Date: 20071211
Docket: IMM-6214-06
Citation: 2007 FC 1296
Ottawa, Ontario, December 11, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MOHAN
SINGH
Applicant
and
MINISTER
OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated October 5, 2006, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested that the decision be set aside and the matter referred back
for redetermination by a differently constituted panel.
Background
[3]
Mohan
Singh (the applicant), is a citizen of Guyana. The applicant sought refugee status on
the basis of his race and ethnicity, namely Indo-Guyanese. In addition, he
claims to be a person in need of protection. The circumstances which led to his
claim for refugee status were set out in the background portion of the Board’s
decision.
[4]
The
applicant alleged that he and his co-workers were attacked by a group of
Afro-Guyanese men in 2001 and 2002. These men used racial slurs and robbed them
of money and jewellery. The applicant then fled to the U.S. and made an
asylum claim. This claim was rejected and the applicant filed an appeal, but he
voluntarily left the U.S. and returned to Guyana before the
appeal was heard. Having returned to Guyana, the applicant alleged
that he and a co-worker were attacked again by Afro-Guyanese men in 2005. The
applicant also alleged that his friends and family members of the same race and
ethnicity were also subject to similar persecution. His friend’s car was
hijacked and his uncle was robbed. The applicant attributed all the attacks by
Afro-Guyanese to his race and ethnicity, namely, Indo-Guyanese. As a result of
his fear, the applicant fled to Canada in March 2006 and filed
his application for refugee status upon arrival.
Board’s
Decision
[5]
In
its decision, the Board found that the applicant was neither a Convention
refugee, nor a person in need of protection on the basis that there was no
subjective or objective bases to the applicant’s claim.
[6]
With
regards to the Convention grounds of race and ethnicity claimed by the
applicant, the Board found on a balance of probabilities that the applicant was
a victim of random attacks by criminals and “bandits” for his cash and
jewellery, which was unrelated to his race and ethnicity. In making this
finding, the Board considered the applicant’s Port of Entry declaration (POE).
Specifically, the Board noted that there was no mention in the POE declaration
that the agents of persecution were Afro-Guyanese. The Board also noted that
the applicant was given more than one chance to identify the agents of
persecution during the POE interview. The Board stated that “the first telling
of a story is more persuasive than subsequent versions”. The Board noted that
the documentary evidence indicated tension and polarization between
Afro-Guyanese and Indo-Guyanese. The Board considered the political commitment
of the ruling party and the opposition party to ensure democracy, peace and
development. Given the finding that the applicant’s fear was only of random
incidents of violence and the political commitment to change country
conditions, the Board found that there was no more than a mere possibility of
the applicant being persecuted on the basis of his race if he returned to
Guyana.
[7]
With
regards to the serious risk of harm under section 97 of the Act, the Board
stated that this protection is limited to those who face a specific risk that
is not generally faced by others in the country; the risk must not be
indiscriminate or random. The Board considered the high crime rate in Guyana and
government’s efforts to address the situation. The Board found that anyone in Guyana could be a
victim of generalized crime, and as such, it did not constitute a serious risk
of harm as defined in section 97 of the Act.
[8]
With
regards to the subjective basis for the applicant’s claim, the Board found that
the applicant’s reavailment to his country’s protection and time lapse of
several years before again leaving and making a claim, indicated a lack of
subjective fear and belied a well-founded fear of persecution or need for
protection. In making this finding, the Board considered the fact that while
the applicant’s failed asylum application was being appealed, he voluntarily
left the U.S. and returned to Guyana.
[9]
The
Board concluded in finding that there was insufficient credible or trustworthy
evidence that the applicant had a well-founded fear of persecution by reason of
any of the enumerated Convention grounds. The Board also found that the
applicant was not a person in need of protection pursuant to section 97 of the
Act.
Issues
[10]
The
applicant submitted the following issues for consideration:
1. Failure
to assess credibility of the applicant’s subjective fear.
2. Error
of law: Failure to consider the absence of state protection.
3. Error
of law: Failure to consider relevant matters
[11]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the Board err in finding that the applicant lacked a subjective fear?
3. Did
the Board err in failing to consider the adequacy of state protection in Guyana?
4. Did
the Board err in failing to consider all the evidence before it identifying the
agents of persecution as Afro-Guyanese?
Applicant’s
Submissions
[12]
The
applicant raised three grounds for review: (1) the Board’s finding of no
subjective fear, (2) the Board’s failure to consider the adequacy of state
protection; and (3) the Board’s failure to consider the evidence before it
identifying the agents of persecution as Afro-Guyanese.
[13]
On
the first ground of review, the applicant submitted that he provided the Board
with reasons as to why he returned to Guyana after his failed asylum
claim in the U.S. The
applicant submitted that the reasons given clearly stated that he did not
reavail himself to the protection of his country and that his subjective fear
has not been lost. The applicant submitted that he advised the Board during the
hearing that he returned to Guyana because his U.S. counsel had
advised him that no matter what he did or how real his subjective and objective
fears were, the U.S. government would say that there was state protection
available for citizens of Guyana. The applicant submitted that testimony
given under oath is presumed to be true unless there are valid reasons to doubt
its truthfulness. As the Board did not expressly reject his testimony, the only
logical conclusion is that the evidence was accepted.
[14]
With
regards to the second ground for review, the applicant submitted that the Board
failed to consider the absence of state protection. The applicant submitted
that the Board also failed to provide evidence to support its finding that the
applicant would not encounter physical harassment or harm by returning to Guyana. The
applicant referenced paragraph 65 of the Handbook on Procedures and Criteria
for Determining Refugees, which provides that serious discriminatory or
other offensive acts committed by the local populace can be considered
persecution if they are knowingly tolerated by police. The applicant submitted
that the Board must evaluate a state’s real capacity to protect (Mitchell v.
Canada (Minister of
Citizenship and Immigration) 2006 FC 133, Elcock v. Canada
(Minister of Citizenship and Immigration), [1999] FCJ No. 1438 (T.D.)). The
applicant submitted that where the evidence, including the documentary
evidence, situates the individual applicant’s experience as part of a broader
pattern of state inability or refusal to extend protection, then the absence of
state protection is established.
[15]
Finally,
the applicant submitted that the Board failed to consider the evidence as to
the identity of the agents of persecution, specifically, the applicant’s
testimony during his hearing and his PIF. The applicant submitted that while
during his POE interview he used the word “bandits”, he testified during his
hearing that he was referring to the “Afro-Guyanese”. The applicant submitted
that a Board must consider all the evidence before it and in some instances
must refer to the evidence (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. no. 1425 (F.C.T.D.) at
paragraphs 15 to 17).
Respondent’s
Submissions
[16]
The
respondent submitted that the applicant has not cited any error in the Board’s
decision but has simply disagreed with the Board’s finding. With regards to the
identity of the agents of persecution, the respondent submitted that the
applicant has offered no proof that the proper word in Guyana for a major
ethnic group, the Afro-Guyanese, is “bandits”. The respondent submitted that
the Board properly found that the applicant did not mention Afro-Guyanese as
the reason for his fear in his POE declaration. The respondent submitted that
the Board is entitled to take into consideration contradictions and inconsistencies
in the evidence when assessing credibility, including between statements at the
POE and later testimony (Canada (Minister of Employment
and Immigration) v. Dan-Ash (1988), 93 N.R. 33 (F.C.A.), He
v. Canada (Minister of Employment and Immigration), [1994] F.C.J.
No. 1107 (C.A.), Rajaratnam v. Canada (Minister of Employment and
Immigration) (1991), 135 N.R. 300 (F.C.A.), Ramirez v. Canada (Minister
of Citizenship and Immigration), [2000] F.C.J. No. 803 (T.D.), Zaloshnja
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 206).
[17]
The
respondent submitted that contrary to the applicant’s assertions, the Board did
consider his explanation for having voluntarily returned to Guyana. The
respondent submitted that the Board noted that he was in detention in the U.S. and did not
wish to remain in detention any longer. Reavailment is a valid consideration in
assessing subjective fear (Tejani v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 528 (T.D.), Zergani v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 493 (T.D.), Galdamez
v. Canada (Minister of Employment and Immigration), [1994] F.C.J.
No. 1983 (T.D.), Hoballah v. Canada (Minister of Employment and Immigration),
[1995] F.C.J. No. 37 (T.D.)). The respondent also submitted that the
applicant’s presumption that sworn testimony is always true is rebuttable and
should only be given when the Board is satisfied of the applicant’s general
credibility and the plausibility of the applicant’s statements (Chan v. Canada
(Minister of Employment and Immigration), [1995] 3 S.C.R. 593, Gomez-Carrillo
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J.
No. 1396).
[18]
With
regards to the failure to consider state protection, the respondent submitted
firstly that the Board did consider state protection and secondly, that a
finding of no subjective or objective basis for a claim is sufficient to uphold
a refusal of refugee status. The respondent submitted that in any event, the
applicant failed to rebut the presumption of state protection.
[19]
And
finally, the respondent submitted that sending this case back for
redetermination would yield an inevitable result as the applicant failed to
identify any nexus between the alleged events and any Convention ground.
Victims of criminal activity do not constitute a particular social group and
therefore a person’s fear of risk from criminals cannot be the basis of a valid
refugee claim (Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689, Suarez v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 1036 (T.D.), Valderrama v. Canada (Minister of Citizenship
and Immigration) (1998), 153 F.T.R. 135).
Analysis and
Decision
[20]
Issue
1
What is the
appropriate standard of review?
The
appropriate standard of review for the Board’s finding on subjective fear is
patently unreasonable (Abawaji v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1065). The Board’s
overall finding on the adequacy of state protection is reviewable on a standard
of reasonableness (M.P.C.R.
v. Canada (Minister of Citizenship
and Immigration),
2005 FC 772).
[21]
I
propose to first deal with issue 4.
Did the
Board err in failing to consider the evidence before it identifying the agents
of persecution as Afro-Guyanese?
The
applicant submitted that the Board failed to consider the applicant’s oral
testimony and his PIF which identified Afro-Guyanese as the agents of
persecution. The respondent submitted that the Board is presumed to have taken
all the evidence into consideration.
[22]
I
agree with the respondent that it is well established in law that the Board is
presumed to have taken all the evidence before it into consideration in
rendering its decision (Florea v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 598 (F.C.A.)). However, in Cepeda-Gutierrez
above, Justice Evans stated at paragraph 17:
[…] the more important the evidence that
is not mentioned specifically and analyzed in the agency's reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact "without regard to the evidence": Bains v.
Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency's burden of explanation increases with
the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency's finding of fact. Moreover, when the agency
refers in some detail to evidence supporting its finding, but is silent on
evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of fact.
[23]
The
portion of the Board’s decision dealing with the identity of the agents of
persecution reads as follows:
Convention grounds
Race and ethnicity vs. crime – When the claimant came to Canada and made a claim, he was
interviewed by an immigration officer (IO) (ref: Exihibit M-1, Record of
Examination) and asked questions.
Q. What are you afraid of if
returned to your country and why?
A. I’m afraid of being killed.
Q. Who are you afraid of if
returned to your country and why?
A. There is a lot of criminality
in Guyana.
The claimant was asked why there was no
mention of being killed by the Afro-Guyanese for being Indo-Guyanese; he
responded that he had come at night; he was confused and scared; he was given a
piece of paper to write on. In a declaration, he solemnly stated in his own
handwriting: fear for my life; I was beaten; to be kill(ed) by bandit; to be
hijack(ed); to be rob(bed). It was pointed out to him that again, he made no
reference to the agents of persecution of harm being the Afro-Guyanese. He said
without responding that he did not mention this.
This was the claimant’s second attempt to
seek international protection, the first time in the U.S., because of alleged persecution due to
his ethnicity, and this was his opportunity to tell his story honestly to a
Canadian official. The first telling of a story is more persuasive than
subsequent versions. The panel finds on a balance of probabilities that, the
claimant was a victim of random attacks by criminals and “bandits” for his cash
and jewellery, which was unrelated to his race and ethnicity.
[24]
The
Board clearly relied on the POE declaration in making its decision that the
applicant was a victim of general violence unconnected to his race and
ethnicity. Moreover, it appears that the Board gave a great deal of weight to
the applicant’s lack of explanation at his hearing for not having identified
Afro-Guyanese as the agents of persecution during his POE declaration.
[25]
Based
on the reasoning in Cepeda-Gutierrez above, the Board should have in the
least addressed the evidence provided in the applicant’s PIF and his oral
testimony at the hearing as to the identity of the agents of persecution.
[26]
The
applicant’s PIF clearly sets out that he fears persecution from Afro-Guyanese
males. In fact, the entire first page of his PIF describes the political and
social culture in Guyana that has led to the current tension between
Afro- and Indo-Guyanese. Furthermore, in his PIF the applicant identifies the
agents of persecution from his November 2001, March 2002 and June 2005 attacks
as Afro-Guyanese.
[27]
In
addition to his PIF, the applicant also identified his attackers as
Afro-Guyanese at his immigration hearing:
COUNSEL: When you wrote on you solemn
declaration and you stated “by bandit”, who was the bandit?
CLAIMANT: Afro-Guyanese.
COUNSEL: When you said “to be hijacked”,
what were you afraid of being hijacked or robbed from?
CLAIMANT: From the Afro-Guyanese men.
[28]
These
two pieces of evidence, the applicant’s PIF and oral testimony clarifying the
POE declaration, were directly relevant to a material point in the Board’s
decision. Moreover, this evidence contradicts the Board’s finding that no nexus
existed between the violent incidents and the Convention ground of race and
ethnicity.
[29]
I
cannot tell what decision the Board would have arrived at if it had considered
this evidence. The Board’s failure to expressly address these pieces of
evidence constitutes a reviewable error.
[30]
Because
of my finding on these issues, I need not deal with the other issues.
[31]
The
application for judicial review is therefore allowed, the decision of the Board
is set aside and the matter is referred to a different panel of the Board for
redetermination.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the Board is set aside and the matter is referred to a different panel of
the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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:
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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