Ottawa, Ontario, January 31, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated February 1, 2006, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order setting aside the decision and remitting the matter for redetermination by a differently constituted panel of the Board.
Background
[3] The applicant, Orlando Jack, is a twenty-two year old citizen of St. Vincent and the Grenadines. He sought protection in Canada alleging a fear of persecution as a member of a particular social group, namely, victims perceived to be homosexual. The applicant explained the circumstances leading to his claim for protection in the narrative section of his Personal Information Form (PIF).
[4] The applicant was fifteen years old when he left his family home in 1999 to escape the abuse he was suffering at the hands of his step-father. The applicant turned to his neighbour, Cardell Johnson, who allowed him to live in his home. A few months later, Johnson arrived home drunk and raped the applicant. The applicant stated that he was scared to tell anyone about what happened. Johnson told the applicant that in exchange for food and shelter, he would have to submit to his sexual advances. The applicant suffered sexual abuse at the hands of Johnson for the next two years.
[5] In late 2001, the applicant’s neighbours began to suspect that he and Johnson were engaging in homosexual acts. The applicant was harassed and beaten by the villagers as a result of his perceived homosexuality. He did not contact the police because he felt they would ignore him. He claimed to know a local gay man who had contacted the police after being attacked by the villagers, but had not received help. The applicant left Johnson’s home in September 2002 to work in Mustique Island. He eventually saved enough money to fly to Canada on a six-month visitor’s permit, although he never intended to return to St. Vincent.
[6] The applicant arrived in Canada on December 19, 2002. He was unaware of Canadian immigration laws relating to the acquisition of status or of the availability of community legal services. The applicant met Melisa Caine in February 2004, and the couple had a child in January 2005. He was advised to seek refugee protection by staff at a community shelter in May 2005. The applicant filed an application for refugee status later that month. The refugee hearing took place on January 12, 2006, and by decision dated February 1, 2006, the Board found that the applicant was neither a Convention Refugee nor a person in need of protection. The applicant’s claim was rejected because he had not availed himself of state protection. This is the judicial review of the Board’s decision.
Board’s Reasons
[7] The determinative issues identified by the Board were the well-founded nature of the applicant’s fear and the availability of state protection in St. Vincent. The Board found that the applicant did not have a well-founded fear of persecution and was not a person in need of protection. While the applicant may have had a subjective fear of persecution, an objective analysis of that fear persuaded the Board that it was not objectively well-founded. Credible documentary evidence indicated that state protection was available in St. Vincent for victims of discrimination on the basis of perceived sexual orientation.
[8] The Board found that St. Vincent was a functioning democracy and was presumed to have the ability to protect its citizens. The Board noted that the applicant claimed to have suffered abuse for being perceived as a homosexual, and believed that the police would not help him. The applicant did not report any harassment or beatings to the police. The applicant was thus unable to rebut the presumption of state protection. The Board noted that the applicant was unable to explain why Johnson, who was a homosexual, had not been harassed in a similar fashion.
[9] The Board acknowledged that discrimination against homosexuals was a serious problem in St. Vincent. However, documentary evidence showed that St. Vincent had a stable government, a national police force and an independent judiciary. The Board found that there ought to be legislative, enforcement, and correctional institutions within the government to protect victims who are targeted for their perception as homosexuals. The applicant did not seek state protection and the Board found it unreasonable for him not to have reported Johnson to the police after he was raped. The Board found that it was not unreasonable for the applicant to seek help from the police after being attacked by the villagers. It was thus unreasonable for him not to have made any efforts to seek state protection and exhaust all avenues of protection (see Szucs v. Canada (Minister of Citizenship and Immigration) (2000), 100 A.C.W.S. (3d) 650).
[10] The Board found that there was no serious possibility that the claimant would be harmed because of his perceived sexual orientation if returned to St. Vincent. The Board noted that the applicant was now a husband and father and would be able to prove to the villagers that he was not a homosexual. The Board was not convinced that St. Vincent would not be reasonably forthcoming with serious efforts to protect the applicant should he return to his home country.
Issues
[11] The applicant submitted the following issue for consideration:
Did the Board err in law in finding that state protection was available to the applicant by ignoring relevant evidence?
[12] I would restate the issue as follows:
Did the Board err in finding that state protection was available to the applicant?
Applicant’s Submissions
[13] The applicant submitted that the question of state protection is one of mixed fact and law, reviewable on the standard of reasonableness (see Chaves v. Canada (Minister of Citizenship and Immigration) (2005), 45 Imm.L.R. (3d) 58, 2005 FC 193). It was submitted that a claimant for refugee protection may establish with clear and convincing evidence that state protection would not be forthcoming where there is evidence of similarly situated individuals who were let down by the state (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1). The applicant testified that he knew of another person who had been unsuccessful in seeking police protection after being attacked for being a homosexual. It was submitted that based upon this information, the applicant decided not to contact the police since they would be of no assistance to him. The applicant submitted that the Board committed an error of law in failing to consider evidence of similarly situated individuals who sought police protection and received none.
[14] The applicant submitted that the Board placed an unreasonable burden upon the applicant. In Franklyn v. Canada (Minister of Citizenship and Immigration) (2005), 142 A.C.W.S. (3d) 308, 2005 FC 1249, the Court found it unreasonable for the Board to expect the applicant to seek further state protection after having been rebuffed or ignored. The applicant submitted that he had provided evidence of a person who sought state protection but had been ignored by the police.
[15] The applicant submitted that the Board erred in failing to consider the particular circumstances of his case, including his age, gender, cultural upbringing, societal norms and attitudes towards minors, when assessing the reasonableness of his failure to seek state protection. The Board stated that in light of the fact that the applicant was now a husband and father, he could convince the villagers that he was not homosexual. However, the applicant had testified that upon his return to St. Vincent, he would immediately be recognized. The applicant stated that the villagers have a long memory and would see his family as a front, thus continuing to perceive him as a homosexual.
[16] The applicant submitted that his explanation of what would take place should he return to St. Vincent was reasonable, and was based upon his knowledge of his society’s culture. It was submitted that the Board failed to take into account the cultural context in St. Vincent when assessing the villagers’ reactions to the applicant’s return. The applicant submitted that absent evidence suggesting otherwise, the Board must accept the applicant’s reasonable assessment that the villagers would still perceive him as homosexual. The applicant submitted that actions might be plausible when considered in the context of his cultural background. It was submitted that the Board erred in failing to assess the evidence within the proper context (see Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238, 33 A.C.W.S. (3d) 1270 (F.C.A.)).
[17] The applicant submitted that the Board’s analysis of state protection was flawed. The Board determined that St. Vincent was a democratic country and as such, “ought” to have legislation to protect persons perceived as homosexuals. The applicant noted that the Board failed to cite any evidence to support its finding that there wass legislative protection provided to victimized homosexuals.The Board acknowledged that intolerance in St. Vincent had resulted in discrimination against homosexuals and cited one document in support of this finding. However, the applicant noted that this document included a paragraph which indicated that there had been numerous occurrences of violence against persons who pursued homosexual relationships, and in many of the islands, the situation towards homosexuals had not been addressed by the governments nor any human rights organizations in the region.
[18] The applicant submitted that the documentary evidence showed that there was a lack of legislation and will on the government’s part to deal with discrimination against homosexuals. It was submitted that the absence of such legislation in St. Vincent could be an indication of the inability or unwillingness of the state to protect victimized homosexuals.
[19] The applicant submitted that in deciding the issue of state protection, the Board must consider whether it is adequate and effective (see Bobrick v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13, 50 A.C.W.S. (3d) 850). It was submitted that a relevant consideration is whether there is legislation in place to protect victims and whether it is applied. The applicant submitted that the Board did not engage in such an analysis. It was submitted that the Board erred in law by failing to consider the existence of legislation, evidence of similarly situated individuals, and evidence of cultural attitudes toward homosexuals in St. Vincent. In addition, an Amnesty International Report from 2001 indicated that the defence of sodomy laws by Caribbean governments perpetuated discrimination and created a climate conducive to violence against homosexuals, both at the hands of state officials and the community. The applicant submitted that the Board erred in law in selectively considering documentary evidence and failing to refer to evidence that was contrary to its finding or supported the applicant’s claim (see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264).
Respondent’s Submissions
[20] The respondent submitted that the availability of state protection was a purely factual finding (see Fernandopulle v. Canada (Minister of Citizenship and Immigration) (2005), 253 D.L.R. (4th) 425, 2005 FCA 91). It was submitted that the standard of proof for rebutting the presumption of state protection, especially in democratic states, was very onerous (see Ward above).
[21] The respondent submitted that it cannot be inferred from the absence from the Board’s reasons of any reference to the situation faced by the applicant’s homosexual friend that this factor was ignored. The Board is presumed to have considered all of the evidence presented to it unless there is clear evidence to the contrary. It was submitted that there is no duty upon the Board to summarize all of the evidence adduced in a hearing (see Hussain v. Canada (Minister of Citizenship and Immigration) (2004), 133 A.C.W.S. (3d) 519, 2004 FC 1186).
[22] The applicant testified that he knew of one gay man who was beaten and whose complaint to the police was ignored. It was submitted that this isolated example was insufficient for the purpose of rebutting the presumption of state protection (see Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3, (2000) 187 F.T.R. 110). The respondent submitted that there was no concrete evidence that the gay man’s situation was similar to that of the applicant (see Sellathurai v. Canada (Minister of Citizenship and Immigration) (2003), 126 A.C.W.S. (3d) 996, 2003 FC 1235). The respondent noted that the applicant, unlike the gay man, was not actually gay. The respondent submitted that the applicant’s testimony regarding the gay man’s experience was not so compelling as to give rise to an error of law on the Board’s part. It was submitted that the example served no purpose other than to show that the level of state protection was not perfect (see Maximenco v. Canada (Minister of Citizenship and Immigration) (2004), 130 A.C.W.S. (3d) 358, 2004 FC 504).
[23] The respondent submitted that the fact that the applicant was a minor when he lived in St. Vincent did not automatically render access to state protection beyond his reach. The respondent submitted that although the public in St. Vincent was homophobic, this did not mean that a person wrongly accused of being a homosexual could not seek help from the police when subjected to violence. It was submitted that the Board appreciated the cultural, attitudinal and societal context of the problems faced by homosexuals in St. Vincent when assessing state protection.
[24] The respondent submitted that the Board’s finding that the applicant’s fear was not objectively well-founded was made in full recognition of his background and history in St. Vincent, changes in his personal circumstances, and country conditions. Considering the applicant’s situation as a husband and father, his claim that the villagers would see his relationship as a front was speculative, and it was open to the Board to conclude that he did not have good grounds to fear persecution in St. Vincent. In the alternative, it was submitted that this issue was immaterial since the determinative issue for the Board was whether adequate state protection was available in St. Vincent.
[25] The respondent submitted that the Board was not under a legal duty to determine whether state protection was effective in order to make a finding that state protection was available to citizens of a country (see Zalzali v. Canada (Minister of Citizenship and Immigration), [1991] 3 F.C. 605, 126 N.R. 126, (F.C.A.)). The respondent cited Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780, (1994) 52 A.C.W.S. (3d) 348, wherein Mr. Justice Gibson stated that Bobrik set too high a standard for state protection. The respondent submitted that a review of the documentary evidence revealed that the Board’s finding that there was state protection available to the applicant was reasonable. The respondent noted that the applicant’s documentary evidence referred to the situation in the Caribbean generally and did not address St. Vincent specifically. It was submitted that none of the documentation suggested that there was systematic violence against persons perceived as homosexual in St. Vincent. Also, the evidence did not suggest that St. Vincent did not have legislation or law enforcement personnel to protect gay people. It was submitted that none of the documentary evidence was so compelling that the failure of the Board to mention it constitute an error of law (see Maximenco above).
[26] The respondent submitted that the fact that certain Caribbean governments had done little to address the situation faced by homosexuals did not mean that the government of St. Vincent had done nothing to address the issue. It was submitted that the Board’s statement that there “ought” to be legislation designed to protect victims perceived as homosexuals was a reference to the legal presumption of state protection that applies to democratic countries (see Ward above). The respondent submitted that in light of the applicant’s failure to rebut the presumption of state protection, it was not unreasonable for the Board to conclude that the applicant should have approached state authorities first for assistance.
Applicant’s Reply
[27] The applicant submitted that the Board must provide clear reasons for accepting documentary evidence over evidence of the claimant, especially when it was uncontradicted (see Okyere-Akosah v. Canada (Minister of Employment and Immigration) (1992), 157 N.R. 387, 33 A.C.W.S. (3d) 119 (F.C.A.)). It was submitted that the Board considered the documentary evidence selectively and failed to indicate why it did not accept evidence contrary to its findings.
Analysis and Decision
Standard of Review
[28] Federal Court jurisprudence regarding the standard of review applicable to the Board’s state protection findings is mixed. One line of jurisprudence has held that the determination is reviewable on a standard of reasonableness, as it involves the consideration of a question of mixed fact and law (see Chaves above), while other decisions find that the determination is essentially factual in nature and that as a result, the applicable standard is patent unreasonableness (see Loshkariev v. Canada (Minister of Citizenship and Immigration) (2006), 149 A.C.W.S. (3d) 298, 2006 FC 670).
[29] In M.P.C.R. v. Canada (Minister of Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 1068, 2005 FC 772, I stated the following at paragraph 42 of the decision:
The prevailing view is that while the underlying factual findings are subject to the standard of patent unreasonableness, the Board's findings on the adequacy of state protection is a question of mixed fact and law that is reviewed on a standard of reasonableness simpliciter . . .
It is my opinion that the applicable standard of review is that of reasonableness, as the question in the case at hand is one of mixed fact and law.
[30] Issue
Did the Board err in finding that state protection was available to the applicant?
The Board’s finding of state protection was articulated as follows:
I recognize that discrimination against gays and lesbians is a serious problem in St. Vincent due to intolerance and ignorance. I also acknowledge that the documentary evidence shows that St. Vincent has a stable government and is in control of its territories. It has a national police force and an independent judiciary. Accordingly, St. Vincent is governed by the rule of law. There ought to be legislative, enforcement and correctional institutions and arms of the different levels of government to protect victims who are perceived to be homosexuals and targets of hate crimes.
. . .
[. . .] I recognize that no government can guarantee the protection of all of its citizens at all times. What is necessary is that the state be reasonably forthcoming with serious efforts to protect. Canada’s protection for the claimant is not necessary. I am not convinced within the preponderance of probability category, as I must be, that the state of St. Vincent would not be reasonably forthcoming with serious efforts to protect the claimant if he were to return to St. Vincent and approach the state for protection.
[31] The applicant submitted that the Board erred in failing to address evidence of a similarly situated individual who failed to receive state protection in St. Vincent. It is well established law that the Board is presumed to have considered all of the evidence before it, and is not obligated to refer to everything that was considered in rendering its decision (see Hussain above).
[32] However, pages 724 and 725 of Ward (see above), the Supreme Court of Canada found that examples of clear and convincing confirmation of a state's inability to protect might include the claimant’s "testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize." The applicant stated the following in his PIF narrative regarding an individual in St. Vincent with whom he found himself similarly situated:
[. . .] I did not go to the police. I knew that if I told them I was being beaten on the belief that I was gay, they would ignore me. I had known of a gay man who had gone to the police to complain about being beaten and was not helped by the police. [. . .]
[33] The applicant also testified as follows during the hearing:
Counsel: Did you ever go to the police to complain?
Claimant: No, I never went to the police.
Counsel: Why not?
Claimant: Because I have seen what they have done to this guy who was in the same situation as me.
Counsel: Tell us about that.
Claimant: Actually one time he went to the station, the police did nothing. And they were like having a meeting. And they were all like going around to see like, there was a (inaudible) in a meeting that everybody can, it was public, so anybody can go. And the, the guys (inaudible) was beating him up. After he take the name to the police, when he come around there, they like bust his head with, one bust his head with a piece of iron, and somebody with a beer bottle.
Counsel: Okay, so let me just backtrack, because there’s a lot of information there. Who is this other person that you’ve seen?
Claimant: His name is Michael.
. . .
Counsel: Okay. All right. And this gentleman, Michael, why was he being attacked by people?
Claimant: Because he’s gay.
Counsel: Was this something he said himself?
Claimant: Yeah, yeah, he said it, yeah.
. . .
Counsel: Now, you mention that he went to the police.
Claimant: Who, Michael?
Counsel: Did Michael go to the police?
Claimant: I don’t think, no.
Counsel: Okay. My understanding was you said there were police involved in this?
Claimant: Yeah, yeah. He did, yeah, he did went to the police station, before the incident happened. Before they bust his head, he went to the police.
Counsel: Why did he go to the police station?
Claimant: Because they always trouble him.
. . .
Counsel: And what did the police do?
Claimant: They didn’t do nothing, because I didn’t see them come. Normally they would come with their transport, that’s their, police cruiser.
[34] In Irhuegbae v. Canada (Minister of Citizenship and Immigration) (2003), 122 A.C.W.S. (3d) 1099, I determined the following at paragraph 27 of the decision:
The applicant provided evidence of similarly situated individuals let down by the state protection arrangement. He gave evidence that another lecturer was murdered two nights after the applicant gave his lecture. This lecturer was a fellow anti-cult activist (tribunal record page 19). The applicant, in his Personal Information Form ("PIF") stated that a registrar of Delta State University, the applicant's alma mater, told him in May 1999 that he had been offered police protection against the cultists. A few weeks later, the registrar was murdered. The Board did not state this evidence was not credible. As well, the Board found that the applicant had not provided clear and convincing evidence that the government is unable to protect him. However, in my opinion, the applicant did provide evidence of similarly situated individuals let down by state protection (e.g. the registrar at Delta State University who was killed). This evidence was mentioned in the Board's decision, but it was not addressed in the context of the state's inability to protect the applicant. As Ward, supra states, one of the ways to establish the inability of a state to protect a person is by showing its inability to protect other similarly situated individuals. Therefore, this constitutes a reviewable error on the part of the Board.
[35] I disagree with the respondent’s position that the applicant was not in a similar situation as that of Michael, the homosexual individual in his village who was ignored by the police. The applicant was perceived as homosexual by his fellow villagers, and has testified that he engaged in homosexual acts with Johnson. As a result, I am prepared to find that he and Michael were similarly situated individuals. Both were citizens of St. Vincent who were harassed and beaten by their fellow villagers for having engaged in homosexual acts.
[36] The Board’s reasons state that the applicant failed to provide clear and convincing evidence that St. Vincent was unable or unwilling to protect him. However, the applicant testified at the hearing that he was aware of a similarly situated individual who had not been protected by the state. I would also note that there were no adverse credibility findings made against the applicant. Given the principles set out above in Ward, it appears that the Board reached an unreasonable conclusion regarding the availability of state protection to those perceived as homosexuals in St. Vincent. The Board must at least address the evidence of a similarly situated individual. The application for judicial review is therefore allowed.
[37] The parties submitted a proposed serious question of general importance for my consideration for certification, however, because of my disposition of the case, I will not certify the question.
JUDGMENT
[38] IT IS ORDERED that the application for judicial review is allowed, the decision of the Board is set aside and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 are set out in this section.
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97.(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1047-06
STYLE OF CAUSE: ORLANDO OLIVER JACK
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 18, 2007
APPEARANCES:
Mr. Patrick J. Roche FOR APPLICANT
Mr. Robert Bafaro FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Patrick J. Roche
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.