Date: 20070608
Docket: IMM-3368-06
Citation: 2007 FC 612
OTTAWA, Ontario, June 8, 2007
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
SHIVANAND KUMAR KATWARU
BY HIS LITIGATION GUARDIAN
HARRY PERSAUD KATWARU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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 June 1, 2006,
wherein the Board held that the applicant was not a Convention refugee or a
person in need of protection.
[2]
Shivanand
Kumar Katwaru, the applicant, is a citizen of Guyana. At the time
of the hearing before the Board, he was 17 years old and thus a minor. He
alleges to have a well-founded fear of persecution in Guyana based on his
race, political opinion and membership in a particular group. The applicant is
Indo-Guyanese and his agent of persecution is an Afro-Guyanese school yard
bully. When the applicant was 7 or 8 years old, he was repeatedly harassed by
this bully who took lunch money from the children at his school. On one
occasion when the bully demanded money from the applicant he resisted and the
bully poked him in the eye with a pencil which resulted in the permanent loss of
vision in one of his eyes. The applicant’s mother reported the attack to the
police.
[3]
In
1997, the applicant travelled to Canada with his mother for the
purpose of having his damaged eye treated. He returned to Canada again in
2002 for further medical treatment. He claims that before this trip to Canada the bully
threatened him again and said he would kill the applicant. He has not returned
to Guyana since 2002.
In January 2006, the applicant’s grandfather made a refugee claim on his
behalf.
THE BOARD’S DECISION
[4]
The
Board held that the applicant was not a Convention refugee because he did not
have a nexus to any of the Convention refugee grounds. The Board held that
there was no evidence to substantiate links to membership to a particular
social group or to the applicant’s political opinion. It noted that the
jurisprudence has established that persons of wealth who are victims of crime
do not constitute a particular social group. With respect to race, the Board
held that there was no reliable information to suggest that the applicant was
targeted by the bully because he was Indo-Guyanese. The Board concluded that
the bully harassed the applicant simply because he had lunch money.
[5]
The
Board went on to consider protection under section 97 of the Immigration and
Refugee Protection Act, S.C. 2000, ch. 27, (the Act). The Board found that
neither the applicant nor his family made a diligent effort to seek the
protection of the state in 1996 after the incident resulting in the loss of the
applicant’s eye or in 2001 after the applicant was allegedly threatened by the
bully again.
[6]
The
Board further noted the applicant’s testimony to the effect that the police in Guyana are
ineffective but held that his comments were vague, speculative and inconsistent
with what objective agencies that observe conditions in Guyana indicate.
It decided to assign greater probative value to the documentary evidence then
to the applicant’s evidence. The Board noted that there have been allegations
of police corruption but concluded that this was attributable to a rogue
element in the police force and that police deficiencies are not generalized
and concluded that effective state protection is available in Guyana.
ISSUES
[7]
This
case raises two issues:
- Did the Board err
in determining that there was no nexus?
- Did the Board err
in determining that effective state protection was available?
ANALYSIS
Nexus to a Convention
refugee ground
[8]
In La Hoz v. Canada (Minister of Citizenship and Immigration), 2005 FC
762, Mr. Justice Blanchard did a pragmatic and functional analysis and
concluded that the standard of review applicable to determinations as to
whether there is a nexus between a refugee claimant’s claim and one of the five
grounds for persecution is that of reasonableness simpliciter.
[9]
The
applicant claims that he fears persecution based on his race, his political
opinion and his membership in a particular social group. In his written
submissions, the applicant did not challenge the Board’s finding about the lack
of connection between the applicant’s claim and the nexus grounds of political
opinion and membership in a particular social group but did challenge the
Board’s finding in the applicant’s oral argument.
[10]
With
respect to race, the Board noted that the applicant is Indo-Guyanese and the bully
was Afro-Guyanese but held that there was no reliable and persuasive
information to suggest that this is the reason the bully targeted the
applicant. The applicant submits that there was evidence before the Board,
specifically the testimonial evidence from the applicant that Afro-Guyanese
target Indo-Guyanese and the documentary evidence suggesting that there is a
link between race and crime in that the Indo-Guyanese are disproportionately
targeted for violence by the Afro-Guyanese criminals.
[11]
The
documentary evidence before the Board indicates that there is hostility between
the Afro-Guyanese and Indo-Guyanese communities but there is no clear evidence
that crime is racially motivated in Guyana. The issue paper
entitled Guyana: Criminal Violence and Police Response (February 2002-
June 2003) discusses at length whether Indo-Guyanese citizens were being
disproportionately affected by criminality and concludes that the opinions are
divided about whether Indo-Guyanese are disproportionately victimized (Applicant’s
record, pp. 124-127)). The Board was entitled to give more weight to the
documentary evidence than to the applicant’s testimony and having done so it
was not unreasonable for the Board to conclude that there was no nexus.
[12]
The
applicant further submits that the Board failed to consider whether the motive
for the attack could be mixed, i.e. criminally motivated and racially
motivated. He submits that it is an error in law to fail to do so. The
respondent submits that the cases relied on by the applicant do not assist the
applicant because he did not provide sufficient reliable evidence to establish
that the motives of the persecutor were mixed and/or that crime in Guyana is racially
motivated. I agree with the respondent that the Board reasonably concluded that
the attack on the applicant was not racially motivated. Since the Board
concluded there was no evidence that the applicant’s persecutor was
racially-motivated there was no basis on which to make a determination that
there were mixed motives.
Availability of state
protection
[13]
The
applicable standard of review to the issue of state protection is
reasonableness simpliciter (Chaves v. M.C.I., 2005 CF 193, Ndikumana
v. M.C.I., 2006 FC 1056, Setyanto v. M.C.I., 2006 FC 1416).
[14]
It
is presumed that the state is capable of protecting a claimant. This
presumption can be rebutted if the claimant presents some clear and convincing
evidence of the state’s inability to protect the claimant (Ward v. Canada
(Attorney General), [1993] 2 S.C.R. 689). In the present case,
the Board considered whether the documentary evidence indicates whether
effective state protection is available in Guyana. It also
considered whether the claimant had attempted to avail himself of state
protection. I am satisfied that the Board erred in both parts of its analysis.
[15]
With
respect to whether the applicant attempted to avail himself of state protection
the Board held that because the claimant was a minor at the time when he was
attacked and remained a minor until he left the country in 2002, it could not
expect the applicant to have availed himself of the protection of the state.
Despite this statement, the Board clearly drew a negative inference from its
conclusion that the applicant failed to avail himself of state protection. For instance,
the Board stated that “the claimant failed in diligently availing himself of
protection in his country of origin” and “the claimant provided no
documentation to corroborate his visit to the hospital or the allegation that
his mother reported the injury to the police.” The Board dismissed the
applicant’s testimony to the effect that he went to the police as “allegations”
without making a negative credibility finding. It is true that the burden to
rebut the presumption of state protection is the applicant’s; however, this
does not change the fundamental principle of refugee law that a claimant is
presumed to tell the truth. Without making a negative credibility
determination, the Board could not disregard the applicant’s testimony that he
sought state protection by going to the police. In so doing, the Board
effectively removed from the applicant his chance to rebut the presumption of
state protection.
[16]
The
applicant submits that the Board interpreted the documentary evidence in an
unreasonable manner in concluding that there was effective state protection in Guyana. The
applicant submits that the evidence before the Board was clear that the state
is unwilling to protect its citizens, particularly those who are Indo-Guyanese.
He notes that the document Guyana: Criminal Violence and Police Response
indicates that police response is slow and unprofessional and that police are
known to be corrupt. It also noted that once a criminal report is filed with
the police, there is very little action taken by the police to investigate a
crime and that when an Indo-Guyanese citizen reports an offence to the police,
for the most part, these complaints are rarely investigated. It also indicated
that the anti-crime measures so far implemented have been ineffective, inappropriate
or insufficient to cope with the situation.
[17]
This
same document states that the Guyanese Indian Heritage Association could not
provide evidence that police response discriminated against persons of East
Indian heritage. It also quotes a dean and professor of social sciences at the
University of Guyana as stating that the Guyana Police Force is mandated to
respond to all complaints of victimization, regardless of race, religion, or
political preferences of the complainant, and claimed that no evidence exists
to support the argument that police response discriminates against
Indo-Guyanese citizens. Consequently, I find that based on this evidence, it is
not unreasonable to conclude that the police do not discriminate against
Indo-Guyanese.
[18]
A
determination that the police do not discriminate against Indo-Guyanese
citizens is not evidence of effective state protection. In my view, the Board’s
conclusion that effective state protection is available was made without regard
to the evidence before it. The Board held that “based on the documentary
evidence, that there is an effective security force in place and that police
deficiencies, although existing, are not generalized”. The Board did not
include a reference for this determination. Having reviewed the documentary
evidence, I can find no support for this conclusion.
[19]
The
documentary evidence indicates that the effectiveness of the Guyana Police
Force is “severely limited” due to poor training, poor equipment, chronic
understaffing, lack of resources, and acute budgetary constraints (Department
of State report for 2005 and Request to Information GUY100762.E).
It also indicates that there are other factors affecting police effectiveness
including the populace's lack of trust in the police, racial polarization by
officers and the general unprofessional conduct of the police (Request to
Information GUY100762.E). In sum, it indicates that the deficiencies with the
police are chronic and, as a consequence, the effectiveness of state protection
is seriously compromised.
[20]
The
Board held that Guyana is making serious efforts to address the
problem of crime. The documentary evidence indicated more money has been
allocated to improve the police; however, there is no evidence indicating
whether this has improved the availability of effective state protection.
[21]
The
Board also relied on Kadenko v. Minister of Citizenship and Immigration,
[1996] F.C.J. No. 1376 (QL), for the proposition that the burden for a
claimant to prove an absence of state protection is directly proportional to
the level of democracy of the state. Democracy alone does not guarantee
effective state protection; it is merely an indicator of the likely effectiveness
of a state institution. In the present case, the evidence indicates that the
Guyana Police Force is a very weak institution that is having real difficulties
responding to the high levels of violent crime that exist in the Country as a
whole. The Board is required to do more then determine whether a country has a
democratic political system and must assess the quality of the institutions
that provide state protection.
[22]
It
is not for this Court to decide whether effective state protection is available
in Guyana but rather
to review the Board’s decision to determine whether it was reasonable. Upon reviewing
the evidence that was before the Board, I find that its reasons with respect to
the availability of state protection were made without regard to the evidence
before it and that they cannot withstand a somewhat probing examination.
JUDGMENT
For the above-stated reasons,
this application for judicial review is allowed and the matter is hereby
remitted for re-determination under section 97 of the Act by a new
Board. Neither party proposed a question for certification.
"Max M. Teitelbaum"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3368-06
STYLE OF CAUSE: SHIVANAND KUMAR KATWARU ET AL
-and-
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, Ontario
DATE OF HEARING: June 6, 2007
REASONS FOR JUDGMENT: Teitelbaum D.J.
DATED: June 8, 2007
APPEARANCES:
Krassina
Kostadinov FOR APPLICANT
Brad Gotkin FOR
RESPONDENT
SOLICITORS OF RECORD:
Waldman
& Associates
Toronto,
Ontario FOR
APPLICANT
John
H. Sims, Q.C.
Deputy
Attorney General of Canada FOR
RESPONDENT
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