Date: 20110708
Docket: IMM-5599-10
Citation: 2011 FC 860
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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JANET GRACIELA JARA GUERRERO
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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, a citizen of Peru, seeks judicial review of a decision made on
August 18, 2010 of the Refugee Protection Division of the Immigration and
Refugee Board, wherein it was determined that she was not a Convention refugee
or a person in need of protection.
[2]
For
the reasons that follow, the application is allowed and the matter remitted for
a fresh determination by a differently constituted panel.
BACKGROUND
[3]
The
applicant based her refugee claim on persecution by reason of her sexual orientation.
She says that in December 1999, she was seen by a male co-worker coming out of
a gay bar in downtown Lima. This resulted in her being identified as
a lesbian and being ostracized at her place of work.
[4]
In
March 2003, the applicant came to Canada to visit her family. During
her visit, she had an accident and sustained a serious injury that kept her
here until September 2006. During that time, the applicant began to live more
openly as a lesbian. She applied for permanent
residence in September 2006 and returned to Peru awaiting the
process of her application. The application was denied in March 2007. That same
year the applicant began to socialize more in Peru with women
who shared her orientation. In December 2007, the applicant began to receive
anonymous threatening phone calls from male callers. She reported the calls to
the police but the police referred her to the phone company. She says that she
was also harassed at work by her boss.
[5]
On
June 29, 2008, the applicant was assaulted by four males on her way home from a
party where she had been celebrating a small-scale Gay Pride parade. The
attackers called her a “dyke” and attempted rape so as to “teach her how to be
a woman”. They threatened her sister and nephew. The applicant tried to report
the incident to the police the next morning but the police officer laughed and would
not initiate any action. The following day, the applicant returned to the
police station and reported the incident to the commanding officer. He too
refused to take the report. She contacted a lawyer who advised her she would be
wasting her time and money because the courts were homophobic. The claimant had
a US visa and her
sister helped her purchase an airline ticket to Buffalo. She then
re-entered Canada and claimed
refugee status on July 29, 2008.
DECISION UNDER REVIEW
[6]
The
Board held that the determinative issue in this case was one of state
protection. In considering the documentary evidence, it concluded that Peru was
in a position to offer state protection and that the applicant could have
pursued other avenues but chose to leave Peru a month after going to the
police. It acknowledged that there was some contradictory evidence in the record
with regard to Peru’s treatment of homosexuals but found that the
Constitutional Court is attempting to address such issues and that the
homophobia in Peru is a problem faced by all citizens of Peru.
ISSUES
[7]
The
issues raised by the applicant are as follows:
- Did the Board err in determining
that the applicant’s fear only arose as a result of an incident on June
29, 2008?
- Was the Board’s section 97 analysis
reasonable?
- Did the Board err by failing to
address, analyze and distinguish contradictory evidence supporting the
applicant?
- Did the Board err in properly
applying the Gender Guidelines?
- Was the Board’s finding on state
protection reasonable?
[8]
In
my view, the determinative issues are whether the Board failed to properly
consider the documentary evidence relating to the persecution of gays in Peru and whether
its finding on state protection is reasonable.
ANALYSIS
[9]
Questions
regarding state protection are mixed questions of fact and law are to be
decided on the reasonableness standard of review: Zepeda v. Canada (Minister of
Citizenship and Immigration), 2008 FC 491, [2009] 1 F.C.R. 237 at para. 10.
[10]
In
the case at bar, the applicant tried to seek protection by going twice to the
police but received no assistance and was treated with derision. The applicant
pursued the matter further, calling a lawyer and telling him the story. In oral
testimony she said she called the lawyer because she wanted more information
about what she could do in this situation and how to protect her rights.
Because she did not have a police report, the lawyer advised her not to waste
her time and money. In addition to stating that the courts were homophobic, he
expressed concern in representing her due to the nature of the claim and the
effect it would have on his professional reputation.
[11]
The
Board acknowledged the applicant’s effort to contact the police but found
“there were other avenues she could have pursued”. The Board specifically named
the Ministries of Interior and Defence, the Public Ministry and the Ombudsman. It
noted also that there are many non-governmental organizations that fight
against discrimination based on sexual orientation. That in itself is a telling
factor in considering the country conditions.While Peru appears to
have made progress in recognizing the place of gay persons in its society, the
evidence indicates that discrimination remains a serious problem.
[12]
It
is difficult to understand the Board’s finding that the problem of homophobia
is faced by all Peruvian citizens as opposed to those within the class of gays.
The Board does not appear to have considered the reaction of the authorities to
the applicant’s complaints as an illustration of the extent of the problem and
how it might limit access to state protection.
[13]
In
considering the documentary evidence, the Board noted at paragraph 35 of its
reasons that “Corruption and impunity remained problems” in the country. In
particular, the Board acknowledged that the Ministries of Interior and Defence
employ internal mechanisms to investigate security force abuses and are subject
to inquiries from the Public Ministry and the Ombudsman. The Board noted that access
to evidence in these investigations is not always forthcoming.
[14]
It
is not clear why the Board considered it necessary to cite these examples to
illustrate efforts to counter corruption as the issue was whether state
protection would be forthcoming from institutions alleged to be homophobic. In
any event, they are the very institutions the Board suggested the applicant
seek out for assistance. In light of its findings, it was unreasonable for the
Board to deem such options to be viable in securing state protection.
[15]
Although
the respondent is correct to assert that the Board is not obliged to refer to
each and every piece of contrary evidence (Gavoci v. Canada (Minister of
Citizenship and Immigration), 2005 FC 207), the letters from the
applicant’s friend, sister and the psychologist’s report should have been more
than mentioned in passing. As the decision reads, it is not clear why such
pieces of evidence were discounted; there is no analysis to offer an
explanation. See: Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 where Justice John Evans,
as he then was, set aside the tribunal’s decision when psychological evidence
was not considered. This is especially so because they corroborated the
applicant’s claim and gave contrary accounts of the situation in Peru to that
available in some of the documentary evidence. Although not all were
necessarily persuasive, they were nonetheless relevant. As such, the Board’s
rationale for according no weight to this evidence should have been explained.
[16]
No
questions for certification were proposed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted and
this matter is remitted for reconsideration by a differently constituted panel
of the Refugee Protection Division. No questions are certified.
“Richard
G. Mosley”
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