Date: 20110517
Docket: IMM-5801-10
Citation: 2011 FC 559
Ottawa, Ontario, May 17,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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SEWCHAND PRASAD
HEMWANTIE PRASHAD
KEITH PRASAD
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Applicants
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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
I.
Overview
[1]
In 2008, Mr. Sewchand Prasad, along with his
wife and son, applied for refugee protection in Canada after leaving their home in Guyana. They claimed to be at risk from criminals who had beaten and
robbed Mr. Prasad in 2007.
[2]
In 2010, a panel of the Immigration and Refugee
Board found the family not to be in need of protection given the availability
of state protection in Guyana.
The applicants maintain that the Board erred by failing to make a finding about
the credibility of their claim of being afraid of further attacks. They also
submit that the Board’s analysis of state protection was faulty. They ask me to
overturn the Board’s decision and order a new hearing.
[3]
I cannot find any basis for overturning the
Board’s decision and must, therefore, dismiss this application for judicial
review. In my view, it was unnecessary for the Board to make findings about the
applicants’ subjective fear. In addition, its finding that state protection was
available was not unreasonable.
[4]
The issues are:
- Did the Board
err by not assessing the applicants’ credibility?
- Was the Board’s
conclusion on state protection unreasonable?
II.
The Board’s Decision
[5]
The Board recognized the basis on which the
applicants made their claim for protection – Mr. Prasad had been robbed and
beaten in 2007. The attackers knew where Mr. Prasad lived, and he feared
further attacks.
[6]
The Board went on to consider whether state
protection was available in Guyana, noting first that Mr. Prasad had not gone to the police after the
attack. He explained that the assailants were wearing masks, so there was
nothing the police could do. Further, some of his neighbours had sought, but
had not received, police protection in similar circumstances.
[7]
The evidence relating to state protection
referred to by the Board included newspaper articles describing other crimes in
Guyana. The Board noted that
the articles also described the response of police to those events, including
investigations and follow-up. The applicants themselves testified that they
were aware that the police did respond to crimes. The documentary evidence
showed that crime is a serious problem in Guyana, but the state has deployed considerable resources to respond to
the situation.
[8]
In conclusion, the Board found that the
applicants, having not gone to the police, had not shown that state protection
was unavailable to them.
[9]
The Board also went on to find that the risk
faced by the applicants was a generalized one, not personal to them.
Accordingly, they did not fall within s 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] (see Annex for statutory provisions
cited.).
III.
Issue One - Did the Board err by not assessing
the applicants’ credibility?
[10]
The applicants argue that the Board was obliged
to make a definitive finding about the nature of the risk they faced before
addressing the issue of state protection. They rely on two decisions of Justice
Robert Mainville: Flores v Canada (Minister of Citizenship and Immigration),
2010 FC 503, and Jimenez v Canada (Minister of Citizenship and Immigration), 2010 FC 727. In Jimenez, Justice Mainville stated:
A decision with
regard to the subjective fear of persecution, which includes an analysis of the
refugee claimant’s credibility and the plausibility of his or her account, must
be made by the Immigration and Refugee Board to establish an appropriate
framework for an analysis, where necessary, of the availability of state protection
that takes into account the individual situation of the refugee claimant in
question. (Para 4.)
[11]
In Flores, Justice Mainville noted that s
97 of IRPA, like s 96, imports both subjective and objective components (para
26), but the issue of state protection is only relevant to the objective
component (para 27). Based on these conclusions, the applicants argue that the
Board erred by addressing state protection without analyzing their credibility
on the issue of their subjective fear of harm even though their claim was based
solely on s 97.
[12]
In my
view, Justice Mainville’s observation about s 97 was not essential to his
conclusion. In Flores, both s 96 and s 97 were in
issue. Justice Mainville’s principal assertion that objective factors should be
addressed after a claimant’s subjective fear has been identified was clearly
relevant to s 96 and led him to conclude that the Board had erred in that case
by dealing with state protection without identifying the risk to which the
state was called upon to respond. The proper approach in a case where, as here,
only s 97 is in play, was not before him.
[13]
Given that
the Federal Court of Appeal has clearly found that s 97 contains only an
objective component (Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para 33), I
cannot conclude that the Board erred by not making a definitive finding about
the credibility of the applicants’ subjective fear. At
the same time, I agree with Justice Mainville that state protection should not
be analyzed in a vacuum. The nature of the applicant’s fear should be at least identified
and the capacity and the will of the state to respond to the applicant’s
circumstances should be then analyzed.
[14]
Here, I am satisfied that the Board had
identified the nature of the risk the applicants feared and went on to consider
the question whether state protection was available to them. I see no error in
its approach.
IV. Issue Two - Was the Board’s conclusion on state protection
unreasonable?
[15]
The applicants argue that the Board failed to
consider Mr. Prasad’s reasons for not seeking state protection: He was not able
to identify his assailants and knew that others in his circumstances had not
received state protection.
[16]
In my view, the Board did take account of Mr.
Prasad’s testimony but concluded that his evidence did not rebut the
presumption of state protection, given the existence of documentary evidence
showing the capacity and will of the state of Guyana to respond to criminal acts. A person’s subjective belief that the
state is unable to protect him or her is not sufficient.
[17]
Accordingly, I cannot conclude that the Board’s
analysis of state protection was unreasonable.
V.
Conclusion and Disposition
[18]
In my view, the Board’s approach and its
conclusions were not unreasonable in light of the evidence before it.
Therefore, I must dismiss this application for judicial review. No question of
general importance arises.
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
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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.
Exclusion
— Refugee Convention
98. A
person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or 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.
Exclusion
par application de la Convention sur les réfugiés
98. La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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