Date: 20070515
Docket: IMM-5872-06
Citation: 2007 FC
519
Ottawa, Ontario, May 15, 2007
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
ARIETE ALEXANDRA PIRES SANTANA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In April
2003, the Canadian authorities granted refugee status to Ms. Santana on
the basis of her sexual orientation. She submitted that she was a lesbian and
that her personal history was tainted by persecution, rape and other ill
treatment suffered in her native Angola
and in Portugal where she lived for a few
years. However, last year the refugee status that she had been conferred was
vacated in accordance with section 109 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act). This is an application for
judicial review of that decision.
[2]
Section
109 of the Act states as follows:
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109. (1) The Refugee Protection Division may, on
application by the Minister, vacate a decision to allow a claim for refugee
protection, if it finds that the decision was obtained as a result of
directly or indirectly misrepresenting or withholding material facts relating
to a relevant matter.
(2) The
Refugee Protection Division may reject the application if it is satisfied
that other sufficient evidence was considered at the time of the first
determination to justify refugee protection.
(3) If the
application is allowed, the claim of the person is deemed to be rejected and
the decision that led to the conferral of refugee protection is nullified.
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109. (1) La Section de la protection des réfugiés
peut, sur demande du ministre, annuler la décision ayant accueilli la demande
d’asile résultant, directement ou indirectement, de présentations erronées
sur un fait important quant à un objet pertinent, ou de réticence sur ce
fait.
(2) Elle peut
rejeter la demande si elle estime qu’il reste suffisamment d’éléments de
preuve, parmi ceux pris en compte lors de la décision initiale, pour
justifier l’asile.
(3) La
décision portant annulation est assimilée au rejet de la demande d’asile, la
décision initiale étant dès lors nulle.
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[3]
The
Minister’s position is that once Ms. Santana arrived in Canada, she became involved in a
romantic relationship with a man, which led to marriage, that a child was born
of this union and that her attempts to sponsor him failed.
[4]
While
Ms. Santana admitted all of these allegations, she reaffirmed the
truthfulness of her submissions and the documents on which her refugee claim in
Canada was based. She alleged that
she had been in conflict, confused and unhappy, as she wanted a child and had
attempted to change her sexual orientation on that very basis. Following this
experience, the marriage failed, she realized that a man could not satisfy her
sexual needs and she is currently in a homosexual relationship.
[5]
The
Minister emphasized the fact that the hearing was held in October 2002 and
that the decision in Ms. Santana’s favour was made in April 2003. On the
day of the hearing, Ms. Santana lived with the man she would later marry.
However, she argued that they were simply co-tenants and did not become more
intimate until December 2002. The man in question did not testify since he has
been deported.
[6]
Then the
Minister alleged that additional information was submitted to him at the
panel’s request in January 2003. This apparently had the effect of giving
Ms. Santana a second chance to file all of the evidence of her claim,
including her homosexual experience. However, it must be pointed out that the
additional information to be submitted had nothing to do with this aspect of
the matter.
[7]
With all
due respect, the Minister’s argument does not stand up because it would mean
that homosexual individuals deemed to be credible would have to remain celibate
until refugee status had been granted to them, before becoming involved in a
heterosexual relationship. That is not the issue. The Minister must establish
rather that the impugned decision allowing Ms. Santana’s refugee claim
resulted from misrepresentations of the significant fact that she was not or
had never been a lesbian and that, consequently, her story was no more than
lies.
[8]
The human
race is extremely complex, particularly when it comes to the sexuality of its
members. In this case, there was no reason to believe that the panel had any
more expertise than this Court to address this issue. At best, this Court can
recognize that the panel does not have a specific knowledge of it.
[9]
This
impugned decision must be set aside because it is patently unreasonable. The
fact that Ms. Santana had a heterosexual relationship with a man in Canada
as such does not require the intervention of this Court since it cannot be
inferred based on this element alone that she directly or indirectly
misrepresented an important element regarding the subject of her story, or that
she concealed this fact when she applied for refugee status in Canada.
[10]
A
significant decision on this subject, bearing on the predecessor of
section 109 of the Act as it reads today, is Coomaraswamy v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 153, [2002] 4
F.C. 501 (C.A.). As Mr. Justice Evans writes at paragraph 17:
Of course, when
attempting to establish for the purpose of subsection 69.2(2) that a claimant
made misrepresentations at the determination hearing, the Minister may adduce
evidence at the vacation hearing that was not before the Board when it decided
the refugee claim. Similarly, a claimant may adduce new evidence at the
vacation hearing in an attempt to persuade the Board that she did not make the
misrepresentations alleged by the Minister.
[11]
In this
case, it is a matter of pure conjecture and not at all of inference.
[12]
In Dumitru
v. Canada (Minister of Employment and
Immigration),
[1994] F.C.J. No. 239 (QL), Mr. Justice Noël writes the following at
paragraph 10:
In Minister of Employment and Immigration v. Robert
Satiacum (A-554-87), June 16, 1989, MacGuigan J.A. stated, at page 15:
The common law has long recognized the difference
between reasonable inference and pure conjecture. Lord Macmillan put the
distinction this way in Jones v. Great Western Railway Co. (1930), 47
T.L.R. 39 at 45, 144 L.T. 194 at 202 (H.L.):
The dividing line between conjecture and inference is
often a very difficult one to draw. A conjecture may be plausible but it is of
no legal value, for its essence is that it is a mere guess. An inference in the
legal sense, on the other hand, is a deduction from the evidence, and if it is
a reasonable deduction it may have the validity of legal proof. The attribution
of an occurrence to a cause is, I take it, always a matter of inference.
In R. v. Fuller (1971), 1
N.R. 112 at 114, Hall J.A. held for the Manitoba Court of Appeal that
“[t]he tribunal of fact cannot resort to speculative and conjectural
conclusions.” Subsequently a unanimous Supreme Court of Canada expressed itself
as in complete agreement with his reasons: [1975] 2 S.C.R. 121 at 123, 1 N.R.
110 at 112.
See also Espino v. Canada (Minister of Citizenship and
Immigration), 2006
FC 1255, [2006] F.C.J. No. 1578 (QL).
ORDER
THE COURT ORDERS that:
1.
This
application for judicial review is allowed.
2.
The
decision of the Refugee Protection Division of the Immigration and Refugee
Board dated September 27, 2006, is set aside.
3.
The matter
is referred to a different member of the Refugee Protection Division for
reconsideration in accordance with these reasons.
Sean Harrington
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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