treatment experienced by single divorced women does not rise to the level of “treatment described in immigration law”.
The judge stated that a reasonable decision must be based on reasoning that is both rational and logical. He further stated that a reviewing court must be able to discern an “internally coherent and rational chain of analysis.” In this instance, the judge found the Officer appeared to rely on the recitation and summary of the documentary evidence to support that discrimination does not rise to the level of persecution. However, the court stated, “While there will undoubtedly be circumstances where a simple recitation of the evidence will allow a reviewing court to discern the rationale underpinning a conclusion, this is not the case in this instance.”
The judged concluded that the absence of an explanation or analysis supporting the Officer’s conclusion,renders this conclusion unreasonable and granted judicial review and ordered that the matter be re-determined by a different officer.
Sukhram Ramkissoon is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. M6A 2A4 Phone 416 789 5756.