PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
BY HIS LITIGATION GUARDIAN
HARRY PERSAUD KATWARU
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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 (the Board), dated June 1, 2006, wherein the Board held that the applicant was not a Convention refugee or a person in need of protection.
[2] Shivanand Kumar Katwaru, the applicant, is a citizen of Guyana. At the time of the hearing before the Board, he was 17 years old and thus a minor. He alleges to have a well-founded fear of persecution in Guyana based on his race, political opinion and membership in a particular group. The applicant is Indo-Guyanese and his agent of persecution is an Afro-Guyanese school yard bully. When the applicant was 7 or 8 years old, he was repeatedly harassed by this bully who took lunch money from the children at his school. On one occasion when the bully demanded money from the applicant he resisted and the bully poked him in the eye with a pencil which resulted in the permanent loss of vision in one of his eyes. The applicant’s mother reported the attack to the police.
[3] In 1997, the applicant travelled to Canada with his mother for the purpose of having his damaged eye treated. He returned to Canada again in 2002 for further medical treatment. He claims that before this trip to Canada the bully threatened him again and said he would kill the applicant. He has not returned to Guyana since 2002. In January 2006, the applicant’s grandfather made a refugee claim on his behalf.
THE BOARD’S DECISION
[4] The Board held that the applicant was not a Convention refugee because he did not have a nexus to any of the Convention refugee grounds. The Board held that there was no evidence to substantiate links to membership to a particular social group or to the applicant’s political opinion. It noted that the jurisprudence has established that persons of wealth who are victims of crime do not constitute a particular social group. With respect to race, the Board held that there was no reliable information to suggest that the applicant was targeted by the bully because he was Indo-Guyanese. The Board concluded that the bully harassed the applicant simply because he had lunch money.
[5] The Board went on to consider protection under section 97 of the Immigration and Refugee Protection Act, S.C. 2000, ch. 27, (the Act). The Board found that neither the applicant nor his family made a diligent effort to seek the protection of the state in 1996 after the incident resulting in the loss of the applicant’s eye or in 2001 after the applicant was allegedly threatened by the bully again.
[6] The Board further noted the applicant’s testimony to the effect that the police in Guyana are ineffective but held that his comments were vague, speculative and inconsistent with what objective agencies that observe conditions in Guyana indicate. It decided to assign greater probative value to the documentary evidence then to the applicant’s evidence. The Board noted that there have been allegations of police corruption but concluded that this was attributable to a rogue element in the police force and that police deficiencies are not generalized and concluded that effective state protection is available in Guyana.
ISSUES
[7] This case raises two issues:
- Did the Board err in determining that there was no nexus?
- Did the Board err in determining that effective state protection was available?
ANALYSIS
Nexus to a Convention refugee ground
[8] In La Hoz v. Canada (Minister of Citizenship and Immigration), 2005 FC 762, Mr. Justice Blanchard did a pragmatic and functional analysis and concluded that the standard of review applicable to determinations as to whether there is a nexus between a refugee claimant’s claim and one of the five grounds for persecution is that of reasonableness simpliciter.
[9] The applicant claims that he fears persecution based on his race, his political opinion and his membership in a particular social group. In his written submissions, the applicant did not challenge the Board’s finding about the lack of connection between the applicant’s claim and the nexus grounds of political opinion and membership in a particular social group but did challenge the Board’s finding in the applicant’s oral argument.
[10] With respect to race, the Board noted that the applicant is Indo-Guyanese and the bully was Afro-Guyanese but held that there was no reliable and persuasive information to suggest that this is the reason the bully targeted the applicant. The applicant submits that there was evidence before the Board, specifically the testimonial evidence from the applicant that Afro-Guyanese target Indo-Guyanese and the documentary evidence suggesting that there is a link between race and crime in that the Indo-Guyanese are disproportionately targeted for violence by the Afro-Guyanese criminals.
[11] The documentary evidence before the Board indicates that there is hostility between the Afro-Guyanese and Indo-Guyanese communities but there is no clear evidence that crime is racially motivated in Guyana. The issue paper entitled Guyana: Criminal Violence and Police Response (February 2002- June 2003) discusses at length whether Indo-Guyanese citizens were being disproportionately affected by criminality and concludes that the opinions are divided about whether Indo-Guyanese are disproportionately victimized (Applicant’s record, pp. 124-127)). The Board was entitled to give more weight to the documentary evidence than to the applicant’s testimony and having done so it was not unreasonable for the Board to conclude that there was no nexus.
[12] The applicant further submits that the Board failed to consider whether the motive for the attack could be mixed, i.e. criminally motivated and racially motivated. He submits that it is an error in law to fail to do so. The respondent submits that the cases relied on by the applicant do not assist the applicant because he did not provide sufficient reliable evidence to establish that the motives of the persecutor were mixed and/or that crime in Guyana is racially motivated. I agree with the respondent that the Board reasonably concluded that the attack on the applicant was not racially motivated. Since the Board concluded there was no evidence that the applicant’s persecutor was racially-motivated there was no basis on which to make a determination that there were mixed motives.
Availability of state protection
[13] The applicable standard of review to the issue of state protection is reasonableness simpliciter (Chaves v. M.C.I., 2005 CF 193, Ndikumana v. M.C.I., 2006 FC 1056, Setyanto v. M.C.I., 2006 FC 1416).
[14] It is presumed that the state is capable of protecting a claimant. This presumption can be rebutted if the claimant presents some clear and convincing evidence of the state’s inability to protect the claimant (Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689). In the present case, the Board considered whether the documentary evidence indicates whether effective state protection is available in Guyana. It also considered whether the claimant had attempted to avail himself of state protection. I am satisfied that the Board erred in both parts of its analysis.
[15] With respect to whether the applicant attempted to avail himself of state protection the Board held that because the claimant was a minor at the time when he was attacked and remained a minor until he left the country in 2002, it could not expect the applicant to have availed himself of the protection of the state. Despite this statement, the Board clearly drew a negative inference from its conclusion that the applicant failed to avail himself of state protection. For instance, the Board stated that “the claimant failed in diligently availing himself of protection in his country of origin” and “the claimant provided no documentation to corroborate his visit to the hospital or the allegation that his mother reported the injury to the police.” The Board dismissed the applicant’s testimony to the effect that he went to the police as “allegations” without making a negative credibility finding. It is true that the burden to rebut the presumption of state protection is the applicant’s; however, this does not change the fundamental principle of refugee law that a claimant is presumed to tell the truth. Without making a negative credibility determination, the Board could not disregard the applicant’s testimony that he sought state protection by going to the police. In so doing, the Board effectively removed from the applicant his chance to rebut the presumption of state protection.
[16] The applicant submits that the Board interpreted the documentary evidence in an unreasonable manner in concluding that there was effective state protection in Guyana. The applicant submits that the evidence before the Board was clear that the state is unwilling to protect its citizens, particularly those who are Indo-Guyanese. He notes that the document Guyana: Criminal Violence and Police Response indicates that police response is slow and unprofessional and that police are known to be corrupt. It also noted that once a criminal report is filed with the police, there is very little action taken by the police to investigate a crime and that when an Indo-Guyanese citizen reports an offence to the police, for the most part, these complaints are rarely investigated. It also indicated that the anti-crime measures so far implemented have been ineffective, inappropriate or insufficient to cope with the situation.
[17] This same document states that the Guyanese Indian Heritage Association could not provide evidence that police response discriminated against persons of East Indian heritage. It also quotes a dean and professor of social sciences at the University of Guyana as stating that the Guyana Police Force is mandated to respond to all complaints of victimization, regardless of race, religion, or political preferences of the complainant, and claimed that no evidence exists to support the argument that police response discriminates against Indo-Guyanese citizens. Consequently, I find that based on this evidence, it is not unreasonable to conclude that the police do not discriminate against Indo-Guyanese.
[18] A determination that the police do not discriminate against Indo-Guyanese citizens is not evidence of effective state protection. In my view, the Board’s conclusion that effective state protection is available was made without regard to the evidence before it. The Board held that “based on the documentary evidence, that there is an effective security force in place and that police deficiencies, although existing, are not generalized”. The Board did not include a reference for this determination. Having reviewed the documentary evidence, I can find no support for this conclusion.
[19] The documentary evidence indicates that the effectiveness of the Guyana Police Force is “severely limited” due to poor training, poor equipment, chronic understaffing, lack of resources, and acute budgetary constraints (Department of State report for 2005 and Request to Information GUY100762.E). It also indicates that there are other factors affecting police effectiveness including the populace's lack of trust in the police, racial polarization by officers and the general unprofessional conduct of the police (Request to Information GUY100762.E). In sum, it indicates that the deficiencies with the police are chronic and, as a consequence, the effectiveness of state protection is seriously compromised.
[20] The Board held that Guyana is making serious efforts to address the problem of crime. The documentary evidence indicated more money has been allocated to improve the police; however, there is no evidence indicating whether this has improved the availability of effective state protection.
[21] The Board also relied on Kadenko v. Minister of Citizenship and Immigration, [1996] F.C.J. No. 1376 (QL), for the proposition that the burden for a claimant to prove an absence of state protection is directly proportional to the level of democracy of the state. Democracy alone does not guarantee effective state protection; it is merely an indicator of the likely effectiveness of a state institution. In the present case, the evidence indicates that the Guyana Police Force is a very weak institution that is having real difficulties responding to the high levels of violent crime that exist in the Country as a whole. The Board is required to do more then determine whether a country has a democratic political system and must assess the quality of the institutions that provide state protection.
[22] It is not for this Court to decide whether effective state protection is available in Guyana but rather to review the Board’s decision to determine whether it was reasonable. Upon reviewing the evidence that was before the Board, I find that its reasons with respect to the availability of state protection were made without regard to the evidence before it and that they cannot withstand a somewhat probing examination.
JUDGMENT
For the above-stated reasons, this application for judicial review is allowed and the matter is hereby remitted for re-determination under section 97 of the Act by a new Board. Neither party proposed a question for certification.
Deputy Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3368-06
STYLE OF CAUSE: SHIVANAND KUMAR KATWARU ET AL
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, Ontario
REASONS FOR JUDGMENT: Teitelbaum D.J.
APPEARANCES:
Krassina Kostadinov FOR APPLICANT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT