Date: 20110901
Docket: IMM-975-11
Citation: 2011 FC 1042
Ottawa, Ontario,
September 1, 2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
PETER DOERKSEN BUECKERT
DUSTIN CALEB BUECKERT
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
minor Applicant, Dustin Bueckert, is a seven-year-old citizen of Belize who was
physically and emotionally abused by his mother from the time he was
approximately one year old until his paternal aunt assumed custody of him at
the age of four. There is also evidence that his mother sexually abused him.
[2]
The
other Applicant, Peter Bueckert, is Dustin’s father. He is a citizen of both Belize and Mexico.
[3]
The
Applicants submit that the Refugee Protection Division of the Immigration and
Refugee Board of Canada erred in rejecting their claims for refugee protection,
by failing to sufficiently address their particular vulnerabilities and
evidence before concluding that they will likely be able to avail themselves of
adequate state protection should they return to Belize.
[4]
For
the reasons set forth below, Dustin’s application for judicial review of the
Board’s decision is granted and Peter’s is rejected.
I. Background
[5]
Peter
and his wife Aganetha moved to Canada in May 2007. They moved in part because Peter
obtained a Canadian work visa. They also hoped to find professional help to
assist Aganetha with her anger and to distance themselves from Aganetha’s very
controlling mother.
[6]
When
Aganetha’s abuse of Dustin continued, Dustin was placed in the care of his paternal
aunt, Helena Bueckert, and her husband Johan in November 2007.
[7]
Helena
and Johan became Dustin’s legal guardians in November 2008. Shortly thereafter,
when it became apparent that Peter and Aganetha likely would have to return to Belize, Peter
decided to leave Dustin in Helena and Johan’s care.
[8]
Aganetha
was furious with the decision to leave Dustin behind in Canada. When she
informed her parents that Peter was insisting upon returning without Dustin,
they also became enraged and directed her not to return to Belize without
Dustin. Her brother Bernhard then told Peter that if he returned without Dustin
“something else would happen.” Aganetha also threatened Peter that, if Dustin
did not return with them, “her brothers and other men would tie [him] down and
whip [him].”
[9]
In
February 2009, after Peter’s Canadian work visa expired and his renewal
application was denied, he and Aganetha returned to Belize.
[10]
Two
days later, Peter returned to Canada and claimed refugee protection after
learning that one or more members of Aganetha’s family was planning to kill or
seriously harm him.
II. The Decision under
Review
[11]
After
reviewing the background facts, the Board stated its view that Peter and Helena
had both given “reliable and trustworthy evidence” and were credible. It proceeded
to “accept the allegations in this case as factual; that [Peter’s]
brothers-in-law have threatened to kill [him] and that Dustin suffered abuse at
the hands of his mother.”
[12]
However,
after noting, among other things, that Peter had never tested the effectiveness
of state protection in Belize, either by reporting the threats allegedly made
by his brothers-in-law or by reporting his wife’s abuse of Dustin, the Board
ultimately concluded that there is adequate state protection in Belize.
[13]
The
Board therefore rejected the claims of both Peter and Dustin under sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA).
III. Standard
of Review
[14]
The
issues that the Applicants have raised with respect to the Board’s assessment
of the adequacy of state protection are questions of mixed fact and law that are
reviewable on a standard of reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, at paras 51-55).
IV. Analysis
A.Did
the Board err by failing to assess Dustin’s particular vulnerabilities and
evidence?
[15]
The
Applicants submitted that the Board erred by failing to consider and assess
Dustin’s particular vulnerabilities as an abused child as well as certain
evidence that supported his claim that he: (i) is likely to suffer future abuse
at the hands of his mother if he returns to Belize; and (ii) is unlikely to be
able to avail himself of adequate state protection, if that occurs.
[16]
I
agree.
[17]
Early
on in its decision, the Board recognized that, in considering a child’s claim
for refugee protection under the IRPA, the child’s “special vulnerabilities
must be taken into account” (Kim v Canada (Minister of
Citizenship and Immigration), 2010 FC 149, at paras 58-61). However,
the Board proceeded to virtually ignore Dustin’s particular vulnerabilities and
other important evidence that supported his claimed likelihood of harm at the
hands of his mother should he return to Belize.
[18]
In
concluding that Dustin likely would be afforded adequate state protection in Belize, the Board
appeared to place significant weight on the fact that he and his father had
never tested state protection in Belize. However, this finding
completely ignored the fact that Dustin was never in any position, while he
lived in Belize, to test the
adequacy of state protection. He was only three years old when his parents left
Belize to come to Canada. It is not immediately apparent how anyone that
age could ever personally test the adequacy of state protection.
[19]
The
Board also relied on the following findings in reaching its conclusion with
respect to the adequacy of state protection:
i.
Belize is a
functioning democracy with democratic institutions;
ii. Although
there are reports of inadequate police resources, excessive force and
corruption in Belize, the evidence before the Board did not “warrant a finding
of a wholesale failure of law enforcement,” such as to place in question “the
adequacy of the entire nation state protection mechanisms” or the ability and
willingness of authorities to assist the Applicants;
iii. There are no
reported cases of police impunity. Police have been charged and prosecuted with
crimes, including sexual assault, corruption, violence and other abuse;
iv. Family
violence is prohibited by a law which includes penalties such as imprisonment. The
law also enables the family court to issue protection orders against accused
offenders, and authorities are empowered to remove children from abusive home
environments. In addition, certain government programs have been established
specifically to address children’s issues and to coordinate programs for
children who are victims of domestic violence;
v. Although one
source has reported that approximately 50% of neglect cases are withdrawn or
not prosecuted, another source has reported that victims or their families are
often reluctant to press charges;
vi. Concerns
about lax investigation are insufficient to undermine the presumption of state
protection and do not represent clear and convincing proof of the state’s
inability to protect Dustin and Peter; and
vii. Local
failures to provide effective policing do not amount to a lack of state
protection.
[20]
Based
on the foregoing pro forma analysis, the Board concluded that “there is
state protection in Belize and there is no serious possibility of
persecution or, on balance, a risk of other type of personalized harm if
[Dustin] returned to Belize.”
[21]
In
reaching this conclusion, the Board only gave very limited consideration to
Dustin’s particular circumstances. Specifically, after stating that it was not
persuaded that the police would fail to respond should he require their
protection, the Board observed that “production of the transfer of guardianship
documents showing [the legal guardianship of his aunt and uncle] could resolve
any question of kidnapping [of Dustin by Peter] and do [sic] not
illustrate that the police would fail to protect [him from] … child abuse.”
[22]
The
only other consideration given to Dustin’s particular circumstances was when
the Board recognized that: (i) he falls short in development areas by Canadian
standards; (ii) he may not have access to certain “supports that he requires as
assessed by his psychologists or social workers in Canada;” and (iii) he “will
enjoy a better quality of life in Canada, receive better social support and
will be better loved and cared for here.”
[23]
I
am satisfied that the foregoing analysis fell significantly short of the type
of contextualized analysis that was required in the particular circumstances of
this case.
[24]
In
reaching its conclusion on the determinative issue of state protection, the
Board failed to address the following important evidence:
i.
Documentary
evidence which suggests that “[w]hile the laws [of Belize] ascribed
financial responsibility for the care of the child to the father, they require
the mother to maintain and care for the child.” The Board ought to have
assessed this or other documentation with a view to determining Peter’s
realistic chances for prevailing in a custody dispute with Aganetha’s family,
particularly given the evidence that they have significantly greater financial
resources than him.
ii. Testimonial
evidence that:
a) Blue Creek, the
village where Aganetha and her family live in Belize, is a small,
isolated Mennonite community numbering approximately 700 or 800 people;
b) Blue Creek is
part of a broader Mennonite community in Belize which
numbers approximately 5,000, out of a total national population of
approximately 300,000, and is secluded from the rest of the country;
c) The Mennonite
community in Blue Creek has its own schools, its own stores, its own community
rules and so on;
d) People in
Blue Creek try to live independently from the government as much as they can –
they try to solve their own problems, and their culture is to resist seeking
outside help to deal with their problems;
e) People in
Blue Creek do not trust the police;
f)
It
is very common for children in Blue Creek to be hit with “a stick or a rope or
a belt”;
g) It is also very
common that “if a child was screaming at your neighbour’s house for quite some
time, you wouldn’t do anything”;
h) Peter is only
aware of one occasion in which the Belizean authorities intervened in a case of
child abuse, and that particular occasion involved an especially severe case of
such abuse;
i)
Aganetha
threatened to kill Dustin on a number of occasions – for example, when Peter
returned home from work one day, she yelled “[i]f I had been doing like I felt,
I would have killed Dustin today”;
j)
When
Dustin lived with Aganetha, she would spank him daily for sustained periods of
time, often until he would fall asleep, exhausted from crying;
k) Aganetha’s
family is strongly motivated to regain custody of Dustin because they are
humiliated and their standing in their community has suffered as a result of
the fact that Aganetha no longer has custody over Dustin; and
l)
Aganetha’s
abuse of Dustin while he lived in Canada was such that, during
her visits with him, she was supervised at every moment.
iii. A psychological
report which confirmed that Aganetha:
a) “is lacking
in anger control”;
b) “readily
expresses her anger with little provocation”;
c) has “symptoms
of adjustment disorder, generalized anxiety, specific phobia, and social
anxiety”; and
d) has suicidal tendencies.
iv. Other evidence
which reported that Aganetha is facing a charge of sexual abuse should she
attempt to re-enter Canada.
[25]
Considered
collectively, the foregoing evidence strongly corroborates the fears expressed
by Peter and his sister Helena, Dustin’s guardian, that there is a very real
risk that: (i) if Dustin returns to Belize, his mother will regain complete or
partial custody over him; (ii) if that occurs, she will, at a minimum, likely
resume abusing him physically and emotionally; and (iii) no one in the
Mennonite Community is likely to seek state protection for Dustin. This no
doubt explains why both Peter and Dustin’s legal counsel (who is also counsel
to Peter) begged the Board not to deny Dustin’s claim even if they denied
Peter’s claim.
[26]
Given
the foregoing, the Board should have addressed the above-mentioned evidence in
its decision and explained why it nevertheless concluded that Dustin would not
face a serious possibility of persecution, or, on a balance of probabilities, a
risk of a type of personalized harm contemplated by section 97 of the IRPA if
he returns to Belize (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR
35; Canada (Minister of Citizenship and Immigration) v Ryjkov, 2005 FC
1540; Ahmed v Canada (Minister of Citizenship and Immigration), 2004 FC
1076, at paras 13 to 15; Surajnarain v Canada (Minister of Citizenship and
Immigration), 2008 FC 1165, at paras 6 and 7; Uluk v Canada (Minister of
Citizenship and Immigration), 2009 FC 122, at paras 16 and 32).
[27]
The Board’s failure to address the evidence
summarized in paragraph 24 above constitutes a reviewable error. Accordingly,
its decision in respect of Dustin’s claim will be set aside.
B. Did the Board err by
failing to assess Peter’s particular situation?
[28]
The
Applicants’ written submissions focused almost entirely on Dustin’s claims. They
did not specifically address any particular aspects of Peter’s claims. Indeed,
in his closing submissions at the oral hearing before the Board, their legal
counsel conceded that the basis for Peter’s claim for protection is “not as
obvious” as the basis for Dustin’s claim, in part because there have not yet
been many threats to his physical safety and there is no evidence that the
people who allegedly have made them have ever behaved in a violent manner
before. In addition, he holds Mexican citizenship and does not appear to have offered
significant evidence to demonstrate that he will face a risk contemplated by
sections 96 or 97 of the IRPA if he returns to that country.
[29]
In
contrast to its failure to address the most important evidence adduced to
support Dustin’s claim for refugee protection, the Board did specifically
address the most important evidence adduced to support Peter’s claim. Although
the Board’s treatment of that evidence was far from a model for others to
follow, I am satisfied that its analysis and the conclusions it reached in
respect of Peter’s claims under sections 96 and 97 of the IRPA were not
unreasonable.
[30]
At
the outset of its analysis, the Board stated that it accepted his allegation
that his brothers-in-law have threatened to kill him. The Board then proceeded
to conclude that he had provided little evidence to “illustrate that it would
be objectively unreasonable” for him to have sought out police protection in
Belize before seeking refugee protection in Canada.
[31]
As
noted at paragraph 21 above, the Board also specifically addressed Peter’s
claim that Aganetha’s brothers might attempt to persuade the police in Belize to arrest
him for kidnapping Dustin.
[32]
Peter’s failure to make any
effort whatsoever to obtain state protection, including prior to returning to
Canada to make his claims under the IRPA, was inconsistent with his obligation
to avail himself of domestic state protection before seeking international
protection (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, 103 DLR
(4th) 1, at 724; Santiago v Canada (Minister of Citizenship and
Immigration), 2008 FC 247, at para 23; Sanchez v Canada (Minister of
Citizenship and Immigration), 2008 FC 66, at paras 11 to 13; Sanchez v
Canada (Minister of Citizenship and Immigration), 2008 FC 134, at paras
9-10).
[33]
In
my view, on the particular facts of this case, it was not unreasonable for the
Board to conclude that Peter’s “belief, which is not founded in any personal
experience, that the police would not respond and [his] concern that [his]
in-laws have approached the police about kidnapping charges against [him] [is] not
persuasive.” I am satisfied that this conclusion fell within “the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47).
[34]
Accordingly,
Peter’s application for judicial review of the Board’s decision will be
rejected.
V. Conclusion
[35]
This
application for judicial review is granted in part. The Board’s decision, dated
January 19, 2011, in respect of Dustin’s claims under sections 96 and 97 of the
IRPA will be set aside and remitted to a differently constituted panel of the
Board for redetermination in accordance with these reasons. The Board’s
decision in respect of Peter’s claims for refugee protection will stand.
JUDGMENT
THIS COURT ORDERS AND
ADJUGES THAT:
1.
The
Board’s decision, dated January 19, 2011, in respect of Dustin’s claims under
sections 96 and 97 of the IRPA is set aside and remitted to a differently
constituted panel of the Board for redetermination in accordance with these
reasons.
2.
The
Board’s decision in respect of Peter’s claims for refugee protection will
stand.
3.
No
question of general importance is certified.
“Paul S. Crampton”
___________________________
Judge
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