Date:
20130524
Docket:
IMM-8199-12
Citation:
2013 FC 549
Ottawa, Ontario,
May 24, 2013
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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RAOUL ANDRE BURTON
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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]
Raoul
Andre Burton seeks judicial review of the negative decision of a Senior
Immigration Officer in relation to his application for a Pre-Removal Risk
Assessment [PRRA]. Mr. Burton claimed to be at risk in Jamaica because of his former membership in the Malvern Crew gang in Toronto. He also asserted that
he was at risk because he had cooperated with a police investigation involving
a fellow gang member and had testified at that individual’s trial.
[2]
For
the reasons that follow, I have concluded that the PRRA decision was
unreasonable as it did not properly assess the risks faced by Mr. Burton in Jamaica in light of his personal profile as a former gang member, police informant and
Crown witness. I am further satisfied that material evidence was overlooked by
the PRRA Officer. As a consequence, the application for judicial review will be
granted.
Background
[3]
Mr.
Burton came to Canada as a permanent resident in 1993 when he was 10 years old.
He eventually became involved with the Malvern Crew, a criminal gang operating
in Toronto.
[4]
In
2004, a gang member named Warren Abbey shot and killed a member of a rival gang
known as the Galloway Boys. Abbey subsequently confessed to the killing to Mr.
Burton, warning him of the “unwritten code” against snitching or collaborating
with the police.
[5]
After
his arrest for his own gang-related offences in 2004, Mr. Burton agreed to
cooperate with the police and prosecutors and to plead guilty to participation
in a criminal organization. Mr. Burton states that in the period leading up to
the trial in R. v. Abbey word began to spread in his community that he
had cooperated with the police and agreed to testify against Mr. Abbey. As a
result, Mr. Burton says that he began to receive death threats.
[6]
Mr.
Burton testified at the Abbey trial in 2007. Mr. Abbey was acquitted at trial,
but his acquittal was subsequently overturned on appeal. A new trial was
scheduled for February of 2011. Mr. Burton states that he was reluctant to
testify at the second trial, but that he was eventually compelled to do so
under subpoena.
[7]
In
the weeks before the 2011 trial, the Toronto Star published an article naming
Mr. Burton as a witness for the prosecution. Mr. Burton states that he once
again began receiving threats, in part because Mr. Abbey’s acquittal had made
him something of a “legend” in his community.
[8]
Mr.
Burton testified at Mr. Abbey’s second trial and Mr. Abbey was eventually
convicted of murder. Mr. Burton states that he continued to receive threats
after the conviction and that he was forced to leave his community in an effort
to secure his safety.
[9]
In
November of 2011, the Toronto Sun published an article about Mr. Burton, which
discussed his precarious immigration status. Mr. Burton stresses that many
Malvern Crew members who knew about his testimony at the Abbey trial have been
deported back to Jamaica and would know that he could soon be there too, beyond
the protection of Canadian law enforcement. Members of the rival Galloway Boys
gang have also been returned to Jamaica, where they allegedly pose a threat to
Mr. Burton as a former member of the Malvern Crew.
The PRRA Officer’s Decision
[10]
The
Senior Immigration Officer rejected Mr. Burton’s PRRA application on the basis
of section 97 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, concluding that he would not be subject to a personal risk of
persecution, danger of torture, risk to life or risk of cruel and unusual
treatment or punishment if he were returned to Jamaica.
[11]
Because
Mr. Burton was found to be inadmissible for organized crime and serious
criminality, he was ineligible for refugee protection pursuant to paragraphs
112(3)(a) and (b) of the Act. Thus, no consideration was given to section 96
grounds.
[12]
Insofar
as the risk to Mr. Burton arising from his participation in the Abbey trial
were concerned, the Officer found that Mr. Burton had provided little evidence
that he had recently been threatened by gang members, either in Canada or in
Jamaica. The Officer further noted that Mr. Burton’s affidavit did not indicate
that the Jamaican police would be unable or unwilling to protect him “should he
encounter difficulties” with gang members in Jamaica.
[13]
The
Officer acknowledged that a Google search and newspaper articles publicly
identified Mr. Burton as a former member of the Malvern Crew. These articles
also noted that Mr. Burton had cooperated with the police, and that information
had been included in the articles regarding his immigration status.
[14]
The
Officer accepted that documentary evidence regarding country conditions in Jamaica produced by Mr. Burton indicated that “violent crime as well as corruption and
impunity within the Jamaican security forces are serious ongoing issues”. The
Officer further accepted that “individuals who are known to be police informers
in Jamaica are frequently the targets of violence from members of criminal
organizations”.
[15]
From
this the Officer concluded that Mr. Burton “may face a risk of harm from gang
members in Jamaica”. The Officer nevertheless concluded, based upon the
information provided by Mr. Burton, that while state protection in Jamaica may be “imperfect”, he had not demonstrated that it would not be available to him.
[16]
The
Officer then went on to review other country condition information identified
in the course of the Officer’s own research. The Officer observed that Jamaica is a constitutional parliamentary democracy with a “defined system of law and
order”. The existence of various security forces was noted and the Officer acknowledged
that “corruption and impunity […] are serious ongoing concerns”.
[17]
Nevertheless,
the Officer found that “serious efforts have been made to address this issue”,
including the creation of independent commissions, anti-corruption measures,
oversight mechanisms, increased training for police officers and other reforms,
and that major crime and murder rates have recently decreased in Jamaica.
[18]
The
Officer concluded that Jamaica is not in a state of complete breakdown and that
the availability of state protection is presumed. While reiterating that there
are high rates of violent crime in Jamaica, and that protection is not perfect,
the Officer nevertheless held that Mr. Burton had not rebutted the presumption
of state protection with clear and convincing evidence.
The Issue
[19]
The
only issue for determination is whether the Officer’s risk assessment was
reasonable, in light of Mr. Burton’s personal profile.
Analysis
[20]
The
availability of state protection in a particular country cannot be assessed in
a vacuum. Regard must be had to the individual’s own personal situation or
circumstances, and an analysis must then be carried out as to the willingness
and ability of the state to respond to those specific circumstances: Nadarajah
v. Canada (Solicitor General), 2005 FC 713, [2005] F.C.J. No. 895; Prasad
v. Canada (Minister of Citizenship and Immigration), 2011 FC 559, [2011]
F.C.J. No. 708.
[21]
In
this case, the PRRA Officer accepted that Mr. Burton faced a risk of harm from
gang members in Jamaica. However, the state protection analysis carried out by
the Officer appears to be essentially a generic examination of the ability of
Jamaican authorities to protect ordinary Jamaican citizens from gang violence
and the efforts that are being made by the Jamaican authorities to combat gang
violence. Nowhere in the analysis does the Officer engage in any meaningful way
with the risks faced personally by Mr. Burton as someone who has been publicly
identified as a convicted criminal and a member of the Malvern Crew gang. Nor
does the PRRA officer ever consider the willingness of the Jamaican police to
protect gang members from inter- or intra-gang violence.
[22]
Similarly,
no consideration appears to have been given to the ability of the Jamaican
police to protect those who have cooperated with the police in the prosecution
of gang members. These omissions are of real concern in light of the country
condition information that was before the Officer.
[23]
Insofar
as the willingness of the Jamaican police to protect gang members from inter-
or intra-gang violence was concerned, the record before the Officer contained
statistical evidence showing that few gang-related murders were investigated or
had a suspect identified and referred for prosecution.
[24]
More
troubling is the Amnesty International report that was before the Officer
entitled “Let Them Kill each Other”, which quoted a Superintendent of
the Jamaican police as saying that “[n]o police, no army, no government can
solve murders like this one [referring to a gang killing] because it is cronies
killing cronies and we know it is almost like dogs killing dogs”. This report
goes on to state that many social workers report being advised by Jamaican
police and politicians that their work with gang members was useless, and that
they should just “let them kill each other”.
[25]
This
was potentially highly probative evidence going directly to the willingness of
the Jamaican authorities to protect individuals with gang ties such as Mr.
Burton from inter- or intra-gang violence. Not only was this evidence never
addressed by the Officer, no other evidence directly on point was cited to
support the Officer’s conclusion that adequate state protection would be
available in Jamaica for a former gang member such as Mr. Burton. As such it is
impossible to ascertain from the Officer’s reasons how the Officer came to his
or her conclusion on this issue, with the result that the reasons lack the
transparency, intelligibility and justification required of a reasonable
decision: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47.
[26]
Equally
problematic is the Officer’s failure to consider the evidence with respect to
the ability of the Jamaican police to protect those who have cooperated with
the police in the prosecution of gang members. The evidence before the Officer
in this regard raises real concerns about the ability of the Jamaican police to
protect individuals such as Mr. Burton, who have assisted the police.
[27]
For
example, the United Kingdom Border Agency’s Operational Guidance Note:
Jamaica states that the Jamaican police are unable to assure the protection
of witnesses, and that those who face a threat from a criminal gang because of
their cooperation with the police will not normally be able to access state
protection.
[28]
The
Officer obviously considered this to be a reliable document, given that
reference was made in the decision to a portion of the document which indicated
that strides were being made in sensitizing the police and the public to issues
relating to corruption and ethics - issues that were only marginally relevant
to the situation confronting Mr. Burton. However, no reference was made to the
portions of the report that were most germane to Mr. Burton’s own situation,
leading to the inescapable inference that this evidence was overlooked: Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425,
157 F.T.R. 35 at paras.14-17.
Conclusion
[29]
To
be reasonable, a PRRA Officer’s analysis of risk must be informed by the
applicant’s own personal situation or circumstances: Nadarajah, above.
An assessment that fails to engage with the specific risks faced by an
applicant is not reasonable and must be set aside. This is just such a case.
[30]
For these
reasons, the application for judicial review is allowed. I agree with the
parties that the case does not raise a question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES
that:
1.
This
application for judicial review is allowed, and the matter is remitted to a
different immigration officer for
re-determination in accordance with these reasons.
“Anne L. Mactavish”
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