Docket: IMM-2684-16
Citation:
2017 FC 68
Toronto, Ontario, January 19, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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DWAYNE JOHNSON
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Dwayne Johnson, the applicant, is a former
permanent resident of Canada who faces removal to Jamaica as a result of being
found inadmissible for serious criminality under subsection 36(1)(a) of the Immigration
and Refugee Protection Act, S.C. 2001 c. 27, [IRPA].
[2]
Mr. Johnson applied for a Pre-Removal Risk
Assessment [PRRA] on the basis that he fears he will be perceived as a gang
member and deportee from Canada. His PRRA application was refused and it is
that decision which is before the Court for judicial review. Mr. Johnson
submits that the PRRA Officer did not properly address his profile as a
perceived gang member in assessing the IRPA section 97 risk factors and also
failed to consider country specific documentary evidence related to his profile.
[3]
The application raises two issues:
A.
Did the Officer fail to consider the risks
of actual or perceived gang membership?
B.
Was the Officer’s state protection analysis
unreasonable?
[4]
Having considered the written and oral
submissions of the parties, I am of the opinion that the Officer’s decision is
reasonable. The application is dismissed for the reasons that follow.
II.
Standard of Review
[5]
A PRRA officer’s assessment of risk, including
assessment of whether the presumption of state protection has been rebutted is
reviewed on a reasonableness standard (Portillo v Canada (Citizenship and
Immigration), 2012 FC 678 at para 18 and Hoo v Canada (Citizenship and
Immigration), 2016 FC 283 at para 8). Where an officer’s decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law, the Court will not interfere with the outcome (Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 47).
III.
Analysis
A.
Did the Officer fail to consider the risks of
actual or perceived gang membership?
[6]
Mr. Johnson argues that he will be perceived as
a gang member upon return to Jamaica because he was arrested and charged as
part of a police operation in 2010 targeting a Jamaican organized crime group.
His identity and the details of his indictment, along with other individuals
charged in that police operation, were published in a Canadian – Caribbean
newspaper and website. Counsel also submitted that tattoo markings on Mr.
Johnson were used on occasions by the gang. He argues that this places him at
risk of reprisals from gang members in Jamaica and the Jamaican police. He
further submits that the Officer failed to properly consider his profile. I
disagree.
[7]
In the PRRA decision, the Officer noted counsel’s
submissions setting out Mr. Johnson’s fear and acknowledged the documentary
evidence on the subject of gangs in Jamaica. However, the only information before
the Officer of any gang connection in regard to Mr. Johnson was found in the counsel’s
submissions, in the content of a newspaper report indicating that criminal
organization charges were laid against the applicant as a result of the 2010
police operation and in the Canadian Border Services Agency’s Section 44
Narrative Report. Mr. Johnson did not place an affidavit before the PRRA Officer
highlighting his feared risks nor was he ever convicted of the criminal
organization charges.
[8]
The examination of a claim under subsection
97(1) of the IRPA necessitates an individualized inquiry, which is to be
conducted on the basis of the evidence adduced by a claimant “in the context of a present or prospective
risk” [Emphasis in original] (Sanchez v Canada (Minister of
Citizenship and Immigration), 2007 FCA 99 at para 15 cited in Prophète v
Canada (Citizenship and Immigration), 2009 FCA 31 at para 7). In
this case, the sole evidence of risk was the identifying information in the
newspaper which, counsel submitted had been widely circulated and read. There
was no affidavit evidence advanced by Mr. Johnson, no evidence establishing the
notoriety of a news article published in 2010 and no evidence linking tattoo
markings to gang membership.
[9]
Mr. Johnson relies on the decision of this Court
in Burton v Canada (Minister of Citizenship and Immigration), 2013 FC
549. Unlike this case, Mr. Burton established that he had plead guilty to the
charge of participating in a criminal organization; that he had cooperated with
the police and prosecutors to testify against another individual; that he had received
death threats in his community for cooperating with the police; that he was identified
in news reports as testifying for the prosecution; and that many of the gang
members who knew of his testimony had been deported to Jamaica.
[10]
In this case, an individualized inquiry
identifies Mr. Johnson as a person who was charged as part of a police
operation in 2010 with criminal organization offences but not convicted on
these charges. General country condition documentation alone will not normally
establish a personalized risk. Faced with limited evidence to establish the
alleged profile I can find no fault with the Officer’s conclusion that
counsel’s submissions on risk were speculative in nature.
[11]
The Officer also concluded that the alleged
risks relating to deportees in Jamaica are speculative. This finding was
reasonably available to the Officer. The alleged risk arising out of Jamaica’s
policy of questioning all deportees on return to Jamaica was related to his
profile as an actual or perceived gang member, a profile that was not
established.
B.
Was the Officer’s state protection analysis
unreasonable?
[12]
In considering the issue of state protection,
the Officer acknowledged Jamaica’s high crime rate and the serious social and
judicial problems linked to that crime rate. However, the Officer concluded
that Jamaica is capable of protecting its citizens.
[13]
Mr. Johnson argues that this analysis fails to
consider state protection in the context of actual or perceived gang members
and deportees. I am not convinced.
[14]
As noted above, the Officer had limited evidence
of profile and found that there was insufficient evidence to conclude that Mr.
Johnson was or would be perceived as a former gang member. In this context, the
Officer reasonably concluded that issues relating to serious crime in Jamaica reflect
general country conditions impacting upon all residents. With respect to the
adequacy of state protection for deportees, the Officer’s conclusion was also
reasonable. The societal discrimination disclosed in the documentary evidence
spoke to possible economic disadvantages. It was reasonably open for the Officer
to conclude that evidence of societal discrimination did not establish the
absence of adequate state protection for deportees.
IV.
Conclusion
[15]
I am of the opinion that the Officer’s reasons,
although brief, justify the decision in a transparent and intelligible manner.
The outcome is defensible in light of the facts and applicable law (Dunsmuir
at para 47).
[16]
The parties have not identified a question of
general importance, and none arises.
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