Date:
20120628
Docket:
IMM-8742-11
Citation:
2012 FC 822
Ottawa, Ontario, June 28, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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SANDY TEE TOMLINSON
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Sandy
Tee Tomlinson seeks judicial review of
a negative decision of the Refugee Protection Division of the Immigration and
Refugee Board which found that he was not a person in need of protection.
[2]
For
the reasons that follow, I am satisfied that the Board erred in finding that
Mr. Tomlinson faced a generalized risk from criminal gangs in Jamaica. The Board also erred in using the wrong test in assessing whether state protection
would be available to Mr. Tomlinson.
Background
[3]
Mr.
Tomlinson owned a store in Kingston, Jamaica. His brother worked as a police
officer. The Board accepted as credible Mr. Tomlinson’s claim that after his
brother began arresting members of the Ambrook Lane Clan gang, gang members
retaliated against Mr. Tomlinson. His store was robbed and vandalized, and Mr.
Tomlinson was shot at by members of the gang.
[4]
When
Mr. Tomlinson told his brother about the attacks, his brother advised him to go
into hiding. Mr. Tomlinson did so, but gang members found him and threatened to
kill him. Mr. Tomlinson’s brother then advised him to flee the country, which
he did.
Section 97 of the Immigration
and Refugee Protection Act
[5]
At
issue is the Board’s interpretation and application of section 97(1)(b)(ii) of the Immigration and
Refugee Protection Act, S.C.
2001, c. 27, which provides that:
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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 …
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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 …
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Generalized Risk
[6]
The Board
accepted that Mr. Tomlinson had been “specifically and personally targeted … because
his brother is a police officer who has been arresting gang members.” It
nevertheless went on to conclude that the risk that he faced in Jamaica was ‘generalized’ within the meaning of section 97(1)(b)(ii) of the Immigration and
Refugee Protection Act.
[7]
In coming to
this conclusion, the Board relied on the acknowledgment in Mr. Tomlinson’s
Personal Information Form (PIF) narrative that crime and gangs are widespread
problems in Jamaica.
[8]
The Board
further stated that “The fact that this claimant has been specifically and
personally targeted by the gang is irrelevant to the determination of whether
the risk that he faces at their hands is generalized…”. According to the Board,
if a claimant did not face a personal risk, there would be “no point” in
considering whether a claim fell under the generalized risk exception in section
97(1)(b)(ii).
[9]
The Board
went on to observe that “every generalized crime victim must have a specific,
personal story of targeting to tell in terms of whatever specifically criminal
happened to them … [A]fter all, if that were not true, generalized crime
victims would not, in fact, even be victims of crime.” From this, the Board
reiterated that “the fact that this claimant has been specifically and
personally targeted by the gang is indeed irrelevant to the determination of
whether the risk that he faces at their hands is generalized within the meaning
of subsection 97(1)(b)(ii) of the IRPA
or not”.
[10]
In the
Board’s view, what mattered was “whether the prospective risk that [Mr.
Tomlinson] faces at the hands of the gang is a type of risk that is also faced
by a generality of others in Jamaica…”
[11]
The Board concluded
that since gang activity is widespread in Jamaica, the risk faced by Mr.
Tomlinson was a type of risk that was faced by a generality of others in Jamaica. As a result, he was not a person
in need of protection for the purposes of section 97 of IRPA.
[12]
In
Prophète v. Canada (Minister of Citizenship and Immigration), 2009 FCA
31, 387 N.R. 149 at para. 7, the Federal Court of Appeal observed that, “[t]he
examination of a claim under subsection 97(1) of the Act 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 for [the claimant]”. [emphasis in the original].
[13]
Both parties
have provided a number of authorities which they say support their respective views
of the law with respect to personal and generalized risks. A number of these
decisions were recently considered by Justice Gleason in Portillo v. Canada (Minister of Citizenship and Immigration), 2012 FC 678, [2012] F.C.J. No. 670
(QL) at para. 39, where she explained why the cases are not necessarily in
conflict: see para. 39.
[14]
It appears
that the Board’s reasoning in Portillo was similar to that in the
present case. That is, the Board found that Mr. Portillo “was subjected
personally to a risk to his life” while concluding that the fact that he had
been identified personally as a target did “not necessarily remove him from the
generalized risk category...”: as cited in Portillo, above, at para. 34.
[15]
I agree with
Justice Gleason that the Board’s interpretation of section 97(1)(b)(ii) of IRPA was
both incorrect and unreasonable. As Justice
Gleason put it, “It
is simply untenable for the two statements of the Board to coexist: if an
individual is subject to a personal risk to his life or risks cruel and
unusual treatment or punishment, then that risk is no longer general”: at para.
36, [emphasis in the original].
[16]
As
Justice Gleason
noted, if
the Board's reasoning is correct, it is difficult to see how there could ever
be a case where section 97 would provide protection for individuals facing
crime-related risks in high-crime countries. Indeed, when I asked counsel for
the respondent in this case to provide an example of a situation where a
personalized risk could be established in such a country, she candidly
acknowledged that it was difficult to envisage a situation where this would be
the case.
[17]
The fact that
Ambrook
Lane Clan gang
had specifically and
personally targeted Mr. Tomlinson was clearly not irrelevant to the
determination of whether the risk that he faced was personalized or
generalized. Indeed, it is precisely the type of consideration that the Board
must take into account in carrying out the individualized inquiry mandated by
the Federal Court of Appeal in Prophète. The Board thus erred in failing to properly consider
this important fact in its section 97 analysis.
[18]
The Board
further erred in stating that what mattered was whether the risk faced by Mr.
Tomlinson was “a type of risk that is also faced by a generality of others in Jamaica…” The question for determination was not just the type of risk faced but
also the degree of risk. As in Portillo, the Board erred in
conflating a highly individualized risk faced by Mr. Tomlinson with a
generalized risk of criminality faced by others in Jamaica.
[19]
That is, Mr.
Tomlinson does not just fear a criminal gang in Jamaica because he lives there
or because he works as a shopkeeper in that country. That would be a generalized
risk faced by a substantial portion of the population. Indeed, the risk that
Mr. Tomlinson faces is not the same risk that existed before his brother began
arresting members of the Ambrook
Lane Clan gang. Prior to the arrests, Mr. Tomlinson may have been at risk of
extortion or violence like many other shopkeepers in Jamaica. However, unlike
the general population, Mr. Tomlinson is now at a significantly heightened risk
as a result of having been, to quote the Board, “specifically and personally targeted by the gang”.
[20]
The Board’s
conclusion that Mr. Tomlinson faced only a generalized risk in Jamaica was thus unreasonable.
State Protection
[21]
After
concluding that the risk faced by Mr. Tomlinson was generalized in nature, the
Board went on to determine that, in any event, state protection would be
available to Mr. Tomlinson in Jamaica. The Board’s state protection analysis
was, however, fatally flawed.
[22]
In
paragraph 13 of its reasons, the Board noted that states need only provide
adequate state protection and do not have to provide their citizens with
perfect protection. This is a correct statement of the law: see Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4
F.C.R. 636. This is not, however, the standard that the Board actually applied
in evaluating the extent to which state protection would be available to Mr.
Tomlinson in Jamaica.
[23]
Indeed,
immediately after stating that countries need only provide adequate state
protection to their citizens, the Board went on to clarify its understanding of
the appropriate test by stating “in other words, states only have to make
serious efforts at protection and do not have to provide de facto
effective or de facto guaranteed protection”.
[24]
The
Board then identified the issue before it as being “whether Jamaica[n] authorities can be reasonably expected to provide the claimant with serious efforts at
protection if he were to return…”.
[25]
The
Board went on in paragraph 14 of the decision to discuss whether Jamaican
authorities were in fact making serious efforts to combat gangs and crime. It
concluded that Mr. Tomlinson’s brother had told him to leave the country
because the Jamaican police could not guarantee protection to Mr. Tomlinson,
and not because they were “not interested in making serious efforts against the
gang members who are threatening [him]”.
[26]
It
is thus clear that the Board equated the adequacy of state protection with
police interest in making serious efforts to protect citizens.
[27]
This
Court has repeatedly observed that it is an error for the Board to focus on the
efforts made by a government to combat crime without considering whether those
efforts have actually translated into adequate state protection: see, for
example, E.B. v. Canada (Minister of Citizenship and Immigration), 2011
FC 111, 383 F.T.R. 161, at para. 9; Bledy v. Canada (Minister of Citizenship
and Immigration), 2011 FC 210, 97 Imm. L.R. (3d) 243, at para. 47; Wisdom-Hall
v. Canada (Minister of Citizenship and Immigration), 2008 FC 685, 168
A.C.W.S. (3d) 611, at para. 8; and Koky v. Canada (Minister of Citizenship
and Immigration), 2011 FC 1407, [2011] F.C.J. No. 1715 (QL), at para. 60.
[28]
I
am therefore satisfied that the Board’s state protection finding was also
unreasonable.
Conclusion
[29]
For these
reasons, the application for judicial review is allowed.
[30]
Mr. Tomlinson
has proposed a question for certification with respect to individual versus
generalized risk. I am not persuaded that the question proposed is suitable for
certification. As the Federal Court of Appeal observed in Prophète, above, the determination
of whether a specific individual is a person in need of protection requires “an
individualized inquiry, which is to be conducted on the basis of the evidence
adduced by a claimant”. The analysis is thus highly dependant on the facts of
the particular case.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
differently constituted panel for re-determination; and
2.
No serious question of general importance is certified.
“Anne
Mactavish”
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