Date: 20070131
Docket: IMM-1047-06
Citation: 2007 FC 93
Ottawa, Ontario, January 31, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ORLANDO OLIVER JACK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND 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 a
decision of the Refugee Protection Division of the Immigration and Refugee Board
(the Board), dated February 1, 2006, which determined that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant seeks an order setting aside the decision and remitting the matter
for redetermination by a differently constituted panel of the Board.
Background
[3]
The
applicant, Orlando Jack, is a twenty-two year old citizen of St. Vincent and the
Grenadines.
He sought protection in Canada alleging a fear of
persecution as a member of a particular social group, namely, victims perceived
to be homosexual. The applicant explained the circumstances leading to his
claim for protection in the narrative section of his Personal Information Form
(PIF).
[4]
The
applicant was fifteen years old when he left his family home in 1999 to escape
the abuse he was suffering at the hands of his step-father. The applicant
turned to his neighbour, Cardell Johnson, who allowed him to live in his home.
A few months later, Johnson arrived home drunk and raped the applicant. The
applicant stated that he was scared to tell anyone about what happened.
Johnson told the applicant that in exchange for food and shelter, he would have
to submit to his sexual advances. The applicant suffered sexual abuse at the
hands of Johnson for the next two years.
[5]
In
late 2001, the applicant’s neighbours began to suspect that he and Johnson were
engaging in homosexual acts. The applicant was harassed and beaten by the
villagers as a result of his perceived homosexuality. He did not contact the
police because he felt they would ignore him. He claimed to know a local gay
man who had contacted the police after being attacked by the villagers, but had
not received help. The applicant left Johnson’s home in September 2002 to work
in Mustique Island. He eventually saved
enough money to fly to Canada on a six-month visitor’s permit, although he
never intended to return to St. Vincent.
[6]
The
applicant arrived in Canada on December 19, 2002.
He was unaware of Canadian immigration laws relating to the acquisition of status
or of the availability of community legal services. The applicant met Melisa
Caine in February 2004, and the couple had a child in January 2005. He was
advised to seek refugee protection by staff at a community shelter in May 2005.
The applicant filed an application for refugee status later that month. The
refugee hearing took place on January 12, 2006, and by decision dated February
1, 2006, the Board found that the applicant was neither a Convention Refugee
nor a person in need of protection. The applicant’s claim was rejected because
he had not availed himself of state protection. This is the judicial review of
the Board’s decision.
Board’s Reasons
[7]
The
determinative issues identified by the Board were the well-founded nature of
the applicant’s fear and the availability of state protection in St. Vincent. The
Board found that the applicant did not have a well-founded fear of persecution
and was not a person in need of protection. While the applicant may have had a
subjective fear of persecution, an objective analysis of that fear persuaded
the Board that it was not objectively well-founded. Credible documentary
evidence indicated that state protection was available in St. Vincent for victims of
discrimination on the basis of perceived sexual orientation.
[8]
The
Board found that St. Vincent was a functioning democracy and was presumed to
have the ability to protect its citizens. The Board noted that the applicant
claimed to have suffered abuse for being perceived as a homosexual, and
believed that the police would not help him. The applicant did not report any
harassment or beatings to the police. The applicant was thus unable to rebut
the presumption of state protection. The Board noted that the applicant was
unable to explain why Johnson, who was a homosexual, had not been harassed in a
similar fashion.
[9]
The
Board acknowledged that discrimination against homosexuals was a serious
problem in St.
Vincent.
However, documentary evidence showed that St. Vincent had a stable government,
a national police force and an independent judiciary. The Board found that
there ought to be legislative, enforcement, and correctional institutions
within the government to protect victims who are targeted for their perception
as homosexuals. The applicant did not seek state protection and the Board found
it unreasonable for him not to have reported Johnson to the police after he was
raped. The Board found that it was not unreasonable for the applicant to seek
help from the police after being attacked by the villagers. It was thus
unreasonable for him not to have made any efforts to seek state protection and
exhaust all avenues of protection (see Szucs v. Canada (Minister of
Citizenship and Immigration) (2000), 100 A.C.W.S. (3d) 650).
[10]
The
Board found that there was no serious possibility that the claimant would be
harmed because of his perceived sexual orientation if returned to St. Vincent. The Board noted that
the applicant was now a husband and father and would be able to prove to the
villagers that he was not a homosexual. The Board was not convinced that St.
Vincent would not be reasonably forthcoming with serious efforts to protect the
applicant should he return to his home country.
Issues
[11]
The
applicant submitted the following issue for consideration:
Did the Board err in law in finding
that state protection was available to the applicant by ignoring relevant
evidence?
[12]
I
would restate the issue as follows:
Did the Board err in finding that
state protection was available to the applicant?
Applicant’s Submissions
[13]
The
applicant submitted that the question of state protection is one of mixed fact
and law, reviewable on the standard of reasonableness (see Chaves v. Canada (Minister of
Citizenship and Immigration) (2005), 45 Imm.L.R. (3d) 58, 2005 FC 193). It
was submitted that a claimant for refugee protection may establish with clear
and convincing evidence that state protection would not be forthcoming where
there is evidence of similarly situated individuals who were let down by the
state (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,
103 D.L.R. (4th) 1). The applicant testified that he knew of another person who
had been unsuccessful in seeking police protection after being attacked for
being a homosexual. It was submitted that based upon this information, the
applicant decided not to contact the police since they would be of no
assistance to him. The applicant submitted that the Board committed an error of
law in failing to consider evidence of similarly situated individuals who
sought police protection and received none.
[14]
The
applicant submitted that the Board placed an unreasonable burden upon the
applicant. In Franklyn v. Canada (Minister of Citizenship and Immigration) (2005), 142 A.C.W.S.
(3d) 308, 2005 FC 1249, the Court found it unreasonable for the Board to expect
the applicant to seek further state protection after having been rebuffed or
ignored. The applicant submitted that he had provided evidence of a person who
sought state protection but had been ignored by the police.
[15]
The
applicant submitted that the Board erred in failing to consider the particular
circumstances of his case, including his age, gender, cultural upbringing,
societal norms and attitudes towards minors, when assessing the reasonableness
of his failure to seek state protection. The Board stated that in light of the
fact that the applicant was now a husband and father, he could convince the
villagers that he was not homosexual. However, the applicant had testified that
upon his return to St.
Vincent,
he would immediately be recognized. The applicant stated that the villagers
have a long memory and would see his family as a front, thus continuing to
perceive him as a homosexual.
[16]
The
applicant submitted that his explanation of what would take place should he
return to St. Vincent was reasonable, and was based upon his knowledge of his
society’s culture. It was submitted that the Board failed to take into account
the cultural context in St.
Vincent
when assessing the villagers’ reactions to the applicant’s return. The
applicant submitted that absent evidence suggesting otherwise, the Board must
accept the applicant’s reasonable assessment that the villagers would still
perceive him as homosexual. The applicant submitted that actions might be
plausible when considered in the context of his cultural background. It was
submitted that the Board erred in failing to assess the evidence within the
proper context (see Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238,
33 A.C.W.S. (3d) 1270 (F.C.A.)).
[17]
The
applicant submitted that the Board’s analysis of state protection was flawed. The
Board determined that St. Vincent was a democratic country and as such, “ought”
to have legislation to protect persons perceived as homosexuals. The applicant
noted that the Board failed to cite any evidence to support its finding that
there wass legislative protection provided to victimized homosexuals.The Board
acknowledged that intolerance in St. Vincent had resulted in discrimination
against homosexuals and cited one document in support of this finding. However,
the applicant noted that this document included a paragraph which indicated
that there had been numerous occurrences of violence against persons who pursued
homosexual relationships, and in many of the islands, the situation towards
homosexuals had not been addressed by the governments nor any human rights
organizations in the region.
[18]
The
applicant submitted that the documentary evidence showed that there was a lack
of legislation and will on the government’s part to deal with discrimination
against homosexuals. It was submitted that the absence of such legislation in St. Vincent could be an indication
of the inability or unwillingness of the state to protect victimized
homosexuals.
[19]
The
applicant submitted that in deciding the issue of state protection, the Board
must consider whether it is adequate and effective (see Bobrick v. Canada (Minister of
Citizenship and Immigration) (1994), 85 F.T.R. 13, 50 A.C.W.S. (3d) 850). It
was submitted that a relevant consideration is whether there is legislation in
place to protect victims and whether it is applied. The applicant submitted
that the Board did not engage in such an analysis. It was submitted that the
Board erred in law by failing to consider the existence of legislation,
evidence of similarly situated individuals, and evidence of cultural attitudes
toward homosexuals in St. Vincent. In addition, an Amnesty International Report
from 2001 indicated that the defence of sodomy laws by Caribbean governments perpetuated
discrimination and created a climate conducive to violence against homosexuals,
both at the hands of state officials and the community. The applicant submitted
that the Board erred in law in selectively considering documentary evidence and
failing to refer to evidence that was contrary to its finding or supported the
applicant’s claim (see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264).
Respondent’s Submissions
[20]
The
respondent submitted that the availability of state protection was a purely
factual finding (see Fernandopulle v. Canada (Minister of
Citizenship and Immigration) (2005), 253 D.L.R. (4th) 425, 2005 FCA 91). It
was submitted that the standard of proof for rebutting the presumption of state
protection, especially in democratic states, was very onerous (see Ward
above).
[21]
The
respondent submitted that it cannot be inferred from the absence from the
Board’s reasons of any reference to the situation faced by the applicant’s
homosexual friend that this factor was ignored. The Board is presumed to have
considered all of the evidence presented to it unless there is clear evidence
to the contrary. It was submitted that there is no duty upon the Board to
summarize all of the evidence adduced in a hearing (see Hussain v. Canada (Minister of
Citizenship and Immigration) (2004), 133 A.C.W.S. (3d) 519, 2004 FC 1186).
[22]
The
applicant testified that he knew of one gay man who was beaten and whose
complaint to the police was ignored. It was submitted that this isolated
example was insufficient for the purpose of rebutting the presumption of state
protection (see Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3,
(2000) 187 F.T.R. 110). The respondent submitted that there was no concrete
evidence that the gay man’s situation was similar to that of the applicant (see
Sellathurai v. Canada (Minister of
Citizenship and Immigration) (2003), 126 A.C.W.S. (3d) 996, 2003 FC 1235). The
respondent noted that the applicant, unlike the gay man, was not actually gay. The
respondent submitted that the applicant’s testimony regarding the gay man’s
experience was not so compelling as to give rise to an error of law on the
Board’s part. It was submitted that the example served no purpose other than to
show that the level of state protection was not perfect (see Maximenco
v. Canada (Minister of
Citizenship and Immigration) (2004), 130 A.C.W.S. (3d) 358, 2004 FC 504).
[23]
The
respondent submitted that the fact that the applicant was a minor when he lived
in St. Vincent did not automatically render access to state protection beyond
his reach. The respondent submitted that although the public in St. Vincent was homophobic, this
did not mean that a person wrongly accused of being a homosexual could not seek
help from the police when subjected to violence. It was submitted that the
Board appreciated the cultural, attitudinal and societal context of the
problems faced by homosexuals in St. Vincent when assessing state protection.
[24]
The
respondent submitted that the Board’s finding that the applicant’s fear was not
objectively well-founded was made in full recognition of his background and
history in St.
Vincent,
changes in his personal circumstances, and country conditions. Considering the
applicant’s situation as a husband and father, his claim that the villagers
would see his relationship as a front was speculative, and it was open to the
Board to conclude that he did not have good grounds to fear persecution in St.
Vincent. In the alternative, it was submitted that this issue was immaterial
since the determinative issue for the Board was whether adequate state
protection was available in St. Vincent.
[25]
The
respondent submitted that the Board was not under a legal duty to determine
whether state protection was effective in order to make a finding that state
protection was available to citizens of a country (see Zalzali v. Canada
(Minister of Citizenship and Immigration), [1991] 3 F.C. 605, 126 N.R. 126,
(F.C.A.)). The respondent cited Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780,
(1994) 52 A.C.W.S. (3d) 348, wherein Mr. Justice Gibson stated that Bobrik
set too high a standard for state protection. The respondent submitted that a
review of the documentary evidence revealed that the Board’s finding that there
was state protection available to the applicant was reasonable. The respondent
noted that the applicant’s documentary evidence referred to the situation in
the Caribbean generally and did not address St. Vincent specifically. It was
submitted that none of the documentation suggested that there was systematic
violence against persons perceived as homosexual in St. Vincent. Also, the evidence did
not suggest that St. Vincent did not have legislation or law enforcement personnel
to protect gay people. It was submitted that none of the documentary evidence
was so compelling that the failure of the Board to mention it constitute an
error of law (see Maximenco above).
[26]
The
respondent submitted that the fact that certain Caribbean governments had done
little to address the situation faced by homosexuals did not mean that the
government of St.
Vincent
had done nothing to address the issue. It was submitted that the Board’s
statement that there “ought” to be legislation designed to protect victims perceived
as homosexuals was a reference to the legal presumption of state protection
that applies to democratic countries (see Ward above). The respondent
submitted that in light of the applicant’s failure to rebut the presumption of
state protection, it was not unreasonable for the Board to conclude that the
applicant should have approached state authorities first for assistance.
Applicant’s Reply
[27]
The
applicant submitted that the Board must provide clear reasons for accepting
documentary evidence over evidence of the claimant, especially when it was
uncontradicted (see Okyere-Akosah v. Canada (Minister of Employment
and Immigration) (1992), 157 N.R. 387, 33 A.C.W.S. (3d) 119 (F.C.A.)). It
was submitted that the Board considered the documentary evidence selectively
and failed to indicate why it did not accept evidence contrary to its findings.
Analysis and Decision
Standard of Review
[28]
Federal
Court jurisprudence regarding the standard of review applicable to the Board’s
state protection findings is mixed. One line of jurisprudence has held that the
determination is reviewable on a standard of reasonableness, as it involves the
consideration of a question of mixed fact and law (see Chaves above),
while other decisions find that the determination is essentially factual in
nature and that as a result, the applicable standard is patent unreasonableness
(see Loshkariev v. Canada (Minister of Citizenship and Immigration)
(2006), 149 A.C.W.S. (3d) 298, 2006 FC 670).
[29]
In M.P.C.R.
v. Canada (Minister of Citizenship
and Immigration) (2005),
139 A.C.W.S. (3d) 1068, 2005 FC 772, I stated the following at paragraph 42 of
the decision:
The
prevailing view is that while the underlying factual findings are subject to
the standard of patent unreasonableness, the Board's findings on the adequacy
of state protection is a question of mixed fact and law that is reviewed on a
standard of reasonableness simpliciter . . .
It is my opinion that the applicable standard of
review is that of reasonableness, as the question in the case at hand is one of
mixed fact and law.
[30]
Issue
Did the Board err in finding that
state protection was available to the applicant?
The Board’s finding of state protection
was articulated as follows:
I
recognize that discrimination against gays and lesbians is a serious problem in
St. Vincent due to intolerance and ignorance. I also acknowledge that the
documentary evidence shows that St.
Vincent has a stable
government and is in control of its territories. It has a national police force
and an independent judiciary. Accordingly, St. Vincent is governed by the rule
of law. There ought to be legislative, enforcement and correctional
institutions and arms of the different levels of government to protect victims
who are perceived to be homosexuals and targets of hate crimes.
.
. .
[.
. .] I recognize that no government can guarantee the protection of all of its
citizens at all times. What is necessary is that the state be reasonably
forthcoming with serious efforts to protect. Canada’s
protection for the claimant is not necessary. I am not convinced within the
preponderance of probability category, as I must be, that the state of St.
Vincent would not be reasonably forthcoming with serious efforts to protect the
claimant if he were to return to St.
Vincent and approach the
state for protection.
[31]
The
applicant submitted that the Board erred in failing to address evidence of a
similarly situated individual who failed to receive state protection in St.
Vincent. It is well established law that the Board is presumed to have
considered all of the evidence before it, and is not obligated to refer to
everything that was considered in rendering its decision (see Hussain
above).
[32]
However,
pages 724 and 725 of Ward (see above), the Supreme Court of Canada found
that examples of clear and convincing confirmation of a state's inability to
protect might include the claimant’s "testimony of similarly situated
individuals let down by the state protection arrangement or the claimant's
testimony of past personal incidents in which state protection did not
materialize." The applicant stated the following in his PIF narrative
regarding an individual in St. Vincent with whom he found himself similarly situated:
[.
. .] I did not go to the police. I knew that if I told them I was being beaten
on the belief that I was gay, they would ignore me. I had known of a gay man
who had gone to the police to complain about being beaten and was not helped by
the police. [. . .]
[33]
The
applicant also testified as follows during the hearing:
Counsel: Did
you ever go to the police to complain?
Claimant: No,
I never went to the police.
Counsel: Why
not?
Claimant: Because
I have seen what they have done to this guy who was in the same situation as
me.
Counsel: Tell
us about that.
Claimant: Actually
one time he went to the station, the police did nothing. And they were like
having a meeting. And they were all like going around to see like, there was a
(inaudible) in a meeting that everybody can, it was public, so anybody can go. And
the, the guys (inaudible) was beating him up. After he take the name to the
police, when he come around there, they like bust his head with, one bust his
head with a piece of iron, and somebody with a beer bottle.
Counsel: Okay,
so let me just backtrack, because there’s a lot of information there. Who is
this other person that you’ve seen?
Claimant: His
name is Michael.
.
. .
Counsel: Okay.
All right. And this gentleman, Michael, why was he being attacked by people?
Claimant: Because
he’s gay.
Counsel: Was
this something he said himself?
Claimant: Yeah,
yeah, he said it, yeah.
.
. .
Counsel: Now,
you mention that he went to the police.
Claimant: Who,
Michael?
Counsel: Did
Michael go to the police?
Claimant: I
don’t think, no.
Counsel: Okay.
My understanding was you said there were police involved in this?
Claimant: Yeah,
yeah. He did, yeah, he did went to the police station, before the incident
happened. Before they bust his head, he went to the police.
Counsel: Why
did he go to the police station?
Claimant: Because
they always trouble him.
.
. .
Counsel: And
what did the police do?
Claimant: They
didn’t do nothing, because I didn’t see them come. Normally they would come
with their transport, that’s their, police cruiser.
[34]
In Irhuegbae
v. Canada (Minister of
Citizenship and Immigration) (2003), 122 A.C.W.S. (3d) 1099, I determined
the following at paragraph 27 of the decision:
The
applicant provided evidence of similarly situated individuals let down by the
state protection arrangement. He gave evidence that another lecturer was
murdered two nights after the applicant gave his lecture. This lecturer was a
fellow anti-cult activist (tribunal record page 19). The applicant, in his
Personal Information Form ("PIF") stated that a registrar of Delta State University, the applicant's alma mater, told him in
May 1999 that he had been offered police protection against the cultists. A few
weeks later, the registrar was murdered. The Board did not state this evidence
was not credible. As well, the Board found that the applicant had not provided
clear and convincing evidence that the government is unable to protect him. However,
in my opinion, the applicant did provide evidence of similarly situated
individuals let down by state protection (e.g. the registrar at Delta State University who was killed). This evidence was
mentioned in the Board's decision, but it was not addressed in the context of
the state's inability to protect the applicant. As Ward, supra
states, one of the ways to establish the inability of a state to protect a
person is by showing its inability to protect other similarly situated
individuals. Therefore, this constitutes a reviewable error on the part of the
Board.
[35]
I
disagree with the respondent’s position that the applicant was not in a similar
situation as that of Michael, the homosexual individual in his village who was
ignored by the police. The applicant was perceived as homosexual by his fellow
villagers, and has testified that he engaged in homosexual acts with Johnson.
As a result, I am prepared to find that he and Michael were similarly situated
individuals. Both were citizens of St. Vincent who were harassed and beaten by
their fellow villagers for having engaged in homosexual acts.
[36]
The
Board’s reasons state that the applicant failed to provide clear and convincing
evidence that St.
Vincent
was unable or unwilling to protect him. However, the applicant testified at the
hearing that he was aware of a similarly situated individual who had not been
protected by the state. I would also note that there were no adverse
credibility findings made against the applicant. Given the principles set out
above in Ward, it appears that the Board reached an unreasonable
conclusion regarding the availability of state protection to those perceived as
homosexuals in St. Vincent. The Board must at least address the evidence of a
similarly situated individual. The application for judicial review is therefore
allowed.
[37]
The
parties submitted a proposed serious question of general importance for my
consideration for certification, however, because of my disposition of the
case, I will not certify the question.
JUDGMENT
[38]
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 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 are set out in this section.
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.
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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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