Date:
20121220
Docket:
IMM-2900-12
Citation:
2012 FC 1519
Ottawa, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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HARINARAIN, KUMATI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated February 28, 2012, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant was born in Guyana in 1958. She married her husband in 1980. The
marriage began well and the couple had two children. Eventually, however, her
husband joined a criminal gang and began drinking heavily.
[4]
The
applicant’s husband became physically violent, punching and kicking her and
using weapons. He beat her in front of their children. She became a slave in
her own house. Once her children left home, she was left alone with her
alcoholic abuser.
[5]
The
applicant repeatedly reported the abuse to the Guyanese police, but they only
warned the husband and refused to get involved in domestic matters. The abuse
continued, including strangling and death threats. Her husband was kicked out
of the gang and this led to more drinking and bitterness.
[6]
As
the abuse increased, the applicant decided to file for divorce. Once her
husband learned of this plan, he continued to threaten her and he said he kept
a loaded gun in order to murder her.
[7]
The
applicant went into hiding. In June 2007, she was granted a visitor’s visa for Canada in order to attend her niece’s wedding.
[8]
The
applicant arrived in Canada on June 28, 2007 and claimed protection on
September 9, 2011. She fears if she returns to Guyana, her ex-husband will kill
her.
Board’s Decision
[9]
The
Board made its decision on February 28, 2012. After summarizing the basis of
the applicant’s fear and accepting her identity, the Board turned to the issue
of state protection.
[10]
The
Board stated that Guyana was presumed capable of protecting its citizens and it
was up to the applicant to rebut that presumption with clear and convincing
evidence that the Guyanese authorities would not be forthcoming with serious
efforts to protect her.
[11]
The
Board found that the applicant had not rebutted the presumption. In considering
the country conditions documents, the Board found that they were mixed and
inconclusive, since some of the text indicated Guyana’s domestic violence
protection mechanisms were inadequate, while other parts indicated reasonably
functional protection was available for women fearing domestic violence.
[12]
The
Board excerpted the full text of a 2008 response to information request on
domestic violence in Guyana (the RIR), as well as the relevant portion of the
2008 United States Department of State human rights report (the DOS report).
[13]
The
Board also noted that the state had made efforts to protect the applicant on
five occasions, although they were inadequate. The Board indicated it had
accepted all the documentary evidence, which pointed to a mixed picture. The
Board also noted that the applicant had not made any effort to seek protection
in the past several years and that local police failures in themselves do not
amount to a general lack of state protection.
[14]
The
Board stated that home states are not required to provide effective or
guaranteed protection, but only need to make serious efforts at protection.
Therefore, the Board found that the applicant had not established a clear and
convincing case that the state would not be reasonably forthcoming with such
efforts. The Board rejected the applicant’s claim.
Issues
[15]
The
applicant submits the following points at issue:
1. Was the decision
made pursuant to legislation inconsistent with section 7 of the Canadian
Charter of Rights and Freedoms?
2. Did the Board
apply the wrong test for Convention refugee status?
3. Did the Board
violate the principles of natural justice?
4. Did the Board
fail to consider all of the evidence?
[16]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[17]
The
applicant argues that sworn testimony is presumed to be true and that her
testimony has not been impugned in any way. The documentary evidence indicates
there is a well-founded fear of persecution given the backdrop of country
conditions in Guyana. The applicant argues she was not given police protection.
[18]
The
applicant argues the Board overlooked evidence showing the lack of police
protection. Any evidence that indicates it is safe for a woman to be in Guyana when a gang member has threatened to kill her is due to media bias. It was unfair
for the Board to focus on documents showing Guyana is safe as opposed to the
documents of the applicant. The Board also ignored letters from the applicant’s
daughter indicating that Guyana was unsafe for her.
Respondent’s Written Submissions
[19]
The
respondent argues that the appropriate standard of review is reasonableness.
[20]
The
respondent argues that it is an accepted principle that the test is not
absolute state protection and that even the most effective, well-resourced and
highly motivated police forces will have difficulty providing effective
protection. The test is whether state protection is adequate. It was up to the
Board to weigh the evidence and determine whether there was sufficient clear
and convincing evidence that state protection was unavailable.
[21]
The
respondent argues the Board considered both the negative and positive evidence.
The respondent characterizes the applicant’s arguments as only pertaining to
the weighing of evidence.
Analysis and Decision
[22]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[23]
Assessments
of the adequacy of state protection raise questions of mixed fact and law and
is also reviewable against a standard of reasonableness (see Hinzman,
Re, 2007 FCA 171, [2007] FCJ No 584 at paragraph 38).
[24]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at paragraph 59). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraph 59).
[25]
Issue
2
Did the Board err in
rejecting the applicant’s claim?
The respondent’s position in
this proceeding is that the proper test for state protection is whether such
protection was adequate.
[26]
The
Board’s decision, however, frequently invokes the “serious efforts” of a state
to provide protection. This concept is invoked at least ten times in its
decision, including in its stating of the test for refugee status:
According
to refugee protection law, home states only need to provide adequate protection
and do not have to provide perfect protection: in other words, home states only
need to make serious efforts at protection and do not have to provide de
facto effective or de facto guaranteed protection.
[27]
The
use of the phrase “in other words” in the passage is incorrect: “adequate
protection” and “serious efforts at protection” are not the same thing. The
former is concerned with whether the actual outcome of protection exists in a
given country, while the latter merely indicates whether the state has taken
steps to provide that protection.
[28]
It
is of little comfort to a person fearing persecution that a state has made an
effort to provide protection if that effort has little effect. For that reason,
the Board is tasked with evaluating the empirical reality of the adequacy of
state protection.
[29]
This
Court has affirmed this interpretation of state protection repeatedly. In Lopez
v Canada (Minister of Citizenship and Immigration), 2010 FC 1176, [2010] FC
No 1589, Mr. Justice Roger Hughes made this clear (at paragraph 8):
Another
error of law is with respect to what is the nature of state protection that is
to be considered. Here the Member found that Mexico “is making
serious and genuine efforts” to address the problem. That is not the test. What
must be considered is the actual effectiveness of the protection.
[30]
In
Garcia Bautista v Canada (Citizenship and Immigration), 2010 FC 126, [2010]
FCJ No 153, Mr. Justice Michel Beaudry indicated the same principle (at
paragraph 10):
First
of all, it weighed the evidence of criticisms of the effectiveness of the
legislation against evidence on the efforts made to address the problems of
domestic violence. This is not enough to ground a finding of state protection;
regard must be given to what is actually happening and not what the state is
endeavoring to put in place (A.T.V. v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1229, 75 Imm. L.R. (3d) 215 at
paragraph 14).
[31]
Most
recently, Madam Justice Catherine Kane confirmed the same principle in Ferko
v Canada (Minister of Citizenship and Immigration), 2012 FC 1284 at
paragraph 44:
The
test is not ‘perfect’ state protection, but adequate state protection. Still,
mere willingness to protect is insufficient; state protection must be effective
to a certain degree: Bledy v Canada (Minister of Citizenship and
Immigration), 2011 FC 210, 97 Imm LR (3d) 243 at para. 47.
[32]
On
this point, therefore, the Board clearly misstated the law. I will still,
however, consider whether the Board’s consideration of the evidence would have
reasonably led to a finding of adequate protection had the Board properly
stated the test.
[33]
The
Board repeatedly described the country conditions documents as “mixed” in their
conclusions on state protection, since “some of the text in the most recent
documents indicates that Guyana’s domestic violence state protection mechanisms
are inadequate” but “other text in the same recent documents tells a different
story and indicates Guyana has reasonably functional state protection
mechanisms”.
[34]
With
all due deference to the Board in its consideration of evidence, I believe that
the Board’s error in stating the proper legal test for state protection is also
reflected in its finding that the evidence is “mixed”. That is, the country
conditions evidence is really a mix of (1) clear statements that state
protection is inadequate and (2) descriptions of various efforts made by the
Guyanese state.
[35]
For
example, the RIR includes these statements:
-
domestic
violence in Guyana is widespread;
-
at
least one out of every three women in Guyana has reportedly been a victim of
domestic violence; and
-
some
victims are still unaware of their rights and may be too afraid to file a
report; when victims do file a complaint, police sometimes offer little support.
[36]
It
also includes these “serious efforts”:
-
there
are NGOs providing services to victims of domestic violence;
-
there
is legislation prohibiting domestic violence;
-
the
police receive training on protecting victims; and
-
the
government launched a national policy on domestic violence.
[37]
The
DOS report included these statements:
-
rape
is a problem and pervasive in Guyanese society;
-
ineffective
police and prosecutors resulted in few charges and fewer convictions;
-
domestic
violence and violence against women, including spousal abuse, is widespread and
crossed racial and socioeconomic lines;
-
anti-rape
legislation was frequently not enforced because of a lack of willingness of
victims to press charges.
[38]
It
also included these “serious efforts”:
-
spousal
rape has been criminalized by a new law;
-
domestic
violence is illegal and subject to criminal and civil penalties;
-
the
national police force has established domestic violence units;
-
there
is a shelter for victims of domestic violence; and
-
sexual
harassment is illegal.
[39]
When
state protection analysis is properly applied, it is clear that the “serious
efforts” listed above are not proper evidence of the adequacy of state
protection. A law on the books or a training session for police may not lead to
the outcome of adequate protection. Evidence of adequacy is that which
indicates whether or not a given law actually functions to protect citizens or
whether police training has resulted in a real difference in police behaviour.
[40]
The
Board justified its decision on the basis that the evidence on state protection
was mixed, but at no point in its decision did the Board identify any document
or statement indicating that the evidence on the adequacy of state protection
was mixed. Rather, the Board saw the mixed result being due to evidence of
inadequate state protection being counter-balanced by evidence of serious
efforts. As I have described above, the latter category of evidence does not
speak to the proper test for state protection. Therefore, even with the best
attempt to supplement the Board’s reasons, I cannot find them reasonable.
[41]
It
is also puzzling why the Board referred multiple times to the applicant’s
failure
to seek protection “in the past several
years”, given that the applicant has been in Canada since July 2007.
[42]
It
is not this Court’s role to reweigh evidence and my comments should not be
taken as speaking to the weight of any particular piece of evidence. Rather,
the issue here is that the Board misunderstood the proper test for state
protection and its evidentiary findings were sufficiently tainted by that
misunderstanding that I cannot disentangle them.
[43]
This
decision is unreasonable because it conflicts with the Dunsmuir above, value
of justification, as its state protection finding is neither reasonably
justified by reference to the proper legal test nor by reference to properly
considered evidence.
[44]
In
my view, on the facts of this case, the applicant has rebutted the presumption
of state protection.
[45]
I
would therefore grant the application for judicial review and return the matter
to a different panel of the Board for redetermination.
[46]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the Board is set aside and the matter is referred to a
different panel of the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
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 :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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