Date: 20101022
Docket: IMM-368-10
Citation: 2010 FC 1034
Ottawa, Ontario, October 22,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
LORENZO
TOUSSAINT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
In 2001, Mr. Lorenzo Toussaint witnessed the
murder of his uncle in St. Vincent and the Grenadines. After he testified at the
trial, he was assaulted by members of the perpetrator’s family. He moved to a
neighbouring village to avoid them. In 2007, he was approached by gang members
who asked them to join the gang. When he refused, they assaulted him. Mr.
Toussaint, who was then 15, then fled to Canada and sought refugee protection.
[2]
A panel of the Immigration and Refugee Board
found Mr. Toussaint to be a credible witness but dismissed his claim because he
had failed to rebut the presumption that state protection was available to him
in St. Vincent and the Grenadines. Mr. Toussaint argues that the Board erred in its analysis of state
protection and asks me to order a new hearing before a different panel.
[3]
I find that the Board’s conclusion on state
protection was reasonable and must, therefore, dismiss this application for
judicial review.
[4]
The sole issue is the reasonableness of the
Board’s conclusion on state protection.
II.
Background
[5]
When Mr. Toussaint was assaulted for testifying
at the trial of his uncle’s murderer, his mother did not approach the police.
Mr. Toussaint explained that the family was afraid to do so. Again, when he was
assaulted by gang members, no one contacted police.
[6]
Mr. Toussaint stated that he would be afraid to
return home now that the person who killed his uncle is out of prison. He
conceded that he would contact police if he felt threatened, but believed that
their resources were so strained that they would probably not be able to help
him.
[7]
The Board reasoned that the police and the state
had responded appropriately to the murder of Mr. Toussaint’s uncle through
investigation, prosecution, conviction and sentencing of the perpetrator. In
light of that response, the Board concluded that Mr. Toussaint did not put
forward valid grounds for failing to seek state protection when he needed it.
[8]
The Board acknowledged problems in the administration
of criminal justice in St. Vincent and the Grenadines, including use of excessive force and abuse of power. However,
documentary evidence showed that the state had responded to these problems
through a variety of police oversight mechanisms and initiatives aimed at
reducing violent crime. Even if the police resources were scant in Mr.
Toussaint’s home town, this did not amount to a failure of the state as a whole
to afford protection.
[9]
In short, the Board found that Mr. Toussaint had
failed to provide clear and convincing evidence that he would be unable to
obtain state protection on his return. Accordingly, his fear of persecution was
not well-founded.
III.
Was the Board’s Conclusion Unreasonable?
[10]
Mr. Toussaint argues that the Board failed to take
adequate account of the fact that he was a minor at the time of his problems in
St. Vincent and the Grenadines.
The Board should not have held him to the standard expected of an adult.
Further, Mr. Toussaint submits that the Board only addressed his claim under s.
96 of the Immigration and Refugee Protection Act, SC 2001, c. 27 and
failed to analyze his entitlement to protection under s. 97 (see statutory
provisions in Annex A).
[11]
In my view, the Board did not hold Mr. Toussaint
to an adult standard. The Board considered what would have been reasonable for
Mr. Toussaint’s family members to do in terms of seeking state protection, not
what a boy should have done. However, the Board also took note of the fact that
Mr. Toussaint is now 18 and should be held to an adult standard in future.
[12]
Given the Board’s conclusion that Mr. Toussaint
had not rebutted the presumption of state protection, there was no need for it
to consider the s. 97 claim separately from the s. 96 claim.
[13]
As I see it, the Board gave a fair reading of
the relevant evidence relating to state protection. Its conclusion - that Mr.
Toussaint had failed to show that there was a serious chance he would be
persecuted on return to St. Vincent and the Grenadines – was reasonable.
IV. Conclusion and Disposition
[14]
Given the evidence before it, the Board’s
conclusion that Mr. Toussaint had failed to show that his fear of persecution
was well-founded, because of the existence of state protection, fell within the
range of acceptable outcomes and, therefore, was reasonable. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
|
Immigration
and Refugee Protection Act, SC 2001, c 27
Convention refugee
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.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations
as being in need of protection is also a person in need of protection.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition de
« réfugié »
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.
Personne à protéger
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.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se trouve
au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu
par règlement le besoin de protection.
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