Date: 20110201
Docket: IMM-3470-10
Citation: 2011 FC 111
Ottawa, Ontario, February 1, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ESTARDAI BEHARRY
JONATHAN NEVILLE BEHARRY
MOHANI BUDHAN
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Estardai
Beharry and her two children filed an application for a Pre-removal Risk
Assessment in which they asserted that they would be at risk if they returned
to Guyana. Their refugee claim
had previously been rejected on the basis that adequate state protection was
available for the family in Guyana. The Board did, however, accept that the family had been
subjected to a brutal home invasion, during which Ms. Beharry was physically
and sexually assaulted.
[2]
The
PRRA Officer concluded that there was insufficient evidence to show that
adequate state protection would not be provided to the family, if required. For
the reasons that follow, I find that this decision was unreasonable.
The Availability of State Protection
[3]
The
applicants submit that the evidence of increasing levels of violent crime
demonstrated that the situation in Guyana had deteriorated since the time of their
refugee decision to the extent that the Board’s state protection finding should
have been revisited.
[4]
A
PRRA application by failed refugee claimants is not to be an appeal or
reconsideration of the Board’s decision to reject the claim for refugee
protection: see Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007]
F.C.J. No. 1632, at para. 12. That said, a PRRA Officer may properly have
regard to evidence regarding the current state of affairs in the country of
removal: Raza, at para. 13.
[5]
The
decision in the applicants’ refugee case was rendered in 2005. The evidence
before the PRRA Officer indicated that the rate of violent crime in Guyana has continued to
increase since then. For example, in just one year, there had been a 9%
increase in overall crime in Guyana, and a 21% increase in armed robberies.
[6]
The
PRRA Officer noted that the applicants feared criminality and violence in Guyana. The Officer reviewed
current evidence as to the Guyanese security situation, and found that the
applicants had provided insufficient persuasive evidence to rebut the
presumption of state protection.
[7]
The
evidence cited by the PRRA Officer to support this finding stated that:
- Violent crime is a major problem in Guyana, and the crime rate is increasing;
- The Guyana Police Force lacks resources
to effectively combat serious crime;
- Poor training and equipment and acute
budgetary constraints severely limited the effectiveness of the Guyana Police
Force, which is responsible for maintaining internal security;
- Public confidence in the Guyana Police
Force is low;
- The Police Complaints Authority’s
efforts to conduct impartial and transparent assessments of accusations against
the police were obstructed by staff shortages and the lack of an investigative
unit;
- “Racial polarization” has eroded law
enforcement in Guyana and many Indo-Guyanese complain that
they are victimized by the predominantly Afro-Guyanese police;
- The judicial system in Guyana is independent, but is impeded by staffing shortages and
lack of funding;
- Although government spending aimed at
combating crime had increased, little progress had been made on the key
provisions of the multi-year Security Sector Reform plan;
- Guyana lacks a coherent and prioritized
national security strategy, and by 2009, the government had not adequately
implemented proposed security reforms.
[8]
From
this, the Officer concluded that the government of Guyana had “made efforts” to
address crime in Guyana.
[9]
It
is apparent from the decision that the Officer focused on the efforts made by
the government of Guyana to combat crime, and did not properly assess whether
those efforts have actually translated into adequate state protection: see Carillo
v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399.
[10]
Moreover,
the evidence relied upon by the Officer simply does not support a finding that
state protection in Guyana is adequate. Indeed, it
leads to the opposite conclusion. As a result the Officer’s finding that
adequate state protection would be available to the applicants in Guyana was not reasonable.
[11]
In
light of my conclusion on this issue, it is not necessary to address the other
issues raised by the applicants.
Conclusion
[12]
For
these reasons, the application for judicial review is allowed.
Certification
[13]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different PRRA Officer for re-determination; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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