Date: 20080708
Docket: IMM-61-08
Citation: 2008 FC 844
Ottawa, Ontario, July 8, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
STANLEY BERNARD GONSALVES, PAULA
SUSAN GONSALVES,
BRANDON JOSH GONSALVES, TRISTAN MARK
GONSALVES,
TIFFANY
AMANDA GONSALVES, and KRYSTAL MARIE GONSALVES
Applicants
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal applicant, Stanley Gonsalves, his wife, Paula Gonsalves, and their
children Brandon Gonsalves, Tristan Gonsalves, Tiffany Gonsalves, and Krystal
Gonsalves, bring this application for judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated December 10, 2007. In that decision the Board concluded that the
applicants are neither Convention refugees nor persons in need of protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
FACTS
[2]
The
applicant family are citizens of Guyana of Indo-Guyanese descent. They arrived
in Canada in August
2006 alleging a well-founded fear of persecution on the basis of their race and
ethnicity. Specifically, the applicants allege that as Indo-Guyanese
individuals, they have been subject to persecution at the hands of the country’s
majority ethnicity, the Afro-Guyanese.
[3]
The
applicants state that the most serious incident of persecution occurred in May
2006 when the principal applicant was accosted at his auto repair garage by
five Afro-Guyanese individuals who demanded all his money and jewellery. The
principal applicant states that the five men forced themselves into his home,
which is attached to the auto repair garage, and that the men beat him, fondled
his wife, and hit his children. After the principal applicant gave the men jewellery
and between 200,000 and 300,000 Guyana dollars, the thieves bound the
applicants’ hands and feet and threatened the family before leaving and
allegedly firing several shots into the house.
[4]
The
applicants were later set free by neighbours, who told the applicants that they
had called the police. However, the police did not attend to the scene because,
according to the neighbours, they did not have a vehicle. Because the police
were allegedly unable to attend to the scene, the applicants’ neighbours drove
them to the police station, where they filed a police report and were provided
with the necessary documentation to be seen by a doctor. Following the
incident, the police did visit the scene, several persons were questioned about
the robbery, and one individual was arrested and charged one week later. Three
months later, in August 2006, the applicants fled Guyana. The
principal applicant is unaware of whether the police were able to apprehend
other suspects.
[5]
In
his Personal Information Form (PIF), the principal applicant also cites a
number of other incidents of harassment and ill-treatment at the hands of the
Afro-Guyanese, including:
1. a night in
which an Afro-Guyanese individual broke the principal applicant’s bedroom
window and tried to gain entry into the applicants’ home;
2. a time when
the principal applicant repaired the vehicle of an Afro-Guyanese man who then
refused to pay the bill and told the principal applicant that if he reported
the incident to police, the man would burn down his house and garage;
3. times in
which the applicants felt they were being followed by Afro-Guyanese people; and
4. incidents
wherein the principal applicant’s children were threatened and harassed at
school by Afro-Guyanese students and teachers. The principal applicant states
that the treatment got so bad that they placed the children in Catholic school,
believing that the treatment would be better. However, the principal applicant
states that the children received similar treatment in the Catholic school and that,
in any event, the applicants can no longer afford to continue sending their
children to Catholic school.
In addition, the female applicant also
cites an incident in her PIF narrative in which she was accosted at a school
fair with her daughters in 2005. In that incident, the female applicant states
that two Afro-Guyanese men followed them around the fair grounds and eventually
confronted them and threatened to sexually assault the female applicant and her
daughters.
Decision under review
[6]
On
December 10, 2007, the Board concluded that the applicants are not Convention
refugees or persons in need of protection. In reaching its decision, the Board
accepted, on the basis of the evidence proffered, that the applicants were
beaten and robbed by Afro-Guyanese thieves in May 2006. In this regard, the
Board stated at page 3 of its decision:
The panel accepts that the claimants were
unfortunately robbed and beaten in May 2006. This was substantiated by the
police and medical reports by the claimants.
[7]
However,
despite finding the applicants credible with respect to the May 2006 incident,
the Board held that the applicants had failed to rebut the presumption that
state protection would be available to them in Guyana, stating at
page 3:
The panel is not convinced, as it must
be, that the state would not be reasonably forthcoming with serious efforts to
protect the claimants if they were to return to Guyana. The panel finds that the totality of
the evidence does not support a conclusion of state breakdown, nor does it
rebut the presumption that a state is able to protect its nationals from crime.
A state is not expected to be able to provide perfect protection to its
citizens.
[8]
Accordingly,
after reviewing the evidence before it, the Board gave more weight to the documentary
evidence that state protection was available, and concluded that the applicants
left Guyana before
allowing the state authorities to finish their investigation. The Board stated
at pages 7-8 of its decision:
… The panel finds that the claimants left
Guyana too quickly to allow the
authorities to be able to prosecute the perpetrators of the robbery and assault
on the family. …
The panel finds that when analysing the
issue of state protection in the context of the documentary evidence, the
claimants have failed to rebut the presumption of state protection with clear
and convincing evidence.
ISSUES
[9]
There
are two issues to be considered in this application:
1. Did the Board
err in concluding that state protection would be reasonably forthcoming if the
applicants were to return to Guyana; and
2. Did the Board
err in failing to make an independent assessment with respect to the children’s
claims?
STANDARD OF REVIEW
[10]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL), the
Supreme Court of Canada held at paragraph 62 that the first step in conducting
a standard of review analysis is to “ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of [deference] to be
accorded with regard to a particular category of question.”
[11]
In
Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA
171, 362 N.R. 1, the Federal Court of Appeal affirmed at paragraph 38 that
questions as to the adequacy of state protection are “questions of mixed fact
and law ordinarily reviewable against a standard of reasonableness.” This
standard had been previously applied in a number of decisions of this Court:
see Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58; Nunez
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1661, 51 Imm. L.R. (3d) 291; and Franklyn
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1259, [2005] F.C.J. No. 1508
(QL).
[12]
I
agree with this reasoning and conclude that the appropriate standard to apply
to the Board’s decision in this case is that of reasonableness. Accordingly, so
long as the Board’s reasons are “tenable in the sense that they can stand up to
a somewhat probing examination,” then the decision is reasonable and the Court
will not interfere with the Board’s decision: see Franklyn, above, at
para. 17. For pure questions of fact, the standard is as set out in paragraph
18.1(4)(d) of the Federal Courts Act.
ANALYSIS
Issue No. 1: Did the
Board err in concluding that state protection would be reasonably forthcoming
if the applicants were to return to Guyana?
[13]
The
starting point in any assessment of state protection lies with the Supreme
Court of Canada decision in Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689. In that case, the Court held that refugee protection is a form of
“surrogate protection” intended only in cases where protections from the home
state are unavailable.
[14]
Further,
the Court held at page 725 that except in situations where there has been a
complete breakdown of the state apparatus, there exists a general presumption
that a state is capable of protecting its citizens:
… Absent some evidence, the claim should fail,
as nations should be presumed capable of protecting their citizens. Security of
nationals is, after all, the essence of sovereignty. Absent a situation of
complete breakdown of state apparatus … it should be assumed that the state is
capable of protecting a claimant.
[15]
While
the presumption of state protection may be rebutted, this will only be the case
where a refugee claimant proffers “clear and convincing” evidence confirming the
state’s inability to provide protection. As Mr. Justice La Forest
stated at pages 724-725 of Ward, such evidence can include the
“testimony of similarly situated individuals let down by the state or the
claimant’s own testimony of past personal incidents in which state protection
did not materialize.”
[16]
However,
it must also be noted that the Court in Ward made clear that while a
refugee claimant must proffer “clear and convincing” evidence of the state’s
inability to provide protection, they need not risk their lives in seeking such
protection merely to demonstrate its ineffectiveness. Mr. Justice La Forest stated at
page 724:
Moreover, it would seem to defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a state, merely to demonstrate that
ineffectiveness.
See also Hernandez
v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1211, [2007] F.C.J. No. 1563 (QL) per Shore J.
[17]
In
considering the issue of state protection in the case at bar, the Board relied
on both the documentary evidence as well as the applicants’ own evidence
surrounding the robbery and beating in May 2006. With respect to the May 2006
incident, the Board concluded that the applicants’ evidence established that
the police were in the process of conducting an investigation into the robbery
and beating and that, accordingly, the applicants left “too quickly to allow
the authorities to be able to prosecute the perpetrators of the robbery and
assault on the family.” In this regard, the Board stated at page 7 of its
decision:
Notwithstanding the fact that the
claimants were assisted by the authorities and that an individual was arrested
in regard to the robbery, the authorities made sure that the family received
adequate medical attention, the authorities took their report, continued their
investigation and arrested a perpetrator.
[18]
With
respect to the documentary evidence, the Board relied upon both the 2007 U.S.
Department of State Country Report on Guyana (Certified Tribunal Record at
pages 163-172), and a document dated October 13, 2006 entitled “Whether Indo
Guyanese are targeted because of their ethnic origin by different sectors of
society, such as the police, criminal gangs and political groups” (Certified
Tribunal Record at pages 173-174). In effect, the Board used this evidence,
which it stated was drawn from “reliable and independent sources,” to conclude
that adequate state protection would be available to the applicants in Guyana.
Accordingly, the Board concluded that the applicants failed to rebut the
presumption of state protection as set out in Ward, above.
[19]
The
applicants, however, argue that the Board erred in its conclusion, as the
evidence relied upon demonstrates the existence of long-standing tensions
between Guyana’s Afro- and Indo-Guyanese people, and that such tensions have
created a clear lack of trust in the ability of the authorities to provide
effective protection to the Indo-Guyanese in situations of race-related
criminal activity.
[20]
Having
reviewed the documents in question, as well as a document dated February 2,
2006 entitled “Guyana: Criminal violence and police response; state protection
efforts,” which was also contained in the Board’s National Documentation
Package on Guyana, I conclude that this evidence demonstrates the existence of long-standing
racial tensions between Guyana’s Afro-and Indo-Guyanese people, and the
inability of state authorities to provide the Indo-Guyanese with effective
protection due to poor training and equipment, understaffing, and an acute lack
of resources. In particular, the document dated February 2, 2006 concerning
criminal violence and police response in Guyana provides clear evidence that
the effectiveness of police protection has been eroded by the racial tensions
that exist in the country:
With regard to racial polarization,
Freedom House noted that law enforcement has been “seriously eroded” by
allegations of racial bias: a number of Indo-Guyanese claim that the mainly
Afro-Guyanese police ignores them, while many Afro-Guyanese maintain “that the
police are manipulated by the government for its own purposes”….
[21]
A
similar finding was made by Mr. Justice Teitelbaum in Katwaru v. Canada (Minister of
Citizenship and Immigration), 2007 FC 612, 62 Imm. L.R. (3d) 140, where
he stated at paragraph 19, after reviewing the very same documents currently
before the Court:
¶ 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…. 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…. In sum, it indicates that the
deficiencies with the police are chronic and, as a consequence, the
effectiveness of state protection is seriously compromised.
In Katwaru, Mr. Justice Teitelbaum
went on to conclude that while the government was making “serious efforts” to
address the problem of crime, there was no evidence indicating whether this had
improved the availability of effective state protection.
[22]
In
the case at bar, while the Board cites the documentary evidence as providing an
unbiased statement that adequate state protection is available to the
applicants in Guyana, a review of that evidence raises serious questions as to
the effectiveness of the protection available. For instance, while the police
were in the process of conducting an investigation into the robbery, the
evidence is that the effectiveness of such investigations is seriously hampered
by the racial tensions existing within the country.
[23]
The
Board’s decision does not address how these problems impact upon the
effectiveness of the protection allegedly available to the applicants in Guyana. Given that
this evidence contradicts the Board’s ultimate finding, such a consideration
was warranted in the Board’s analysis: see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) per Evans J.
(as he then was). On this basis, the Court concludes that the Board ought to
have addressed this evidence before its conclusion. This is a reviewable error
and, accordingly, the Board’s decision must be set aside for these reasons.
[24]
In
addition, the Court finds that the Board confined its analysis to the May 2006
incident without addressing the other incidents of perceived persecution raised
by the applicants, most specifically the concerns raised by the principal
applicant about the treatment of the applicant children, and the threats of
sexual assault raised by the female applicant in her PIF narrative.
[25]
Whatever
the case may be, the incidents raised by the applicants are relevant to an
assessment of the adequacy of state protection in Guyana, and the
Board’s failure to address them in its reasons amounts to a reviewable error.
[26]
The
applicants argue that this Court should send the matter back to the Board with
a direction that the Board find the applicants to be Convention refugees. I do
not agree. 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. Having concluded that that decision was
not reasonable, this matter must be returned to a differently constituted panel
for redetermination.
Issue No. 2: Did the
Board err in failing to make an independent assessment with respect to the
children’s claims?
[27]
The
applicants further argue that the Board erred by not independently assessing
the claims of the applicant children which, according to the applicants, had
their own independent aspects that needed to be assessed. However, as the
respondent points out, the PIF narratives of the applicant children do not
forward any individual claim, but rather, simply request that their claim be
based on that of their parents.
[28]
While
I accept the respondent’s position in this regard, the principal applicant, in
his PIF narrative, provided extensive evidence on the ill-treatment and harm
experienced by his children at the hands of Afro-Guyanese children and
teachers. Further, the female applicant also cites an incident in which two
Afro-Guyanese men threatened to sexually assault both her and her daughters at
a school fair in 2005.
[29]
As
I stated above, none of these issues were canvassed or considered by the Board
in its decision. Accordingly, to the extent that these concerns formed part of
the PIF narratives of the principal applicant and his wife, the Board was
required to consider the effect that such treatment had on the children. In
failing to do so, the Board’s decision was unreasonable and cannot stand up to
a somewhat probing examination. Accordingly, it must be set aside for this
reason as well, and remitted to a differently constituted panel of the Board
for redetermination.
CERTIFIED QUESTION
[30]
The
applicants proposed two questions for certification about the state of the
jurisprudence with respect to state protection – whether state protection must
be “effective or adequate” and how that relates to the jurisprudence that it
does not have to be “perfect”. The respondent opposes the certification of
these questions because the issue has already been decided by the Federal Court
of Appeal. I find that these questions are not determinative of the case before
me, and accordingly ought not to be certified. I will not comment on whether
these issues have already been addressed by the Federal Court of Appeal since
such a finding is not necessary in this case.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed; and
2.
This
matter is remitted to the Board for redeterminatin by a differently constituted
panel.
“Michael
A. Kelen”
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