Date:
20121102
Docket:
IMM-5699-11
Citation:
2012 FC 1283
Ottawa, Ontario,
November 2, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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BETHANY LANAE SMITH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, Ms. Bethany Smith, is a 23 year-old American citizen, a member of
the United States Army and a lesbian. She sought protection in Canada from alleged persecution and the alleged threat of physical harm from her peers and
superiors in the Army because of her sexual orientation. In two decisions, the
Immigration and Refugee Board, Refugee Protection Division, found that she is
not a Convention refugee or a person in need of protection. This is her
application for judicial review of the second decision, brought under section
72 of the Immigration and Refugee Protection Act, SC 2001, c 27
(hereafter IRPA).
BACKGROUND:
[2]
The
applicant disclosed her sexual orientation while in high school. At the age of
18, in October 2006, she was recruited into the US Army as a mechanic. She did
not disclose her orientation at that time and says she did not know how gays
and lesbians were treated by the Army prior to joining it. Ms. Smith alleges
that during advanced training and following posting to her unit at Fort Campbell, Kentucky, she was harassed, mentally and physically abused, and threatened.
[3]
Matters
became worse when she was seen holding hands with another woman off-base. She
says that she received threatening notes (over 100 in five months) but showed
them to no one as she believed she could not trust anyone, including her
superiors whom she viewed as complicit in her persecution.
[4]
The
applicant says that she tried to be discharged by telling her superiors about
her sexual orientation, but to no avail. When her superiors became aware of the
situation, she says they started treating her harshly and giving her
assignments that were incompatible with her physical abilities. She says that
she was warned by a superior to tone down her personal life and to stop
attracting attention to herself. She says that her superiors did not want to
discharge her until after she had been deployed to and served a tour in Afghanistan. She does not claim to be a conscientious objector but did not want to be
placed in an area of combat operations.
[5]
Ms.
Smith says that on September 9, 2007, fearing that her life was in danger, she
fled from the base with another soldier. After she left the base she says she
received a call threatening to “kick a hole in her face” and a text message
saying she should be killed by a firing squad for having deserted.
[6]
The
applicant entered Canada on September 11, 2007 and filed her refugee claim on
October 16, 2007. The claim was denied by the Refugee Protection Division
(hereafter “the Board”) in February 2009 on the grounds that the applicant had
not established a serious risk of persecution or rebutted the presumption of
state protection. An application for judicial review was granted by Justice de
Montigny in Smith v Canada (Minister of Citizenship and Immigration),
2009 FC 1194. Justice de Montigny found that the Board Member had erred in
several respects in determining whether the applicant had an objective basis
for her fear of persecution and in determining whether state protection would
be afforded her.
[7]
Upon
redetermination, the Board conducted a new hearing on August 11-12 and October
8, 2010. At this hearing, the Minister of Public Safety and Emergency
Preparedness intervened to present evidence, question the claimant and make
submissions. In a decision rendered on June 6, 2011, the Board again rejected
the claim. That decision is the subject of this application.
[8]
The
applicant says that if she returns to the US, she will be court-martialled,
will not be given a fair trial and will be punished for trying to leave an
environment where her life was in danger. She says that the process by which
she would be prosecuted and punished does not constitute a fair and independent
judicial determination and thus, state protection would not be afforded to her.
DECISION UNDER REVIEW:
[9]
At
the outset of his extensive reasons for decision, the Board Member discussed
the process that was followed at the hearing to ensure that the claimant could
fully present her evidence in a calm and reassuring atmosphere. The Member
indicated that he had carefully read and considered the Chairperson’s Guideline
4 - Women Refugee Claimants Fearing Gender-Related Persecution (hereafter
the Gender Guideline), the United Nations High Commissioner for Refugees
Guidance Note on refugee claims relating to sexual orientation and gender
identity (hereafter the UNHCR Guidance Note), and a presentation and
article by Professor Nicole LaViolette: Sexual Orientation, Gender Identity and
the Refugee Determination Process, (Ottawa: Immigration and Refugee Board,
March 2010) [LaViolette 2010], and Nicole LaViolette, “Independent human rights
documentation and sexual minorities: an ongoing challenge for the Canadian
refugee determination process” (2009) 13 Int’l JHR 437 [LaViolette 2009].
[10]
The
Board rejected the applicant’s claim on two grounds: credibility and state
protection. The credibility findings were based on alleged inconsistencies in
the applicant’s testimony and her PIF, on the vagueness of some of her answers,
the lack of evidence in support of her claim, and the lack of explanations of
certain situations, mainly regarding why she did not seek help.
[11]
The
Board found that the applicant’s credibility was undermined with respect to
whether she had experienced harassment during her advanced individual training
because of conflicts between her Personal Information Form (“PIF”) and her
testimony. Discrepancies in the applicant’s testimony with respect to her
experience while at Fort Campbell were found to have undermined her
credibility: when and how her peers found out about her sexual orientation;
what she might or might not have told a female doctor about assaults against
her person; whether she was indeed harassed; whether her superiors knew about
her harassment; whether she asked to be discharged on the ground of her sexual
orientation; and what made her leave Fort Campbell. The Board also found that
the applicant could have applied for and obtained a discharge from military
service based on her sexual orientation after her arrival in Canada.
[12]
The
Board summarised the applicable law with regards to state protection. It noted
that the US is a constitutional democracy with stable institutions. The Board
took into account its conclusions on the applicant’s credibility in determining
the existence of state protection. It did not find the testimony of the
applicant and her documentary and expert evidence to be trustworthy and
convincing evidence. The Board instead preferred the evidence of the one expert
provided by the Minister’s counsel. It found that it would not have been
unreasonable for the applicant to take further steps to acquire the protection
of her state.
[13]
The
Board found that the applicant could have sought further assistance from the US
military (considering the Don’t Harass Policy and the Uniform Code of
Military Justice, 10 USC, Ch. 47 (hereafter the UCMJ)) and that she could
have made further steps to be discharged on the ground of her orientation. The
Board also found that the applicant could have moved to a different city and
attempted to clarify the situation with the US military, with the help of a
non-governmental organization or a lawyer if necessary. The Board concluded
that on a balance of probabilities the applicant did not rebut the presumption
of state protection and that the applicant did not take all reasonable steps to
obtain state protection.
[14]
The
Board concluded that if the applicant were to be arrested upon return to the USA, the prosecution that would result would not amount to persecution as she would be in
no different position than any other member of the military charged with
absence without leave and/or desertion. The Board also found that the military
justice system of the US was adequate. The Board declined to consider the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (hereafter the Charter)
and the Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, 213 UNTS 221 at 223, Eur TS 5, CETS 5 [European Convention
of Human Rights] for the purpose of its state protection analysis because
those instruments were not applicable to US laws.
[15]
The
Board also considered the effect of the repeal of the “Don’t Ask, Don’t Tell”
policy, which occurred while the decision was under reserve, as a change of
circumstances undermining the opinion evidence presented by the applicant. The US military was subject to the” Don’t Ask, Don’t Tell” policy, enacted as US federal law,
from 1993 to September 2011. Under that policy, discrimination and harassment
on the ground of sexual orientation were prohibited but openly gay, lesbian or
bisexual persons were discharged from duty on the theory that such relationships
were incompatible with military service. The law prohibited inquiries (the
“don’t ask” part) or disclosure (“don’t tell”) about homosexual or bisexual
orientation and relationships. The statute (10 USC § 654) was found to be
unconstitutional by the US District Court in September 2010. A bill to repeal
the policy was enacted by Congress in December 2010 and brought into force in
September 2011.
[16]
The
applicant says that, in reaching his decision, the Board Member erred by making
unreasonable negative credibility findings without sensitivity to the context
the claimant found herself in, erred in failing to provide adequate reasons or
analysis, made erroneous findings of fact not supported by the evidence and
failed to properly consider the evidence.
ISSUES:
[17]
The
issues raised on this application are as follows:
1. Did the Board make
unreasonable credibility findings?
2. Did the Board err
in failing to apply the Charter and international human rights
instruments in its state protection analysis?
3. Did the Board
disregard important expert evidence?
4. Did the Board make
unreasonable state protection findings?
ANALYSIS:
Standard of
review;
[18]
The
prior jurisprudence has satisfactorily determined the standard to be applied to
the issues in this matter which are questions of fact or of mixed fact and law.
Such questions generally attract the reasonableness standard: Dunsmuir v New Brunswick, 2008 SCC 9 at para 51. The availability of state protection is a
question of mixed fact and law and thus is reviewable for reasonableness: Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para
38. Issues of credibility, a question of fact, are also reviewable against a
standard of reasonableness: Berhane v Canada (Minister of Citizenship and
Immigration), 2011 FC 510 at para 24.
[19]
Reasonableness
is based on the existence of justification, transparency and intelligibility
within the decision-making process and whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law: Dunsmuir, above, at para 47; and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59.
Did
the Board make unreasonable credibility findings?
[20]
The
Board based its principal adverse credibility findings on three points:
contradictions between the applicant’s previous testimony in 2008, the
narrative in her PIF and her testimony in the 2010 hearings; implausibilities
in her evidence; and an inability to answer certain questions related to
asserted memory problems.
[21]
The
applicant contends that the Board’s credibility findings are erroneous for
several reasons: they are contrary to the Board’s 2009 decision which was made
closer in time to the incidents underlying the refugee claim and in which the
Board did not make an adverse credibility finding; the findings are based on
ordinary memory problems such as an inability to recall the names of
individuals; the inconsistencies relied upon do not amount to serious or
significant contradictions; they conflate recollections of several events;
different descriptions of harassment were improperly characterized as
inconsistent; and the Board engaged in microscopic examination of the
applicant’s evidence.
[22]
The
applicant argues that the Board did not evaluate the plausibility of her story
in light of the extensive documentary and opinion evidence submitted on the
situation of homosexuals in the US military. She contends that the Board failed
to properly apply the Gender Guideline and the UNHCR Guidance Note in its
analysis. The applicant should not have been expected to share her sexual
orientation and the persecution based on her sexuality in an environment widely
documented as hostile to homosexuals. Further, she asserts, the Board erred
when it stated that the applicant should have contacted the military
authorities to obtain evidence of her persecution when it was the military that
were her persecutors.
[23]
As
the respondent notes, credibility findings are highly factual, case specific
and depend in part on factors that a reviewing court is unable to consider such
as the demeanour of a witness. The Board is entitled to draw inferences based
on implausibility, common sense and rationality: Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (FCA) at para 4. It
is not for the reviewing court to substitute its view of such matters. However,
if the evidence before the Board does not support the credibility findings, or
if the contradictions or implausibilities relied upon by the Board are
insignificant and do not relate to the claim, this Court should intervene. I
am unable to reach such conclusions in this case.
[24]
In
this matter, some of the alleged inconsistencies identified by the Board relate
to events that the applicant described in her PIF, remembered in greater detail
in the first hearing (in November 2008) and was unable to recall during her
testimony in the second series of hearings (in August and November 2010). Minor
differences in testimony given by the same witness at hearings conducted two
years apart are to be expected. In this case, however, the differences were
more pronounced.
[25]
For
example, the applicant had written in her PIF that she was continually harassed
once her sexual identity was indirectly revealed during her advanced individual
training. She also described an incident where she was punched in the head when
returning alone to her room. When asked about the incident during the second
hearing she stated that it was the only incident experienced during her training.
She told no one about it because only a week remained in her training and it
was unlikely that anything would be done prior to her departure. Confronted
with the inconsistent PIF narrative, the applicant offered no explanation. It
was open to the Board to take this inconsistency into account in considering
her credibility.
[26]
The
Member carefully reviewed several other areas of difficulty with the
applicant’s evidence. When asked about the circumstances in which her
orientation had been disclosed to colleagues at Fort Campbell, the applicant’s
answers were taken to be evasive. She could not remember the name of the woman
she had been with or those of the two soldiers who had seen them together. She
explained that she preferred not to remember the soldiers’ names because it was
a difficult time in her life. In his analysis, the Board Member considered
whether that was a reasonable response, in light of the Chairperson’s Gender
Guideline, given that no evidence had been presented that the applicant
suffered from a psychological disorder or had been the victim of sexual
violence. Concluding that it was not, the Member found that the applicant’s
credibility was undermined with respect to the impact of the disclosure of her
sexual orientation. Again, in my view, this was a finding open to the Member.
[27]
The
applicant testified that she was routinely picked up and thrown to the ground
by a fellow soldier in her brigade. She could not remember whether he had
verbally abused her but assumed that the physical abuse was because he had
discovered that she was a lesbian. At the second hearing, she added that one of
her superiors had been present and had witnessed the assault and done nothing,
a detail which was not mentioned in her PIF or at the first hearing. She did
not remember the superior’s name. She told a female doctor at the base about
these assaults but the doctor did not take them seriously, suggesting the
soldier was just playing with her. The applicant had taken no steps to identify
the doctor or to contact her in an effort to corroborate her story. Her
explanation was that she did not want to contact the US Army or let them know
where she was. The applicant gave the same explanation when asked why she had
not contacted the Army from Canada to request a discharge by reason of her
orientation under the Don’t Ask, Don’t Tell policy while it was still in
effect. The Board Member thought that the explanation provided was unreasonable
given that it was then evident that she was in Canada and seeking protection.
[28]
With
respect to the threatening notes, the Board Member accepted that it was
reasonable for the applicant not to keep them in anticipation of an unforeseen
hearing before a tribunal in Canada. However he did not understand why she had
not used the notes to tell someone in the line of authority at her base about
what was happening. She had testified that she knew she could report the
threats and assaults to the authorities. She said she was terrified, did not
trust anyone and did not know who might be supporting the people who were
writing the threats. This was, in general, the explanation that the applicant
provided when asked why she did not tell anyone about what was allegedly going
on at that time – not a friend from her former life who was also at the base,
her family or anyone in the chain of command.
[29]
When
confronted with the expert opinion evidence on remedies available to US
military personnel at the time – zero tolerance policies towards harassment and
UCMJ provisions against assault, military attorney services, the possibility of
declaring a homosexual orientation, whistle-blower protections for complaining
to the Inspector General, the possibility of contacting a member of Congress –
the applicant explained that as a nineteen-year old private she was not aware
of any of these remedies. While the Court may have reached a different
conclusion, the reasonableness of that explanation was a matter for the Board
to determine. The conclusion reached was, on the evidence, within the range of
acceptable outcomes.
[30]
The
Board Member provided the claimant with the opportunity to explain the
discrepancy between her accounts of why she ultimately left the base. In her
PIF she had written that she had received a written death threat in early July
2007 but at the hearing she said that the written death threat on the day she
left was the first one which she had received. Confronted with the contradiction,
she gave no explanation. The Board Member concluded that this undermined her
credibility. This conclusion was open to him based on the conflict in the
evidence presented.
[31]
Before
coming to the overall conclusion that the claimant’s testimony was not
plausible, the Board Member noted that he had considered the recommendation to
exercise caution in LaViolette 2009 and LaViolette 2010 when making credibility
determinations in refugee claims related to sexual orientation and gender
identity. He also recognized that the case law clearly set out that adverse
credibility findings should only be made in the clearest of cases and after
considering the actions described as they would have appeared from the
claimant’s point of view at the time. Nonetheless, he found that the
accumulation of problems in her testimony rendered the claimant not credible
with respect to her allegations of being threatened and assaulted and with
respect to the steps which she took to inform the
authorities. It did not assist the applicant’s claim that she offered no
documentation or corroborative factual evidence to support her own testimony.
Failure to do so when it is reasonable to expect such evidence may have an
impact on a claimant’s credibility: Mercado v Canada (Minister of
Citizenship and Immigration), 2010 FC 289 at para 32.
[32]
As the Supreme Court noted in Dunsmuir at para 47,
“Tribunals have a margin of appreciation within the range of acceptable and
rational solutions.” The discrepancies in the applicant’s
evidence sufficiently support the conclusion of a lack of credibility which the
Board Member reached and falls within that margin of appreciation. It is not
the role of this Court to re-weigh the evidence that was before the Board even
if the Court might have drawn different inferences or found the evidence and
explanations offered by the applicant to be plausible.
2. Did the Board err
in failing to apply the Charter and international human rights instruments in
its state protection analysis?
[33]
The
applicant contends that the Board Member erred in law when he declined to apply
the Canadian Charter of Rights and Freedoms and international
legal instruments as sources of law to evaluate the availability of state
protection to her and others similarly situated in the US The Board Member
noted that opinion evidence submitted by the applicant was to the effect that
the US Military Justice system does not respect the requirements of the European
Convention of Human Rights and the Charter. He concluded that as the
incidents cited by the applicant in her claim had allegedly occurred solely in
the US, he did not see how the Canadian and European instruments would have
legal force in that country. This, the applicant argues, led to the Member’s
decision not to rely upon the expert evidence relating to state protection
under the US system.
[34]
The
applicant submits that the Member’s analysis was in error given the direction
in s 3 of the IRPA that the Act is to be construed and applied in a manner that
furthers domestic and international interests. In particular, it requires that
decisions taken under the Act be consistent with the Charter and comply
with the international human rights instruments to which Canada is signatory.
[35]
In the first judicial review concerning this applicant, Smith,
above, at paras 84-86, Justice de Montigny found that the Member in the first
Board decision had erred in failing to consider whether the applicant, as a
homosexual, would receive equal treatment under the UCMJ. Justice de Montigny
noted that a Canadian court could make findings of fact regarding the
constitutionality of a foreign law, citing Hunt v T&N plc, [1993] 4
SCR 289 at paras 28-32 (Hunt).
[36]
As I read those paragraphs and the other decisions cited in Hunt,
they stand for the proposition that it is permissible for the Court to receive
evidence and hear submissions as to the constitutional status of foreign
legislation when the issue arises incidentally in the course of litigation over
which the Court has undoubted jurisdiction. The circumstance envisaged in Hunt
was when a Canadian provincial law has extraterritorial application. I do
not read s 3 of the IRPA as requiring that the Court make such a determination
with regard to a foreign law of another state which has no extraterritorial
effect in Canada, as that would be incompatible with judicial comity and
sovereignty. The section requires, rather, that the domestic application of
IRPA be consistent with the human rights instruments to which Canada is signatory.
[37]
In Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 70, the Supreme Court stressed the “important role of international human rights law as an aid
in interpreting domestic law” (emphasis added). In R v Hape, 2007
SCC 26, [2007] 2 SCR 292 [R v Hape], the Supreme Court clarified that Charter scrutiny
does not apply to the laws of other states. The Federal Court of Appeal, in Amnesty
International Canada v Canada (Canadian Forces), 2008 FCA 401 at para 14,
agreed that the Charter did not apply to “foreigners, with no
attachment whatsoever to Canada or its laws”.
[38]
In the first judicial review, Justice de Montigny did not consider
it necessary to pronounce on the constitutionality of the
relevant provisions of the UCMJ as that question had not been argued by the
parties on the record before him. He held that the
Board had a duty to determine whether the UCMJ was enforced in a non-discriminatory
fashion in the United States, both substantively and procedurally, with respect
to military personnel.
[39]
In
the decision before the Court in this proceeding, the Member reviewed the
arguments presented that the Charter and international human rights
instruments could be considered in determining whether the US military justice system would provide adequate protection to the claimant. In my view, he did not err in declining to consider the
application of the Charter to the question of the validity of US military law under that country’s Constitution. Nor was he required to analyse US law in light of the international instruments. The obligation upon him was to apply the
IRPA to the facts of this case in a manner that was consistent with the Charter
and those international human rights instruments to which Canada has adhered. The issues were whether the applicant had led relevant, reliable and
convincing evidence that state protection in the US was inadequate or
non-existent and whether she had exhausted all of the remedies available to her
before fleeing to Canada to seek protection. Absent evidence of such efforts it
was impossible for the Board to assess the availability of protection for her: Hinzman,
Re, 2007 FCA 171 at para 62.
[40]
The Board Member took into account that the UCMJ had been found to
be adequate when subjected to constitutional scrutiny under American law. The
Member observed
that the US courts, while fully aware of the international standards, had so
far deemed the structural independence and impartiality of the US military justice system to be adequate. He concluded that although the US military justice system is different from the Canadian civil justice system, there was adequate
recourse in the US for those who felt they had been wronged in the US Army and
that the claimant had not exhausted those avenues of recourse. Notwithstanding
the opinion evidence to the contrary submitted by the applicant, that was a
conclusion reasonably open to the Member to make on the evidence as a whole.
3. Did the Board
disregard important expert evidence?
[41]
The
Board Member reviewed the documentary and expert evidence provided. Having
done so, he concluded that the material concerning discrimination against gays
and lesbians in the US Army and concerning the deficiencies of the US military justice system did not constitute relevant, trustworthy, and convincing
evidence of the insufficiency of state protection. He noted that the expert
opinions on these subjects submitted by the applicant in this case were based
on the theory that the claimant would be punished for having fled the US because her life was in danger due to her sexual orientation. When he reached this stage
of his analysis, the Member had already found that the allegations of
harassment and threats were not credible. He thus retained only the report on US military law by Professor Hansen to guide him in assessing the claimant’s situation.
[42]
Donald JM Brown and John M Evans, Judicial
Review of Administrative Action in Canada, loose-leaf (consulted on 4
October 2012), (Toronto: Canvasback Publishing, 2012), §10:5450 “Expert and
Opinion Evidence”, at pp 10-69-10-70, state that “it is within the discretion
of administrative tribunals to decide whether to admit expert evidence, and to
determine the weight to be assigned to it. [. . .] Nevertheless, while a
tribunal need not be bound by expert evidence, it should have valid grounds for
rejecting or discounting it, and it cannot act arbitrarily in this regard. [. .
.] However, it is not necessary for a tribunal to make an adverse finding about
the credibility of an expert before it can reject the evidence, particularly
when the agency is developing policy”. In this instance the governing policy is
in flux as the US Congress, Administration and Military come to terms with
changing attitudes towards the role of gays and lesbians within American
society.
[43]
Expert
opinions cannot be substituted for a Board Member’s assessment of a claimant’s credibility. The Supreme Court stated in R v Marquard,
[1993] 4 S.C.R. 223, [1993] SCJ No 119 (QL) at para 49 that: “A judge or jury who simply accepts an expert's
opinion on the credibility of a witness would be abandoning its duty to itself
determine the credibility of the witness. Credibility must always be the product
of the judge or jury's view of the diverse ingredients it has perceived at
trial, combined with experience, logic and an intuitive sense of the matter”.
[44]
In this case, the Board Member assessed that
the claimant was not credible in asserting that she would face punishment for
having fled to save her life from persecution due to her sexual orientation. He
took note of Justice de Montigny’s view that this claimant’s situation as a
lesbian was very different from that, for example, of a male conscientious
objector, because her claim was predicated on being subject to punishment not
merely for desertion but also for her sexual orientation. That was an error
made by the Board in the first determination. In the second decision, the
Member avoided that error.
[45]
Having found that her claim of having
experienced persecution based on sexual orientation was not credible, the Board
Member concluded that the opinions describing an environment in which these
experiences could have occurred were not relevant. He therefore rejected the
reports on discrimination and deficiencies in the US military system as
evidence of factors which had pushed the claimant to flee. While the Court may
not have reached a similar conclusion on the same evidence, it can not simply
substitute its opinion of the weight of the evidence for that of the Board.
[46]
The Board Member also rejected the expert
opinion reports as evidence that state protection was unavailable. In his
subsequent analysis, he determined that even if the events had occurred as the
claimant had described, she had not presented sufficient evidence of attempts
to seek out state protection. Therefore the expert opinions on whether it would
have been available if she had sought it out, or whether it would be available
in the future, were not relevant.
[47]
The Member’s findings in this regard are
distinguishable from cases such as Unal v Canada (Minister of Citizenship
and Immigration) 2004 FC 518 where the Board was found to have erred in
discounting expert reports because they were based in part on information
provided by the claimant, without also assessing and weighing the objective
findings by the experts which were specific to the claimant. In Unal,
for example, there was independent objective evidence including the results of a
medical examination that supported the applicant’s personal account and the
opinions provided.
[48]
The Member retained
only the expert opinion evidence detailing the remedies which would have been
available to the claimant within the US Army, which he used in coming to his
credibility determination that it was not plausible that the claimant had been
unaware of all of these avenues of recourse.
[49]
It
is apparent from the decision that the Board Member read and considered all the
expert opinions presented. It was within his discretion
to reject some or all of them. The Court accepts that the Member might have
reached a different conclusion based on the voluminous material submitted by
the applicant with respect to the experiences of gays and lesbians in the US military. It is not the role of the Court to re-weigh that evidence, however, but to
determine whether the Board’s treatment of it was unreasonable. The fact that
the Member’s recapitulation of the material and his explanation for discarding
it were brief does not invalidate his choice. As the Supreme Court explained in
Newfoundland and Labrador Nurses’ Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708:
[16] Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
4. Did the Board make
unreasonable state protection findings?
[50]
As
stated by the Federal Court of Appeal in Carillo v Canada (Minister of
Citizenship and Immigration) 2008 FCA 94 at paragraph 38, a refugee
claimant who asserts that state protection in her country of origin is
inadequate or nonexistent bears the evidentiary burden of producing evidence to
that effect and the legal burden of persuading the trier of fact that the claim
in this respect is founded.
[51]
The
applicable standard of proof is the balance of probabilities and the
presumption that state protection is available to the claimant can be rebutted
by clear and convincing evidence. That standard is not met by simply submitting
a large volume of opinion evidence. Nor is it met by the claimant’s perception
that she could not avail herself of state protection: Judge v Canada (Minister of Citizenship and Immigration), 2004 FC 1089 at paras 8-10. Without
evidence of her attempts to obtain such protection it is impossible to know how
she would have fared. Speculation that the state’s protection would be
inadequate is not sufficient: Hinzman, Re, 2007 FCA 171 at paras 57-58.
[52]
If
the state can provide adequate protection, even if not perfectly and not always
successfully, a claimant is required to seek this protection. It is
unreasonable to expect a claimant to put her life in jeopardy in order to
demonstrate a failure of state protection, but oppressive acts by some persons
in authority in a specific place at a particular time do not lead inevitably to
the conclusion that the state, as a whole, is an agent of persecution or does
not offer protection. Regardless of her subjective fear of persecution, the
claimant must overcome the objective presumption that the state could protect
her. This burden is even heavier when a democratic country subject to the rule
of law, like the US, is concerned: Hinzman, above at paragraph 46. Claiming
protection in another country must be a last resort, not an alternative of
convenience or preference.
[53]
It
is the Board’s responsibility to consider the evidence and determine what is
relevant to the case before it. The Member did not accept that the applicant
had exhausted all of the possibilities for protection that were available to
her within the US military system. Nor had she exhausted other avenues within
the US such as moving to another location and attempting to seek help there,
possibly with the aid of non-governmental third parties or legal counsel.
[54]
The
Member’s observations in this respect were not framed as a finding that the
applicant had an internal flight alternative as is contended but went to the
question of whether she had sought other means to obtain protection away from
her base. He did not suggest that by doing so she could escape the alleged
agents of persecution but rather that she could have pursued her desire for a
discharge from another location. For that reason, I do not consider it
necessary to determine whether an IFA finding would have been reasonable due to
the nature of the alleged agents of persecution as state actors and the
nation-wide reach of their jurisdiction.
[55]
The
applicant contends that the Member did not properly analyze her situation in
light of the Gender Guidelines given that she was a lesbian in the US military. The Guidelines instruct that where the claimant cannot rely on the more
typical forms of evidence as “clear and convincing proof” of the failure to
provide state protection, reference may need to be made to alternative forms of
evidence: Evans v Canada (Minister of Citizenship and Immigration), 2011
FC 444 at paras 14-15. In addition, the UNHCR Guidance Note provides that being
compelled to forsake one’s sexual orientation may amount to persecution when
instigated or condoned by the State. That is not to say that any gay or lesbian
member of the US military who may have been subject to the “Don’t Ask, Don’t Tell”
policy suffered persecution by choosing to join or remain in the military. As
noted above, when it was in effect, the policy prohibited harassment and has
since been repealed.
[56]
In
my view, it is clear from the Member’s reasons for decision that he was alert
and sensitive to the context in which the applicant presented her claim – her
experience as a lesbian in an environment which was described in the evidence
as sexist and homophobic. The Member did not simply pay “lip service” to the
Guidelines as the applicant contends but considered how they applied to the
case before him. He did not reject the applicant’s contention that she faced
discrimination in that environment but was not persuaded that it amounted to
persecution.
[57]
The
applicant presented no evidence that she could not attempt to seek state
protection within her country before fleeing to Canada. The documentary
evidence before the Member supported his conclusion that there were remedies
available to the applicant within the US military justice system had she chosen
to exercise them. In those circumstances, it was reasonable for the Board
Member to conclude that the presumption of state protection had not been
rebutted in this case.
CONCLUSION:
[58]
The
Board’s determination in this case was thorough and careful. A critical
difference from the first decision is that the Board, in this instance, took
great care to assess the applicant’s credibility. That assessment was not
microscopic or overzealous but detailed and organized. The applicant’s testimony
was the only evidence going to the specific facts of her claim. The Member had
the opportunity to see and hear her testify. The Court owes the Board great
deference in assessing the reasonableness of its factual assessment and can not
intervene merely to substitute its own opinion of the evidence.
[59]
The
Board concluded, taking into account all of the evidence, that there was not
relevant, trustworthy and convincing evidence that state protection was
unavailable to the applicant in the US The applicant could not establish, as a
result, that her fear of persecution was objectively well-founded. The Board
further analyzed the remedies available to her should she return to the US to
face charges of being absent without leave and concluded that she had not established
that she would be persecuted because she was a lesbian or for fleeing her base
ostensibly in fear of her life. The Member’s determination that she would find
herself in the same situation as others who, like her, had gone AWOL and that
any sentence imposed would not amount to persecution was not unreasonable on
the evidence.
[60]
Overall,
the Board’s decision is justified, transparent and intelligible. It falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law. For that reason, the application is dismissed.
CERTIFIED
QUESTIONS:
[61]
The
test for certification appears in paragraph 74(d) of the IRPA and Rule 18(1) of
the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22,
as am. (the Rules). In Zazai v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 89 at paragraph 11, the threshold for certification
was articulated as: “is there a serious question of general importance which
would be dispositive of an appeal”. In Boni v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 68, the Court of Appeal determined
that a certified question must lend itself to a generic approach leading to an
answer of general application. That is, the question must transcend the
particular context in which it arose.
[62]
The
applicant has proposed that the Court certify the following questions as
serious questions of general importance:
1.
Can a Board Member fetter his/her discretion by refusing to consider the Charter and International Law as sources
of law when determining state protection?
2.
Can a Board member discount expert evidence on the ground that it may refer to
information provided by the applicant?
3.
Is it an error of law to expect an applicant to exhaust every remedy if the
state is the agent of persecution?
[63]
The
first question would not be dispositive of an appeal as the Board did not
fetter its discretion in this instance. It declined to consider the application
of the Charter and international instruments to a foreign code of military
justice on nationals of the foreign state in the factual circumstances of this
case.
[64]
The
second question is also fact dependent. The decision in this case turned on the
Board’s credibility analysis that discounted not the expert opinions but the factual
basis upon which they were predicated. The question would not be of general
application beyond the context and determinations of fact in this case.
[65]
The
third issue was addressed by the Federal Court of Appeal in Hinzman,
above.
[66]
Accordingly,
I do not consider it appropriate to certify any of the proposed questions.
JUDGMENT
IT IS
THE JUDGMENT OF THIS COURT that:
- the
application is dismissed; and
- no
questions are certified.
“Richard G. Mosley”
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