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Federal Court
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Cour fédérale
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Date: 20090520
Docket: IMM-4188-08
Citation: 2009 FC 525
Ottawa, Ontario, May 20, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MANUEL
RAMOS CONTRERAS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Manuel Ramos Contreras (the “Applicant”) seeks judicial review of the decision
of Pre-Removal Risk Assessment Officer Thierry N’kombe (the “PRRA Officer”). In
that decision dated August 19, 2008, the PRRA Officer rejected the Applicant’s
Pre-Removal Risk Assessment (“PRRA”) application.
Background
[2]
The
Applicant was born on November 19, 1970 in Guatemala City, Guatemala and
is a citizen of Guatemala. He entered the United States of
America
as a visitor on January 29, 2001. His visitor status subsequently expired but
he remained in the United States, without status, until July 1, 2005.
[3]
While
in the United
States,
the Applicant met Mr. Keith Smith, an American citizen, in 2003. They began
cohabiting in August 2003. Mr. Smith accompanied the Applicant when he came to Canada on July 2,
2005. The Applicant claimed refugee protection status based on his fear of the
police, the military, friends, neighbours and family, all in Guatemala, as the
result of his membership in a particular social group, that is HIV positive,
gay men.
[4]
The
Board rejected his claim for Convention refugee status on the grounds that the
Applicant does not have a well-founded fear of persecution on a Convention
ground in Guatemala. It found
that the Applicant lacked a subjective fear of persecution in Guatemala, relying in
this regard on the history of the Applicant’s life in Guatemala and his
prior travels outside his country of birth. The Board observed that the
Applicant had lived in Guatemala without suffering any
incidents. He had travelled to Canada in 1996 and to the United
States
in 1996 and 2000. He did not seek refugee protection on those occasions.
[5]
The
Board further considered the issue of an Internal Flight Alternative (“IFA”) for
the Applicant in Guatemala and found that it would not have been
unreasonable for the Applicant to pursue an IFA in Guatemala City.
[6]
The
Applicant relied upon the same ground of risk, that is a member of a particular
social group, when he made his PRRA application. He submitted new evidence,
including a Declaration from Dusty Aráujo, (the “Aráujo Declaration”) representing
the International Gay and Lesbian Human Rights Commission. This document addresses
the reasons why gay and lesbian asylum seekers are reluctant to reveal their
sexual orientation in pursuit of claims for refugee protection.
[7]
As
well, the Applicant submitted, as new evidence, extracts from the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 and of the International Covenant on
Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, arts. 9-14, Can. T.S. 1976 No. 47, 6 I.L.M. 368
(entered into force 23 March 1976, accession by Canada 19 May 1976) (“ICCPR”),
the U.S. Department of State Reports on Human Rights in Guatemala for 2003 and
2007, a letter from a medical doctor in Guatemala addressing the effect that homophobia
has on the ability of HIV positive homosexuals to obtain proper treatment and a
letter from a medical doctor in Toronto stating that the Applicant had begun
treatment for HIV.
[8]
Finally, the Applicant submitted a report from
Dr. Pilowsky in Toronto who had formed the diagnosis that the Applicant was
suffering from a major depressive disorder arising from the possibility of
separation from his partner, Mr. Smith, with whom he is living in Canada.
[9]
The PRRA Officer concluded that the Applicant
had failed to overcome the Board’s finding that an IFA was available in Guatemala City. The Officer considered the
new evidence and found that the documentary evidence by itself could not
establish that the Applicant would be at risk in Guatemala; his individual circumstances also had to be considered and these
did not support a conclusion that he was entitled to protection pursuant to
section 97 of the Act.
Submissions
[10]
The
Applicant argues that the PRRA Officer erred in failing to fully address the
issue of separation from his partner which will lead to disruption of his
family unit, contrary to one of the purposes of the Act.
[11]
He
also submits that the PRRA Officer erred in his treatment of the factors
identified in the Aráujo Declaration and misinterpreted the evidence
relating to the treatment of homosexual men in Guatemala.
[12]
The
Applicant further argues that the PRRA Officer erred in applying the test for
persecution, failing to take into account that his status as an HIV positive
gay man will negatively impact on the quality of medical care that he will
receive in Guatemala.
[13]
The
Ministers of Public Safety and Emergency Preparedness and of Citizenship and
Immigration (collectively “the Respondents”) submit that the Applicant has
failed to show that the Board committed a reviewable error either in its
assessment of the evidence or its interpretation and application of the Act.
Discussion
[14]
Further
to the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190, findings of fact made by an administrative
tribunal are reviewable on the standard of reasonableness and questions of law
are reviewable on the standard of correctness. Guidance regarding the appropriate standard
applicable to a particular issue may be found in the prior jurisprudence.
[15]
The
first issue to be addressed is whether the PRRA Officer committed a reviewable
error by failing to find, on the basis of the factors identified in the Aráujo
Declaration, that the Applicant lacked a subjective basis for his fear of persecution.
This is a question of mixed fact and law, as it involves the application of the evidence to a
statutory provision in assessing whether the Applicant met the definition of a
Convention refugee. Such questions within the PRRA context attract a standard
of reasonableness: Kim v. Canada (Minister of
Citizenship and Immigration) et al. (2005), 272 F.T.R. 62 at para.
19. The
Aráujo Declaration was submitted by the Applicant for the purpose of
showing that there are identifiable reasons why homosexual persons often
delay seeking protection and further, as a response to the finding of the Board
about his lack of subjective fear.
[16]
I
am not persuaded that the PRRA Officer ignored the Aráujo Declaration. This
documentary evidence cannot, by itself, establish the subjective element of
persecution for the Applicant. That burden lies on him. The PRRA Officer was
not satisfied that he had provided new evidence in that regard, sufficient to overcome
the findings of the Board, as to the lack of a subjective element.
[17]
Next,
did the PRRA Officer commit a reviewable error by ignoring relevant evidence as
to how homosexual men are treated in Guatemala? This is a question of
fact, assessed on the standard of reasonableness: Kim, supra at
paras. 15 and 19.
[18]
This
argument by the Applicant goes to the manner in which the PRRA Officer weighed
the evidence. I am not persuaded that the Applicant has shown that the PRRA
Officer ignored any relevant evidence. I am not persuaded that the weighing of
the evidence led to an unreasonable conclusion.
[19]
Third,
did the PRRA Officer err in law in his interpretation of section 97 of the Act?
This is a question of law, assessed on the standard of correctness: Kim,
supra at para. 19. In this regard, the Applicant argues that the
PRRA Officer erred by excluding the non-availability of medical treatment for
HIV positive homosexual men from the idea of risk, as contemplated by section
97 of the Act. The Applicant relies upon the decision of the Federal Court of
Appeal in Salibian v. Canada (Minister of Employment and Immigration ) (1990), 113 N.R. 123 (F.C.A.), to argue that
once he has shown that a group of similarly situated people are at risk of
persecution, his claim to be at risk of persecution is established. The group
of similarly situated persons, according to the Applicant, is the group of
homosexual men who are HIV positive who are at risk of being denied access to
medical treatment in Guatemala.
[20]
The
Applicant’s argument is flawed, in my opinion. He has not shown that medical
treatment for HIV positive homosexual men in Guatemala is unavailable
or denied on grounds of persecution. The Applicant must do more than present a
legal argument; he must establish a factual context and he has not done so. The
PRRA Officer had evidence before him concerning the availability of medical
care in Guatemala and the
Applicant has not shown that this evidence was ignored.
[21]
Finally,
I refer to the Applicant’s submissions concerning a breach of procedural
fairness, allegedly arising from the failure of the PRRA Officer to address the
issue of his separation from Mr. Smith as a basis of persecution. Deference
need not be shown by this Court when reviewing a decision on the grounds of
procedural fairness and accordingly, the appropriate standard of review is
correctness: Sketchley v. Canada (Attorney General),
[2006] 3 F.C.R. 392 (F.C.A.) at para. 53.
[22]
In
my opinion, there is no breach of procedural fairness here. The separation of
family members is not an independent ground of persecution for the purposes of
the Act. Rather, the separation of family members is recognized as an inevitable
consequence of the application of the Act. In Chiarelli v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 711, the Supreme Court of
Canada said that non-citizens have no right to enter Canada. See also Chieu
v. Canada (Minister of
Citizenship and Immigration) (2002), 208 D.L.R. (4th) 107.
[23]
Separation
of family members is a consequence of the application of the Act. Non-citizens
do not have a right to enter Canada. The Act allows for the entry of persons
as immigrants, as refugees or as persons in need of protection. The Applicant
was found neither to be a Convention refugee nor a person in need of
protection. The fact that he faces separation from his partner is a consequence
of the application of the statutory scheme but separation per se is not
a ground for finding him to be a person in need of protection.
[24]
In
conclusion, I am satisfied that the PRRA Officer committed no reviewable error
and this application for judicial review is dismissed.
[25]
Counsel
for the Applicant submitted the following question for certification:
Can the risks described in sections 96
and 97 of the Immigration and Refugee Protection Act include harm from
the forcible separation of a same sex couple resulting from Canada’s return of one of the
parties to the relationship to a country which refuses to recognize same sex
relationships?
[26]
Counsel
for the Respondents opposes certification of this question on the basis that
the proposed question does not satisfy the criteria for certification, that is
a serious question of general importance that is dispositive of the case, as
discussed in Zazai v. Canada (Minister of
Citizenship and Immigration) (2004), 36 Imm. L.R. (3d) 167.
[27]
I
agree with the arguments advanced by the Respondents and no question will be
certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed, no question for certification
arising.
“E.
Heneghan”
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