Date: 20100518
Docket: IMM-4784-09
Citation: 2010 FC 548
Ottawa, Ontario, May 18, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
DAVEANANAD
RAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In this
case, an application was submitted by Daveananad Ram (the “Applicant”), seeking
judicial review of a decision dated August 20, 2009 by an Immigration Officer
(the “officer”) who carried out a pre-removal risk assessment; the officer
concluded that the Applicant would not be subjected to more than a mere
possibility of a risk of persecution, nor was it likely that he would be in
danger of torture, at risk to his life or at risk of cruel or unusual punishment
if he returned to Guyana.
[2]
For
the reasons set out below, this application for judicial review is dismissed.
Background
[3]
The
Applicant is a male national of Guyana
who arrived in Canada as a visitor on September 19,
1997. He subsequently submitted a refugee claim which was eventually withdrawn
in July of 2001. The Applicant also submitted an application for permanent
residence based on humanitarian and compassionate considerations pursuant to
subsection 25(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”), but this application was rejected on January
24, 2004. The Applicant submitted a second application for permanent residence
based on humanitarian and compassionate considerations in January of 2009;
however, the decision on this second application has yet to be rendered. He
then requested a pre-removal risk assessment (“PRRA”) in May of 2009. The
decision on this assessment was completed on August 20, 2009 and is the subject
of this judicial review application.
[4]
The
documentation before the officer shows the Applicant as a hard working and law
abiding individual who has succeeded in accumulating assets and establishing a
comfortable life for himself in Canada. The Applicant has a
sister living in Canada. His mother and two other sisters are residing
in Guyana.
[5]
The
PRRA application submitted by the Applicant raises general risks in Guyana related to
criminality, as well as some risks particular to the Applicant. The
particularised risks are set out as follows by the Applicant:
My life was hell in Guyana because of
what I had to endure, the people that had wanted to hurt me while I was there,
has (sic) not stopped enquiring about my whereabouts and I felt that I was
being racially targeted because of my strong political views. It was just
recently when I phoned a friend back home, I was told that rumor (sic) has it
that they were planning on finding me if I ever come (sic) back to Guyana
because of my political views.
[…]
I had made numerous attempts to get help
from the police with no action taken or safety provided to me. Even if I tried
to lay low because of the smallness of Guyana I would eventually be found.
When I was working at the sugar estate I
was harassed on a daily basis and terrorized by a group of Afro-Guyanese men
that lived in my area. Since we both supported different political groups, they
felt that they had the right to treat me in whatever way they wanted and abuse
me. They would wait for me to get back home and they would rob me and beat me
up. They would take all the money I worked hard for and tell me that they would
kill me if I didn’t change my political views. I couldn’t take this ongoing
harassment and beatings anymore. Everywhere I turned this gang of men were
always harassing me and following me. They would beat me up if I didn’t give
them all of my money, and they threatened me numerous times if I didn’t change
my mind on what political group I supported. It even got to the point where
they knew where I lived and my phone number and began calling me all the time
harassing me and leaving me threats.
The impugned decision
[6]
In
the PRRA assessment, the officer ascribed low probative value and placed little
weight on the Applicant’s statement reproduced above. The officer explained
this decision as follows:
With regards to the applicant’s brief
statement of recently phoning a friend “back home” who advised that the “rumour
has it they were planning on finding me if I ever come back to Guyana because
of my political views”, I note that no corroborative evidence in that regard
was provided (i.e (sic) sworn affidavit from the applicant’s “friend”). Also,
the above cited statement is vague, brief and general in nature. In the
applicant’s undated and unsigned statement, the applicant does not specify what
were the reasons for the applicant’s fear such as specific events that had
occurred or who specifically the suspected perpetrators were. Consequently,
low probative value is awarded to this statement.
Similarly, with respect to the
applicant’s following statement “I had made numerous attempts to get help from
the police with no action taken or safety provided to me” I find it vague and
general in nature; it also lacks specific details surrounding what steps he has
taken to contact the local authorities and how the Police have failed to offer
him protection in the past. To date, no corroborative evidence in that regards (sic)
was tendered (i.e. police record, sworn affidavits). For this reason, I ascribe
the above statement little weight.
[7]
The
officer then proceeded to an extensive review of the country conditions
documentation. He acknowledged that some of the country documentation was
dated, and consequently granted more weight to the more recent country
conditions evidence submitted by the Applicant. The officer however awarded
greater weight still to the 2008 United States Department of State Country
Reports on Human Rights Practices, the 2009 International Narcotic Control
Strategy Report and the Immigration and Refugee Board, Research Directorate
Response to Information Requests GUY100762.E and GUY101029.E as these were
recent sources which provided a comprehensive and broad-based picture of
country conditions in Guyana.
[8]
The
officer concluded from his country conditions analysis that though Guyana was a functioning
democracy, it was dealing with rampant acts of crime and violence. He also
found that the government of Guyana was committed to protecting its nationals
from criminal violence and was making ongoing efforts to fight crime and
violence. Though the level of criminality was deplorable, the officer
nevertheless concluded that the Applicant would be able to access adequate
state protection in his home country should he so require.
[9]
The
officer finally concluded that, in light of the evidence provided, he did not
believe that the Applicant personally faces risks in Guyana.
Position of the Applicant
[10]
The
Applicant asserts that the officer was capricious and acted unreasonably in
assigning little probative value and weight to his statement, and failed to
adequately explain why this statement was disregarded.
[11]
This
error by the officer resulted in a skewed analysis of country conditions and of
the availability of state protection for the Applicant in Guyana. Indeed,
though the Applicant had raised concerns about the generalized risk of
criminality in Guyana, his particular circumstances were those of an
Indo-Guyanese with political views, and he was therefore more at risk than the
general population. The officer thus failed to consider the particular
circumstances of the Applicant in the analysis of the availability of state
protection.
[12]
The
officer consequently did not give sufficient weight to the country conditions
documentation submitted by the Applicant and ignored some of the country
conditions information in the Immigration and Refugee Board, Research
Directorate’s Response to Information Request GUY100762.E referred to by the
officer. In particular, evidence of inadequate law enforcement practice and of
racial polarization of law enforcement in Guyana was ignored.
Position of the
Respondent
[13]
The
Respondent argues that the officer’s determinations of facts are entitled to a
high degree of deference by this Court. The officer found that the Applicant’s
statement was vague and lacked specific details, and consequently ascribed
little probative weight to it. This was a reasonable conclusion in the
circumstances of this case.
[14]
The
Respondent adds that the officer carried out an extensive and in-depth analysis
of country conditions in Guyana. The officer recognized
that the level of criminality was high and that law enforcement was deficient
in some aspects. However, the officer also reasonably concluded that the
government was committed to protecting its nationals from criminal violence and
making ongoing efforts to fight crime and violence. The officer further
reasonably concluded that the Applicant could obtain the protection of his
state should he require it.
Pertinent legislative
provisions
[15]
The
pertinent provisions of the Act for the purposes of this application for
judicial review are paragraph 96(a), subparagraphs 97(1)(b)(i) and (ii),
subsection 112(1) and paragraphs 113(c) and 114(1)(a) which read as follows:
|
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;
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
(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,
112. (1) A person in Canada, other than a person referred to in subsection
115(1), may, in accordance with the regulations, apply to the Minister for
protection if they are subject to a removal order that is in force or are
named in a certificate described in subsection 77(1).
113. Consideration of an application for
protection shall be as follows:
[…]
(c) in the case of an applicant not described in subsection
112(3), consideration shall be on the basis of sections 96 to 98;
114. (1) A decision to allow the application
for protection has
(a) in the case of an applicant not described in
subsection 112(3), the effect of conferring refugee protection;
|
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;
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 :
(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,
112. (1) La personne se trouvant au Canada et qui n’est pas
visée au paragraphe 115(1) peut, conformément aux règlements, demander la
protection au ministre si elle est visée par une mesure de renvoi ayant pris
effet ou nommée au certificat visé au paragraphe 77(1).
113. Il est
disposé de la demande comme il suit :
[…]
c) s’agissant du demandeur non visé au paragraphe 112(3),
sur la base des articles 96 à 98;
114. (1) La décision accordant la demande de protection a pour
effet de conférer l’asile au demandeur; […]
|
Standard of review
[16]
As noted
by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 (“Dunsmuir”) at paras. 54, 57 and 62, the first step in ascertaining
the appropriate standard of review is to ascertain whether the jurisprudence
has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular
category of question.
[17]
In
Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39,
[2004] F.C.J. No. 30 (QL) at paras. 5 to 10, and thereafter in Figurado v. Canada (Solicitor
General),
2005 FC 347, [2005] 4 F.C.R. 387, 262 F.T.R. 219, [2005] F.C.J. No. 458 (QL) at
para. 51, Justice Martineau found that decisions of PRRA officers on questions
of fact, such as country conditions, are to be reviewed on a standard of
reasonableness simpliciter. Since Dunsmuir, the standard of
reasonableness simpliciter has been collapsed into the standard of
reasonableness, and this Court has consequently consistently applied this standard
in judicial review decisions of PRRA officers which do not raise issues of
natural justice and procedural fairness: Ramanathan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 843, [2008] F.C.J. No. 1064 (QL) at
paras. 16 to 18; Christopher v. Canada (Minister of
Citizenship and Immigration), 2008 FC 964, [2008] F.C.J. No. 1199 (QL)
at paras. 11-12; Hnatusko v. Canada (Minister of
Citizenship and Immigration), 2010 FC 18, [2010] F.C.J. No. 21 (QL) at
paras. 25-26.
Analysis
[18]
The
officer ascribed low probative value and placed little weight on the
Applicant’s statement in light of its vagueness and lack of particulars. As
noted by Justice Zinn in Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, [2008] F.C.J. No. 1308 (QL)
at para.33:
The weight the trier of fact gives evidence tendered in a
proceeding is not a science. Persons may weigh evidence differently but there
is a reasonable range of weight within which the assessment of the evidence's
weight should fall. Deference must be given to PRRA officers in their
assessment of the probative value of evidence before them. If it falls within
the range of reasonableness, it should not be disturbed. In my view the weight
given counsel's statement in this matter falls within that range.
[19]
The
Applicant’s statement is lacking specific details and is vague. No specific
individuals are identified by name, no specific dates for events are set out,
the Applicant’s “friend” who recently informed him of a “rumour” remains
unidentified, the statement itself is not sworn and not signed, and no
corroborative evidence is submitted to confirm the statement. Moreover, some of
the events related by the Applicant date from well over a decade ago. In such
circumstances, the decision of the officer ascribing low probative value and
placing little weight on the statement is reasonable.
[20]
The
officer further carefully reviewed country conditions, including the evidence
submitted by the Applicant on this issue. Based on this review, the officer determined
that there was adequate, while not perfect, state protection available in Guyana. The officer
relied on many different sources to reach this conclusion. In order to have
this Court overturn this finding, the Applicant must demonstrate that the officer’s
decision was unreasonable. The Supreme Court of Canada in Dunsmuir at
para. 47 instructs as follows as to the reasonableness of a decision:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to outcomes.
In judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[21]
In
this case, the officer’s analysis was largely comprised of long citations from
the country conditions documentation. After these long citations, the officer
concluded as follows:
The above referenced documentary evidence
indicates that criminal violence is not tolerated by the Government of Guyana.
This is evident in the government’s recent attempts to address criminal
violence through anti-crime initiatives which included a national anti-crime
plan and crime prevention programs. In 2005 the government increased police
visibility and created community based policing units. Further government efforts
to strengthen law enforcement activities saw the renovation and building of
police stations across the country, the purchasing of new vehicles, and an
assortment of training programs for officers (Guyana 31 Oct. 2005). Through these ongoing
efforts the government has shown its commitment to fight crime and violence
thus, protecting its citizens.
In conclusion, I find that the government
of Guyana is committed to protecting
its nationals from criminal violence. In these circumstances, it is reasonable
to conclude that the applicant would be able to access adequate state
protection in his home country should he require it. If the applicant does
encounter problems, he can also seek protection from the Police Complaints
Authority (PCA) and the Ombudsman.
[22]
The
Applicant’s counsel asserts that the officer simply proceeded with a “cut and
paste” exercise rather than with the analysis of country conditions and
associated risk for the Applicant.
[23]
I
agree with the Applicant’s counsel that simply quoting long extracts from
country conditions documentation without more may lead to the conclusion that a
PRRA officer has not carried out a proper risk analysis or has ignored
pertinent information. PRRA officers are entrusted with an important
responsibility under the Act and presumably have expertise in determining risk
in various countries, such as in this case, Guyana. These
important responsibilities and this special expertise require more from a PRRA
officer than simply copying large extracts of country conditions documentation.
PRRA officers are minimally expected to actually analyse such documentation with
a view to ascertain if the particular circumstances of an applicant are such as
to place that applicant at risk in light of prevailing country conditions.
[24]
However,
there is also an obligation for applicants to provide PRRA officers with
sufficient information in order for such an analysis to have some meaning in
their particular circumstances. A risk analysis is indeed a personalised and
highly contextualized analysis. An applicant who simply sets out generalities
about criminality or other prevailing country conditions leaves the PRRA
officer with little material with which to carry out a personalized and
contextualized risk analysis.
[25]
In
this specific case, the Applicant submitted vague statements about the risk he
faced, and made general statements concerning country conditions leaving little
for the PRRA officer to work with. Consequently, though I understand that the
analysis of country conditions carried out in this case is very general and
lacking in deep analysis, this is largely attributable to the Applicant’s
failure to provide the PRRA officer with material facts allowing the
contextualized analysis to be carried out.
[26]
In
essence, the Applicant here has raised a general risk of criminality rather
than a personalized risk. The Applicant essentially alleges that citizens who
return to Guyana from another
country are automatically assumed to have access to wealth, and because of
this, he would become a prime target for the gangs and thieves of his country.
The Applicant has however failed to point out any support for this allegation
in any of the country conditions documentation. Moreover, this Court has
rejected similar allegations relating to Guyana in Katwaru v. Canada (Minister of
Citizenship and Immigration) 2010 FC 196, [2010] F.C.J. No. 232 (QL) at
para. 28. Analogies can also be made with similar allegations which have all
been rejected and concerning returnees to Honduras in Carias v. Canada (Minister of
Citizenship and Immigration, 2007 FC 602, [2007] F.C.J. No. 817 (QL) and to
Haiti in Prophète v. Canada (Minister of
Citizenship and Immigration), 2008 FC 331, [2008] F.C.J. No. 415 (QL)
affirmed 2008 FCA 31, [2009] F.C.J. No. 143 (QL) and in numerous other
decisions.
[27]
Consequently,
based on the information provided by the Applicant (or lack thereof) the
decision of the officer was reasonable in the particular circumstances of this
case. The decision in this case falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.
[28]
The
parties did not seek that I certify a question and no such question is
justified here. Consequently, no question shall be certified pursuant to
paragraph 74(d) of the Act.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is denied.
"Robert
M. Mainville"
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