Date: 20050531
Docket: IMM-6158-04
Citation: 2005 FC 781
Toronto, Ontario, May 31st, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
KHEMRAJ RAMSAYWACK
BALWANTIE CHAITRAM
ESHRAT RAMSAYWACK
DESRAJ RAMSAYWACK
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are an Indo-Guyanese family who claim to have a well-founded fear of persecution based upon their ethnicity and Khemraj Ramsaywack's perceived political opinion. The Refugee Protection Division of the Immigration and Refugee Board rejected the family's refugee claims. Although the Board found Mr. Ramsaywack's description of his experiences in Guyana to be credible, it nevertheless held that the applicants failed to rebut the presumption that adequate state protection would be available to them in that country.
[2] The applicants now seek to have the Board's decision set aside, asserting that it erred in its treatment of the state protection issue. For the reasons that follow, I am satisfied that the Board committed reviewable errors in this regard. Accordingly, the application for judicial review is allowed.
Background
[3] Mr. Ramsaywack testified that he fears crime and violence in Guyana, alleging that he has been targeted by Afro-Guyanese criminals because of his ethnicity and because he is perceived to be a supporter of the People's Progressive Party (PPP).
[4] Mr. Ramsaywack testified that crime that is rampant in the family's neighbourhood. By way of example, Mr. Ramsaywack stated that in 2001, he was shot at by criminals as he was driving by in a taxi. He did not report the shooting, as he does not trust the Guyanese police. According to Mr. Ramsaywack , the police, who are predominantly Afro-Guyanese, are corrupt, and frequently collaborate with the criminals.
[5] Having finally had enough of the situation at home, the family came to Canada in 2002, whereupon they sought refugee protection.
Standard of Review
[6] The parties disagree with respect to the standard of review to be applied to a Board's finding as to the availability or adequacy of state protection in a given set of circumstances. The applicants submit that such a finding should be reviewed against the standard of reasonableness, whereas the respondent submits that patent unreasonableness is the appropriate standard.
[7] Both parties cited Federal Court jurisprudence to support their positions.
[8] It is not necessary to resolve this issue in this case, as I am satisfied that the Board's decision cannot withstand scrutiny, even under the more deferential standard of patent unreasonableness.
Analysis
[9] Mr. Ramsaywack testified that he was afraid to seek police assistance because the police force was predominantly Afro-Guyanese. He stated that he was aware of cases where individuals who had sought the assistance of the Guyanese police ended up being targeted by Afro-Guyanese criminals because they had made a complaint. Mr. Ramsaywack also described cases where Indo-Guyanese women seeking police assistance were sexually assaulted by police officers.
[10] The Board found that Mr. Ramsaywack was "... credible and trustworthy and he did not embellish or exaggerate his story." Nevertheless, the Board went on to conclude that adequate state protection was available to the applicants in Guyana.
[11] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada discussed how a refugee claimant could be expected to rebut the presumption that state protection would be available to the individual in his or her country of origin. The Court held that one way that this could be done would be for an applicant to lead evidence of similarly situated individuals who had been let down by the state.
[12] In this case, the applicants testified that Indo-Guyanese individuals who had sought protection from the Guyanese police had not only been unable to get protection, but had ended up victimized for their efforts. Nowhere in its reasons does the Board address the applicants' testimony in this regard. This evidence was obviously central to the applicants claim, and the failure to consider it is a reviewable error: Cepeda-Gutierrez v. Canada (MCI) (1998), 157 F.T.R. 35 at paras. 14 - 17.
[13] Moreover, the Board based its decision on the documentary country condition evidence, stating that "... the documentary evidence of disinterested sources indicates that the claimants do not face a reasonable chance or a serious possibility of persecution ... because of their ethnicity."
[14] In Coitinho v. Canada (Minister of Citizenship and Immigration), 2004 FC 1037, Justice Snider addresses this type of reasoning, stating:
[7] The Board goes on to make a most disturbing finding. In the absence of stating that the Applicants' evidence is not credible, the Board concludes that it "gives more weight to the documentary evidence because it comes for (sic) reputable, knowledgeable sources, none of whom have any interest in the outcome of this particular refugee hearing". This statement is tantamount to stating that documentary evidence should always be preferred to that of a refugee claimant's because the latter is interested in the outcome of the hearing. If permitted, such reasoning would always defeat a claimant's evidence. The Board's decision in this case does not inform the reader why the Applicants' evidence, when supposed to be presumed true (Adu v. Minister of Employment and Immigration, [1995] F.C.J. No. 114 (F.C.A.)]), was considered suspect.
[15] The Board made a similar error here. Moreover, in this case the Board did not simply fail to make a finding of non-credibility in preferring the independent documentary evidence. The Board actually made an express finding that Mr. Ramsaywack was a credible and trustworthy witness, and then went on to either ignore or reject his evidence on this point in favour of the documentary evidence, without any explanation for so doing. In such circumstances, the Board's decision cannot stand.
Conclusion
[16] For these reasons, the application for judicial review is allowed.
Certification
[17] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6158-04
STYLE OF CAUSE: KHEMRAJ RAMSAYWACK
BALWANTIE CHAITRAM
ESHRAT RAMSAYWACK
DESRAJ RAMSAYWACK
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 30, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: MAY 31, 2005
APPEARANCES:
Mr. Leonard Bornstein FOR THE APPLICANTS
Ms. Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
Leonard Bornstein
Toronto, Ontario
FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT