Date: 20011128
Docket: IMM-4955-00
Neutral citation: 2001 FCT 1308
BETWEEN:
LEONARDO BORIS GONZALEZ BENITEZ
Applicant
-and-
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
Introduction:
[1] The applicant seeks judicial review of a decision of a Post Claim Determination Officer ("PCD officer" or "officer"), dated August 21, 2000, wherein the PCD officer held that the applicant did not face a risk if removed to Uruguay.
[2] The issues are: Did the first PCD officer err in finding that the balance of the documentary evidence does not indicate that gay men are targeted in Uruguay, and the second PCD Officer thereby err by relying on this initial assessment?; Did the PCD officer err in minimizing the psychological report evidence and finding that there is sufficient information regarding whether the applicant would have access to psychological treatment in Uruguay?; and Did the first PCD officer err in his analysis of the issue of state protection, and the second PCD officer thereby err by relying on this initial assessment?
Facts:
[3] The applicant's refugee claim was refused on November 30, 1999.
[4] On December 24, 1999, the applicant applied for a PDRCC review. The applicant's [previous] counsel did not file submissions on the PDRCC because he/she had missed the deadline.
[5] On July 5, 2000, the applicant was advised by letter that a decision had been made on his PDRCC and he was to report to the Greater Toronto Enforcement Centre ("GTEC").
[6] The applicant's MP intervened and wrote to the respondent asking that the applicant be given an opportunity to file submissions.
[7] The applicant's new counsel prepared submissions and filed an H & C application. The submissions were filed as part of that application.
[8] On July 31, 2000, the applicant attended at the GTEC and was told that his PDRCC had been refused.
[9] At the interview, the officer agreed to receive further submissions and documents on the risk determination.
[10] The August 21, 2000 decision, which relied heavily on the June 16, 2000 decision made by the initial PCD officer, found that the applicant would not be at risk upon his return to Uruguay. The officer wrote:
A PCDO conducted a PDRCC Analysis on 16 June 2000 and did not find the applicant to be at risk. The officer notes that no PDRCC submission was received, however the applicant's status and experiences as a gay man were explored. The officer notes that the most recent DOS report makes no reference to abuses against homosexuals. The judiciary in Uruguay is independent and there are effective mechanisms of redress re discrimination in employment or abuse of police in this case to support that the applicant would be denied the ability to earn a livelihood due to his sexual orientation. The officer found that there was insufficient evidence to support that the applicant would be denied adequate state protection and/or redress if requested or required. The officer concludes by stating: "The applicant has failed to meet the burden of proof that he would be subject to an objectively identifiable risk, pursuant to the pdrcc mandate, if required to return to Uruguay and as such there is insufficient objective/persuasive evidence to afford Leonardo Borris Gonzalez Benitez inclusion in the pdrcc class."
The officer then went on to state:
I have carefully examined the submission dated 31 July, 2000 from the applicant's counsel. I have carefully analyzed the new documentary evidence relating to country conditions in Uruguay pertaining to gay men. I have also examined the potential for physical and psychological harm to the applicant. It is my finding that he would not be at risk. It is my finding that on balance, the documentary evidence does not indicate that gay men are targeted in Uruguay. There is insufficient credible information to find that the state is unable to protect the applicant. There is insufficient credible information that the applicant would not have access to adequate psychological treatment should he be removed to Uruguay.
[11] On August 31, 2000, the applicant learned of the negative PDRCC decision and received a letter informing him to appear for removal arrangements on September 11, 2000.
Analysis:
[12] The first two issues raised by the applicant go to the adequacy of the reasons given by the PCD officers and the weight that they gave to pieces of the documentary and psychological report evidence. The applicant's counsel submits that the initial PDRCC analysis selectively relied on the documentary evidence, deliberately omitting parts of the same evidence that supported the applicant's claims regarding the persecutory and inhumane treatment of homosexuals in Uruguay. The applicant indicates that the PCDO quoted much of the response to Information Request (URY17179.E. of Oct. 1999), but omitted parts of the evidence that reports demonstrated that homosexuals in Uruguay continued to be harassed, detained and treated with violence simply for being gay. The applicant indicates that part of the URY17179.E. Oct. 1999 response that was omitted from the PCD officer's notes/reasons strongly supports the applicant's story:
According to an August 1996 article in Brecha, although large-scale police raids on gay establishments ceased in 1991, homosexuals continued to be harassed and detained "simply for ‘being gay'"... and their clubs continued to be the target of police harassment (2 Aug. 1996). The 1997 SERPAJ report corroborated these allegations, stating that transvestites, gay and lesbians continued to face arbitrary detention, harassment and violence on the part of the police.
[13] The applicant's counsel also indicates that the August 21, 2000 PCDO report did not specifically mention any of the new documentary evidence put before the second officer. The applicant's counsel argues that due to the numerous pieces of documentary evidence that support the applicant's claims, and the fact that the Immigration and Refugee Board had found him to be credible, the PCDO should provide more than a cursory statement to the effect that he "carefully analyzed" the documentary evidence before him. In Cepeda-Gutierrez v. MCI, [1998] F.C.J. No. 1425 (T.D.), Evans J. held that while the Court normally defers to a tribunal on findings of fact:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention it its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
[14] The respondent submits that the weighing of the evidence is a question for the PCD officer. See Hassan v. MEI & [1973] S.C.R. 102">Woolaston v. MMI, [1973] S.C.R. 102. The respondent submits that the arguments by applicant's counsel amount to stating that the Court should interfere on a question of the PCDO's right to weigh the evidence as he sees fit. The respondent cites a statement by Thurlow J. in Brar v. MEI, [1986] F.C.J. No. 346 (C.A.) wherein he stated:
In our opinion, the points argued by counsel for the Applicant raise only questions of credibility and of the weight of the evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board.
[15] The respondent also points out that the applicant was given an extra opportunity to make submissions past the relevant deadline.
[16] A review of both the June and August, 2000 PDRCC assessments reveals that the first PCD officer made copious references to the documentary evidence, but did not mention a portion of the documentary evidence that appears supportive of the applicant's claim regarding police harassment of gays in Uruguay. However, I also note that the June, 2000 assessment also stated that gays had experienced discrimination in Uruguay, including denial of promotion, lack of recognition of sexual diversity in school curricula, and restricted access to public spaces. The officer also made reference to the documentary evidence to the effect that:
No reports of police harassment or violence against members of sexual minority communities could be found among sources consulted for the period 1997-1999.
The officer has made several mentions of documentary evidence indicating that gays have been discriminated against in Uruguay and also found that the most recent information indicated that no reports of police harassment against homosexuals could be found for the years 1997 to 1999. The officer's assessment is reasonably detailed. He has weighed the documentary evidence and I see no reason to intervene with the findings of either PDRCC assessment. His findings were reasonably open to him.
[17] The applicant's counsel also submits that the August 21, 2000 PDRCC assessment did not give adequate weight to the three psychological reports provided in support of the application for PDRCC review. The second PCD officer read the applicant's submissions, including these three psychological reports. In his decision, he stated:
I have carefully examined the submission dated 31 July, 2000 from the applicant's counsel. I have carefully analyzed the new documentary evidence relating to country conditions in Uruguay pertaining to gay men. I have also examined the potential for physical and psychological harm to the applicant. It is my finding that he would not be at risk. It is my finding that on balance, the documentary evidence does not indicate that gay men are targeted in Uruguay. There is insufficient credible information to find that the state is unable to protect the applicant. There is insufficient credible information that the applicant would not have access to adequate psychological treatment should he be removed to Uruguay. [emphasis added]
[18] The applicant's counsel points out that the PCDO had before him 3 medical reports evaluating the applicant's mental health. One of these reports was by a Dr. Pritchard, who had known the applicant and his partner for the past year and found that the possibility of returning to Uruguay has had devastating psychological effects on the applicant, including, inter alia, nightmares, depression and panic attacks. Counsel also submits that the PCDO had no evidence before him upon which to find that the applicant would have access to psychological treatment in Uruguay. Again, the respondent points to the law which states that the weight given to specific pieces of evidence is a decision of the PCDO which should not be interfered with by this Court.
[19] In my view, the PCD officer gave due consideration to the psychological evidence at hand. He indicates that he read the applicant's submissions and it is my view that he did not have to go any further. This Court should defer to his conclusions on psychological risk to the applicant because the officer is considered to be in a better position to assess risk in light of psychological effects than is this Court, i.e. the officer is better placed in terms of having direct contact with the applicant, as well as having experience and expertise in conducting risk assessments. While the PCD officer may have had little evidence to support the finding as to the availability of psychological treatment in Uruguay, the officer did not commit a reviewable error by finding as he did. He is entitled to find this way upon a lack of evidence to support the applicant's contentions.
[20] The applicant also submits that he cannot obtain adequate police protection because he has been labelled as gay and a "troublemaker" by the police themselves. Counsel points out that the applicant has experienced an attempted rape by a police officer and a subsequent detention and beating by the same officer. Counsel also points out that the Board found the applicant to be credible at his Refugee hearing. The first PCD officer's assessment concluded that:
-insufficient evidence, in the circumstances of this case, to support that pc would be denied adequate state protection and/or redress if requested or required.
-the applicant has failed to meet the burden of proof that he would be subject to an objectively identifiable risk, pursuant to the pdrcc mandate, if required to return to Uruguay and as such there is insufficient objective/persuasive evidence to afford Leonardo Boris Gonzalez Benitez inclusion in the pdrcc class.
[21] The second PCD officer referred to the findings of the initial (June, 2000) officer's assessment and stated that he had carefully analysed the new documentary evidence relating to country conditions in Uruguay pertaining to gay men. He concluded that:
There is insufficient credible information to find that the state is unable to protect the applicant.
[22] The applicant also submits that the initial PCDO erred because he/she found that the applicant could have gone to a higher authority regarding the alleged criminal assault that he suffered at the hands of the police. In support of her argument, counsel for the applicant cites my decision in Cuffy v. MCI (1995), 121 F.T.R. 81 (T.D.) at para. 9, where I made reference to the following statement from Madame Justice Tremblay-Lamer's decision in N.K. v. Canada (Solicitor General) (1995), 107 F.T.R. 25:
Counsel for the respondent argued that in situations where the police refused to do their duty the individual should go to a higher tribunal or approach a different organization, such as the Human Rights Commission. I cannot accept such a suggestion. The issue here is not merely discriminatory acts, which could be the subject of a complaint to a Human Rights Commission. Some of the acts alleged are criminal in nature (sexual and other forms of assault) and so are not within the jurisdiction of a Human Rights Commission. When they are victims of criminal offences the applicants are entitled, as in any country where the governmental system breaks down, to go to the police and to expect that at the very least there will be an investigation. I know of no legal system which imposes a greater burden than that on the individual ...
[23] Counsel contends that the applicant went to the police for assistance, but continued to be harassed by the police, and that he should not have been expected to go to seek help from a higher authority, given the decisions of this Court inCuffy, supra and N.K., supra. The applicant's counsel also likens the present case to the situation of women who are abused and cannot obtain assistance from the authorities simply because they are women. In this case, argues counsel, the applicant cannot obtain assistance in dealing with the police abuse and harassment to which he has been subjected simply because he is homosexual. The applicant bears the burden of demonstrating clear and convincing evidence that the state is not able to protect him. That is, unless the state is in total breakdown, the Court must presume that adequate protection exists, and international protection only comes into play when such protection is unavailable at the state level. See: Canada (AG) v. Ward, [1993] 2 S.C.R. 689 at 726.
[24] In my view, the applicant did not meet his legal burden to demonstrate that state protection is unavailable to him. As the June, 2000 PDRCC report noted, the documentary evidence indicates that there are four national organizations representing the interests of sexual minority communities in Uruguay. That assessment also noted that:
The judiciary in Uruguay is independent and that there are ‘effective' mechanisms of redress re discrimination in employment or abuse of police authority.
In the circumstances of this case, it is reasonable to expect that the applicant would need to go to a different police department, or a higher authority, for assistance with his complaint. Based on the documentary evidence, it seems reasonable to assume that the applicant could obtain assistance upon so doing. On the evidence, it appears that the applicant did not pursue such avenues and thus has failed to discharge the onus of demonstrating the inadequacy of state protection available to him in Uruguay.
[25] In my view the second officer did not fetter his discretion by relying on the conclusions of the first officer. He looked at the first officer's conclusions and reviewed them with all the applicant's new evidence and then reached his own independent conclusions. He did not treat the first officer's decision or the decision of the Refugee Board as determinative of the issues before him.
[26] For the above reasons, the application for judicial review is dismissed.
"W. P. McKeown"
JUDGE
TORONTO, ONTARIO
November 28, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4955-00
STYLE OF CAUSE: LEONARDO BORIS GONZALEZ BENITEZ
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, JUNE 28, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: WEDNESDAY, NOVEMBER 28, 2001
APPEARANCES: Ms. Barbara Jackman
For the Applicant
Mr. Donald A. MacIntosh
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011128
Docket: IMM-4955-00
Between:
LEONARDO BORIS GONZALEZ BENITEZ
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Email this Content