A Guyanese family of six, seeking refugee status in Canada on the grounds that they fear ethnically-motivated violence at the hands of African-Guyanese criminal gangs here, may still get their wish as a judge recently overturned a decision to refuse their claim.
Judge Russel Zinn in a decision earlier this month ruled that the application for judicial review is allowed and that the applicants’ claim for refugee protection be re-determined by a different member of the Refugee Board who has had no previous involvement in their claims.
The appeal was filed by Stanley Bernard Gonsalves, his wife Paula Gonsalves and their children, Brandon, Tristan, Tiffany and Krystal.
According to the background of the case, the applicants are a family of Indo-Guyanese descent who entered Canada on April 6, 2006 and filed a refugee claim. The family owned a mechanic shop in Guyana, when sometime in 2006 “five gun-wielding men of Afro-Guyanese descent confronted the husband, Stanley Bernard Gonsalves, as he closed his shop. These men forced their way into the applicants’ home and demanded money and jewellery.”
Dissatisfied with the money and jewellery the husband gave them, the men are said to have beaten him and hit and threatened to kill the children.
Before the bandits left, they tied up the applicants, threatened to return, and fired several shots into the house.
Neighbours heard the family’s cries for help and called the police but the police failed to respond because they had no vehicle. After the gunmen left, the neighbours took them to the station where they made a police report and subsequently received medical attention for their injuries.
Judge Zinn said that the case file shows that the police visited the applicants’ home the next day, questioned several people, took the applicants’ statements, and arrested and charged one individual. However, the husband testified at the hearing that he did not know the outcome of that arrest, and that he had never followed up with the police about it.
And the family also told the Canadian court that prior to the home invasion, someone had attempted to break into their home but was prevented from doing so by wooden bars on the window. Other incidents they claimed to have suffered among others included being followed when making deposits at the bank and being robbed by armed thieves at a grocery stall.
According to Judge Zinn the applicants’ first application for refugee protection was denied as the refugee board found that the claimants had failed to rebut the presumption of state protection.
They then applied for leave and judicial review and the judge in that case allowed the application, “finding that the country condition evidence demonstrated continuing tension between Afro- and Indo-Guyanese and the inability of the state authorities to protect the Indo-Guyanese due to an acute lack of resources.”
The judge found further: “[W]hile the Board cites the documentary evidence as providing an unbiased statement that adequate state protection is available to the applicants in Guyana, a review of that evidence raises serious questions as to the effectiveness of the protection available.” Since the evidence cited contradicted the Board’s conclusions, failing to address the contradiction was a reviewable error.
At the first judicial review hearing, the applicants requested the Court to direct the Board to find the applicants to be Convention refugees.
The judge declined this request and sent the case back for re-determination without issuing any specific directions.
Upon re-determination, the Board found that the claimants were not Convention refugees because there was no nexus between their fear and one of the Convention grounds. The Board acknowledged that the applicants were basing their claim on the ground of race. It held that opinions were divided over whether Indo-Guyanese were disproportionately affected by crime because of their perceived wealth or because of their race.
The Board then found that while some criminal attacks against Indo-Guyanese may be racially motivated, the incidents alleged by the claimants were economically motivated.
However, Judge Zinn in his decision ruled that the Board’s conclusion “is unreasonable because it approaches the issue of motive for the attacks as a yes or no question.” “The criminals targeting the applicants may have been motivated by a combination of the applicants’ racial and economic status.
That the motive is at least not purely economic is supported by the applicants’ reference to racial slurs made against them during the incidents they allege,” the judge said.
He said there was some evidence before the Board as to the possibility of mixed motives and therefore the “Board erred in failing to consider whether there were mixed motives and if so, whether the motives could constitute the convention nexus required.”
The family’s case will now be heard by another member of the Refugee Board.