Date: 20110323
Docket: IMM-4283-10
Citation: 2011 FC 363
Toronto, Ontario, March 23, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
LESLIE KERVIN
WARNER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Only
one of the issues raised requires the Court’s attention: was the decision
rejecting Mr. Warner’s claim for refugee protection reasonable? I find that it
was not and therefore allow this application
for judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board.
[2]
Mr. Warner is homosexual. He is a
citizen of both Trinidad and Tobago and Saint
Vincent and the Grenadines. His claim
for protection was based on his fear of persecution on the grounds of his
sexual orientation.
[3]
The Board accepted his identity
and sexual orientation and made no negative credibility findings; his evidence
of the treatment to which he was subjected was accepted. However, the Board
concluded that Mr. Warner had not satisfied the burden of establishing a
serious possibility of persecution on a Convention ground or that he would
personally be subjected to a danger of torture or a risk to life or of cruel
and unusual treatment or punishment, and that accordingly he did not fall
within s. 96 or s. 97 of the Immigration and Refugee Protection Act, SC
2001, c 27.
[4]
The Board properly held that Mr.
Warner was required to establish his claim vis-à-vis both of his countries of nationality.
It also noted that refugee protection is “forward looking” and that “in order
for past persecution to establish a valid basis for a prospective fear of
persecution, there must be sufficient evidence to establish continuity of
risk.” The Board did not consider whether the treatment he received over the
previous years would continue in his countries of nationality; it simply found
that the treatment did not amount to persecution.
[5]
The respondent at paragraph 8 of
his written memorandum captures the Board’s critical finding and summarizes it
as follows: “The Board specifically considered the Applicant’s testimony about
his own and his partner’s experience … and concluded that the harassment
experienced by both men was not severe enough that it amounted to persecution.”
[6]
The incidents about which Mr.
Warner testified involved both countries of nationality and many locations
within them, as he and his partner moved in an effort to avoid further
incidents. These incidents of “harassment,” as the Board characterized them, included
the following:
(i)
In 1993, Mr. Warner was spat upon
and his van was vandalized. The words “homosexuals must die” were written on
the van and its windows were smashed. His driver subsequently ran the van into
a wall and called to say he would not work for a homosexual. When Mr. Warner
went to pick up his van, he was beaten by a group of young men.
(ii)
In December 1999, while Mr. Warner
was on the beach with a male friend, they were accosted by a group of young men
who told them that gay men should not be allowed and that they must go away or
die. When they refused to leave, they were beaten. When they complained to
the police, they were told to leave and told that they should have been shot
because they were “battymen” (a derogatory term for homosexuals). Mr. Warner’s
friend later died; his death was caused in part by the injuries he sustained
during this beating.
(iii)
In October 2001, the partner of
one of Mr. Warner’s female friends, calling him a “battyman,” attacked Mr.
Warner with a knife, cut him on his face, and threatened to kill him.
(iv)
In 2005, soon after Mr. Warner
began living with his partner, Mr. Lance Nicholls, people began writing
“homosexuals must die” on their house. As well, their house was broken into
and vandalized.
(v)
Their home was often bombarded
with stones at night.
(vi)
In December 2006, after finishing
work as a security officer, Mr. Warner was beaten by five men who told him they
did not want homosexuals in town and that they would kill all “bullermen”
(another derogatory term for homosexuals). The applicant was left injured on
the ground, was taken to his home by a Good Samaritan, and subsequently
suffered a mild stroke as a result of the injuries he sustained.
(vii)
In March 2007 Mr. Warner, Mr.
Nicholls, and a friend were beaten with sticks by a group of men who again
called them homophobic names. Mr. Nicholls was hospitalized for 10 days.
(viii)
In May 2007 two men ran down Mr.
Nicholls with their car. When Mr. Warner went to help him the assailants
rounded up more people who followed them to their house and bombarded their
house with bottles and stones for approximately thirty minutes. The police
were called but they said they had “no transport,”
that the applicant must be a homosexual, and that he must get out of the community.
(ix)
In June 2007, Mr. Warner and Mr.
Nicholls were physically attacked by a group of four young men.
(x)
In early 2008, after moving, the
house Mr. Warner shared with Mr. Nicholls was stoned.
(xi)
In June 2008 their home was
firebombed. Again, the police were called but no one ever came to investigate
or take action.
(xii)
Finally, on June 12, 2008, Mr.
Warner, Mr. Nicholls, and the applicant’s son were coming home from dinner when
individuals tried to run them off the road, began to stone them, and shot at
them. It was after this final incident that Mr. Warner and Mr. Nicholls
decided they had to leave Saint Vincent and Trinidad and Tobago.
(xiii)
Mr. Nicholls continues to live in Trinidad and Tobago. Mr. Warner sends him money so he can stay elsewhere than in the home
they shared because people have been trying to break into the home and have
been bombarding it with stones.
[7]
Repeated physical violence
directed against someone because of his sexual orientation can amount to
persecution. The meaning of “persecution” is significantly broader than
envisioned by the Board. In Rajudeen v Canada
(Minister of Employment and Immigration) (1984), 55 NR 129 (FCA), the Federal Court of Appeal considered a
definition of “persecute” as “[t]o harass or afflict with repeated acts of
cruelty or annoyance; to afflict persistently.” This definition has been
accepted recently by Justice Kelen in Sefa v Canada
(Minister of Citizenship and Immigration), 2010 FC 1190, at para. 25, by Justice Pinard in Jeyaraj v Canada
(Minister of Citizenship and Immigration), 2009 FC 88, at para. 16, and by myself in AB v Canada
(Minister of Citizenship and Immigration), 2009 FC 640, at para. 27. In AB, at paras. 28-29 I noted other
relevant cases on this issue:
Justice
Mosley of this Court more recently reviewed the jurisprudence on the meaning of
"persecution" in Sadeghi-Pari v. Canada (Minister of
Citizenship and Immigration, [2004] F.C.J. No. 316, 2004 FC 282, and
summarized it at para. 29 as follows:
The meaning
of persecution, as set out in the seminal decisions of Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 and Chan v. Canada
(Minister of Employment and Immigration), [1995] 3 S.C.R. 593, is generally
defined as the serious interference with a basic human right.
It has been
held that harassment and discrimination may amount to persecution. In Sagharichi
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 796 (F.C.A.), Justice Marceau wrote:
It is true
that the dividing line between persecution and discrimination or harassment is
difficult to establish, the more so since, in the refugee law context, it has
been found that discrimination may very well be seen as amounting to
persecution. It is true also that the identification of persecution behind
incidents of discrimination or harassment is not purely a question of fact but
a mixed question of law and fact, legal concepts being involved.
The Court of
Appeal did indicate, however, that discrimination will only amount to
persecution when it is "serious or systematic enough to be characterized
as persecution": See also Ramirez v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1888, 88 F.T.R. 208 at para
8.
[8]
Any reasonable assessment of the
evidence of Mr. Warner leads to a finding that he was subject to many acts
which meet and go far beyond the criteria of cruelty and annoyance. Further,
the violence against him and his partner was serious and systemic; the same
pattern of homophobic violence was repeated again and again despite relocating
to different parts of Saint Vincent and Trinidad
and Tobago. It was only after no less
than twelve incidents of very serious physical violence over a period of
fifteen years – in addition to pervasive societal discrimination – that Mr.
Warner fled his countries of citizenship.
[9]
If one accepts that the Board’s
decision is reasonable, then, as stated by the applicant at paragraph 2 of his
Reply Memorandum, one must subscribe to the view that:
… harassment
and/or discrimination [not amounting to persecution] includes beating with
sticks, being run down by a car, being attacked, having one’s house
fire-bombed, being run off the road, being stoned, being shot at, being beaten,
being cut on the face, and being beaten so badly that one individual suffered a
stroke and another had to be admitted to hospital for ten days for treatment.
I
agree with the applicant that it is unreasonable to find, as the Board did,
that these acts cumulatively amount to no more than harassment and discrimination.
[10]
The respondent says that the fact
that there are laws in Mr. Warner’s countries of nationality criminalizing
homosexual acts does not prove a risk of persecution, especially where such
laws are not enforced. These submissions are without merit as Mr. Warner’s claim
was not based on the enforcement of these laws, and the police or the state
were not the primary agents of persecution. Mr. Warner’s claim was based on
persecution at the hands of citizens of these countries. The anti-homosexual laws
are relevant only insofar as they may demonstrate a lack of state protection –
a lack of protection which was substantiated by the refusal of the police to
protect Mr. Warner and their own homophobic treatment of him.
[11]
This decision must be set aside
and the refugee claim of the applicant referred to another member of the Board
for determination.
[12]
Neither party proposed a question
of general importance for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is allowed and the Board’s decision
denying the applicant’s refugee claim is set aside, the applicant’s refugee
claim is referred to another Board member for determination, and no question is
certified.
“Russel W. Zinn”
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