Date: 20110627
Docket: IMM-6234-10
Citation: 2011 FC 774
Ottawa, Ontario, June 27,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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BABURAM SINGH
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Applicant
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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 a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated October 1,
2010, wherein the Applicant was determined to be neither a Convention refugee
nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Board found that the
Applicant failed to rebut the presumption of state protection.
[2]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Baburam Singh, is a citizen of Guyana. He worked
as a repair technician with the Guyanese Coast Guard.
[4]
On
September 19, 2008 the Applicant was working on a Coast Guard vessel when it
intercepted another vessel. The Coast Guard personnel boarded the vessel and
conducted a search. A large amount of cocaine was found on board. In the
course of the search, the men on board the boat threatened the Applicant and
the other Coast Guard personnel, saying they would be “finished”. The six men
on board the boat were arrested and taken, along with their boat, to the Coast
Guard base. The police then took the men into custody.
[5]
Approximately
two weeks later, the Applicant recognized some of the individuals from the
intercepted boat hanging around in a parked vehicle outside the coastguard
base. The Applicant claims they mimicked shooting a gun at him.
[6]
Soon
after, the Applicant claims to have received threatening phone calls at his
home. The caller wanted to know where the seized drugs were being stored. The
Applicant was threatened with death if he refused to cooperate. He claims to
have received ten similar phone calls between October and November 2008, each
time telling the caller that as a repair technician he had no knowledge of the
seized drugs.
[7]
The
Applicant allegedly made complaints to both the Commanding Officer of the Coast
Guard, and the police in Georgetown when he realized that
his life was in danger – the night he received the second phone call. Although
the police took a report and said they would look into the matter, to the best
of the Applicant’s knowledge, no action was ever taken on his behalf.
[8]
The
Applicant came to Canada in November 2008 to attend the funeral of his
younger brother. He entered on a visitor visa. After sharing his fears with
his relatives, he was advised to seek refugee protection. He did on December
12, 2008.
B. Impugned
Decision
[9]
The
Board found that the Applicant failed to take all reasonable steps under the
circumstances to seek state protection in Guyana. He only
approached the authorities on one occasion prior to seeking international
protection in Canada. The
Applicant did not know if his complaint was investigated, or the results of any
investigation that was conducted because he did not follow up. The Applicant
did not know if his alleged persecutors were prosecuted or incarcerated,
because he did not inquire.
[10]
The
Board found that the Coast Guard and police in Guyana were working
effectively on September 19, 2008 when they intercepted the vessel, found a
substantial quantity of illicit drugs, and apprehended and arrested the
suspects on board the vessel. The Board was of the view that these actions suggested
that state protection would be available for the claimant, as no persuasive
evidence was adduced to indicate that state protection would not be
forthcoming.
[11]
The
Board concluded that the Applicant’s own actions, namely his failure to
follow-up, may have thwarted the attempts of the police to properly investigate
the Applicant’s allegations.
II. Issues
[12]
The
Applicant raises the following issues:
(a) Did the Board err by conducting a
state protection analysis without first assessing the Applicant’s credibility?
(b) Was the Board’s state protection
finding unreasonable?
III. Standard of Review
[13]
The
Board’s conclusion regarding the application of the test for state protection
and the weight attributed to evidence in coming to that conclusion are issues
of mixed fact and law and are reviewable on a standard of reasonableness
(see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339; Barajas v Canada (Minister of Citizenship and Immigration),
2010 FC 21 (QL) at para 21 and Sanchez v Canada (Minister of Citizenship and
Immigration), 2008 FC 696, 170 ACWS (3d) 168 at para 11).
[14]
As
set out in Dunsmuir, above, reasonableness requires a consideration of
the existence of justification, transparency, and intelligibility within 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.
IV. Argument and Analysis
A. Did the Board Err
by Conducting a State Protection Analysis without First Assessing the
Applicant’s Credibility?
[15]
The
Board’s decision contains no express credibility finding. The Applicant
submits that absent a determination of the plausibility and credibility of the
Applicant’s narrative, the Board is unable to properly engage with the factual
context that informs the state protection analysis. The Applicant relies on
recent decisions of this Court dealing with this identical situation: Flores
v Canada (Minister of Citizenship and Immigration), 2010 FC 503; Jimenez
v Canada (Minister of Citizenship and Immigration), 2010 FC 727; Moreno
v Canada (Minister of Citizenship and Immigration), 2010 FC 993, 92 Imm LR
(3d) 119; Pikulin v Canada (Minister of Citizenship and Immigration),
2010 FC 979, 92 Imm LR (3d) 133.
[16]
The
Respondent submits that although it might be preferable for the Board to first assess
the credibility of the claim, the absence of such a finding does not
automatically result in a reviewable error. The Respondent respectfully
submits that the Court’s interpretation of the test for persecution in Jimenez,
above, is not in accordance with the appellate jurisdiction, and urges the
Court to adopt the interpretation outlined by the Supreme Court in Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1, and the
Federal Court of Appeal in Rajudeen v Canada (Minister of Employment and
Immigration), 55 NR 129, [1984] FCJ No 601 (QL).
[17]
I
agree with the Applicant and the Respondent that it certainly would have been
preferable for the Board to have assessed the Applicant’s subjective fear
before analyzing the objective component. However, this failure alone does not
raise a reviewable error. Despite the Respondent’s submission, I largely
accept the Court’s reasoning and subsequent decision in Flores, above, but
find that it is distinguishable from the present matter on the facts. As I
read the decision, the Board’s error in Flores, above, was to have
conducted a state protection analysis in factual vacuum without regard to the
applicant’s personal circumstances or the particular factual context of the
claim. The same cannot be said for the instant case.
[18]
As
the Applicant submits, there is no credibility finding readily apparent in the
Board’s decision. Implicit, however, in the state protection analysis is an
acceptance of the truth of the Applicant’s account. The problematic element in
the series of cases cited by the Applicant, is a “veiled credibility finding” that
coloured the board’s analysis of the willingness and ability of the state to
protect. Despite making no explicit pronouncement either accepting or
rejecting the claimants’ accounts of their dealings with state authorities, the
board, in those cases, preferred the documentary evidence over the testimony of
the applicants to conclude that adequate and willing state protection existed.
[19]
For
instance, in Flores, above, the Board came to the conclusion that Mexico was willing
and able to protect the applicant, despite the applicant’s own testimony that
protection had not been forthcoming on any of the occasions that he had
approached authorities. The claimant in Flores, above, testified
that: he approached the police in Guadalajara but they refused to take his
statement; he was accosted by members of the judicial police who ordered him to
keep quiet about his father and his illegal activities; his mother tried to
retain a lawyer to take his case, but they all refused for fear of retaliation and
recommended that he flee Mexico; and finally, that in his case, the police
themselves acted as the agent of persecution. Despite all of this, the board
found that the applicant had not rebutted the presumption of state protection
because the documentary evidence showed that he could have made an application
to a human rights commission in Mexico or used a telephone
line made available for reporting corruption in the public service. In short,
the applicant adduced evidence of the state’s unwillingness to protect, and the
board conducted its state protection analysis without considering the importance
of that evidence, if it were taken to be true.
[20]
Justice
Robert Mainville nicely summed up the incoherence of the board’s approach at
para 47, before finding that the decision was unreasonable:
[47] In this case, the absence of an
analysis of the applicant's subjective fear by the panel leads to the
conclusion that a person severely beaten by the police and pursued by a major
drug trafficker (also involved in human trafficking) who is acting in collusion
with the police in several cities in Mexico would still enjoy state protection
by reporting the corruption via a telephone line set up for that purpose or by
filing a complaint with a human rights commission.
[21]
As
Justice Mainville made clear in Flores, above, each case is sui
generis, and an analysis of the individual case must be carried out before
the board can conclude that the presumption of state protection has not been
rebutted (para 38).
[22]
In
the present matter, the Board found that the Applicant failed to rebut the
presumption of state protection, because, as per the test in Carillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, 69 Imm LR
(3d) 309, he failed to adduce any probative evidence that could convince the
Board, on a balance of probabilities, that state protection was neither
adequate nor forthcoming. I am satisfied that the Board did in fact conduct
the state protection analysis while accepting that the Applicant’s allegations were
true. There was no disguised credibility finding, and the Board engaged with
the factual matrix presented by the Applicant’s testimony.
[23]
Although
part of the Board’s reasons feel boiler-plate in their thorough review of state
protection jurisprudence and a run-through of the country condition evidence,
the Board spent considerable time reviewing the testimony the Applicant gave
regarding his efforts to seek state protection. The Applicant reported the
threatening phone calls to the police once. At para 16 of the decision the
Board wrote:
When asked if the police investigated his
allegations, the claimant said not as far as he knew. When asked how he knew
that, the claimant said because he still received threatening phone calls after
he filed the report. When asked if he ever followed up with the police
regarding his allegations, the claimant said that he did not. When asked why
he did not follow up, the claimant stated that since he had made his report, he
thought that the police would do their job.
[24]
The
Board then concluded at para 17:
I find that the claimant did not take all
the reasonable steps under the circumstances to seek state protection in Guyana before seeking international
protection in Canada. The claimant approached the
authorities in Guyana on one occasion. He does not
know if the police investigated his allegations, or the results of an
investigation, if one was conducted, because he did not follow up with the
police. The claimant does not know if the six suspects arrested on September 19,
2008 were ever prosecuted for the crimes they allegedly committed that day.
The claimant did not inquire about the state of those apprehended from the
police or the coastguard. He did not check media reports regarding the
incident. The claimant does not know if those he believes were pursuing him
are incarcerated or not.
[25]
The
Board reviewed the documentary evidence and found that the preponderance of the
objective evidence regarding current country conditions suggested that although
not perfect, adequate state protection was available in Guyana. The
Applicant failed to rebut this presumption, not because he presented a dubious
tale, but, because, by his own admission, the thought that the police would do
their job, and he left for Canada before that belief could be borne out.
[26]
Given
the specific facts of this case, the failure of the Board to explicitly address
the Applicant’s credibility does not amount to a reviewable error.
B. Was
the Board’s State Protection Finding Unreasonable?
[27]
The
Applicant submits that if the absence of a credibility finding is not alone a
fatal flaw, the Board’s conclusion regarding state protection is nonetheless
unreasonable. This is based on the Applicant’s contention that the Board
discussed country condition documents with marginal relevance to the drug trade
but ignored documentary evidence dealing specifically with the issue of the
drug trade and the authorities’ inability to respond.
[28]
The
Respondent takes the position that the Board thoroughly canvassed the nature of
the Applicant’s claim of risk and reviewed the documentary evidence on country
conditions in its detailed reasons before concluding that the Applicant failed
to rebut the presumption of state protection. Thus, no reviewable error
exists.
[29]
The
Applicant specifically identified his agents of persecution as Afro-Guyanese
drug traffickers. The question I must answer is whether the Board, in
conducting the state protection analysis, failed to appreciate documentary
evidence suggesting that the authorities are unable to offer protection to the
victims of drug traffickers. The Applicant relies on Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, 83 ACWS (3d) 264. In that
case, the Court held that the Board must explain why it gives no weight to
documentary evidence that supports the claimant’s account but contradicts the
Board’s own conclusion. Here, however, the issue is not that the Applicant
adduced evidence that the state was unwilling to protect victims of
drug-traffickers which was then silently dismissed by the Board. Rather, the
Applicant failed to provide any convincing evidence demonstrating that
protection was neither forthcoming, nor adequate.
[30]
The
Applicant specifically cites three documents contained in the Board’s own
national documentation package. The United States February 2009
Department of State International Narcotics Strategy Report noted:
Government counternarcotics
efforts remain hampered by inadequate resources for, and poor coordination
among law enforcement agencies, an overburdened and inefficient judiciary; and
the lack of a coherent and prioritized national security strategy. Murders,
kidnappings and other violent crimes commonly believed to be linked with
narcotics trafficking are regularly reported in the Guyanese media…UGS analysts
believe drug trafficking organizations in Guyana continue to elude law enforcement
agencies through bribes and coercion.
[31]
The
United States March 2010 Department of State Guyana Country Report similarly
found that resource constraints limited the effectiveness of the Guyanese
Police Force and that public confidence in the police remained low due to
corruption. Lastly, the Applicant points to a document entitled, “Criminal
Violence and State Response, touching on aspects of the police force, drug
trafficking and related criminal activities”. This article describes a
“phantom death squad” that is alleged to have killed hundreds of people in Guyana and has been
linked to the drug trafficker Shaheed Roger Khan.
[32]
None
the of these documents detail anything other than what is already contained in
the Board’s quite extensive review of the documentary evidence. Corruption,
inefficiency and bribery remain real concerns in Guyana. The Board
acknowledged as much at para 21 of the decision. The Board explicitly
discussed two articles submitted by the Applicant’s counsel. Although those
articles did not deal squarely with drug trafficking, the concerns they brought
to the front of the Board’s mind are the same as those emphasized by the documents
submitted by counsel on this application for judicial review. Evidence of
corruption and inefficiency seem to be the same when dealing with drug
trafficking specifically and criminality generally. The documentary evidence
equally illustrates measures implemented by the state to address these issues.
This Court is not to put itself in the Board’s shoes and perform a reweighing
of the evidence to produce a more preferable outcome for the Applicant.
[33]
Furthermore,
the documents cited by the Applicant lack the specificity required to warrant
interfering with the Board’s decision. They do not directly counter the
Board’s conclusion that, “Guyana is in effective control of its territory
and has in place a functioning Security force to uphold the laws and constitution
of the country,” nor do they unequivocally support the Applicant’s own account.
[34]
The
Applicant has failed to disclose a reviewable error. The Board’s conclusion is
reasonable and should not be disturbed.
V. Conclusion
[35]
No
question was proposed for certification and none arises.
[36]
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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