D'Mello v. Canada ( Minister of Citizenship and Immigration )
IMM-1236-97
Gibson J.
22/1/98
7 pp.
Judicial review of CRDD decision applicants not Convention refugees-Principal applicant citizen of India-Applicant, husband living in United Arab Emirates when applicant, infant daughter severely beaten by husband-Applicant, daughter claimed Convention refugee status on ground of membership in particular social groups, i.e. abused women, families of abused women respectively-Claims asserted against India as country of applicants' nationality, notwithstanding husband continuing to reside in United Arab Emirates-Before CRDD, applicant claiming would not be welcomed by Indian society as single woman; community would look upon single woman with infant daughter with disdain; would not be able to obtain job; fearing husband, would follow her, seize daughter, harm or kill applicant, and would be unable to obtain police protection-CRDD holding claim speculative-Application allowed-As CRDD not finding applicant's fears of persecution, as supported by independent witness, lacking credibility, impossible on face of CRDD's reasons to determine why finding claim to fear of persecution speculative-Some evidence regarding India's inability or unwillingness to protect women from domestic violence from principal applicant, independent witness-Although not direct testimony of "similarly situated individuals let down by the state protection arrangement" or testimony regarding claimant's past personal experience of failure of state protection in India (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689), still "some evidence" supported by extensive documentary evidence-CRDD going beyond direction provided in Ward in holding would amount to speculation to condemn security authorities in India for being unable to provide protection to claimant when never sought such protection-In Ward La Forest J. holding claimant should not be required to risk life seeking ineffective protection of state, merely to demonstrate ineffectiveness-CRDD relying on excerpt from Human Rights Briefs: Women in India, Research Directorate, DIRB, Ottawa, October, 1995, as authority for proposition that legislative, procedural framework in India to which women subject to domestic violence can have recourse-CRDD not referring to paragraphs following immediately after citation upon which relied that reflect on difficulties encountered by women in relying on that framework, and thus ineffectiveness-Principal applicant's fear not resting on lack of legislative, procedural framework in India to protect women abused by husbands or agents of husbands, but on lack of police support for such women, and difficulty, given lack of such support, in effectively taking advantage and having recourse to existing legislative and procedural framework of state protection in India-CRDD erred in reviewable manner in reaching conclusions on basis of inadequate analysis of totality of evidence before it and applicable law.