Docket: IMM-3232-15
Citation:
2016 FC 130
Toronto, Ontario, February 4, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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DEAN ALFRED
FOSTER
ANNELIZE FOSTER
LUC FOSTER AND
KELSY FOSTER
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Respondents
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a decision [Decision] by a member [the Member] of the Refugee
Protection Division [the RPD] finding that the Respondents are Convention
refugees. The Decision is dated June 29, 2015.
[2]
For the reasons outlined below, I find that
judicial review should be granted. The Member made a clear error of law with
respect to state protection.
II.
Background
[3]
The Respondents, Dean Alfred Foster (50),
Annelize Foster (40), Luc Foster (13), and Kelly Foster (19), are citizens of
South Africa. They are white and allege a well-founded fear of persecution on
the basis of their race.
[4]
While the Respondents originally lived in Cape
Town, they moved to a small rural community, Howick, in 2007. They allege that
the move was driven by the high crime rate in Cape Town and their personal
psychological problems.
[5]
When the Respondents arrived in Howick, however,
they allege that the situation was worse, particularly with regard to violence
by black criminals and extremists towards white landowners. They claim that
their dogs were poisoned by black locals, that they had been threatened, and
that they felt the local police were corrupt and unable to protect them, so
they sold their property and traveled to Canada.
[6]
Three of the Respondents – Dean Alfred,
Annelize, and Luc, their son – arrived in Canada on December 8, 2011, and made
their claim for refugee protection four days later. That application was
rejected on September 16, 2013 on the basis that the Respondents had no nexus
with a Convention ground. They sought judicial review of that decision and, on
December 18, 2014, by consent, it was sent back to the RPD for redetermination.
[7]
Kelsy, the fourth Respondent and Dean Alfred’s
daughter, arrived in Canada on April 3, 2015, and applied for refugee status
shortly thereafter. Until that time she lived with her mother, Nicoelen
Burnett, in South Africa. While she did not participate in the first claim for
refugee status, her claim was joined to the claims of the other Respondents in
the redetermination.
III.
Preliminary Matter
[8]
At the hearing, the Applicant noted two errors
in the style of cause, and requested the following corrections:
i.
Respondent “Luc Foster” was indicated twice and
one should be deleted; and
ii.
Respondent “Kelly Foster” was listed
incorrectly, and should be “Kelsy Foster”.
[9]
With the consent of the parties, I will allow
the amendment to the style of cause to incorporate these corrections.
IV.
Decision
[10]
In a Decision delivered orally on the same day
as their hearing, the Member found that the Respondents were Convention
refugees pursuant to section 96 of the Act. He concluded first that they had
established a nexus to a Convention ground – persecution on the basis of race –
adding that they may have faced additional persecution because they were
landowners and thus perceived as wealthy. The Member also found the Respondents
and their narrative to be credible.
[11]
“The only point that I
disagreed on,” the Member then stated to the
Respondents, “which is a very significant point, is on
your analysis of the adequacy of state protection in South Africa”
(Application Record [AR], p 7). On this point, the Member first noted items in
the National Documentation Package [NDP] on South Africa – the United States
Department of State Report, which described South Africa as a constitutional
multi-party Parliamentary democracy, and a Freedom House Report, which stated
that South Africa ranks highly on a global comparison in terms of civil
liberties and political rights – acknowledging that these pieces of documentary
evidence place a high bar on overturning the presumption of adequate state
protection.
[12]
The Member also observed that, according to the
NDP, authorities in South Africa maintained effective control over security
forces, though there were numerous cases of abuse and the South African Police
Force [SAPS] remained understaffed, ill-equipped, and corrupt, and poorly trained.
That said, the Member noted that there was also evidence that police abuse and
corruption were, to some extent, investigated and prosecuted.
[13]
In terms of the Respondents’ claimed status as a
persecuted minority without access to state protection, the Member observed
that while only 8.7% of the population is white, they make up approximately 40%
of the judiciary, 52% of the country’s advocates, 65% of the country’s
practicing attorneys, and 24% of the management of SAPS. On top of that, the
NDP also found that it is rare for white South Africans to experience violence
or discrimination from government authorities.
[14]
The Member further noted that the Respondents
never actually tested the adequacy of state protection in Howick because they
believed that the local law enforcement were corrupt and may have been involved
in the murder of a farmer. The Member accepted that, as Annelize had been a
member of the police for 10 years in Cape Town, she had some knowledge of problems
within the force. Ultimately, however, the Member decided to give more weight
to the documentary evidence, instead of the Respondents’ personal evidence
(composed mainly of anecdotes and personal observations). He concluded that
they “have not rebutted the presumption that adequate
state protection exists in South Africa” (AR, p 12), repeating this finding
twice more over the course of the Decision.
[15]
Nonetheless, the Member then turned to the
question of an Internal Flight Alternative [IFA]. He identified Cape Town as an
option for the Respondents, stating that he must evaluate the IFA on the basis
of two questions – is it safe to live in Cape Town, and is it unreasonable to
ask them to relocate there?
[16]
On the first branch of the IFA test, the Member
stated that “I have already answered that in South
Africa there is adequate state protection, at least based on the documentary
evidence, and therefore that would apply to Cape Town as well” (AR, p
12). On the second branch, however, the Member found that it was not reasonable
to ask the Respondents to relocate, largely due to a psychological assessment
of Annelize and Dean Alfred Foster, which found that (a) both Annelize and Dean
Alfred suffered from PTSD (b) Annelize suffered from depression and had
attempted suicide and (c) effective treatment for any of these problems in Cape
Town would be impossible since they were caused by a subjective sense of
insecurity tied to life in South Africa.
[17]
The Member also relied on the Respondent’s
subjective fears, determining that “even though I say
adequate state protection exists in South Africa and that adequate
psychological assessment can be given to you in South Africa, you do not have
the logical assurance in your own minds, based on your own psychological makeup
and your own past experiences, to be able to accept this” (AR, p 13).
For these reasons, the Member concluded that it was not reasonable to require
the Respondents to move to Cape Town, that it was not a viable IFA, and that
the Respondents were Convention refugees.
V.
Issues
[18]
The Applicant argues that the Member made two
reviewable errors, one in granting refugee status despite adequate state
protection and the other in finding that Cape Town was bit a viable IFA for the
Respondents.
[19]
On the first error, the Applicant notes that in
order to obtain Convention refugee status under section 96 of the Act, a
claimant must (a) be subjectively fearful and (b) have an objective basis for
that fear. To demonstrate that objective basis, the claimant must also rebut
the presumption of adequate state protection (Canada (Attorney General) v
Ward, [1993] 2 S.C.R. 689 [Ward]). As described by the Federal Court of
Appeal in Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171
at para 42 [Hinzman], without proof of inadequate protection, there
can be no refugee claim:
In determining
whether refugee claimants have an objective basis for their fear of
persecution, the first step in the analysis is to assess whether they can be
protected from the alleged persecution by their home state. As the Supreme
Court of Canada explained in Ward at
page 722, “[i]t is clear that the lynch-pin of the analysis is the
state’s inability to protect: it is a crucial element in determining whether
the claimant’s fear is well-founded.” [Emphasis in original] Where sufficient
state protection is available, claimants will be unable to establish that their
fear of persecution is objectively well-founded and therefore will not be
entitled to refugee status.
[20]
The Applicant contends that since the Member
found that the Respondents had “not rebutted the
presumption that state protection exists in South Africa”, the analysis
should have stopped there, and the Member’s ultimate finding demonstrates an
incorrect understanding of the test for Convention refugee status under section
96 of the Act. In other words, at the point that adequate state protection was
found, the objective fear of persecution was found not to apply, which ends the
section 96 claim, whatever the claimant’s psychological (subjective) state. It
was an error to of law to proceed any further.
[21]
The Respondents reply that the Member made a
reasonable finding that in their circumstances the Respondents did not need to
test the adequacy of state protection. Because of their psychological profiles
and prior first-hand knowledge of the South African police, the Member
determined it was not reasonable for them to contact the authorities. The
Respondents contend that the Member was justified in that finding considering
their personal histories and the specific issues they had faced. In particular,
Annelize’s experiences as a police officer and the fact that the Respondents
could not afford to hire private security were significant factors in the
Member’s conclusion, which was thus reasonable.
[22]
As for the second error, the Applicant argues
that the Member made an error of law in concluding that it would be
unreasonable for the Respondents to relocate to Cape Town. The error, the
Applicant asserts, is that the Member interpreted and applied the second prong
of the IFA test purely on the subjective concerns of the Respondents. The
two-part IFA test, per Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 at 711, states that (i) there is no serious
possibility of the individual being persecuted in the IFA area (i.e., Cape
Town, in this case); and (ii) conditions in the proposed IFA must be such that
it would not be unreasonable in all the circumstances for an individual to seek
refuge there. In this case, the Member erred when he failed to consider all the
circumstances present, focusing solely on the Respondents’ subjective fear of
moving to Cape Town.
[23]
The Respondents counter that the Member reviewed
the events which caused them to flee, Annelize’s work history, the experiences
of their friends and family, and their psychological profiles, and all of these
together provided ample evidence to conclude that it would not be reasonable
for the Respondents to seek an IFA in Cape Town. The Decision was not based
solely on subjective concerns, but on a thorough review of the record, including
a thorough assessment of the psychological report. To reverse the Member’s IFA
finding would amount to this Court simply reweighing the evidence.
VI.
Analysis
[24]
The first alleged error, which I find to be
dispositive, relates to the determination of the legal test under section 96 of
the Act and thus the standard of review is correctness (Sanchez v Canada
(Citizenship and Immigration), 2007 FCA 99 at para 9; Barragan Gonzalez
v Canada (Citizenship and Immigration), 2015 FC 502 at para 26). Under a
correctness review, “a reviewing court will not show
deference to the decision maker’s reasoning process; it will rather undertake
its own analysis of the question” (Dunsmuir v New Brunswick, 2008
SCC 9, at para 50).
[25]
When the legal test under section 96 of the Act
is correctly determined, a finding of adequate state protection precludes
refugee protection status (see, for example, Ward and Hinzman).
As described by Justice Noel in Sran v Canada (Citizenship and Immigration),
2007 FC 145 at para 11:
It is well-established in the jurisprudence
of this Court that where state protection is available, a claim for refugee
protection cannot succeed. In other words, this Court has held repeatedly that
the availability of state protection is determinative in refugee protection cases,
and accordingly, if state protection is found to be available it is not
necessary to address the other issues brought forward by a refugee claimant.
[26]
The Member in this case found that the Respondents had not
rebutted the presumption that adequate state protection exists in South Africa,
repeating this conclusion three times. These are clear, unambiguous findings
that state protection existed, and to carry on with further analysis in spite
of these express statements constituted an error of law.
[27]
The Respondents argue that when the entire record is read as
a whole, one can infer that the Member had reasons – namely, their previous
experiences with the police – to conclude that the Applicant were justified in
avoiding the authorities. After a reading of the transcript with that direction
in mind, however, the fact remains that the Member clearly and repeatedly indicated
that the Respondents had not rebutted the presumption of state protection. As
Justice Mosley stated in Smith v Canada (Minister of Citizenship and
Immigration), 2012 FC 1283 at para 52, “[r]egardless of… subjective fear of persecution, the claimant must
overcome the objective presumption that the state could protect her.” In continuing his analysis despite recognizing the presence of
adequate state protection, the Member plainly misapplied the legal test for
Convention refugee status.
VII.
Conclusion
[28]
In light of the above, this application for
judicial review is granted. There are no costs or certified questions.
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