Date: 20101015
Docket: IMM-546-10
Citation: 2010 FC 1014
Ottawa, Ontario, October 15,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
FABIAN BRYAN JEAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant is a citizen of St.
Lucia who applies for judicial review of the decision of the
Refugee Protection Division dated January 12, 2010 refusing his application for
refugee status.
[2]
On consent of the parties the Applicant’s name is stated as
Fabian Bryan Jean.
[3]
I have concluded that the judicial review should be dismissed
for the reasons that follow.
Background
[4]
The Applicant is a bisexual man who entered into a
homosexual relationship with another man. He was assaulted by the older brother
of his sexual partner when the two were found in a motel in 2002. The
assailant was aided by three other individuals, one of whom wielded a machete
causing significant injury to the Applicant. He was hospitalized for ten days
as a result of injuries which included multiple cutlass injuries.
[5]
Both the Applicant’s sexual partner and the assailant left St. Lucia for some time. When his sexual partner
returned in 2005 the Applicant resumed the homosexual relationship resulting in
the breakup of the Applicant’s marriage. In March 2007, the Applicant came to Canada. He filed a refugee claim because he said he learned his
assailant had returned to St. Lucia and was looking for him.
Decision Under Review
[6]
The Refugee Protection Division member (the RPD) held the
Applicant was not credible because of discrepancies in his account about when
he decided to make a refugee claim and also because his statement that the
assailant had also beaten his former sexual partner was not supported in a
letter from the former. The RPD also gave little weight to affidavits from the
Applicant’s sister and mother claiming that the assailant was back in St. Lucia looking for the Applicant, and, after
assaulting the sister, threatened serious harm against the Applicant.
[7]
The RPD found as a fact that the assailant had no further
interest in the Applicant since 2002. It found that the Applicant did not have
a well-founded fear of persecution. It reviewed country documentation and
concluded that while there was discrimination against homosexuals and some
violence, police did investigate such offences. Finally, the RPD decided that a
s. 97 analysis was not required.
Legislation
[8]
Immigration and
Refugee Protection Act,
2001, c.27 (IRPA)
|
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…
|
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,
|
Standard of Review
[9]
The standard of review with respect to questions of mixed
fact and law is assessed on the standard of reasonableness. The standard of
review for whether there is a well-founded fear of persecution is
reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, Mendoza v. Canada (Minister of Citizenship and Immigration), 2008 FC 387.
Analysis
[10]
The Applicant submits that the RPD misconstrued the
evidence and made a perverse finding of fact when it decided to give little
weight to the sister’s affidavit on the basis that the police would not have refused
to investigate her complaint because she herself was not gay. The Respondent
submits the RPD’s reasons taken as a whole cannot be said to have no line of
analysis that does not support the RPD’s decision to refuse refugee status or
that the decision evinces a marked departure from what is rational.
[11]
The Applicant who submits the RPD erred in failing to
conduct a section 97 IRPA analysis since the RPD did not reject the
Applicant’s sexual orientation and the country documentation supported a
finding that treatment of homosexuals went beyond social discrimination and
included acts of violence against homosexuals. The Respondent says there is
insufficient credible evidence before the RPD to support a s. 97 claim.
[12]
The RPD noted several substantial inconsistencies in the Applicant’s
evidence and found the Applicant not credible. The RPD noted discrepancies
between the Applicant’s evidence and testimony about the timing of his decision
to apply for refugee status. It had the opportunity to observe the Applicant when
he offered an explanation for the discrepancies. Applying the test in Khosa
v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, the RPD’s
finding that the Applicant himself was not credible is within the range of
reasonable outcomes given the evidence before it.
[13]
The RPD gave little weight to the affidavit of the sister who
declared that the assailant also attacked her and that the police refused to
investigate. She had stated: “I tried to report the matter to the police but
they said they were not interested in protecting gays.” The RPD stated:
There is evidence such
as affidavits from ... the claimant’s sister and mother that supports the
claimant’s allegation that Seika continues today to make threats. ... His
sister states that she was physically attacked by Seika and that the police
refused to help gays. Once against, the claimant’s sister is not gay and this statement
lacks a ring of truth. I assigned little probative weight to this affidavit.
[14]
The sister does not say whether what she reported to the
police was the assault on her or an account of the entire history of the
matter. Nor does she substantiate her affidavit evidence by a medical report of
her injuries or a copy of the police report. Since the sister only says she
reported “the matter” to the police, I cannot say that the RPD’s rationale for
giving her affidavit little weight falls outside the realm of reasonable
outcomes. The onus is on the Applicant to prove his claim and the affidavits of
his sister and mother he provided are mere generalized declarations lacking in
detail or corroboration.
[15]
In Odetoyinbo v. Canada (Minister of Citizenship and Immigration),
2009 FC 501, Justice Martineau stated that an adverse credibility finding,
conclusive of a refugee claim under s. 96 of IRPA, is not necessarily
conclusive of a refugee claim under s. 97 since the evidence necessary to
establish a claim differs from s. 96. There are subjective and objective
components to s. 96 which is not the case in s. 97.
[16]
The RPD does not dispute the Applicant is bisexual and
engaged in homosexual activity. Nor does the RPD dispute the Applicant was
seriously injured and hospitalized for engaging in that activity in 2002. The RPD
came to a negative s.96 conclusion stating;
Although he stopped
for some time, he re-entered a homosexual relationship and conducted his
affairs discretely for several years. It is reasonable to conclude the claimant
could return to St. Lucia and live as he was living without a serious possibility of
being persecuted by society.
[17]
The RPD reviewed country documentation that indicated attitudes
in St. Lucia against homosexuals go
beyond social discrimination and included acts of violence against homosexuals.
The 2008 U.S. Department of State reports that there are few openly gay people
in the country and at least two cases of violence against homosexuals including
one homosexual who was killed after being hung from a tree because he was
openly gay. The RPD noted the police were investigating the crime but also
observed that police do not always investigate complaints of homophobic
violence.
[18]
The RPD found that, despite a negative environment for homosexuals
in St. Lucia, the Applicant had not
reported any harassment by St. Lucian society at large. The Applicant has to
establish a connection between his claim and the objective situation in St. Lucia. He has not made any allegations of
persecution other than the 2002 attack by the assailant whom the RPD found was
no longer interested in the Applicant. The Applicant has not shown he was or
would be persecuted by the St. Lucian public at large. Nejad v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1444.
[19]
A negative credibility finding under s. 96 may be
determinative of a s. 97 claim. In Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, the Federal Court of Appeal stated at para. 29:
However, as
MacGuigan J.A. acknowledged in Sheikh, supra, in fact the claimant’s oral
testimony will often be the only evidence linking the claimant to the alleged
persecution and, in such cases, if the claimant is not to be found credible,
there will be no credible or trustworthy evidence to support the claim.
Because they are not claimant-specific, country reports alone are normally not
a sufficient basis on which the Board can uphold a claim.
[20]
This principle is restated in Mbanga v Canada (Minister of Citizenship and
Immigration), 2008 FC 738 at para. 21:
That being
said, the failure to proceed to a separate section 97 analysis is not fatal in
every case. Where, as here, there is no evidence supporting a finding of a
person in need of protection, the analysis will not be required.
[21]
The RPD decided, after its review of the country
documentation, both positive and negative, the Applicant could return to St. Lucia and live as he did without a serious
possibility of being persecuted by society. I conclude that the RPD did not err
in not giving consideration to a separate s. 97 analysis on the same evidence
already reviewed.
Conclusion
[22]
The application for judicial review is dismissed.
[23]
The Parties have not proposed a general question of
importance for certification and I do not certify any question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The style
of cause is amended to reflect the Applicant’s name as Fabian Bryan Jean.
2.
The application for judicial review is dismissed.
3.
I do not certify any question of general importance.
“Leonard
S. Mandamin”
Email this Content