Date: 20110607
Docket: IMM-3827-10
Citation: 2011 FC 648
Ottawa, Ontario,
June 7, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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STANLEY
BERNARD GONSALVES
PAULA SUSAN GONSALUES (a.k.a. PAULA
SUSAN GONSALVES)
BRANDON JOSH GONSALVES
TRISTAN MARK GONSALVES
TIFFANY AMANDA GONSALVES and
KRYSTAL MARIE GONSALVES
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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
[1]
This is an application
for judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board that held that the applicants were neither Convention
refugees nor persons in need of protection. For the reasons that follow, this
application is allowed.
Background
[2]
The applicants are a family
of Indo-Guyanese descent. They came to Canada on April 6, 2006 and filed a refugee claim on the grounds that they fear
ethnically-motivated violence at the hands of Afro-Guyanese criminal gangs in Guyana, and are unable to obtain state protection.
[3]
The applicants owned a
mechanic shop in Guyana. In May 2006, five gun-wielding men of
Afro-Guyanese descent confronted the husband, Stanley Bernard Gonsalves, as he
closed his shop. These men forced their way into the applicants’ home and
demanded money and jewellery. Dissatisfied with the money and jewellery the
husband gave them, the men beat him, undressed, fondled, and attempted to rape
his wife, and hit and threatened to kill their children. Before leaving, the
men tied up the applicants, threatened to return, and fired several shots into
the house.
[4]
The neighbours heard
the applicants’ cries for help and called the police. The police did not come
because they had no vehicle. After the gunmen left, the applicants’ neighbours
brought them to the station where they made a police report and subsequently
received medical attention for their injuries. The file shows that the police
visited the applicants’ home the next day, questioned several people, took the
applicants’ statements, and arrested and charged one individual. The husband
testified at the hearing that he did not know the outcome of that arrest, and that
he had never followed up with the police about it.
[5]
Prior to the home
invasion, someone attempted to break into the applicants’ home but was
prevented from doing so by wooden bars on the window. Other incidents suffered
by the applicants included not being paid for repairs on the cars of
Afro-Guyanese clients, being followed when making deposits at the bank, and being
robbed by armed thieves at a grocery stall. The husband stated that during the
grocery hold-up one Afro-Guyanese thief also urinated on an Indo-Guyanese
woman. The wife testified that Afro-Guyanese men had threatened sexual assault
against her and her daughters while at a school fair. The husband stated that
the children were threatened and harassed at school by Afro-Guyanese students and
teachers. The children were sometimes denied entry to the classroom and were
subjected to bullying and physical violence at school.
[6]
The children were
removed from the school and enrolled in a Catholic school. One teacher at the
new school was abusive toward the children and the parents complained to the
principal. Following the complaint, this teacher became more aggressive toward
the children, threatening to hurt them if they ever complained again.
[7]
The applicants’ first
application for refugee protection was denied. The Board found that the
claimants had failed to rebut the presumption of state protection.
[8]
The applicants applied
for leave and judicial review. Justice Kelen allowed the application, finding
that the country condition evidence demonstrated continuing tension between
Afro- and Indo-Guyanese and the inability of the state authorities to protect
the Indo-Guyanese due to an “acute lack of resources.” He found further:
“[W]hile the Board cites the documentary evidence as providing an unbiased
statement that adequate state protection is available to the applicants in Guyana, a review of that evidence raises serious questions
as to the effectiveness of the protection available.” Since the evidence cited
contradicted the Board’s conclusions, failing to address the contradiction was
a reviewable error.
[9]
The Board’s failure to
address the concerns raised about the treatment of the children and the threats
of sexual assault against the female applicant was also found to be a
reviewable error.
[10]
At the first judicial
review hearing, the applicants requested the Court to direct the Board to find
the applicants to be Convention refugees. Justice Kelen declined this request
and sent the case back for re-determination without issuing any specific
directions. A similar request was made in this application and I too refuse to
issue the direction sought.
[11]
Upon re-determination,
the Board found that the claimants were not Convention refugees because there
was no nexus between their fear and one of the Convention grounds. The Board
acknowledged that the applicants were basing their claim on the ground of race.
It held that opinions were divided over whether Indo-Guyanese were
disproportionately affected by crime because of their perceived wealth or because
of their race. The Board then found that while some criminal attacks against
Indo-Guyanese may be racially motivated, the incidents alleged by the claimants
were economically motivated.
[12]
Regarding the robberies
and bank incident, the Board considered crime statistics in Guyana and concluded that the claimants were the targets of
random criminality, and that their fear was based on a generalized risk to all
Guyanese persons “regardless of ethnicity, gender, or race.” The Board further
held that where a subcategory of the population faces an increased degree of a
risk, the increase does not convert a general risk to a personalized risk. Regarding
the attempted rape of the female applicant during the home invasion, the Board
relied on Bulbarela v Canada (Minister
of Citizenship and Immigration), 2002 FCT 636, for the proposition that rape in the course of a crime
does not establish nexus on the basis of gender.
[13]
Regarding the threats
against the female applicant and her daughters at the school fair the Board
concluded that while gender-based, there was no evidence to suggest they were
“anything but random” and that the harm caused was discrimination, not
persecution.
[14]
Regarding the children,
the Board found that the ill treatment of the children at the public and
private schools appeared to be racially motivated in at least two instances. The
Board noted that the female applicant testified she was unaware whether
similarly situated children suffer similar discrimination and concluded that
the incidents, while discriminatory, did not rise to the level of persecution.
[15]
The Board also found
that the applicants were not persons in need of protection under s. 97(1)(b) of
the Immigration and Refugee Protection Act, SC 2001, c. 27, noting that
s. 97 does not extend to generalized risks, and that therefore the home
invasion and bank incidents were excluded from s. 97 consideration. The Board
also found that the threats at the school fair and discrimination against the
children at school did not raise a serious possibility of risk to their lives.
[16]
Counsel submitted at
the hearing that if the claimants were found not to be Convention refugees or
persons in need of protection, the Board should consider whether there were
compelling reasons to let the claimants remain in Canada under s. 108(4) of the
Act, based on the trauma from the 2006 home invasion. The Board denied
this request on the basis that there needed to be a change in circumstances to
trigger s. 108 of the Act, and that the Board was without jurisdiction
to consider compelling reasons regarding incidents found to be the result of a
generalized risk.
Issues
[17]
The applicants raised a
number of issues in their memorandum but abandoned some issues at the hearing.
The remaining issues are the following:
1.
Did the Board err by
departing from the first judicial review decision quashing the previous
determination?
2.
Did the Board err in
not finding the deprivation of the children’s right to education to be
persecution?
3.
Was the decision
adequately reasoned with due regard to the evidence?
Analysis
[18]
I do not accept the
applicants’ submission that by raising the issue of nexus as grounds for
dismissing their claim, the Board “is doing an ‘end run’ around the judicial
review order and reasons for the Federal Court remitting it for rehearing.”
[19]
The rehearing by the Board
ordered by this Court is a hearing de novo and absent any directions
from the Court in remitting the case, the Board is entitled to decide the case
on the merits. In finding that the applicants’ claim failed on the basis of state
protection, the first decision did not go on to consider the other elements of
the refugee definition. Accordingly, the Federal Court’s reasons in reviewing
the decision were also limited to state protection. However, the applicants
still need to meet all the elements of the refugee definition in order for
their claim to succeed and it was open to the Board to find, regardless of the
availability of state protection, that the applicants’ claim failed to meet
another aspect of the definition.
[20]
The Board did not defy
the directions or contradict the reasons of Justice Kelen and therefore there
is no violation of the right to judicial review and no abuse of process. There
were no directions to defy. The Board did not make findings on state
protection, and therefore did not contradict the reasons of the Court.
[21]
I also do not accept
the submission of the applicants that the Board erred in finding that the
incidents of discrimination the children faced at their schools did not rise to
the level of persecution. The applicants rely on Ali v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 1392 (TD),
for the proposition that where
the only way a child can avoid persecution is to cease attending school, asking
the child to do so violates his or her right to an education and the child should
therefore be found a refugee. The applicant submits that as in Ali, the
only way the applicant children could avoid persecution was to cease attending
school.
[22]
In order for leaving
school to be determinative, the Board must first find that the ill treatment
the child faces at school is persecution. Justice McKeown states in Ali,
at para. 4: “I do not agree with [the Board’s] reasoning since it means if
Hossay Ali is returned to Afghanistan, the only way she can avoid being
persecuted is to refuse to go to school. [emphasis added]” In this case,
the Board found that the ill treatment the children faced in school was
discrimination, but not persecution. That finding was not unreasonable given
the evidence before the Board.
[23]
Lastly, the applicants
submit that since the Board found them credible, found there to be ongoing
racial tension in Guyana, and found that some criminal attacks were racially
motivated, and since the applicants testified that the attacks against them
were accompanied by racial slurs, the Board’s finding that the attacks were not
racially motivated is unreasonable.
[24]
The applicants argue
further that in failing to address the racial slurs alleged by the applicants,
and in ignoring the documentary evidence confirming the prevalence of racially
motivated attacks in Guyana, the Board’s reasons are inadequate and a violation
of procedural fairness.
[25]
The applicants
therefore submit that the findings made by the Board regarding nexus were
perverse and capricious, and made without evidence or in disregard of the
evidence.
[26]
The respondent submits that
the Board’s finding that attacks could be racially motivated does not mean the
Board must find a nexus or Convention status. The respondent relies on Vickram
v Canada (Minister of Citizenship and Immigration), 2007 FC 457, for the
proposition that where attacks might be racially motivated, but the claimant’s
evidence indicates that wealth was the real motivation in their case, the
Board’s finding that the claimant is not targeted on racial grounds is
reasonable and “cannot be said to be perverse or made without regard to the
evidence before it.”
[27]
The respondent does not
address the racial slurs alleged by the applicants, but simply states that the
Board did not fail to provide adequate reasons and did not fail to consider
evidence in arriving at its conclusions. The respondent alleges that the
applicants are asking the Court to reweigh the evidence, and says that the
Board’s findings were reasonably open to it on consideration of all the
evidence.
[28]
The Board’s nexus
analysis is inadequate. In finding that the home invasion and bank incidents
were economically and not racially motivated, the Board quotes from the United
States Department of State (DOS) Report for the proposition that while ethnic
tensions persist in Guyana, the under-representation of Indo-Guyanese in the
civil service and security forces was likely due to the Indo-Guyanese
preferring business careers over the military. The Board also cites two
Federal Court decisions as authority for the finding that opinions are divided
over whether Indo-Guyanese are disproportionately targeted by criminals because
of their economic or racial status and then prefers the explanation of economic
affluence.
[29]
The Board’s conclusion
is unreasonable because it approaches the issue of motive for the attacks as a yes
or no question. The criminals targeting the applicants may have been motivated
by a combination of the applicants’ racial and economic status. That the
motive is at least not purely economic is supported by the applicants’
reference to racial slurs made against them during the incidents they allege. It
is further supported by other evidence, namely the testimony given by the
applicants. In Katwaru v. Canada, [2007] FCJ No
822 (FC), this Court left open
the possibility that where at least one of the motives is based on a convention
ground, nexus might be established. The Court there decided there was not
enough evidence to establish race as a motive, and therefore declined to find
mixed motives. However, the Court left open the possibility that nexus may be
found where there is evidence to support both alleged motives. In this case
there was some evidence before the Board as to the possibility of mixed
motives and therefore the Board erred in failing to consider whether there were
mixed motives and if so, whether the motives could constitute the convention
nexus required.
[30]
Vickram is unlike the present case. In Vickram,
the applicant repeatedly indicated that he believed he was targeted because of
his wealth. He only once hinted that he might also be targeted because of his
race, and he did not expand on or provide evidence to support that argument. Based
on these facts, Justice de Montigny found that “The Board was therefore
entitled to find, based on the documentary evidence and on Mr. Vickram’s own
testimony, that he was the victim of criminal acts with no link to the
Convention.” However, as previously noted, in this case the applicants
repeatedly asserted that they were being targeted for their race and provided
documentary and verbal evidence of racial violence in Guyana.
[31]
For these reasons this
application must be allowed. No question for certification was proposed and
there is none on these facts.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for
judicial review is allowed and the applicants’ claim for refugee protection is
to be re-determined by a different Member of the Board who has had no previous involvement
in their claims, and no question is certified.
“Russel
W. Zinn”
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