Date: 20120106
Docket: IMM-2174-11
Citation: 2012 FC 3
Ottawa, Ontario, this 6th
day of January 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Enasio Leslie ANTROBUS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review by Enasio Leslie Antrobus (the
“applicant”) of
the decision of Anna Brychcy, a member of the Refugee Protection Division of
the Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”). The Board held that the applicant was not a Convention refugee or a person
in need of protection under sections 96 and 97 of the Act.
[2]
The
applicant is a citizen of Saint Vincent and the Grenadines. On June 7, 2005, he
left for Canada. However, he only filed
his claim for refugee protection on the basis of his supposed fear of
persecution in Saint Vincent due to his homosexuality on September 14, 2009.
[3]
The
Board concluded that the applicant was neither a “Convention refugee” nor a “person
in need of protection” under the Act (section 96 and subsection 97(1)): the
applicant failed to establish that he faced a risk of persecution in Saint
Vincent due to his sexual orientation; there was lack of evidence of state
persecution and the mistreatment of homosexuals in the country; and the
applicant unjustifiably waited four years before seeking refugee protection.
* * * * * * * *
I. Lack of persecution
[4]
The
applicant has failed to establish that the Board’s conclusion as to a lack of
persecution was unreasonable. It was up to the Board to weigh the evidence and
it is entitled to make negative findings supported by the evidence (Bunema
v. Minister of Citizenship and Immigration, 2007 FC 774 at para 16). The applicant
takes issue with the weight given to the evidence before the Board. However, it
is not the function of this Court on an application for judicial review to
reweigh the evidence and substitute its decision for that of the Board’s (Gharkhani
v. Minister of Citizenship and Immigration, 2004 FC 965 at para 11). As
stated by the Federal Court of Appeal in Sagharichi v. Canada (Minister of Employment
and Immigration)
(1993), 182 N.R. 398 at para 3:
.
. . it is for the Board to draw the conclusion in a particular factual context
by proceeding with a careful analysis of the evidence adduced and a proper
balancing of the various elements contained therein, and the intervention of
this Court is not warranted unless the conclusion reached appears to be
capricious or unreasonable.
[5]
The
Board, while mentioning the explanations provided by the applicant in his
testimony, specifically mentions which elements of evidence it relied on in
making its finding of a lack of persecution of homosexuals in Saint Vincent. The Board does not
have an obligation to mention every single piece of evidence in its decision (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
[Cepeda-Gutierrez]). Rather, the Board’s statement that it considered
the documentary evidence before it is a sufficient indication that it
considered the totality of the evidence in rendering its decision (Cepeda-Gutierrez
at para 16). Therefore, the Board’s conclusion that the applicant was not and
will not face a risk of persecution due to his homosexuality in Saint Vincent
was reasonable, being justified, transparent and intelligible (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
para 47 [Dunsmuir]). The same holds true for the Board’s finding as to
the legality of homosexuality in Saint Vincent.
II. Homosexuality in Saint Vincent
[6]
The
Board stated that it considered the totality of the documentary evidence, and
specifically identified the Country Reports on Human Rights Practices for
2009 which state that “[t]he law does not criminalize homosexuality”. The
International Lesbian, Gay, Bisexual, Trans and Intersex Association (the “ILGA”)
Report containing the articles of the Saint Vincent Criminal Code is not
addressed by the Board, but is contained in the National Documentation Package.
As previously explained, the Board is not obligated to mention every piece of
evidence (Cepeda-Gutierrez) and it is exclusively its role to weigh the
evidence. However, the more important the evidence that is not specifically
addressed in its decision, the more willing a court may be to infer that this
silence is indicative of an erroneous finding of fact made without regard to
the evidence (Cepeda-Gutierrez at para 17).
[7]
Therefore,
contrary to the applicant’s allegations, the Board did not err in failing to
specifically mention the ILGA Report. The ILGA Report is not more important
than the Country Reports on Human Rights Practices. Moreover, the Board
does not state that homosexuality is legal. Rather it summarizes the various
documentary sources and concludes that there was “no persuasive evidence in the
documentary evidence which would suggest that members of the homosexual
community are widely prosecuted”.
[8]
Hence,
the Board’s finding as to the persecution of homosexuals in Saint Vincent is
reasonable. Based on the evidence, its finding falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir at para 47).
III. Delay in seeking refugee
protection
[9]
The
applicant claims the Board erred in drawing a negative inference as to his
credibility from his failure to seek refugee protection earlier, because he
provided a reasonable justification for the delay: he did not know
homosexuality was a Convention ground and thought he had to wait five years to
make a claim based on humanitarian and compassionate grounds.
[10]
While
a delay in formulating a claim for refugee protection is not a determinative
factor in assessing the claim, it is relevant in the Board’s assessment of the
applicant’s credibility (Huerta v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 271 (F.C.A.)). In addition, the Board may
consider the applicant’s conduct when assessing his credibility, and such
conduct may, in itself, be sufficient to dismiss the refugee claim (El
Balazi v. The Minister of Citizenship and Immigration, 2006 FC 38 at para
6). Therefore, the Board’s negative finding of credibility was reasonable: in
waiting four years before seeking refugee protection, the applicant did not
behave like someone who feared for his life. As explained by the Board, the
applicant took no active steps to inquire about his rights and to legalize his
status in Canada before being detained
for the absence of such status. The Board’s decision to dismiss the applicant’s
excuses is reasonable, considering the applicant’s behavior. Consequently, the
Board’s findings should not be disturbed.
[11]
Taking
all these elements into consideration, the applicant did not establish that the
Board’s findings were unreasonable: the Board’s findings were based on a
reasonable consideration of the evidence before it.
* * * * * * * *
[12]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[13]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of a member of the Refugee Protection Division of the Immigration
and Refugee Board determining that the applicant was not a Convention refugee
or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2174-11
STYLE OF CAUSE: Enasio Leslie ANTROBUS v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Montréal,
Quebec
DATE OF
HEARING: December
6, 2011
REASONS FOR JUDGMENT
AND JUDGMENT: Pinard J.
DATED: January 6, 2012
APPEARANCES:
Me Claudette
Menghile FOR THE APPLICANT
Me Catherine
Brisebois FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Claudette
Menghile FOR THE APPLICANT
Montréal, Quebec
Myles J. Kirvan FOR
THE RESPONDENT
Deputy Attorney
General of Canada
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