Date: 20080305
Docket: IMM-5506-06
Citation: 2008 FC 283
Ottawa, Ontario, March 5, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
LENFORD
RICHARDS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION AND THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Lenford Richards came to Canada from Jamaica in 1990. After he was
ordered to be deported, he requested a pre-removal risk assessment based on his
fear of reprisals from gangs in Jamaica. He witnessed a murder when he visited Jamaica
in 1992 and later received death threats. Another witness was killed during the
trial of the alleged murderers. The Jamaican Constabulary confirmed that Mr.
Richards is still in danger.
[2]
Nevertheless, the officer conducting the risk assessment found that Mr.
Richards could obtain state protection in Jamaica and, therefore, was not at
risk of serious harm. In particular, Mr. Richards could be placed in a witness
protection program.
[3]
Mr. Richards argues that the officer erred in his treatment of the
evidence. I agree that the officer erred and, therefore, will grant this
application for judicial review.
I. Issue
[4]
Did the officer err by overlooking important evidence supporting Mr.
Richards’ allegations?
II. Analysis
[5]
The officer found that the documentary evidence on which Mr. Richards
relied showed a general risk of being a victim of crime in Jamaica. None of the
documents addressed his particular circumstances. Further, the documents showed
that police were trying to deal with the country’s difficult crime situation.
[6]
The officer also looked at reports describing Jamaica as a
constitutional democracy with a professional police force and an independent
judiciary. In addition, he cited an article emanating from the Jamaica
Information Service describing the witness protection program. The officer
noted that the letter Mr. Richards had provided from the Jamaican Constabulary
did not make reference to the possibility of taking advantage of that program.
Therefore, the officer concluded that, while crime was clearly a serious
problem in Jamaica, Mr. Richards had failed to provide sufficient evidence to
rebut the presumption that he could obtain state protection on his return.
[7]
However, the officer did not refer to documentary evidence showing that
reprisals account for 39% of the murders in Jamaica, that the killing of
witnesses is a serious problem especially in proceedings related to violent
crimes or gangs, and that protecting witnesses is a difficult problem in a
small country like Jamaica.
[8]
Nor did the officer cite documents showing that the administration of
the witness protection program is seriously understaffed and that many
observers have commented on the program’s inadequacy. Even the Department of
State document, on which the officer relied heavily, stated that there “was a
general lack of confidence in the police’s witness protection program.”
[9]
In my view, the officer was obliged to refer to the cogent evidence
contradicting his conclusion that Mr. Richards could obtain state protection in
Jamaica: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No 1425. I must, therefore,
allow this application for judicial review and order a new assessment by a
different officer. 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 allowed and a new assessment by a different
officer is ordered;
2. No question
of general importance has been stated.
“James
W. O’Reilly”
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