Ottawa, Ontario, October 25, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
INDROUTI KISHUN
ANURADHA KISHUN
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Kishun family, husband, wife and teenage daughter, were unsuccessful in their refugee claim. This is a judicial review of that decision.
[2] The principal claimant, the husband, Mohan Ram, was a wealthy businessman in Guyana. He operated a fishing fleet out of the town of Annandale on the east coast of Demerara. He, his wife and daughter are of East-Indian origin and are characterized as Indo-Guyanese in local parlance.
[3] The family’s claim is multi-layered. As Indo-Guyanese they claim to be targeted by Guyanese of African origin, or Afro-Guyanese. This targeting is intensified by their wealth and by the fact that they live near the village of Buxton known to be particularly violent and primarily inhabited by Afro-Guyanese. Mr. Kishun is also a community leader in Annandale and was chairman of the Annandale Sandreef Crime Prevention Committee. He was trained as a rural police constable in 1993.
[4] A few years ago, pirates boarded one of his fishing vessels and stole the engine. More recently, a kidnap threat was made against Anuradha who is sixteen, if a ransom was not paid. This was the final incident which caused them to flee to Canada.
[5] As the Kishuns were found to be credible, the only issue is state protection. The panel of the Refugee Protection Division of the Immigration and Refugee Board analyzed sections 96 and 97(1) of the Immigration and Refugee Protection Act and determined that they are not Convention refugees or persons in need of international protection.
STANDARD OF REVIEW
[6] To paraphrase what I have just decided in Scotland v. Canada (Minister of Citizenship and Immigration), 2006 FC 1276, this Court has struggled with the notion of state protection. A determination of what protection is generally available in a state derives from findings of fact. The RPD is specialized in these matters and is owed considerable deference. Findings of fact are usually not disturbed unless patently unreasonable.
[7] On the other hand, a forward looking projection of what might happen to the Kishuns should they be returned to Guyana may involve the application of factual findings to the legal standard established in the leading case of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 [Ward]. That may be a mixed question of fact and law, which is normally subjected to a reasonableness simpliciter standard.
[8] The Minister relies on such cases as Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.) (QL) and Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 to submit that the standard of review is patent unreasonableness. However, it has also been held in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL) and Filigrana v. Canada (Minister of Citizenship and Immigration), 2005 FC 1447, [2005] F.C.J. No. 1765 (QL) that the standard is reasonableness simpliciter.
[9] It would be overly simplistic to hold the view that decisions with respect to all issues pertaining to state protection are subject to the same standard of review. As the Federal Court of Appeal noted in Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392, the pragmatic and functional approach to judicial review is case specific in nature. Therefore, as Mr. Justice Linden said at paragraph 50:
…as complex as it may be, this analysis must be applied anew with respect to each decision, and not merely each general type of decision of a particular decision maker under a particular legislative provision. Even where it may appear that the issue has been settled in the jurisprudence, "[t]here is no shortcut past the components of the pragmatic and functional approach" (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 21 (Ryan)).
[10] As Mr. Justice Phelan noted in Pisniak v. Canada (Minister of Citizenship and Immigration), 2006 FC 824:
[8] With respect to the standard of review regarding state protection, there are two aspects which attract two different standards. The question of whether there is adequate state protection is generally an issue of fact (see Nawaz v. Canada (Minister of Citizenship and Immigration), 2003 FC 1255, [2003] F.C.J. No. 1584 (QL) and Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449, [2004] F.C.J. No. 1755 (QL)) which attracts a standard of patent unreasonableness. The question of whether the Applicant adequately availed herself of state protection is one of mixed law and fact because the Board must apply factual findings to the legal standard established in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689: "clear and convincing confirmation of a state's inability to protect" the person.
[11] It is clear that the standard of review is not correctness. Sometimes it is not necessary to choose between the other two standards. I propose to analyze the decision to determine whether or not it is reasonable. If it is unreasonable, then a further analysis will have to be done to determine exactly how unreasonable it is.
ANALYSIS
[12] The panel considered the Kishuns’ experience in Guyana and their subjective fear should they be returned there. It also carefully considered the documentary evidence on file at the IRB as well as material supplied by the applicants. It found that Guyana was a parliamentary democracy but that it was also a violent place with a political fault line based largely on ethnicity.
[13] It found that although policemen on duty were obviously somewhat more at risk, policemen off duty were not targeted more than the population at large. Furthermore, Mr. Kishun stated that he would not act again as a constable in Guyana.
[14] The panel also found that those in Buxton did not only target Indo-Guyanese. On the contrary, news reports indicated that more Afro-Guyanese were killed during the crime spree that began in February 2003, and that Indo-Guyanese may feel less secure because they were generally perceived to be wealthier.
[15] The Guyanese government has taken strong measures to combat crime and, in fact, the deputizing of Mr. Kishun as a rural constable, and arming him, is proof of that.
[16] A probing of the record reveals that the conclusions reached by the panel were not unreasonable. Newspaper reports of a speech by President Jagdeo, himself of Indo-Guyanese origin, at Annandale indicated that the crime rate had been significantly reduced, and that community policing was working.
[17] Guyana is a democracy, and has been actively engaged in combating crime. Although there may be a perception that Indo-Guyanese are targeted more, there are reports that rich and poor and other groups including Afro-Guyanese and Chinese are also victims of violence.
[18] It was not unreasonable for the panel, which referred to and considered both Ward, above, and Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.) to conclude that there was not a serious possibility that the Kishuns would face persecution for a Convention ground if they returned to Guyana, and that there were no substantial grounds to believe that they would be subjected personally to a risk to their lives, or cruel and unusual treatment or punishment, or a danger of torture.
[19] Although the panel also accepted that Mr. Kishun was suffering from depression, that condition related to his subjective fear. His state of mind had no direct bearing on the objective basis of that fear.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada dated 7 November 2005, of which notice was given 28 November 2005, is dismissed. There is no question of general importance to certify.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7559-05
STYLE OF CAUSE: MOHAN RAM KISHUN
INDROUTI KISHUN
ANURADHA KISHUN
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 19, 2006
REASONS FOR ORDERS: HARRINGTON J.
APPEARANCES:
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Joseph Milevich
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FOR THE APPLICANTS |
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John Loncar |
SOLICITORS OF RECORD:
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Mark Rosenblatt Barrister & Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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