Date: 20110321
Docket: IMM-2333-10
Citation: 2011 FC 346
Ottawa, Ontario, March 21, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JAGDESH SOORUJBHAN SINGH
RAMIZA SINGH
HEMWANTIE SINGH
SATROHAN SINGH
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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]
This
is an application for judicial review of the decision of Pre-Removal Risk
Assessment Officer N. Case (the Officer) dated March 4, 2010, wherein the
Applicants’ request for permanent residence from within Canada on humanitarian
and compassionate grounds pursuant to section 25 of the Immigration and
Refugee Protection Act, RS 2001, c 27 [IRPA] was denied.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
Jagdesh
Soorujbhan Singh (the Principal Applicant), Ramiza Singh, Hemwantie Singh and
Satrohan Singh (collectively, the Applicants) are citizens of Guyana. The Applicants left Guyana for Canada in September 2005.
Prior to their departure, the Applicants had been victims of robberies and
assaults in Guyana.
[4]
Upon
arriving in Canada, the Applicants claimed
refugee status. They alleged risk of harm and persecution because of the Principal
Applicant’s membership in the Peoples Progressive Party (PPP), because of
their Indo-Guyanese race, and because of the generally high crime rate in Guyana. The Refugee Protection
Division of the Immigration and Refugee Board (the Board) held a hearing in
February 2006 and denied the Applicants’ refugee claim in March 2006.
[5]
The
Applicants submitted an application for permanent residence from within Canada on humanitarian and
compassionate grounds in April 2006 (the H&C application). The H&C
application alleged the same risks as their refugee claim, and was also based
on their establishment in Canada. The Applicants applied for a Pre-Removal Risk Assessment,
which was denied in March 2010. On March 4, 2010, the H&C application
was refused.
B. Impugned
Decision
[6]
The
Officer concluded that there was insufficient evidence to establish
personalized risk to the Applicants such that their removal to Guyana would constitute an
unusual and undeserved or disproportionate hardship. The Officer further
concluded that the Applicants had failed to demonstrate significant
establishment that would lead to unusual and undeserved or disproportionate
hardship if they were removed to Guyana. The Applicants have not challenged the
Officer’s findings with respect to establishment.
II. Issue
[7]
The
Applicants have raised three issues in their submissions, two of which are
characterized as errors of fact and the third as an error of law. With respect
for their position, all of the issues raised go to whether the Officer’s conclusions
can be supported by the evidence in the record, which is a question of fact. I
suggest that the arguments raised by the Applicants are best considered as one
issue, which is:
(a) Did
the Officer base the decision on an erroneous finding of fact made in a
perverse or capricious manner or without regard for the material in the record?
III. Standard of Review
[8]
The
issue before the Court requires a deferential standard of review because it
deals with the Officer’s findings of fact and weighing of the evidence.
[9]
The
Supreme Court held in Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 46, that
questions of fact are reviewable on a standard of reasonableness. More
generally, the standard of review on H&C applications is also
reasonableness, Kisana v Canada (Minister of Citizenship and Immigration),
2008 FC 307, 2008 CarswellNat 671, aff’d 2009 FCA 189. The parties have cited
several other cases, all of which support a review on the standard of
reasonableness.
[10]
As
set out in Khosa and in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190, reasonableness requires consideration of 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 fact
and law.
IV. Argument
and Analysis
A. The Officer’s Findings
Are Not Perverse, Capricious or Without Regard for the Material in the Record
[11]
The
Applicants argue that the Officer ignored evidence about crime and police
protection, reached a perverse conclusion in finding that the Applicants had
not demonstrated personalized risk, and failed to give due weight to medical
reports. All of these arguments go to the question of whether the Officer’s
conclusions are supported by the factual record in the H&C application, and
so will be dealt with as one issue. The Applicants essentially challenge the
Officer’s treatment of the evidence about crime and policing in Guyana, and of the medical
evidence submitted in their application.
[12]
The
Applicants provided considerable evidence about the high crime rate in Guyana,
mostly in the form of news articles about specific incidents that did not
involve the Applicants; they also submitted a Travel Report about Guyana from the Department of
Foreign Affairs and International Trade and a 2007 report from the United
States Department of State (the USDOS report). These government reports noted
the high crime rate in Guyana.
[13]
In
addition to the generally high crime rate in Guyana, the Applicants claimed to be at risk
because they are Indo-Guyanese. Certain news articles provided by the
Applicants deal with racial tensions in Guyana.
[14]
After
considering the evidence submitted by the Applicants, the Officer found that
they had not provided sufficient evidence that they would be targeted if they
were returned to Guyana. The Officer went on to
state that “While I accept that crime and corruption is [sic] rampant in Guyana
and that the racial tension is existent [sic], the evidence presented does not
satisfy me that the risks alleged by the applicants are personal” (Decision,
Certified Tribunal Record at p 5). The Officer noted that Guyana has a functioning
police force, and that the government is attempting to combat crime and
corruption.
[15]
The
Applicants submit that the Officer ignored evidence about the efficacy of the
Guyanese police force. The Applicants argue that the evidence they submitted,
including the USDOS report, shows that the Guyanese police face a shortage of
resources and are ineffectual and corrupt. The section of the USDOS report
highlighted by the Applicants does not state that the police force is unable to
provide assistance when it is needed. The Officer considered the evidence
submitted by the Applicants and concluded that the Applicants had not
demonstrated a lack of police services that would constitute an unusual and
undeserved or disproportionate hardship. The Officer noted that the Guyanese
government has introduced policies attempting to reduce crime rates, and has
introduced a new Community Policing Ministerial Unit. The Officer also noted
the size and structure of the Guyanese police force, and concluded that police
assistance would be available to the Applicants in Guyana if it was needed.
[16]
The
Applicants challenge the Officer’s finding that police assistance was available
when they were previously the victims of crime in Guyana. The Officer noted that
several police officers attended the scene, created a police report, and began
an investigation. The Applicants argue that the fact of a police investigation
does not demonstrate effective police assistance, however they left Guyana a month after the
crimes occurred and it is unclear whether any progress was made in the
investigation after they left.
[17]
The
Respondent submits that this Court has concluded that the state protection
available to an applicant is not to be assessed on the threshold of “effective
state protection”, a submission which the Applicants dispute in their Reply.
However, the decisions cited by the parties all deal with refugee claimants,
and so are of little use in this application. The availability of police
services in Guyana was but one factor that
the Officer considered along with the evidence of high crime rates before
concluding that the Applicants had not shown that their return to Guyana would cause unusual and
undeserved or disproportionate hardship. The sufficiency of state protection
was not at issue in the H&C application, and the Officer’s decision is
reasonable.
[18]
The
Officer considered the evidence that the Applicants had previously been the
victims of crime in Guyana and concluded that a past incident which the police
investigated was insufficient evidence that the Applicants will be targeted for
further crime if they are returned to Guyana. The Applicants argue that this conclusion is
perverse in light of the Officer’s findings that there is racial tension in Guyana. The Respondent submits
that the evidence in the H&C application suggests racial tensions from both
the Indo-Guyanese and the Afro-Guyanese, and that there was no evidence to
suggest that the past crimes against the Applicants were racially motivated.
[19]
The
Officer’s conclusion that there was insufficient evidence that the Applicants
would be targeted on their return was reasonable. Although there is evidence of
racial tensions in Guyana, the tension does not
appear to be one-sided such that it amounts to the targeting of Indo-Guyanese.
The motivation for the earlier criminal incident against the Applicants is
unclear and, by their own admission, may have been related to the Principal
Applicant’s involvement with the PPP rather than their race; it may also have
resulted from the high crime rate in Guyana. Further, the Applicants submitted only general
evidence of crime in Guyana, and there is no
evidence that the Applicants will be targeted if they return to Guyana.
[20]
The
Applicants also challenge the Officer’s treatment of the medical evidence. They
provided evidence of sexual assaults suffered by Ramiza and Meleniee Singh, the
latter of whom is not a party to this application, and a physical assault
suffered by the Principal Applicant, all of which occurred in Guyana.
[21]
The
Officer noted the medical reports, but declined to consider the report
regarding Meleniee since she was not a party to the H&C application. The
Applicants submit that the Officer’s refusal to consider the report about
Meleniee’s injuries led to the Officer misapprehending the risk that the Applicants
were claiming. The Applicants submit that the medical reports from Guyana indicate that both
Ramiza and Meleniee were raped, and that the failure to consider Meleniee’s
medical report meant that the Officer could not truly appreciate that the risk
was to the entire family. The Officer considered the medical reports regarding
the Principal Applicant and Ramiza, and accepted them as evidence that the
Applicants had been the victims of crime in Guyana. Since Meleniee was not included in the
H&C application, it was reasonable for the Officer not to consider her
medical report.
[22]
Further,
Meleniee’s report did not add any additional information that was not already
before the Officer; the USDOS report indicates that violence against women,
including sexual assault, is common in Guyana, and the Officer considered Ramiza’s medical
report. The Officer’s refusal to consider Meleniee’s medical report does not
render the decision unreasonable. The Officer considered the risk to all the
Applicants and concluded that they had failed to demonstrate that they would be
targeted if they were returned to Guyana.
[23]
The
Officer noted that medical reports were based on information relayed to the
physician and that the physician did not witness the infliction of the
injuries, but did not ultimately dispute that the Principal Applicant and
Ramiza were assaulted. The Applicants submit that the Officer unduly discounted
the medical reports because of the statement that the reports were based on
information relayed to the physician by the Applicants. However, the Officer
did not dispute the Applicants’ claim that they were assaulted in Guyana.
[24]
The
Applicants rely on Gunes v Canada (Minister of Citizenship and Immigration),
2008 FC 664, 168 ACWS (3d) 602 in which this Court set aside a decision on
the basis that the Immigration and Refugee Board unduly discounted expert
medical evidence of torture. Gunes can be distinguished from the present
application because it involved reports from expert witnesses that were
summarily discounted on the basis of a negative credibility finding. In the
present application, the Officer did consider the medical reports. The Officer
did not dispute the injuries suffered by the Applicants, but merely noted that
the cause of those injuries was relayed to the reporting physician and was not
witnessed directly. The Officer ultimately accepted that the Applicants had
been assaulted in Guyana, and there is no reason
to disturb these findings.
[25]
The
Applicants have challenged the Officer’s weighing of their medical evidence and
of the evidence of crime in Guyana, but they have failed to demonstrate grounds for the
Court’s intervention. Although the conditions in Canada are certainly
favourable to those in Guyana, the Officer’s conclusion that the Applicants
would not face unusual and undeserved or disproportionate hardship if they were
returned to Guyana is reasonable. The decision is supported by the material in
the record, and the Applicants have not established a basis for setting it
aside.
V. Conclusion
[26]
No
question was proposed for certification and none arises.
[27]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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