Date: 20061026
Docket: IMM-7559-05
Citation: 2006
FC 1289
Ottawa, Ontario, October 25, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MOHAN RAM KISHUN
INDROUTI KISHUN
ANURADHA KISHUN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Kishun
family, husband, wife and teenage daughter, were unsuccessful in their refugee
claim. This is a judicial review of that decision.
[2]
The
principal claimant, the husband, Mohan Ram, was a wealthy businessman in Guyana. He operated a fishing fleet out
of the town of Annandale on the east coast of
Demerara. He, his wife and daughter are of East-Indian origin and are
characterized as Indo-Guyanese in local parlance.
[3]
The
family’s claim is multi-layered. As Indo-Guyanese they claim to be targeted by
Guyanese of African origin, or Afro-Guyanese. This targeting is intensified by
their wealth and by the fact that they live near the village of Buxton known to be particularly violent and
primarily inhabited by Afro-Guyanese. Mr. Kishun is also a community leader in Annandale and was chairman of the
Annandale Sandreef Crime Prevention Committee. He was trained as a rural police
constable in 1993.
[4]
A few
years ago, pirates boarded one of his fishing vessels and stole the engine.
More recently, a kidnap threat was made against Anuradha who is sixteen, if a
ransom was not paid. This was the final incident which caused them to flee to Canada.
[5]
As the
Kishuns were found to be credible, the only issue is state protection. The
panel of the Refugee Protection Division of the Immigration and Refugee Board
analyzed sections 96 and 97(1) of the Immigration and Refugee Protection Act
and determined that they are not Convention refugees or persons in need of international
protection.
STANDARD OF REVIEW
[6]
To
paraphrase what I have just decided in Scotland v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1276, this Court has struggled with the notion of state protection.
A determination of what protection is generally available in a state derives
from findings of fact. The RPD is specialized in these matters and is owed
considerable deference. Findings of fact are usually not disturbed unless
patently unreasonable.
[7]
On
the other hand, a forward looking projection of what might happen to the
Kishuns should they be returned to Guyana may involve the application of
factual findings to the legal standard established in the leading case of Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 [Ward]. That may be
a mixed question of fact and law, which is normally subjected to a
reasonableness simpliciter standard.
[8]
The
Minister relies on such cases as Conkova v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.) (QL) and
Sivasamboo v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 741 to submit that the standard
of review is patent unreasonableness. However, it has also been held in Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005]
F.C.J. No. 232 (QL) and Filigrana v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1447, [2005] F.C.J. No. 1765 (QL)
that the standard is reasonableness simpliciter.
[9]
It
would be overly simplistic to hold the view that decisions with respect to all
issues pertaining to state protection are subject to the same standard of
review. As the Federal Court of Appeal noted in Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392, the pragmatic and functional approach to
judicial review is case specific in nature. Therefore, as Mr. Justice Linden
said at paragraph 50:
…as
complex as it may be, this analysis must be applied anew with respect to each decision,
and not merely each general type of decision of a particular decision
maker under a particular legislative provision. Even where it may appear that
the issue has been settled in the jurisprudence, "[t]here is no shortcut
past the components of the pragmatic and functional approach" (Law
Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247, at paragraph 21 (Ryan)).
[10]
As
Mr. Justice Phelan noted in Pisniak v. Canada (Minister of
Citizenship and Immigration), 2006 FC 824:
[8]
With respect to the standard of review regarding state protection, there are
two aspects which attract two different standards. The question of whether
there is adequate state protection is generally an issue of fact (see Nawaz
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1255, [2003] F.C.J. No. 1584
(QL) and Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449, [2004] F.C.J. No. 1755
(QL)) which attracts a standard of patent unreasonableness. The question of
whether the Applicant adequately availed herself of state protection is one of
mixed law and fact because the Board must apply factual findings to the legal
standard established in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689:
"clear and convincing confirmation of a state's inability to protect"
the person.
[11]
It
is clear that the standard of review is not correctness. Sometimes it is not necessary
to choose between the other two standards. I propose to analyze the decision to
determine whether or not it is reasonable. If it is unreasonable, then a
further analysis will have to be done to determine exactly how unreasonable it is.
ANALYSIS
[12]
The panel
considered the Kishuns’ experience in Guyana
and their subjective fear should they be returned there. It also carefully
considered the documentary evidence on file at the IRB as well as material
supplied by the applicants. It found that Guyana was a parliamentary democracy but that
it was also a violent place with a political fault line based largely on
ethnicity.
[13]
It found
that although policemen on duty were obviously somewhat more at risk, policemen
off duty were not targeted more than the population at large. Furthermore, Mr.
Kishun stated that he would not act again as a constable in Guyana.
[14]
The panel
also found that those in Buxton did not only target Indo-Guyanese. On the
contrary, news reports indicated that more Afro-Guyanese were killed during the
crime spree that began in February 2003, and that Indo-Guyanese may feel less
secure because they were generally perceived to be wealthier.
[15]
The
Guyanese government has taken strong measures to combat crime and, in fact, the
deputizing of Mr. Kishun as a rural constable, and arming him, is proof of
that.
[16]
A probing
of the record reveals that the conclusions reached by the panel were not
unreasonable. Newspaper reports of a speech by President Jagdeo, himself of
Indo-Guyanese origin, at Annandale indicated that the crime rate
had been significantly reduced, and that community policing was working.
[17]
Guyana is a democracy, and has been
actively engaged in combating crime. Although there may be a perception that
Indo-Guyanese are targeted more, there are reports that rich and poor and other
groups including Afro-Guyanese and Chinese are also victims of violence.
[18]
It was not
unreasonable for the panel, which referred to and considered both Ward,
above, and Canada (Minister of Employment and
Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.) to conclude that
there was not a serious possibility that the Kishuns would face persecution for
a Convention ground if they returned to Guyana, and that there were no
substantial grounds to believe that they would be subjected personally to a
risk to their lives, or cruel and unusual treatment or punishment, or a danger
of torture.
[19]
Although
the panel also accepted that Mr. Kishun was suffering from depression, that
condition related to his subjective fear. His state of mind had no direct
bearing on the objective basis of that fear.
ORDER
THIS COURT ORDERS that the application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada dated 7 November 2005, of which notice was given 28
November 2005, is dismissed. There is no question of general importance to
certify.
“Sean Harrington”
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