Date: 20100223
Docket: IMM-2588-09
Citation: 2010 FC 196
Ottawa, Ontario, February 23,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
SHIVANAND
KUMAR KATWARU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of the decision (the decision) of the Immigration and
Refugee Board, Refugee Protection Division (the Board), dated May 6, 2009,
wherein the Board determined that the Applicant was not a convention refugee and
was not a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27, (IRPA).
[2]
Based
on the reasons below, the application is dismissed.
I. Background
[3]
The
Applicant is a 21 year old male citizen of Guyana who is of
Indo-Guyanese descent. The Applicant claims he was bullied as a child in Guyana by a person
who was of Afro-Guyanese descent. The bully would take his lunch money and in
1996, stabbed the Applicant in the eye resulting in the Applicant becoming
blind in that eye. The Applicant was treated in Guyana, but came to
Canada in 1997 for
a month to have medical attention for the eye. He returned to Canada in 2002 for
further medical attention. When in Canada he lives with his grandparents,
who are resident here.
[4]
The
Applicant made a claim for refugee protection in 2006. The Applicant claims
that he would be discriminated against if he were to return to Guyana based on
his ethnicity and the ethnic violence and racial tension in Guyana, and the
growing crime rate.
[5]
This
was not the Applicant’s first hearing before the Board. The Applicant’s first
refugee claim was heard on May 17, 2006. The claim was rejected on June 1,
2006. The Applicant filed an application for leave and judicial review. Justice
Max Teitelbaum allowed the judicial review application and ordered that the
Applicant’s claim be re-determined by a new Board member. Justice Teitelbaum
found that on the matter of state protection, the Board’s decision was made
without regard to the evidence before it (see Katwaru v. Canada (Minister of
Citizenship and Immigration), 2007 FC 612; 62 Imm. L.R. (3d) 140)).
[6]
The
Applicant’s claim was re-determined in April 2008. On consent, Justice Roger
Hughes ordered that the claim be re-determined again by another Board member
(see Katwaru v. Minister of Citizenship and Immigration, (October 20,
2008), IMM-3651-08 (F.C.)). The claim was heard on March 20, 2009, and rejected
on May 6, 2009. It is this decision that is under review.
A. The
Decision Under Review
[7]
The
Board determined that the Applicant had not established that he was a
convention refugee under section 96 or a person in need of protection under
section 97 of IRPA. While the Board accepted that the Applicant may face
racial discrimination, it found that there was no evidence that the
discrimination amounted to persecution as per section 96. The Board also held
that the Applicant faced a generalized, as opposed to a personalized, risk and
therefore was not in need of protection as per section 97.
[8]
Specifically,
the Board stated that the bullying faced by the Applicant was not racially
motivated; that the incidents happened when the Applicant was young and that
the Applicant could now independently approach the police for help. There was
evidence that Guyana had been
working on its racial problems, and that while crime is pervasive, it is more
an issue about wealth and not race.
[9]
During
the hearing the Board member stated that credibility was not an issue.
II. Standard
of Review
[10]
The
standard of review for Board decisions on state protection is reasonableness (Dunsmuir v.
New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339; Sanchez v. Canada (Minister of
Citizenship and Immigration) [2008] F.C.J. No. 886; 2008 FC 696).
[11]
As
set out in Dunsmuir, above, and Khosa, above, reasonableness
requires the existence of justification, transparency, and intelligibility in
the decision-making process. It is also concerned with whether the decision
falls within a range of acceptable outcomes that are defensible in respect of
the facts and law.
III. Issues
[12]
The
Applicant states the following issues need to be addressed:
(a) Did the Board err when it found that
there was state protection available to the Applicant under section 97 of IRPA?
(b) Did
the Board err when it found that the Applicant’s claim fell under the exception
in subsection 97(1)(b)(ii) of IRPA because the Applicant did not face a
personal risk?
A. Did
the Board Err When it Found That There Was State Protection Available To the Applicant
Under Section 97 of IRPA?
[13]
It
is the Applicant’s position that the Board erred when it selectively relied on
portions of the documentary evidence and failed to consider relevant objective
documentary evidence before it.
[14]
The
Respondent argues that the decision was reasonable and that it was open to the
Board to find that the Applicant would be able to avail himself of state
protection in Guyana.
[15]
The
Applicant relies heavily on the previous decision of Justice Teitelbaum. However,
that decision and reasons are in relation to the judicial review of a different
Board decision, the 2007 Board decision.
[16]
In
Balogh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 809;
221 F.T.R. 203, Justice François Lemieux discussed the issue of determining a
states ability to protect its citizens. Justice Lemieux noted that the
presumption of state protection set out in Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689; [1993] S.C.J. No. 74, can be overcome by the applicant
leading clear and convincing evidence of a states inability to protect. In Carillo
v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94; 69 Imm. L.R. (3d) 309, the
Federal Court of Appeal held that the Applicant must convince the trier of fact
that the evidence adduced establishes that state protection is inadequate.
[17]
This
is not the case in this matter. The Board member considered the evidence led by
the Applicant but did not find that it ousted the presumption of state
protection.
[18]
The
Applicant further argues that without making a negative credibility finding,
the Board could not disregard the Applicant’s testimony that he sought state
protection. The Board member addressed this issue in stating that at the time
of the attacks, the Applicant was not an adult and was unable to ask for state
protection himself. The Board also noted that the incident with the bully had
happened several years ago and, through the review of recent events in Guyana, things had
changed.
[19]
It
is clear that the Board is under a duty to consider the evidence properly
before it and the greater the relevance, the greater the need for the tribunal
to explain its reasons for not attributing the evidence weight (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
1425; 157 F.T.R. 35).
[20]
In
this case, the Board relied on Response to Information Request number GUY
100762.E, in part, to support its position that the Guyanese government was
working on improving state protection. In Katwaru (2007), above, Justice
Teitelbaum stated that this reference material indicated that the deficiencies
with the police are chronic and that the effectiveness of the state protection
is compromised (see paragraph 19). I stress that the decision and issues before
Justice Teitelbaum were different than the decision before the Court in this
matter.
[21]
The
reasons of the Board need to be based on the totality of the evidence adduced. The
fact that some of the documentary evidence is not mentioned in the Board’s
reasons is not fatal (see Hassan v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 946; 147 N.R. 317) (F.C.A.)).
[22]
On
a review of the documentary evidence, the Board determined that there was
adequate, while not perfect, state protection available in Guyana. In its
reasons, the Board relied not only on the GUY100762.E documents but also
documents found at footnotes 4, 5 and 8 of the decision. Certainly with respect
to the material referred to at footnote 8, which is the United States
Department of State, Country Reports on Human Rights Practices for 2007, the
Board looked at material not previously considered in the earlier determination
concerning this case. Based on the guidelines set out in Dunsmuir, above,
and Khosa, above, the Board’s decision was reasonable.
B. Did
the Board Err When It Found That the Applicant’s Claim Fell Under the Exception
in Subsection 97(1)(b)(ii) of the IRPA Because the Applicant Did Not Face a
Personal Risk?
[23]
The
Applicant argues that the tribunal erred in law when it found that the
Applicant’s claim fell under the exception in subsection 97(1)(b)(ii) of IRPA
because the Applicant did not face personal risk. Subsection 97(1)(b)(ii)
states:
|
Person
in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
[…]
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
[…]
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
[…]
|
Personne
à protéger
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
[…]
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
[…]
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
[…]
|
[24]
The
Applicant argues that the evidence before the Board indicated that the
Applicant feared a personal vendetta from the bully who had injured his eye and
continued to threaten him after. The Applicant cites Pineda v. Canada (Minister of
Citizenship and Immigration), 2007 FC 365; [2007] F.C.J. No. 501, to
support his position.
[25]
In
Pineda, above, the Applicant alleged he was targeted by gang members who
would wait for him outside of the university grounds and beat him up. The
Applicant’s father and family were also threatened. The Federal Court allowed
the Applicant’s appeal of the Board decision that he did not face a
personalized risk. The Court based their decision partly on the fact that the
Applicant was not claiming to be subject to a risk to his life or his safety
based only on the fact that he was a student, young or from a wealthy family.
[26]
Pineda, above, can
be distinguished from the case at bar. First, the Applicant in this matter was
a young student at the time of the incident, while the Applicant in Pineda,
above, was an adult at the time of the attacks. As pointed out by the Board,
both the Applicant and the bully will have grown up in the intervening period.
[27]
Second,
the Applicant in this case claims that he has been targeted because he is
Indo-Guyanese. The Board noted that the Indo-Guyanese population is
disproportionately victimized and such victimizations can be attributed to
their perceived wealth. As set out in the Board’s decision, Justice Teitelbaum
has upheld a previous Board decision that the applicant’s persecutor was not
racially motivated (see paragraph 11-12 of Katwaru, above).
[28]
In
Carias v. Canada (Minister of Citizenship and Immigration), 2007 FC
602; [2007] F.C.J. No. 817, a family from Honduras was targeted
because they were perceived as wealthy. Justice John O’Keefe held that the
applicants faced a generalized risk of harm that was faced by many other
Hondurans, including those perceived as wealthy.
[29]
In
this case, the Board considered the fact that the Applicant, now an adult,
would be able to approach the police himself. I note that it is not an error to
assess the future likelihood of persecution (Pour-Shariati v. Canada (Minister of
Employment and Immigration), [1995] 1 F.C. 767; [1994] F.C.J. No. 1928 Court
File No. IMM-654-93 (T.D.)). At paragraph 17, the Court stated:
17 Before turning to
the cases themselves, I would observe that a Convention refugee claimant must
demonstrate a well-founded fear of persecution in the future to support a
Convention refugee claim. In making a claim for Convention refugee status, an
individual will often advance evidence of past persecution. This evidence may
demonstrate that he/she has been subjected to a pattern of persecution in
his/her country of origin in the past. But this is insufficient of itself. The
test for Convention refugee status is prospective, not retrospective: for
example, see Minister of Employment and Immigration v. Mark (1993), 151 N.R.
213 (F.C.A.), at page 215. The relevance of evidence of past persecution is
that it may support a well-founded fear of persecution in the future. However,
it is a finding that there is a well-founded fear of persecution in the future
that is critical.
[30]
Given
the wording of subsection 97(1)(b)(ii) of IRPA, the Applicant had to satisfy
the Board that he would be personally subjected to a risk that was not
generally faced by others in Guyana. The Applicant did not do this. Based on
the guidelines set out in Dunsmuir, above, and Khosa, above, the
Board’s decision was reasonable.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is dismissed; and
2.
there
is no award as to costs.
“ D.
G. Near ”
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