Date: 20110110
Docket: IMM-1757-10
Citation: 2011 FC 13
Ottawa, Ontario, January 10, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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CESIA MONTOYA MARTINEZ
and
MIRIAM LIVIER REAL RAMIREZ
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Applicants
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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 is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), for judicial review
of the decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB), dated 5 March 2010 (Decision), which refused the
Applicants’ applications to be deemed Convention refugees or persons in need of
protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants are citizens of Mexico and biological women. Cesia Montoya
Martinez (Montoya Martinez) identifies as a transgender man, Miriam Livier Real
Ramirez (Real Ramirez) as a lesbian. They are a couple. They have come to Canada seeking
protection from persecution and from discrimination amounting to persecution as
women, as lesbians and as a transgender couple; Montoya Martinez also seeks
protection as a pre-operative transgender man. They wish to live as a transgender
couple and have children, but they claim that they cannot do this in Mexico.
[3]
Both
Applicants have been victims of domestic violence. In 1997 Real Ramirez
witnessed, after the fact, the murder of her mother by her father. To the best
of the Applicants’ knowledge, the father remains incarcerated for that crime.
Montoya Martinez was physically abused by his mother, verbally abused by
his father and eventually banished from his family for acting and dressing like
a male.
[4]
The
Applicants met in Mexico and began living together in Guadalajara in February
2003. In July 2005, they began receiving threatening phone calls from Real
Ramirez’s father and her brother-in-law, who are friendly with each other. The
brother-in-law, who had been arrested for assaulting his daughter, began to
harass Real Ramirez’s sister (his wife) and their children upon his release
from custody. Real Ramirez’s sister approached the police for protection from
her husband but the officers told her nothing could be done to help her.
[5]
During
these phone calls, Real Ramirez’s father and brother-in-law demanded that the
Applicants end their “dirty relationship.” The men initially directed their
threats at Montoya Martinez but, in time, the father threatened to murder Real
Ramirez as he did her mother. In consequence, the Applicants moved house. On 17
February 2007, Real Ramirez’s brother-in-law physically attacked Montoya
Martinez. He told the Applicants that he was delivering a message from Real
Ramirez’s father: this is what they deserve for being lesbians and that, the
next time, he would kill them.
[6]
The
Applicants claim that they left Mexico to escape persecution
from these two men. They also claim that, in Mexico, they had no
support and had to hide the true nature of their relationship and who they are.
They arrived in Canada on 5 June 2008 and made their refugee claims on
16 June 2008.
[7]
The
Applicants’ claims were first scheduled to be heard before the RPD on 9 April
2009. On that date, exhibits were entered into evidence and marked. However, following
a motion by the Applicants, the member presiding over that hearing recused
himself. A de novo proceeding began on 15 September 2009, and the
evidence for the 9 April hearing was purportedly entered into evidence for the
15 September hearing.
DECISION UNDER REVIEW
[8]
The
Applicants’ claims were joined. Their hearing before the RPD took place on 15
September 2009 and 12 December 2009. They were represented by counsel and an
interpreter was present.
[9]
The
RPD rejected their claims. Based on the evidence, the RPD concluded that the
state of Mexico is capable of protecting the Applicants from the kind of harassment
and assaults they allegedly suffered in Mexico. The onus
was on the Applicants to take all reasonable steps to avail themselves of state
protection before coming to Canada, but they never did. In the absence of clear
and convincing evidence to rebut the presumption of state protection, the RPD
found that the Applicants’ claims were not objectively reasonable. For this
reason, the RPD determined that the Applicants were neither Convention refugees
nor persons in need of protection under the Act.
[10]
In
the course of its decision-making, the RPD made several material findings. First
of all, it found that Mexico is a strong democracy. The burden on the
Applicants to show an absence of state protection is proportional to the level
of democracy in the state and is, in this case, a heavy one. No state can
guarantee perfect protection for its citizens. According to Ortiz v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1365, to prove the
absence of state protection, a claimant must do more than demonstrate that he
or she went to the police and that those efforts were unsuccessful. In the
instant case, due to fear of their relationship being disclosed or mocked and
their mistrust in the authorities, the Applicants did even less than this.
[11]
The
RPD acknowledged that domestic violence, gender discrimination and homophobia
are serious problems in Mexico, and that concerns remain regarding
corruption of public officials. However, it found that the Mexican government
is making “serious and concerted efforts” to address these problems nationwide through
a combination of legislative initiatives and through the establishment of
appropriate programs and state agencies, which the RPD described. The RPD also recognized
the Mexican government’s efforts to effect changes in societal attitudes
regarding sexual orientation. All of these efforts are bearing fruit,
particularly in urban areas, such as Guadalajara, where the Applicants
lived. The RPD asked Montoya Martinez if he was aware of any of these government
initiatives and he replied in the negative. As for other social organizations,
Montoya Martinez replied that he was not aware of women’s organizations helping
lesbians and that gay and lesbian organizations were primarily interested in
having marches and collecting donations to grow their membership.
[12]
The
RPD found that, although there were inconsistencies in the documentary evidence
regarding the adequacy of state protection, the preponderance of the evidence
suggests that there is adequate protection for the Applicants in Mexico. The RPD
assigned greater weight to this objective evidence than to the evidence of the
Applicants, who have an interest in the outcome of the matter.
ISSUES
[13]
The
Applicants raise the following issues:
1.
Whether
the RPD erred in finding Montoya Martinez to be a transgender woman when he is
a transgender man;
2.
Whether
the RPD assessed the availability of state protection for the wrong protected
group and, in consequence, ignored relevant evidence on lack of state
protection;
3.
Whether
the RPD breached the principles of natural justice and procedural fairness in
failing to have before it all evidence fundamental to the Applicants’ case;
4.
Whether
the RPD misapplied the Gender Guidelines;
5.
Whether
the RPD failed to adjudicate
the Applicants’ claim that they face discrimination amounting to persecution based
on their gender identity, sexual orientation and gender presentation.
STATUTORY PROVISIONS
[14]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
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.
Person in need of protection
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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de « réfugié »
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.
Personne à protéger
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,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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STANDARD OF REVIEW
[15]
The Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[16]
The
first issue is one of fact and therefore is reviewable on a standard of
reasonableness.
[17]
The
second issue concerns the alleged failure of the RPD to apply its state
protection analysis to the “singular protected group” identified in the
Applicants’ claims and its consequent failure to consider evidence relevant to
a proper analysis. This
Court has held that failure of a tribunal to recognize one of the bases of an
applicant’s claim is reviewable on the reasonableness standard. See Klemp v.
Canada (Minister of
Citizenship and Immigration), 2008 FC 901. The Court also has held that a
fundamental misconception of the basis of the claim demands that the decision
be set aside. See Adamjee v. Canada (Minister of Citizenship Immigration), [1997] F.C.J. No. 1815 (QL). Moreover, a failure
to mention facts that are a basis for the claim also constitutes a reviewable
error. See Fainshtein v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 941 (QL).
[18]
The
fourth issue concerns the proper application of the Gender Guidelines.
This is reviewable on a standard of reasonableness. See Correa Juarez v. Canada (Minister of Citizenship
and Immigration),
2010 FC 890 at paragraph 12.
[19]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir,
above, at paragraph 47. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[20]
The
third issue is one of procedural fairness, specifically whether all evidence
fundamental to the application was considered by the RPD and whether the Applicants
were provided an opportunity to respond to the RPD’s questions and concerns. This
issue is reviewable on a standard of correctness. See Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at paragraphs 115 and 123.
[21]
The
fifth issue concerns the alleged failure of the RPD to make findings regarding
one of the grounds cited in the Applicants’ claims for refugee status. This touches
upon the adequacy of the Decision and as such is reviewable under a standard of
correctness. See Emangongo
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 208 at paragraph
14; Jabari v. Canada (Minister of Citizenship and Immigration),
2008 FC 225 at paragraph 12; Via Rail Canada Inc. v. Canada (National
Transportation Agency), [2001] 2 F.C. 25 (C.A.) (QL) at
paragraph 22.
ARGUMENTS
The Applicants
RPD Erred in Identifying
the Particular Social Group
[22]
It
is clear from his amended PIF, the transcript of the hearing and his
psychological assessment that Montoya Martinez identifies as a transgender man,
not a lesbian and not a transgender woman. His preference is to be addressed
using masculine pronouns.
[23]
The
Decision refers to Montoya Martinez as a transgender woman and uses feminine
pronouns. The Applicants argue that this represents not only a factual error
but also a fundamental problem in this Decision: the RPD is confused about the
nature of the particular social group involved in these claims and, therefore,
could not possibly have made reliable findings regarding the risk analysis and
could not have decided the matter properly.
RPD Ignored
Evidence on State Protection for Transgender Men and Couples
[24]
The
Applicants’ claims were based on their membership in a singular group:
biological women in transgender relationships who may be perceived as lesbians
or as transgressing gender-presentation roles as transgender men and who are
dealing with male familial violence and discrimination, both as a transgender
couple and as lesbians. The RPD broke this group into three groups: women
facing domestic abuse, lesbians facing homophobic violence, and transgender
people. It assessed the evidence on state protection with respect to groups one
and two but ignored the evidence on state protection with respect to group
three: transgender men and transgender couples. The Applicants argue that the RPD erred in
arriving at its conclusion without ever considering the group that was
identified in their claims.
[25]
The
RPD found that the Gender Guidelines applied to this matter because both
Montoya Martinez and Real Ramirez are victims of domestic violence. The
Applicants argue, however, that all elements of the Applicants’ claims
come under the Gender Guidelines, not just their claim related to
domestic abuse. They are, or are perceived as, lesbians. They are subverting
gender-based social norms. The RPD fundamentally misunderstands the claim. It does
not understand what it means for Montoya Martinez to be a transgender man or
even that he is one. The Decision’s limited application of the Gender Guidelines
indicates that the RPD was simply paying lip service to the Guidelines and
did not understand their “spirit and role.”
Not All
Relevant Evidence Was Before the RPD at the Hearing
[26]
The
RPD received
documents on 9 April 2009, which were then admitted into evidence at the first
part of the hearing on 15 September 2009. These documents were marked “Exhibit
C-4.” In the Decision, however, the RPD notes that some of those documents, to
which counsel referred in her post-hearing written submissions, were missing.
The RPD, on its own
motion, subsequently admitted the missing evidence—whether in whole or in part
the Applicants do not know—as post-hearing evidence.
[27]
The
Applicants submit that the missing evidence constitutes 52 pages of
“personalized documentary evidence filed by the Applicants in support of their
claims,” including: two letters of support from Mexico, addressing the issue of
homophobia, discrimination, and familial abuse and violence and raising the
issue of transphobia; and the psychological assessments of both Applicants.
They argue that they filed the evidence well within the 20-day period prior to
the hearing and that they were entitled to have all evidence before the RPD
during the hearing so that they could present their full case and rely on the
evidence in its totality. Although the evidence was admitted post-hearing, the
Applicants were deprived of the opportunity to respond and perhaps satisfy the RPD on any
questions these documents may have raised in the RPD’s mind, which may have
resulted in a different decision.
[28]
The
Applicants argue that there was no proper reason for the RPD’s failure to
admit this evidence at the time of the hearing. The RPD’s actions violated its
own procedures and breached the principles of fairness and natural justice. The
appropriate response is for the tribunal to start afresh. See Chandler v. Alberta Association
of Architects, [1989] 2 S.C.R. 848.
Objectively
Reasonable for Applicants Not to Seek State Protection
[29]
The
Applicants argue that the RPD ignored evidence that demonstrated the reasonableness
of not seeking state protection in Mexico. First, they had
witnessed other victims’ futile attempts to obtain police protection. For
example, the authorities had not been helpful to Real Ramirez’s sister when she
complained that her husband (Real Ramirez’s brother-in-law) was harassing her
and her family. Nor had the authorities intervened to assist Real Ramirez’s
mother, who had been murdered. These examples are consistent with 2008 and 2009
Human Rights Watch and Amnesty International reports on the ineffectiveness of
Mexican laws and law enforcement agencies against domestic abuse. Second, the
Applicants had witnessed police humiliation of gays and transvestites.
[30]
The
Applicants cite 12 cases in which the Federal Court and the Federal Court of
Appeal have rejected RPD decisions on the grounds that the tribunal
ignored evidence of domestic violence.
[31]
The
Applicants argue that the RPD erred in concluding that the Applicants’ failure
to demonstrate sufficient efforts to seek out protection determines the state
protection analysis. The RPD ought to have considered the “actual
likelihood” that efforts would result in a helpful response. See Mejia
Ballesteros v. Canada (Minister of Citizenship and Immigration), 2008 FC
1246; Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1336; Medina v. Canada (Minister of
Citizenship and Immigration), 2008 FC 728; Hernandez v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1211 at paragraph 27. In the
instant case, the RPD set an “arbitrary standard” as to what constitutes
sufficient efforts.
RPD Failed to
Adjudicate Discrimination Claim in Its Totality
[32]
The
RPD accepted that Montoya Martinez would not have access to health care or
employment in Mexico due to his
gender presentation and identity. It also accepted that the Applicants would
not be able to live in Mexico as a transgender couple with children of
their own. However, it found “little evidence” regarding the treatment of transgender
people in Mexico. In
consequence, it concluded that there was no persuasive evidence to show that
transgender people face discrimination amounting to persecution and that state
protection is unavailable to them. Therefore, the presumption of state
protection was not rebutted.
[33]
The
Applicants argue that the RPD arrived at this conclusion, having
disregarded the oral evidence and affidavit evidence of Montoya Martinez, a
transgender man, as well as three other items of documentary evidence. The risk
of harm here was completely unexplored.
The Respondent
RPD
Considered the Correct Social Group
[34]
Despite
the RPD’s use of the
term “transgender woman,” it is clear from the Decision that the RPD understood
Montoya Martinez’s situation clearly: that he is a biological woman who felt
from a young age that he was a male and who now identifies as a man. The RPD considered
the Applicants’ claims of risk based on the correct social group and no
reviewable error was made.
RPD Assessed
Evidence on State Protection for Transgender Men and Couples
[35]
The
RPD commented on the lack of evidence in the country conditions documents
regarding the treatment of transgender men and couples. However, it reviewed
that evidence and concluded that it was insufficient to rebut the presumption
of state protection. The Applicants have failed to identify any specific
documentary evidence on transgender men or couples or to point to specific
evidence that they believe was ignored.
All Evidence
Was Before the RPD
[36]
The
RPD explained that it became aware, after reading counsel’s written
submissions, that some of the documents—particularly the psychological
assessments—were not admitted into evidence. Applicants’ counsel was contacted
and it became clear that Applicants’ counsel herself had erred in failing to
admit the documents into evidence at the time of the hearing. She corrected
this error on 19 February 2010. The RPD explicitly deals with
the psychological reports in the Decision. Therefore, it is clear that all
evidence was before the RPD and that the Applicants were not denied the right
to rely on these documents.
Gender
Guidelines Properly Applied
[37]
The
Gender Guidelines are designed to sensitize RPD members to
the particular difficulties women may have in proving their claims due to
differing societal, cultural and legal norms that apply to women in other
nations. The Guidelines are not a cure-all for deficiencies in the
evidence or the claims.
[38]
The
Applicants had the burden of demonstrating a well-founded fear of persecution
and lack of state protection. The RPD assessed, in light of the documentary
evidence, the Applicants’ claims both as women and perceived lesbians, and it
assessed Montoya Martinez’s claim as a transgender person. It was reasonable
for the RPD to find that
state protection was available to them and that they had failed to rebut the
presumption of state protection because they had never approached the police.
RPD Considered Objective Reasonableness
of Applicants’ Refusal to Seek State Protection
[39]
The
Applicants’ submission that the RPD failed to ask if it was
objectively reasonable for the Applicants not to seek state protection is
without merit. The RPD described in detail the Applicants’ reasons for not
seeking state protection before leaving Mexico. There
followed a thorough review of the positive and negative documentary evidence
regarding domestic violence, police corruption and homophobia in Mexico. Based on
this review, the RPD reasonably concluded that it was not
objectively reasonable for the Applicants not to seek state protection before
coming to Canada. The fact
that the Federal Court and Federal Court of Appeal have rejected RPD decisions
on the grounds that the tribunal ignored evidence is irrelevant in the instant
case where the RPD did not ignore relevant evidence.
State
Protection Analysis Is Correct
[40]
The
Applicants argue that the RPD erred in finding that the failure to seek out protection
determines the state protection analysis. This argument is flawed. In Samuel
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 762 at paragraph 13, Justice
Maurice Lagacé of this Court held as follows:
As
for the question of whether the appropriate test for assessing state protection
is one of adequacy or effectiveness, the Court finds that the former is the
correct approach. To require full effectiveness of foreign police and judicial
systems would be to insist on a standard for other states which we, in Canada, are not always able to achieve ourselves. Where there is
strong evidence to show that the police and judicial systems of democratic
states are so ineffective as to be inadequate, that might be a reason for
finding that state protection is not available.
[41]
The
Applicants’ burden was to adduce “reliable and probative,” or “clear and
convincing,” evidence to rebut the presumption of state protection. See Carillo
v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94 (Carillo). Justice
Michael Phelan in Guzman v. Canada (Minister of Citizenship and Immigration),
2008 FC 490 at paragraph 15, stated that an applicant must establish that the
police refused or were unable to investigate a complaint before the test in Carillo
can be met.
[42]
In
the instant case, the RPD acted reasonably in finding that the
Applicants’ reasons for failing to seek state protection, namely the
unsatisfactory experiences of two other victims of domestic abuse, were
insufficient to meet the test in Carillo.
RPD
Adjudicated Discrimination Claim in Its Totality
[43]
The
Respondent disagrees with the Applicants’ assumption that the RPD accepted
their oral evidence that Montoya Martinez would be unable to access health care
and employment opportunities in Mexico due to his gender
presentation and identity and that the Applicants would be unable to live as a
couple and have children. While the RPD made no negative credibility finding,
it did note that in 2007 several Mexican states passed legislation permitting
same-sex unions and granting inheritance and pension benefits to same-sex
spouses. Moreover, the Respondent notes that, although this evidence was not
referred to by the RPD, Mexico City passed a law granting
full marital rights to same-sex couples, including the right to adopt children,
in March 2010. Therefore, the Applicants’ assertion that they could not be
legally married and have a family in Mexico is unfounded.
[44]
The
Respondent also notes that Montoya Martinez’s evidence was that he might not
receive health insurance paid for by his employer and that health insurance
does not pay for gender-reassignment procedures. The Respondent submits that
the health care programs in many countries do not pay for gender-reassignment
procedures and that Ontario’s health program began doing so only in 2008.
[45]
An
overview of the Decision demonstrates that the RPD did consider these aspects
of the Applicants’ discrimination claim, and indeed the discrimination claim in
its entirety, and found that the discrimination they faced in Mexico did not
amount to persecution.
Applicants’
Reply
[46]
The
Respondent’s assertion that the RPD adjudicated the claim
of discrimination amounting to persecution based on gender identity, sexual
orientation and gender presentation is supported by no evidence from the
Decision. Instead, the Respondent provides as support its own analysis of the
documentary evidence.
[47]
The
Respondent’s assertions that the RPD did not accept the Applicants’ oral
evidence regarding the unavailability of health insurance and opportunities to
marry and have a family also are unsupported with evidence from the Decision.
The Respondent fails to rebut the presumption that the oral evidence was
accepted absent a negative credibility finding.
[48]
Further,
the Respondent’s comments regarding the coverage for gender-reassignment
procedures in the Province of Ontario and the recent Mexico City legislation
permitting same-sex marriage is evidence that was not before the RPD and should
be struck from the record.
[49]
In
addition, the Respondent fails to address the following three arguments in the
Applicants’ Memorandum:
a) that the
RPD’s state protection analysis was applied to the wrong social group;
b) that the RPD’s state
protection analysis did not consider the Applicants’ group in its totality; and
c) that the RPD
made no finding regarding the application of the Gender Guidelines to
the Applicants as lesbians or perceived lesbians or to Montoya Martinez as a
transgender man.
[50]
Finally,
although the RPD stated that
it had no choice but to rely on the “little evidence” concerning the country
conditions for transgender persons in Mexico, the Applicants submit that the
RPD ignored evidence that was directly on point, namely the Applicants’ own
testimony and two other documents listed in their Memorandum.
Respondent’s
Further Memorandum
[51]
The
Respondent submits that the RPD did not accept the Applicants’ claims that they
could not marry or have children in Mexico. The Decision notes
that two Mexican states have passed legislation allowing same-sex civil unions which
includes rights to inheritance and pensions. One of those states is the Federal
District,
which the RPD identified as a viable internal flight alternative for these
Applicants.
[52]
The
Respondent also submits that the RPD did not accept the Applicants’ claim that
they could not have children in Mexico. The country
documentation entered into evidence by the Applicants indicates that same-sex
couples wishing to begin a family in Mexico or in Canada encounter
similar challenges: the low availability of fertility clinics that provide
treatment to same-sex couples and the high cost of treatment. The Applicants
have failed to demonstrate that the lack of access to free artificial
insemination, which is a challenge to be faced in both Canada and Mexico, amounts to
persecution.
[53]
The
Applicants’ claim that they would not have access to employment in Mexico is
unsupported by their personal history, their oral evidence and the country
documentation. The PIFs of both Applicants indicate that they were employed
continuously throughout their adult lives. Montoya Martinez was permitted to
present himself in a more masculine manner by wearing pants and t-shirts to
work when he was employed at a newspaper and at a grocery store. The Respondent
contends that the Applicants anticipate having difficulty finding employment in
Mexico not due to discrimination
or persecution but due to lack of job references.
[54]
The
Applicants’ claim that they would not have access to housing in Mexico is
unsupported by the same evidence. The Applicants’ PIFs stated that they
cohabited in Mexico for five
years as a same-sex couple. Montoya Martinez never said that they were denied
housing as a same-sex couple. In fact, they never applied for housing as a
same-sex couple and therefore are speculating that they would face
discrimination if they were to do so. The Respondent contends that, based on
the Applicants’ own evidence, they believe that they will encounter challenges
in finding desirable housing in Mexico due to lack of funds and social connection,
neither of which constitute persecution.
[55]
The
Respondent argues further that the evidence of Montoya Martinez indicates that
he was never denied health care because he is a transgender person. By the
Applicant’s own admission, he never investigated the services that were
available to persons who wished to undergo a sex change or to have their
breasts removed. Although the Applicant speculated that such treatments would
be very expensive, he never made any inquiries regarding them.
[56]
The
Respondent submits that the affidavit filed by Ibtisam Yusuf, the legal
assistant of Applicants’ counsel, should be struck. First, it is not based on
the personal knowledge of the affiant but rather is a “thinly veiled” attempt
to get on record the evidence of Applicants’ counsel regarding the missing
documentary evidence referred to above as Exhibit C-4. It is improper for
counsel to give evidence in a proceeding for which she is counsel of record.
See Ali Akbar v. Canada (Minister of
Citizenship and Immigration) (April 9, 2008), Doc. No. IMM-4701-07; Butterfield
v. Canada (Attorney
General),
2005 FC 396; Addo v. OT Africa Line, 2006 FC 1099.
[57]
Second,
Applicants’ counsel should not be permitted to use this affidavit to shield
herself from cross-examination. The affidavit provides hearsay evidence and, to
the extent that it does so, it should be given little or no weight. See Zaman
v. Canada (Minister of Citizenship and Immigration) (1997), 131 F.T.R. 54; Samuel
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 223 at paragraph 22.
[58]
Third,
contrary to accepted jurisprudence, the affiant makes legal arguments and draws
legal conclusions and, to the extent that she does so, those arguments and
conclusions should be struck. See Deigan v. Canada (Minister of
Industry)
(1996), 206 N.R. 195 at paragraph 2.
[59]
With
respect to the missing documentary evidence in Exhibit C-4, the Respondent
submits that there is no question that this documentary evidence was considered
by the RPD before it rendered its Decision. This evidence was filed and marked
as Exhibit C-4 on 9 April 2009 for the purposes of the earlier hearing concerning
the same claim which was presided over by a different RPD member. When that RPD
member recused himself, the Applicants began a de novo proceeding.
During the pre-hearing conference on 15 September 2009, the RPD referred to
Exhibit C-4, noting in error that it contained 49 pieces of country condition
evidence. In fact, it contained 49 pieces of documentary evidence and 10 pieces
of documentary evidence of a more personal nature. Applicants’ counsel did not
correct the RPD’s error. When later the IRB contacted Applicants’ counsel to
inquire about the missing documents which she had referenced in her post-hearing
submissions, Applicants’ counsel could have requested that the hearing be
re-opened or that she be given an opportunity to respond to any concerns the
RPD might have had regarding these documents. She did not make this request.
The Respondent contends that, in so doing, Applicants’ counsel waived the right
to complain about a breach of procedural fairness.
[60]
Most
importantly, however, the RPD makes clear that the personalized documents, and
indeed all documents marked as Exhibit C-4, were considered prior to the
Decision. The RPD refers to two of the personalized documents in its Decision
and accepts the evidence contained in all ten personalized documents. The
Respondent submits that, given that Exhibit C-4 was considered in its entirety by
the RPD, there was no breach of procedural fairness.
ANALYSIS
[61]
This
application raises (in my experience at least) somewhat unique challenges in
terms of personal and social identity in the context of refugee law, as well as
problems associated with assessing the Applicants’ subjective experience and
concerns about their future against a background of objective evidence that
does not directly focus upon what the Applicants see as their particular group:
biological women in transgender relationship who may be perceived as transgressing
gender-presentation roles and who are dealing with both male familial violence
and social discrimination as lesbians and as a transgender couple.
[62]
Because
of their sexual orientation and their sexual identities, both real and
perceived, as well as their distinctive relationship and their past experiences
in Mexico, the
Applicants inevitably feel that they are treated differently from more
conformist individuals and couples. This different treatment has presented them
with challenges and will go on doing so. It does not mean, however, that
because their lives in Mexico have been, and will continue to be,
challenging that they necessarily qualify as Convention refugees or persons in
need of Canada’s
protection. They feel that they can live freer and fuller lives in Canada and
do not wish to have to revert to their former lives in Mexico. In this
regard, at least, the Applicants are no different from other individuals and
families who come before the RPD. The fact that Canada can offer a
richer and freer life does not qualify applicants as refugees or persons in
need of protection. The RPD is fixed with a much narrower set of legal
parameters within which to work and, inevitably, its conclusions will not
please anyone who wants to remain in Canada but who does not
legally qualify for that privilege.
[63]
The
distinctive nature of the Applicants’ claim for protection is reflected in the
Decision under review. The RPD took a lot of care over what it was doing and
went to considerable pains to make its reasoning transparent. This is a long
decision and, in my view, it reveals a determined effort to address the unique
challenges inherent in the Applicants’ position. The Applicants believe that
the RPD either got it wrong or was unreasonable in certain respects but, even
if this were the case, it was certainly not for the want of trying.
[64]
The
Applicants have raised a variety of issues, which they say constitute
reviewable errors. I think the best way forward is to simply look at each issue
in turn.
Error of Fact
[65]
The
Applicants say that the RPD refers to Montoya Martinez using feminine pronouns only
and finds that he is a “transgender woman” when he sees and presents himself as
a transgender man. The Applicants say that this mistake goes to the heart of
their claim because it means that the RPD does not understand Montoya Martinez’s
personal identity and social group, and it does not understand the kind of
couple they are.
[66]
After
reviewing the Decision and the record carefully, I am not convinced that this
slip in terminology is material or that it reflects any kind of
misunderstanding by the RPD with regard to Montoya Martinez’s personal
identity, the problems he has faced in attempting to build a social identity,
or the problems that the Applicants face as a couple as a result of their
particular identities and orientations.
[67]
The
RPD goes to considerable lengths and detail to describe Montoya Martinez’s
experiences and to identify the fears the Applicants have as a consequence of
both their distinct individual identities and their relationship.
[68]
In
my view, the Decision as a whole and the record reveal that no mistake was made
by the RPD in this regard. It is, of course, unfortunate that the RPD would
refer to Montoya Martinez with terminology that does not reflect his own
self-concept, but I cannot say that this slip reflects a misunderstanding of
who he is or the risks he claims to face, or that the RPD failed to understand
the basis of the Applicants’ claims, either individually or as a couple. I see
no reviewable error in this regard.
Procedural Fairness
– Evidence not before the RPD at the time of the Hearing
[69]
In
paragraph 53 of the Decision, the RPD itself addresses Exhibit C-4 and the
missing documents and how they were accepted post-hearing.
[70]
Applicants’
counsel has attempted to challenge the RPD’s account of the situation through
an affidavit sworn by Ibtisam Yusuf, who is counsel’s assistant. At bottom,
this affidavit is no more than counsel giving evidence and argument through her
assistant in an attempt to avoid what she knows are the prohibitions against
counsel both giving evidence and then arguing a case on the basis of her own
evidence. The affiant has no personal knowledge of anything material and the
affidavit is full of hearsay and argument. It offends Rule 82 of the Federal
Courts Rules SOR/98-106, and is improper under the governing jurisprudence.
See, for example, Ali Akbar v. Canada (Minister of
Citizenship and Immigration) (April 9, 2008), Doc. No. IMM-4701-07,
where Prothonotary Kevin Aalto discusses the prohibitions against a solicitor
acting as both witness and counsel.
[71]
In
my view, this affidavit is not properly before the Court, and I cannot take it
into account.
[72]
In
any event, there is nothing before me to suggest that the RPD considered
anything less than the Applicants’ full case. The documents in question were
made part of the record before the Decision was rendered and they are referred
to in the Decision itself. Counsel was aware of what had happened before the
Decision was rendered. She did not ask for any kind of re-hearing in relation
to the documents and did not raise any procedural fairness issues. In addition,
when the ten documents in question are examined, the RPD appears to have
accepted the facts to which the documents speak. There is no evidence before me
to suggest that a breach of procedural fairness occurred over this issue or
that the Applicants were disadvantaged by the way that the documents in
question became part of the record. I can find no reviewable error in this
regard.
Misapplication
of the Gender Guidelines
[73]
The
Applicants say that the RPD failed to assess state protection for their
singular group and that it misapplied the Gender Guidelines. I address
the state protection issue later in these Reasons.
[74]
There
is simply no evidence before me that the RPD did not appropriately apply the Gender
Guidelines in this case. The RPD specifically says that it applied them and,
in its reasons, it uses language that is taken from the Gender Guidelines
when it considers the social and economic context of the Applicants’ complaint.
In fact, the Applicants have not made clear what they think should have been
done or how the Gender Guidelines could have been applied differently in
this case.
[75]
I
can find no substance to this allegation of reviewable error.
Failure to Consider Whether the
Applicants Faced Discrimination Amounting to Persecution Because of Their Gender
Identity, Sexual Orientation and Gender Presentation
[76]
The
Applicants say that, because there was no adverse credibility finding made by
the RPD, the member must be taken to have accepted their evidence on
discrimination. Having accepted their evidence, they say that the RPD then
failed to consider whether the discrimination they had faced was persecutory.
[77]
To
begin with, the recitation and description of the Applicants’ “allegations” at
paragraphs 3-6 of the Decision cannot be taken as an acceptance by the RPD of
the Applicants’ assessment that they had faced, and will face, discrimination
and/or persecution. The Decision must be read as a whole.
[78]
In
reviewing the documentary evidence, the RPD acknowledges that “high numbers of
gay and bisexual individuals [in Mexico] still suffer from restrictions of a
society that is highly homophobic and undergo long periods of isolation before
integrating themselves in the homosexual network.” However, the RPD goes on to
balance the obvious difficulties faced by those who are gay and bisexual with
changes that have occurred and with evidence of a growing acceptance of people,
regardless of their sexual orientation. “The documentary evidence shows
homosexuality has gained greater recognition and acceptance even in places that
have not adopted formal anti-discrimination laws.” The RPD also discusses the
formal recognition of homosexuality and the legitimating of same-sex unions in
the Federal
District
in 2007.
[79]
The
RPD admits that “homophobia exists in Mexican society” and that “discrimination
against homosexuals on the basis of their sexual orientation continues to exist
in Mexican society ...” The RPD finds, however, that
the preponderance of the documentary
evidence indicates that the Mexican authorities are making serious efforts to
provide protection to homosexuals, to root out corruption in the police force,
to combat discrimination against homosexuals, to generally fight crime in
Mexican society, and to change societal attitudes of homophobia towards
homosexuals.
[80]
The
evidence examined by the RPD was not directed specifically at the Applicants’
singular group of biological women in transgender relationships who may be
perceived as transgressing gender-presentation roles but, as both sides appear
to agree, such specific evidence is not available and was not available to the
RPD. Working with what it had, I think the Decision makes clear that without
doubting what the Applicants say has happened to them and without specifically
addressing what the Applicants say they cannot do in Mexico, the RPD reviewed
the documentary record and concluded that the Applicants may well face
difficulties and even discrimination, but they can live in Mexico without
persecution as a result of the social and legal changes that have occurred in
that country. Hence, I do not think it can be said that the RPD failed to
consider the discrimination that the Applicants have faced and may well face if
they return. For reasons given, however, the RPD did not believe that they
faced persecution. It is possible to disagree with this conclusion and to argue
about what the evidence reveals about the future of these Applicants. However, given
the evidence of discrimination against the Applicants, which they placed before
the RPD, as well as the evidence of discrimination that was available in the
documentation package, I cannot say that the RPD failed to address this issue
or that its conclusions were not reasonable within the terms set by Dunsmuir.
State
Protection
[81]
The
Applicants say that the RPD’s state protection analysis was flawed and that, in
particular, the RPD failed to apply that analysis to their particular group.
[82]
Both
sides have acknowledged the lack of documentary evidence related to the
singular group to which the Applicants belong.
[83]
Given
the documentary evidence available to the RPD, a reading of the Decision as a
whole reveals that the RPD conducted a very detailed state protection analysis
and considered both positive and negative factors. All of the Applicants’
evidence is noted as well as their reasons for not going to the police.
Subjectively, the Applicants believed that they would not receive help,
particularly with respect to the threats of violence from the father and
brother-in-law of Real Ramirez, and that they would be ridiculed because of
their real and perceived sexual orientation and gender presentation. However,
they had no personal experience before the authorities and, with respect to
their gender and sexual orientation concerns, there was no evidence related to
similarly situated persons. Once again, it is possible to disagree with the
RPD’s conclusions, but I do not think that I can say that the RPD’s analysis
falls outside of the range of reasonable outcomes posited in Dunsmuir.
[84]
Justice
Robert Barnes in Sanchez v. Canada (Minister of Citizenship and Immigration),
2008 FC 134 at paragraph 9, citing Justice Michael Phelan in Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1126, stated:
a refugee claimant does not rebut the
presumption of state protection in a functioning democracy by asserting only a “subjective
reluctance to engage the state.”
[85]
I
realize that the Applicants in the present case gave reasons based upon their
observations of what had happened to others, but I do not think that the RPD’s
conclusions in this case, based upon the evidence before it, can be said to be
unreasonable.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is dismissed;
2.
There
is no question for certification.
“James
Russell”
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