Date: 20050720
Docket: IMM-5334-04
Citation: 2005 FC 1007
Ottawa, Ontario, July 20, 2005
BETWEEN:
ROYSTON McLEAN and GODFREY GIBSON
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] These reasons concern an application for judicial review of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") which determined that neither of the Applicants were Convention refugees or persons in need of protection.
[2] The Applicants are citizens of Guyana whose refugee claims were joined although separate decisions and reasons were issued for both. Despite the different surnames, the Applicants are brothers.
[3] McLean based his claim on fear of persecution by the opposition political party which is predominantly Afro-Guyanese. McLean is also Afro-Guyanese but he alleges that he does not support the party. Because of this lack of support, se says that he was beaten twice; once so severely that he required hospitalization. He produced medical evidence that he had suffered an injury but the medical evidence does not describe the source or likely source of the injury.
[4] Gibson based his claim on the fact that he had been accidentally shot by police (during the break up of a protest - an incident not reported in his PIF. He also claimed that he was beaten by police - an incident at which McLean was present but which he said he did not report because it was "normal police harassment".
[5] McLean claimed that he had significant memory problems which excuse he used as justification for his omission of key pieces of evidence and for his confused testimony.
[6] The Board drew adverse credibility inferences from a number of inconsistencies in McLean's evidence. Likewise the Board did the same regarding Gibson. The Board also concluded that the harm alleged by the Applicants is, at best, the type generally faced by others in Guyana. The Board also found that the Applicants had not rebutted the presumption in favour of state protection.
[7] The Applicants' principal attack on the Board's decisions is in respect of the Board's credibility conclusions. The Applicants did not challenge the finding on state protection or that of "generalized risk".
[8] The only problematic credibility finding is the Board's conclusion that the inclusion by Gibson of the supposed police beating and the omission by McLean in his PIF impacted negatively on the credibility of both. The Board determined that the incident did not happen yet faulted McLean for failing to mention it in his evidence.
[9] Had the Board's reasoning turned on this finding alone, then there would be good grounds for the Court's intervention on the basis that the conclusion is patently unreasonable.
[10] However, a review of the transcript casts the conclusions in a somewhat clearer light. Moreover, there were other and numerous grounds for the Board's general finding of credibility which were reasonably open to the Board to make. Taken as a whole, the Board's credibility findings ought not to be disturbed.
[11] Even if that were not the case, the Board made findings that ethnicity was not a sustainable basis for the Applicants' claim. As such the Applicants fell outside section 96 of the Act. Further, their general fear of harm being a general fear faced by all residents of Guyana takes their situation outside section 97 (need of protection) by virtue of sub-paragraph 97(1)(b)(ii) which reads:
| 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally.....
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if....:
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
|
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée.....
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant.... :
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
|
[12] Finally, the failure to challenge the conclusion of state protection is fatal to the Applicants' claims. That finding was not based on credibility findings or the nature of the personalized risk that they might face, but, on the Applicants' failure to provide clear and convincing evidence of the absence of state protection. The Board noted specifically the actions taken by the Guyanese government to combat violent crime.
[13] For these reasons the application for judicial review will be dismissed. No question will be certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5334-04
STYLE OF CAUSE: ROYSTON MCLEAN and GODFREY GIBSON v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 12, 2005
REASONS FOR ORDER : Phelan, J.
DATED: July 20th, 2005
APPEARANCES:
John Guoba FOR APPLICANT
Ladan Shahrooz FOR RESPONDENT
SOLICITORS OF RECORD:
John Guoba FOR APPLICANT
Toronto, Ontario
Ladan Shahrooz FOR RESPONDENT
Toronto Ontario
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