Date: 20101223
Docket: IMM-2984-10
Citation: 2010 FC 1332
Ottawa, Ontario, December 23,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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A.B.
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review concerns a Pre-Removal Risk Assessment (PRRA) decision
of a PRRA officer who found that the Applicant would not face a risk to his
life, a risk of torture, or a risk of cruel and unusual treatment or punishment
if deported to Guyana.
[2]
For
reasons that follow, I am granting this application for judicial review.
Background
[3]
The
Applicant is a 44-year-old homosexual man born in Georgetown, Guyana. He became a
permanent resident of Canada at the age of ten on November 29, 1979. He
had been adopted and raised by a Canadian family. He describes his experience
with the family as physically and emotionally abusive and says he was left in the
care of a pedophile who sexually abused him for a number of years.
[4]
As
an adult, the Applicant has been charged and convicted for a number of criminal
offences, including robbery and sexual assault. Because of his criminal
convictions, an admissibility hearing was started in January 1999, but was
adjourned to allow him to pursue a claim to Canadian citizenship. The
Applicant was unable to establish that he was a Canadian citizen, and was
subsequently found to be inadmissible. The Immigration Division issued a
removal order on January 24, 2001.
[5]
The
Applicant received a negative PRRA assessment on September 12, 2007, but
successfully challenged it on judicial review on June 17, 2009. Upon finding
the officer had erred in ignoring relevant evidence in concluding that the
Applicant was not likely to experience cruel and unusual treatment in Guyana, Justice
Russel Zinn set aside the negative PRRA decision and referred the matter back
to another officer for a new PRRA assessment.
[6]
The
present application for judicial review concerns the second PRRA decision.
Decision
Under Review
[7]
In
a letter dated December 8, 2009, the PRRA Officer informed the Applicant that
his application for a PRRA had been rejected on the grounds that the Applicant
would not be subject to risk of torture, risk to life, or risk of cruel and
unusual treatment or punishment if returned to Guyana.
[8]
The
Officer accepted the Applicant’s evidence with respect to his homosexuality.
The Officer also acknowledged the information provided in the documentary
sources that were before him, including reports from the Society Against Sexual
Orientation Discrimination (SASOD), the Guyana Human Rights Association (GHRA),
Freedom House, and the United States Department of States Country Report on
Human Rights (US DOS Report).
[9]
The
Officer gave limited weight to SASOD’s claim of a poor or worsening situation
for sexual minorities in Guyana, reasoning that if there was objective and
reliable evidence concerning serious discrimination or acts of violence
targeting sexual minorities in Guyana, this would have appeared in the recent
US DOS and Freedom House reports, which reported detailed information about
societal discrimination and violence against sexual minorities in Jamaica but
not for Guyana. The Officer acknowledged that the lack of information might
confirm that such incidents are significantly underreported, but that this
could also be interpreted to mean that circumstances had improved in Guyana.
[10]
The
Officer noted that the report of violent incidents against homosexuals in Guyana largely
involved “openly gay” persons, which the Officer saw as defined as someone
engaged in commercial sex work or transvestitism, neither of which applied to
the Applicant. The Officer found that the Applicant would have little
likelihood of facing criminal charges or jail time for consensual adult
homosexual acts. The Officer found insufficient evidence that the state
actually condoned homophobia.
[11]
However,
the Officer did acknowledge that the continuing presence of homophobic
legislation may restrict freedom of association and expression for homosexuals.
The Officer acknowledged that homosexuals faced difficulties with employment,
health care, and education, but did not find that these examples rose to the
level that it would pose, on probable grounds, a risk to life, a risk of
torture or a risk of cruel and unusual treatment or punishment to the
Applicant, although “openly gay” individuals might face such a risk of serious
harassment.
[12]
The
Officer found that social or legal pressures to conceal sexual orientation are
not uncommon in the world and concluded with the following statement:
I
acknowledge that the practice of discretion with respect to his sexual
orientation, in order to lessen his risk of experiencing related discrimination
would compromise, to some degree, the applicant’s freedom of expression and
that this would likely pose both emotional and psychological hardships to him.
However, I do not find that the applicant would be compelled to entirely
conceal or deny his sexuality in Guyana, particularly if he resides in Georgetown where the evidence indicates that social events are
organized by and for the gay community and where the applicant would reasonably
have opportunities to freely express his sexual identity in social settings.
While the applicant may feel constrained to exercise discretion with respect to
his sexual orientation in some settings, evidence that he need not always feel
constrained to do so causes me to find that the sometime exercise of discretion
does not constitute cruel and unusual treatment or punishment.
[13]
Regarding
state protection, the Officer accepted that state mechanisms are in place but
offer less than perfect protection. The Officer found that openly gay persons
(commercial sex workers and transvestites) may face a serious risk to life, a
risk of torture or a risk of cruel and unusual treatment of punishment at the
hands of the police in addition to the public, but the Applicant did not fall
within this group.
[14]
The
Officer found that some police officials responded professionally to reports of
homophobia while others did not, and therefore concluded that avenues of
effective police protection were available to victims of homophobic threats of
violence, although perseverance might be required. The Officer therefore found
that adequate levels of state protection would be reasonably available to the
applicant.
[15]
As
a result, the Officer found there was insufficient evidence that the applicant
would face a probable risk to his life, a risk of torture or a risk of cruel and
unusual treatment or punishment.
Legislation
[16]
The Immigration and Refugee Protection Act, 2001, c.27 (IRPA)
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36. (1) A permanent resident or a
foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act
of Parliament punishable by a maximum term of imprisonment of at least 10
years, or of an offence under an Act of Parliament for which a term of
imprisonment of more than six months has been imposed;
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36. (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada
d’une infraction à une loi fédérale punissable d’un emprisonnement maximal
d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un
emprisonnement de plus de six mois est infligé;
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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…
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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,
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112. (1) A person in Canada, other than
a person referred to in subsection 115(1), may, in accordance with the
regulations, apply to the Minister for protection if they are subject to a
removal order that is in force or are named in a certificate described in
subsection 77(1).
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112. (1) La personne se trouvant au
Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux
règlements, demander la protection au ministre si elle est visée par une
mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe
77(1).
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112. (3) Refugee protection may not
result from an application for protection if the person
…
(b) is determined to be inadmissible
on grounds of serious criminality with respect to a conviction in Canada
punished by a term of imprisonment of at least two years or with respect to a
conviction outside Canada for an offence that, if committed in Canada, would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years;
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112. (3) L’asile ne peut être conféré
au demandeur dans les cas suivants :
…
b) il est interdit de territoire pour
grande criminalité pour déclaration de culpabilité au Canada punie par un
emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à
l’extérieur du Canada pour une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
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113. Consideration of an application
for protection shall be as follows:
…
(d) in the case of an applicant
described in subsection 112(3), consideration shall be on the basis of the
factors set out in section 97 and
(i) in the case of an applicant for
protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada,
or
(ii) in the case of any other
applicant, whether the application should be refused because of the nature
and severity of acts committed by the applicant or because of the danger that
the applicant constitutes to the security of Canada.
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113. Il est disposé de la demande comme
il suit :
…
d) s’agissant du demandeur visé au
paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et,
d’autre part :
(i) soit du fait que le demandeur
interdit de territoire pour grande criminalité constitue un danger pour le
public au Canada,
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
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Issues
[17]
Although the
Applicant raises several issues, I consider the follow issue as being
determinative:
Did the Officer properly
assess the Applicant’s personal risk to life, risk of torture, or cruel and
unusual treatment or punishment?
Standard of
Review
[18]
The
standard of review with respect to the application of the law to evidence in
the context of a PRRA decision is reasonableness: Ariyaratnam v Canada
(Minister of Citizenship and Immigration), 2010 FC 608; Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. This means that
the Court will consider “the existence of justification, transparency and
intelligibility within the decision-making process”, and whether the PRRA
decision is “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir, at para 47.
Analysis
[19]
The
Applicant submits that the Officer erred in finding that the discrimination the
Applicant might experience in Guyana would not amount to cruel and unusual
treatment. The Applicant submits the Officer also erred in this finding by
basing the analysis on the Applicant being discreet about his sexual
orientation. The Applicant argues that the assessment of the risk must be based
on his fundamental right to live openly as a gay man. Furthermore, the
Applicant submits that in concluding that it is only transvestites and male sex
workers who are openly gay and at serious risk in Guyana, the Officer
misconstrued the source that he was relying on for this definition of “openly
gay”.
[20]
The
Respondent submits that given the evidence before the Officer, it was
reasonable for the Officer to decide that the evidence does not support that
the Applicant would be subjected to a risk of cruel and unusual treatment. The
Respondent also submits that the Officer was not advocating that the Applicant
hide his sexual orientation in Guyana, but was rather acknowledging that he may
choose to be discreet in certain situations, and that this is reasonable
because discretion about one’s sexual orientation is exercised in many parts of
the world. The Respondent argues that the Officer must consider all the
evidence in coming to a decision and must weigh it accordingly. It is not
enough for the Applicant to point to some evidence supporting his own argument
to prove that the Officer has erred.
[21]
In
defining “openly gay” in Guyana as being limited to transvestites and male
sex workers, the PRRA Officer relied on the following statement from SASOD:
‘Openly gay’ in Guyana usually refers to someone who is usually
engaged in sex work and might dress in women’s clothes. There is always a risk
of violence or verbal abuse. Other gay men who do not wish to live this way
would find it difficult to assert themselves, since the homophobia in the
society could result in persecution in different ways. There is always the
threat of violence, and many gay persons have to live dual lives to avoid that
violence.
[22]
I
would note that the wording of this passage relied on by the PRRA officer
indicates that the statement that gay men may face some risk of violence is not
limited to only commercial sex workers and transvestites. Another statement by
SASOD that was before the Officer describes “the large incidence of unreported
physical harassment and violence perpetrated on men perceived to be openly gay,
particularly male transvestite commercial sex workers” (emphasis added).
The choice of this wording would suggest that the definition of “openly gay”
men is not limited only to transvestites or commercial sex workers, although
they do compose a subset of the group. The Officer’s decision to narrowly
define the term “openly gay” as such is difficult to understand.
[23]
In
limiting the definition of “openly gay” to commercial sex workers and
transvestites and concluding with his remarks about exercising discretion, the
Officer in effect only examined the risk of cruel and unusual treatment for two
types of homosexual persons: commercial sex workers/transvestites, and
homosexual persons who are discreet in public about their sexual orientation.
Nothing about the Applicant’s history suggests that he would fall into either
category.
[24]
The
Officer was required to analyse whether the Applicant, as he is within his
personal context, would face a risk of torture, risk to life, or risk of cruel
and unusual treatment or punishment. The Applicant’s history suggests that the
Applicant has lived his life being openly gay, that is, in the conventional sense
of being open about his sexual orientation. In conducting a risk analysis based
on the assumption that the Applicant would not be openly gay in this manner in Guyana, the Officer
made an error in his analysis. In conducting the risk assessment, the Officer
was not required to dictate how the Applicant should conduct himself in the
future. Nor was it the Officer’s place to speculate that the Applicant would choose
wisely to be discreet. What was relevant was the Applicant’s personal risk as
an openly homosexual man.
[25]
There
may or may not have been enough evidence for the Officer to conclude that the
Applicant would have faced cruel and unusual treatment as a sexual minority in Guyana. Because the
Officer based his analysis only on the treatment faced by transvestites/commercial
sex workers and by homosexual persons who were discreet about their sexual
orientation, the Officer failed to examine whether the Applicant himself, as an
openly homosexual man does not fall into either of those categories, would face
such a risk.
[26]
The
Officer’s risk assessment is incomplete and as such, the Officer’s decision is
unreasonable and constitutes a reviewable error.
Conclusion
[27]
I
allow this application for judicial review and remit the matter back for
reconsideration by a different officer.
JUDGMENT
THIS COURT
ORDERS and adjudges that:
1. The
application for judicial review is allowed, and the matter is remitted back for
re-determination by a different officer.
2. I do not certify any question
of general importance.
"Leonard
S. Mandamin"
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