Friday, September 30, 2011

Beharry—failure to assess actual adequacy of state protection, not merely efforts made

Beharry v. Canada (Citizenship and Immigration), 2011 FC 111 (CanLII)

Judge: Justice Mactavish

Date heard: January 27, 2011

Date decided: February 1, 2011

Counsel for Beharry: Krassina Kostadinov

Counsel for Minister: Veronica Cham

Place of Hearing: Toronto, Ontario

The Applicant and her two children, citizens of Guyana, filed an application for pre-removal risk assessment. a previous refugee claim had been rejected on the grounds that state protection was available, although the RPD believed that they had been subjected to “brutal home invasion, during which Ms. Beharry was physically and sexually assaulted” (para. 1). The PRRA Officer rejected the application on the basis that state protection was available (para. 2).

The family submitted evidence that the situation in Guyana had worsened since their refugee hearing (para. 5). The officer reviewed the  evidence and ‘concluded that the government of Guyana had “made efforts’ to address crime in Guyana” (para. 8). Justice Mactavish found that it was an error for the officer to focus on whether the government was making efforts, when he ought to have assessed “whether those efforts have actually translated into adequate state protection” (para. 9, citing Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94). Furthermore, Mactavish found that the evidence did not lead to a reasonable finding that there was adequate state protection.

JUDICIAL REVIEW ALLOWED

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