OTTAWA, Ontario, this 10th day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (Board), dated March 31, 2005, wherein the Board determined that the Applicant is not a Convention refugee or a person in need of protection on the basis that he failed to rebut the presumption of state protection.
[2] The main issue in this case is state protection, but with a twist. The British police have offered the Applicant protection on three conditions: (1) he must completely change his distinctive identity (he is bald and muscular), (2) completely change his profession (he is a trainer, boxing instructor, self-defence instructor), and (3) move to a remote area in Great Britain and, I might add, (4) to have no contact with his family.
[3] The Applicant was born in Great Britain on February 14, 1960 and is now 45 years of age . He lived in Scotland. He is a British citizen.
[4] In June 2003, the Applicant was working as an entry host at a bar/casino in Stockholm, Sweden. A group of "Syrian gangsters" tried to force their way into the bar, but were refused entry by the Applicant for not adhering to the dress code.
[5] The Applicant was shot at several times, but was not hit. As a result of his witness statements, the gang members were arrested and convicted.
[6] In the criminal trials that followed, the Applicant was a witness for the Swedish Government. For whatever reason, his home address was given out in Court to a roomful of spectators. Two days later, the Applicant was threatened with death and notified that a "hitman" was paid to find and kill him. He lost his job and apartment as his employer and landlord feared for their own safety after they found out that the Applicant was a target.
[7] The Applicant spent months under 24-hour Police protection until January 2004. The "gangsters" are in prison for years due to his testimony. He is classified by the Swedish police as a"Category 5 Risk"; this means that the Swedish police believe that it is impossible for him to safely live and work anywhere in Sweden.
[8] The Swedish police escorted the Applicant to the airport and the airplane and he flew into Vancouver on January 7, 2004. The Swedish police promised him around $30,000.00 to begin a new life in Canada; this money was very late in coming. The Applicant states that he is totally devastated for being abandoned by the Swedish police. The Swedish government did not make any arrangements with the Canadian government for him to stay here under a witness protection program or any other program.
[9] The Applicant believes that he will be killed if he lives in Sweden, in Great Britain, or anywhere in Europe, as he alleges that "gangsters" have connections all over Europe.
[10] The Board determined that Sweden cannot protect the Applicant. Consequently, the Board assessed state protection offered by Great Britain. The Board determined that the Applicant failed to rebut the presumption that Great Britain is presumed to be capable of protecting their nationals. In fact, the Board determined that Great Britain can protect the Applicant if he changes his identity, his profession, and relocates to a remote area in Great Britain. The Board determined that it was reasonable to expect the Applicant to change his identity, his profession, and his residence in order to receive a high level of protection from the British police.
[11] The Board also determined that there was no evidence to establish personal risk to the Applicant pursuant to section 97(1) of IRPA which states :
| 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.
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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 : 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.
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[12] The Board found the Applicant to be a credible witness and notified him of the possibility of submitting a Humanitarian and Compassionate Claim which he has already done.
[13] It is also important to note that the Board member, on page 5 of his decision, states:
This is an unusual set of circumstances. As I noted at the outset I found the claimant credible. The Board does not have the jurisdiction to consider humanitarian and compassionate considerations. Given the unique circumstances of this claim and the claimant's personal sacrifices to do what only the best citizens would do in testifying against gangsters, I strongly suggest he approach counsel and put before the Minister an application for humanitarian and compassionate consideration.
[14] The question at issue is whether it is unreasonable for the Board to determine that state protection is available to the Applicant in Great Britain in the circumstances of this case. More specifically, is it reasonable for the Board to conclude as it did, that it is reasonable for the Applicant to change his identity, his profession, and his residence in order to get police protection in Great Britain?
[15] There is a discrepancy as to the standard of review pertaining to state protection. The standard of review as it pertains to issue of state protection is reasonableness simpliciter, (Chaves v. Canada (MCI), 2005 FC 193 (February 8, 2005)). In that case, Justice Tremblay-Lamer provides the following warning at footnote 1 :
The few decisions that have considered the standard of review where state protection is the principal issue tend to diverge on the standard of review (see Canada (Minister of Citizenship and Immigration) v. Smith, [1999] 1 F.C. 310 (T.D.), where Lutfy J., as he then was, determined that the standard of review was reasonableness simpliciter; the same standard was applied in Racz v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1562 (QL); (In the case of Carmona v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1531 (QL) the standard of review was found to be patent unreasonableness).
[16] In Malik et al. v. MCI, (2005) FC 1189 at paragraph 9, (August 30, 2005), Justice von Finckenstein applies the standard of patent unreasonableness regarding a Board's finding of state protection. Therefore, here are two decisions on state protection, a few months apart, applying two different standards of review.
[17] I am satisfied the correct standard to be applied is the standard of reasonableness simpliciter in the present case as the Board is applying a legal test regarding state protection as set out by Ward , [1993] 2 S.C.R. 689, to the facts found in the case at bar.
[18] The Applicant makes the following submissions:
1. The Board committed a reviewable error by failing to assess the Applicant's claim for protection from Organized Criminals in Europe.
2. The Board erred in law by doing only a cursory assessment and by failing to recognize Sweden as a country of habitual residence.
[19] The Applicant lived in Sweden from June 2000 until January 2004. The Board determined that the Applicant could no longer live in Sweden as Sweden could not protect him. That is why the Board turned its attention to state protection in Great Britain (the Applicant is a citizen of Great Britain). Before coming to Sweden, he lived in Scotland since 1993. The Applicant has family and property in Scotland and he is of the opinion he cannot return there as the "Syrian gangsters" know where he lived.
[20] The Applicant cites Kadoura v. Canada (MCI) [2003] F.C.J. No. 1328 for this proposition. Unfortunately, this case does not apply to the Applicant as he was not persecuted as defined by IRPA but nevertheless he was a victim of crime violence and must be offered protection.
3. The Board committed a reviewable error by failing to find clear evidence of personal risk in the Applicant's testimony and evidence, pursuant to section 97(1) of IRPA.
[21] The Respondent makes four submissions:
1. The Board's finding on state protection in Great Britain was reasonable and must be awarded considerable deference.
2. The burden on the Applicant is directly proportional to the level of democracy in Great Britain: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
3. The Applicant failed to rebut the presumption of state protection with "clear and convincing evidence" with respect to Great Britain. The Applicant admitted during the hearing that the police in Great Britain could protect him if he underwent an identity change, a career change, and relocated. It was not unreasonable for him to do so. Furthermore, the Applicant was willing to undertake an identity change while in Sweden, and it is not unreasonable for him to do so in Great Britain.
4. The Board did not err in not finding personal risk as per section 97(1) of IRPA. The Board's assessment of the Applicant's personal risk was reasonable. The Respondent wrote that:
The test of personalized risk found in section 97(1) requires an examination into whether state protection is available to the Claimant in either his countries of nationality. The RPD assessed [John Doe] claim of risk against both Sweden and Great Britain and found no foundation for establishing personal risk due to the availability of state protection in Great Britain.
[22] The Applicant is a Swedish resident; he does not have Swedish citizenship. The Board did find personal risk to the Applicant in Sweden and was satisfied that the Swedish police could not protect him. But, the Board determined that Great Britain could offer the Applicant a high level of protection under three very onerous conditions.
[23] The Board determined that the Applicant is a credible witness, but that he is not a person in need of protection as he did not rebut the presumption of state protection in Great Britain.
[24] I have read all the transcripts and I am sympathetic to the Applicant's difficult situation. He has gathered as much evidence as possible regarding his ordeal, despite the lack of cooperation from the Swedish police in providing him with written documentation. I am satisfied the Applicant provided evidence to demonstrate that he cannot live safely in Great Britain if he remains himself (that is if he does not change his identity, his profession and does not relocate). However, he has British citizenship and Great Britain has offered him protection under three very onerous conditions:
1. He must completely change his distinctive identity
2. He must completely change his profession, and
3. He must relocate to an isolated area in Great Britain.
[25] The question that needs to be addressed is whether it is unreasonable to ask an Applicant to completely change his life (identity, profession, and relocation) to obtain state protection.
[26] The Applicant states than he cannot safely live anywhere in Europe as the "Syrian gangsters" have connections all over the continent and would not hesitate to find him and kill him. Mr. Björn Hurtig, the Swedish lawyer appointed to represent the Applicant in the criminal case, wrote that he would not be safe in Sweden or in England.
[27] The Applicant had also discontinued all contact with family and friends in Great Britainuntil very recently for fear that they too might be targeted by the same "gangsters".
[28] In this case, the Applicant is not willing to seek protection from Great Britain as he would essentially have to change everything about himself, and would have great difficulty leading a normal life. I understand his situation.
[29] I am satisfied from the accepted facts of this special case that it was unreasonable for the Board to demand that the Applicant seek protection from Great Britain, because of the fact that he would have to make significant and life altering changes and enter into the witness protection program. The Applicant lived under the witness protection program in Sweden and as he stated at the hearing before me, "it was as if he were in a jail cell".
[30] I am satisfied that, because of the conditions to be placed on the Applicant for state protection in Great Britain, it is no better than what it was for the Applicant in Sweden, that is to cause the Applicant to make the life altering changes, It is not what one may consider as reliable state protection.
[31] I am satisfied that the Board erred in its belief, that in the circumstances of this case, Great Britainwould offer state protection.
[32] In an undated letter received by the Federal Court Registry in Vancouver, B.C., on the 2nd day of November, 2005, the Applicant states, as it relates to certifying a question of general importance:
"1/Protection
No guideline as to the acceptable standard of protection exists and as such it would appear that if I remained at the bottom of a tin mine for the rest of my life in Walesthen I would be protected however my standard of live would be such that I may as well be dead.
Under the immigration and protection act section 99 (1) I claimed refugee status here as I was in danger if I returned to the UK and tried to lead a normal life.
It would be impossible for me to function in my chosen profession, and live a normal life therefore I must contest Mr. Ross's Decision on the basis of the qualify of my life would have been destroyed and the value of my training and experience lost.
I am world class in my profession and can submit proof to confirm this."
[33] Although the above is not a question but rather a statement, I take what the Applicant wants to say is : Is it state protection if a person must change his identity, his profession, his residence and possibly give up his family?
[34] The facts in the present case are very case specific. As a result, any question that could be certified would not be of general importance.
[35] Therefore I do not intend to certify a question as proposed by the Applicant.
[36] The Respondent did not propose a question for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is returned for a new hearing before a different Board, in accordance with these reasons.
The Applicant requested that the style of cause be amended so as to delete his name from the style of cause.
The Respondent was to attempt to receive instructions for consent but has been unable to do so to the present date.
Because of the very special facts of this case, I am grating the Applicant's request for confidentiality and IT IS HEREBY ORDERED THAT the style of cause in the present matter shall read JOHN DOE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION. IT IS HEREBY FURTHER ORDERED THAT the file is to be sealed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2343-05
STYLE OF CAUSE: JOHN DOE
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 27, 2005
REASONS FOR ORDER: TEITELBAUM J.
APPEARANCES:
Caroline Christiaens FOR RESPONDENT
SOLICITORS OF RECORD:
Vancouver, B.C.
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, B.C.