2021 FC, 2021 FC 1158

Date: 20211029 Docket: IMM-7498-19 Citation: 2021 FC 1158 Toronto, Ontario, October 29, 2021 PRESENT: Mr. Justice Diner BETWEEN: MANUEL MAZIETA MUNZEMBO ANASTASIA DE FATIMA GABRIEL FRANCISCO CULUMBO GABRIEL MAZIETA ISAAC DIZOLELE GABRIEL MAZIETA FLORENCA MAYIMONA GABRIEL MAZIETA TERESA GABRIEL MAZIETA Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [ 1 ] This judicial review challenges the refusal of a refugee claim, which was unreasonably decided and as a result will be returned.

The case concerns an application for judicial review, made pursuant to s 72 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], of a decision of the Refugee Protection Division (RPD) rendered orally on November 6, 2019, and issued on November 19, 2019. In the decision, the RPD member (the Member) rejected the Applicants’ claim for refugee protection on the basis that they had failed to satisfy the evidentiary requirements to meet the definition of Convention refugees consistent with s 96 of IRPA . [ 2 ] For the reasons that follow, I would grant the application. II.

Factual Context [ 3 ] The Applicants are citizens of Angola. They fled Angola and arrived in Canada in August 2018, claiming a fear of persecution by state agents in Cabinda. The key points of the narrative that Mr. Munzembo (the Principal Applicant) provided are summarized below. [ 4 ] The Principal Applicant had been raised in the province of Cabinda before moving to Luanda when he was 27, where he lived with his family for the next 13 years until his 2018 departure from Angola. He was employed as a health and safety inspector for an oil and gas company.

Since 2016, he also owned a small trucking business, employing one driver and two helpers, for the transportation of passengers and their goods in Cabinda. [ 5 ] On the night of December 18, 2017, the Principal Applicant received an anonymous call from someone who accused him of supporting the Separatist Front for the Liberation of the Enclave of Cabinda (FLEC). The caller told him he had been located and would be arrested for his involvement.

The caller hung up before the Principal Applicant could ascertain the caller’s identity or whether the call was made to a wrong number. [ 6 ] The following evening, on December 19, 2017, the Principal Applicant received a call from his driver’s wife, telling him that the evening before her husband and the two helpers were detained and tortured by a group of police who suspected the truck was being used to support the FLEC in the region. When the police threatened to kill him, the driver turned over the truck’s papers, which identified the Principal Applicant as the owner of the business.

The driver also provided the police with the Principal Applicant’s residential address in Luanda, as well as his phone number. [ 7 ] On May 4, 2018, the Principal Applicant returned from work whereupon he was met by a gathering of his neighbours who informed him that a police jeep had left his house not long before, and that the police had been looking for him but had instead arrested his nephew, who had been living with him. Fearing for his and his family’s safety, the Principal Applicant drove straight to an uncle’s home an hour away.

He called his wife and told her not to go home and to come with the children to his uncle’s home. [ 8 ] The Principal Applicant learned on June 6, 2018, that his nephew had died while in prison. Twelve days later, on June 18, he learned from his driver’s wife that he too had died while in detention. The family fled to Canada shortly after.

III. Decision Under Review [9] The Member rendered his decision orally. In it, he summarized the facts and acknowledged that the Applicants’ claims were based ona fear of the authorities responsible for detaining the driver and nephew. The Member also specified that the determinative issues were(

i) the credibility of the forward-looking risk – as opposed to the credibility of the Principal Applicant’s narrative and other testimonyabout the past events described above – and (ii) whether the presumption of adequate state protection had been rebutted. [10] The Member found that intermittent attacks took place in Cabinda and that the government could be heavy handed in its treatment ofresidents, including human rights abuses, arbitrary deprivation of life, and life threatening prison conditions. The Member also found thatconflict was non-violent and low intensity, rather than civil war.

The Member further noted the state’s efforts to address corruption andhuman rights abuses. [11] The Member found that the evidence did not support that the authorities perceived the Principal Applicant as a member of aparticular social group who collaborated with enemies of the state. He noted that other than the driver’s wife’s

interpretation of what hadhappened, there was no evidence of whether the state’s allegations against and detention of the driver were well founded, particularlysince the Principal Applicant had not taken steps to determine whether the charges were valid.

The Member made the same observationof the Principal Applicant’s nephew and the insufficient efforts to determine whether his detention had been legitimate, since it was onlythe neighbours who had said the police were looking for the Principal Applicant at the time of the nephew’s arrest. [12] The Member acknowledged that the Principal Applicant was afraid of the corruption of the police, but noted that country conditiondocuments did not indicate that police corruption was significant enough to make Angola a failed state.

He found the Applicants shouldhave consulted a lawyer to intercede and look into the charges, and that their fear of the police was based on speculation rather thancredible evidence of persecution. The Member found that if there were a legitimate police investigation, then it was legitimate that thepolice would continue looking for the Principal Applicant. [13] The Member concluded by finding that, having failed to investigate the police conduct further instead of speculating as to theircorruption, there was no evidence other than speculation as to why the police were pursuing the Principal Applicant.

Therefore, theevidentiary burden of showing that he was perceived as having collaborated with enemies of the state was not met. [14] The Member found that the Principal Applicant did not have a forward-looking risk, stating: "“Regarding credibility, I agree withCounsel that you were credible in the events that you narrated, but I find that you are not credible regarding the forward-looking risk thatyou would face if you went back to Angola”". [15] Having found that the Applicants failed to establish the nexus to Convention grounds under s 96 of IRPA, their claims were denied. IV.

Standard of Review [16] The parties agree that the applicable standard of review for the decision of the RPD is reasonableness.

The Supreme Court ofCanada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], which set out a revisedframework to determine the standard of review, provides no reason to depart from the reasonableness standard followed in previous caselaw: Gayrat v Canada (Citizenship and Immigration), 2021 FC 666 at paras 9-10; Elve v Canada (Citizenship and Immigration), 2020FC 454 at para 22. [17] A court conducting reasonableness review scrutinizes the decision maker’s decision in search of the hallmarks of reasonableness –justification, transparency, and intelligibility – to determine whether it is justified in relation to the relevant factual and legal constraintsthat brought the decision to bear (Vavilov at para 99).

Both the outcome and the reasoning process must be reasonable (Vavilov at para83). V. Analysis [18] The Applicants submit that the RPD’s decision was unreasonable on two grounds. First, they submit the Member’s finding that theApplicants would not face a forward-looking risk of harm in Angola was unreasonable. Second, they submit that the Member erred in hisanalysis with regard to state protection. The Respondent asserts that both findings were open to the Member given the evidence and werethus reasonable. I disagree, as explained below. A.

Failing to address key evidence [19] Specifically, the Respondent argued that the Member reasonably found the Applicants failed to establish their s 96 burden. Inasserting that the Applicants never reached the requisite evidentiary threshold to establish a credible fear of forward-looking persecution,the Respondent points to paragraph 4 of Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34: In a

section 96 risk assessment, sometimes called Convention grounds assessment, the appellants must establish that they“subjectively fear[] persecution and that this fear is objectively well-founded” (Sukhu v. Canada (Citizenship andImmigration), 2008 FC 427 at para. 25). The latter element requires that there is a “reasonable chance”, a “reasonablepossibility”, or a “serious possibility” of persecution on Convention grounds (Németh v. Canada (Justice), 2010 SCC 56 atpara. 98, [2010] 3 S.C.R. 281 (Németh) citing Adjei v.

Canada (Minister of Employment & Immigration), (FCA), (FCA), [1989] 2 F.C. 680 at 683, 57 D.L.R. (4th) 153 (F.C.A.)). While they must establish theircase on a balance of probabilities, they do not have to establish that persecution would be more likely than not (Li at para.

11). If they convince the PRRA officer that they face a

section 96 risk, refugee protection is conferred (IRPA, s. 114(1)(a)). [20] The Respondent also points to Gray v Canada (Citizenship and Immigration), 2020 FC 240 [Gray], arguing that it paints a similarportrait of a claimant failing to establish the baseline evidentiary threshold of s 96 persecutory risk. The backdrop to Gray, however, wasmarkedly different. In Gray, although the RPD had similarly found the applicant to be credible in his narrative; that narrative depictedfear based on general crime, corruption, or vendettas without pointing to any Convention nexus. Thus, Mr.

Gray never sought – nor,more notably, had any reason to seek – state protection. There, based on the record and the applicant’s credible narrative, the Court thefound the RPD’s assessment of only a speculative fear of persecution was reasonable. [21] The Respondent relates the outcome in Gray to this case, stating that here too, the evidence was insufficient to find the eventsinvolving the driver and the nephew were linked to each other or linked to targeting the Principal Applicant.

As such, the Respondentalleges, it was reasonable, just as in Gray, to conclude that the fear of future reprisal was entirely speculative. I cannot agree with theRespondent’s assessment, either of the factual similarities to Gray or of the reasonableness of the Member’s finding, that the fear ofpersecution was speculative. Having accepted the Principal Applicant’s narrative as credible, without impugning any part of the pastnarrative, the Member thereby accepted four key points put into evidence by the Principal Applicant as part of his narrative, namely thathe was: (

i) told by his driver’s wife that his trucking company was suspected of supporting of the FLEC by the police, who now had hisidentifying information, and that her late husband had been detained, was tortured, and then died while in detention; (ii) contacted directly by phone the night of the arrest by an anonymous caller informing him that he was suspected of assisting theFLEC and would be arrested; (iii) told by his neighbours of the arrest of his nephew (who also died in detention) and that the police had actually been lookingfor him that day; and (iv) being pursued by police after his departure from Angola, according to a sworn statement from his uncle, whom the policesuspected of sheltering him and had threatened with arrest for providing him with support. [22] The Member made no mention of points (ii) and (iv) in his decision, making it impossible to know how the evidence, if heconsidered it, would have impacted the determination of the Applicants’ nexus to Convention grounds.

I venture to say that, if taken inits totality and taken as fact, the fear of being targeted by police for suspected involvement with the FLEC rises above the level ofspeculation and would be more appropriately qualified as a reasonable logical inference based on multiple sources of information. Thatalone makes the Member’s decision unreasonable, as the Principal Applicant’s objective fear of arbitrary detention, torture, and deathappears to be borne out by the evidence from several different sources and events.

Furthermore, the country condition evidenceaccompanying his application provided objective support for the feared risk at the hands of the state. [23] On this first point, having failed to weigh crucial evidence in his determination, the Member’s decision was clearly not justified inlight of the factual and legal constraints with respect to his findings on the s 96 and 97 determination and thus unreasonable. B.

State Protection [24] Turning to the state protection analysis, the Respondent argues that the Principal Applicant offered no evidence of the state pursuinghim and accordingly failed to rebut the presumption of state protection. Further, the Respondent found it was not unreasonable for theMember to inquire whether the Principal Applicant had, through an agent, made inquiries as to the legitimacy of the charges against hisnephew, his driver, or himself.

Absent these verifications, and in light of the Member’s acknowledgement that the government of Angolawas making efforts to address corruption and human rights abuses, the assumption that the Principal Applicant would not be providedwith state protection was speculative. [25] Once again, I must disagree. First, contrary to the Respondent’s assertions, the Member accepted that the Principal Applicant wasbeing pursued by the police, just not his explanation of why.

It is trite law that an applicant is not required to risk their life by seekingineffective state protection (Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689 at pp 724-725, 103 DLR(4th) 1 [Ward]). In this case, the Primary Applicant’s driver and nephew had, in separate incidents, been arrested, tortured, and had diedwhile in detention.

On this basis alone, the availability of state protection was clearly in doubt since the police themselves, whosuspected the Principal Applicant of assisting rebels, were the agents of persecution and whom he feared would harm him. [26] Second, the Applicants submitted voluminous clear and convincing country condition evidence, some of which was addressed bythe Member, of the prevalence of police corruption, state killing, human rights abuses, and deadly prison conditions in Angola. [27] It is well established that the adequacy of state protection is a question of operational effectiveness and that a focus on best effortswithout an assessment of the effectiveness of those efforts, is a reviewable error (Mata v Canada (Immigration, Refugees andCitizenship), 2017 FC 1007 at paras 12-13; Hercegi v Canada (Citizenship and Immigration), 2012 FC 250 paras 4-6). [28] The only two comments that seem to consider the operational effectiveness of state protection in the Member’s decision in this caseare (

i) that police corruption is not so bad in Angola as to qualify as a failed state, and (ii) that the government monitors prisonconditions, which are described as life threatening, overcrowded, violent, corrupt, and without medical care.

As such, the Member’sfocus on attempts taken by the government to address corruption, instead of assessing the actual operational effectiveness of stateprotection, were clearly misplaced, unjustified by the facts, and unreasonable. [29] Finally, the presumption of state protection does not require an applicant to consult domestic legal counsel and conduct anindependent investigation, scrutinizing the legitimacy of police conduct.

Non-state actors cannot be expected to replace the protectionsthat ought to be provided by police (Aurelien v Canada (Citizenship and Immigration), 2013 FC 707 para 15-17; also Corneau v Canada(Citizenship and Immigration), 2011 FC 722 para 10). Imposing an independent commission of inquiry on the Applicants in order to

rebut the presumption of state protection was excessive, unreasonable, and unjustified, and of course runs counter to the basic tenets of state protection as enunciated in Ward and its ample progeny since. VI. Conclusion [ 30 ] The Member made fatal errors, first by impugning subjective fear without a rational basis to do so in light of overlooked key evidence, and second by placing a wholly unreasonable onus on the Applicants to investigate the same police force that they had good reason to fear based on actions taken against the Principal Applicant’s driver and his nephew.

I will thus grant the application for judicial review and remit the matter to for hearing by another panel. No questions for certification were raised and I agree that none arise. JUDGMENT in IMM-7498-19 THIS COURT’S JUDGMENT is that : 1 . The judicial review is granted and the matter is remitted for hearing by another panel. 2 . There is no question for certification. 3 . No costs will issue. “Alan S.

Diner” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7498-19 STYLE OF CAUSE: MANUEL MAZIETA MUNZEMBO ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HEARD BY VIDEOCONFERENCE DATE OF HEARING: October 21, 2021 JUDGMENT AND REASONS: DINER J. DATED: October 29, 2021 APPEARANCES : Bjorn Harsanyi For The Applicants Meenu Ahluwalia For The Respondent SOLICITORS OF RECORD : Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta For The Applicants Attorney General of Canada Calgary, Alberta For The Respondent