Date: 20070316
Docket: IMM-3003-06
Citation: 2007 FC 284
Ottawa, Ontario, March 16, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
PABLO
MAURO GORRIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by
Mardie Weir, Immigration and Refugee Board, Refugee Protection Division (the Board),
dated May 12, 2006, which found that the applicant was neither a Convention
refugee nor a person in need of refugee protection, based on his claim of fear
of persecution because of his membership in a particular social group (homosexual)
and the lack of adequate state protection of people like him in Argentina.
ISSUE
[2]
The
application raises the following issues:
1. Did the Board
err in finding that the applicant can seek state protection in the city where
he was abused?
2. Did the Board
err in finding that the “compelling reasons” exception of subsection 108(4) is
not applicable to the applicant’s situation?
[3]
For
the reasons that follow, the answer to each question is positive. As a result,
the application for judicial review shall be allowed.
BACKGROUND
[4]
The
applicant was born in Buenos Aires, Argentina on July 7,
1978 and claims a well-founded fear of persecution in Argentina because of
his sexual orientation. He claims that he was a victim of police torture and will
likely be harmed by the police who continue to torture with impunity members of
the gay and lesbian communities in Argentina.
[5]
In
particular, the applicant claimed that because he is a homosexual, he was
stopped by police officers in Buenos Aires, on two separate
occasions and was sexually and physically assaulted as follows:
a) In May
1998, while walking home after a night at a gay bar, the applicant was detained
under a false pretext by the police and taken to the Comisaria 39 police
station. There, he was placed in a cell by himself. Later, he was beaten up by
three police officers, to such an extent that they broke his nose. They then
forced him to perform oral sex on two officers while the third officer watched.
When the sexual assault ended, the officers told him that he was lucky he was
being allowed to leave and if he told anyone about what had transpired, they
would kill him.
b) In the early
hours of July 14, 2002, the applicant was stopped by different police
officers who asked to see his identification documents. One of the police
officers asked if the documents identified him as a “fagot.” He was then arrested,
shoved into the police car, where he was insulted and driven to a deserted
industrial site. There, he was thrown out of the car and asked to strip naked,
between barrages of insults. The officers then physically abused him, and in
particular, one officer held him down while another punched him in the face and
took a piece of broken glass and sliced into his right upper arm leaving two
gaping vertical wounds, each approximately 6 cm and 10 cm long. The police
officers left the applicant lying and bleeding on the ground, warning him to
pretend that nothing happened to him. He should never tell anyone about the
incident or they would retaliate against him.
[6]
Out
of fear of reprisals, the applicant claims he neither went to the hospital nor
sought to avail himself of government or community assistance to address these
two instances of victimization by the police. Instead, he decided to leave Argentina and in
September 2002, a family friend assisted him to obtain a visitor’s visa to Canada. The
applicant came to Canada on a visitor’s visa on December 3, 2002, where
he claimed refugee protection in January 2003.
[7]
In
a letter dated June 16, 2003, Dr. Maria del Junco, a physician licensed in
Ontario with a private family practice in Toronto, examined
the applicant on June 5, 2004 in order to document evidence of the injuries the
applicant alleged to have sustained when assaulted by the police in Argentina. Dr. del
Junco’s examination found the following:
§
small bump
and deformity on the bridge of the nose consistent with a fracture of the nasal
septum
§
right
upper arm – two vertical scars, 6 and 10 cm. long, with raised borders (keloid
formation), consistent with lacerations that healed without suturing.
In summary, my findings were consistent
with Mr. Gorria’s account of how he received his injuries.
[8]
In
a letter dated June 18, 2003, Dr. Hung-Tat Lo, a psychiatrist qualified to
practice in Ontario, and an Assistant Professor of Medicine, University
of Toronto, confirmed
that the applicant was seen in psychiatric assessment on May 27, 2003. Based on
his assessment of the applicant, Dr. Hung-Tat Lo states as follows:
In summary, my professional opinion is
that Mr. Gorria is suffering from an adjustment disorder with features of a
posttraumatic stress disorder. These are the direct consequence of his
persecution in his home country. With the freer environment in Canada and the support available to
him, prognosis is good. However, a return to his home country will have grave,
adverse effect on his health.
[9]
The
applicant’s refugee claim was dismissed by the Board on April 24, 2004. However,
this decision was quashed in a judicial application, in an Order rendered by
Justice Sean Harrington on June 14, 2005. The matter was remitted back to the Board
for re-determination before a differently constituted panel. The newly
constituted panel in turn dismissed the applicant’s claim on May 12, 2006. It
is this second rejection, which forms the basis of the present application for
judicial review.
DECISION UNDER REVIEW
[10]
After
considering all of the evidence including the transcripts of the hearing from
the first decision, the Board found that the applicant was neither a Convention
refugee nor a person in need of refugee protection.
[11]
Credibility
was not an issue. Indeed, the Board accepts that the two incidents of sexual
and physical assaults did occur. However, the Board made the following
findings:
a) There
is adequate state protection for the claimant in Buenos Aires. The
decision states as follows:
[. . .] (T)he claimant’s failure to
diligently seek protection in his country of origin does not provide clear and
convincing evidence to rebut the presumption that the constitutional democracy
of Argentina can protect its citizens. [.
. .]
There are laws enforcing the rights of
homosexuals in Buenos
Aires and the
documentary evidence notes that there are laws in place protecting people
including homosexuals from discrimination in employment, property rights and
many supportive and active non-governmental agencies supporting homosexuals.
[…]
[…] There are several references in the
documentary evidence that refer to Buenos Aires and Rosario as leaders in Argentina in their acceptance of homosexuals. The
documentary evidence also states that there have been issues between the police
and some homosexuals during protests and at gay bars; however, these have not
been addressed as problems by Amnesty International. CHA [(Homosexual Community
Argentina)] was founded in 1984 and gained official recognition in 1992 and Argentina celebrated its first Gay
Pride week in 1992. I find it is reasonable that the claimant could live openly
and support himself with no more than a mere possibility of persecution in Buenos Aires.
b)
The
consolidated grounds of risk to life or risk of cruel and unusual
treatment or punishment or to danger of torture must necessarily fail because
it is established that there is adequate state protection for the applicant in Buenos Aires.
c)
There
are no compelling reasons including the two incidents of 1998 and 2002
in Argentina that would
warrant according refugee protection to the applicant. The decision notes in
particular:
The claimant has been absent from Argentina for a period of four and
one-half (4-½) years and I rely [on] the current documentary evidence. I find
that the problems experienced in 1998 and 2002 in Argentina, by the claimant, were neither so
appalling nor atrocious that he would be found to be in need of refugee
protection based on compelling reasons.
[12]
It
is noteworthy that the Board makes no reference in its decision that it
considered Dr. del Junco’s findings that the applicant’s injuries are
consistent with the applicant’s account of how he received his injuries. The
Board’s decision also makes no reference to Dr. Hung-Tat Lo’s psychiatric
assessment confirming that the applicant suffers from an adjustment disorder
with features of a post traumatic stress disorder, which are the direct
consequence of persecution in his home country.
RELEVANT LEGISLATION
[13]
Where
the reasons for which a person has sought refugee protection no longer exist,
the Act provides for one exception, whereby refugee protection can be granted.
The relevant passages of the Act read as follows:
|
Rejection
108.
(1) A claim for refugee protection shall be rejected, and a person is
not a Convention refugee or a person in need of protection, in any of the
following circumstances:
[.
. .]
(e)
the reasons for which the person sought refugee protection have ceased to
exist.
[.
. .]
Exception
(4)
Paragraph (1)(e) does not apply to a person who establishes that there are
compelling reasons arising out of previous persecution, torture, treatment or
punishment for refusing to avail themselves of the protection of the country
which they left, or outside of which they remained, due to such previous
persecution, torture, treatment or punishment.
|
Rejet
108.
(1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
[.
. .]
e) les raisons qui lui ont
fait demander l’asile n’existent plus.
[.
. .]
Exception
(4)
L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons
impérieuses, tenant à des persécutions, à la torture ou à des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
|
ANALYSIS
Did
the Board err in finding that the applicant can seek state protection in the
city where he was abused?
(1)
Standard
of Review
[14]
The
standard of review applicable to a determination of state protection has been
established by this Court as that of reasonableness simpliciter, as
analyzed by my colleague Justice Carolyn Layden-Stevenson at paragraphs 9 to 11
of Chaves v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 232 (QL):
i) The Standard of Review
9 The four contextual factors
comprising the pragmatic and functional approach, which potentially overlap,
are: "the presence or absence of a privative clause or statutory right of
appeal; the expertise of the tribunal relative to that of the reviewing court
on the issue in question; the purposes of the legislation and the provision in
particular; and the nature of the question - law, fact, or mixed law and fact"
(Dr. Q, supra at para. 26).
10 Turning to the first of those
factors, decisions of the Board are not protected by a strong privative clause
(see Pushpanathan v. Canada (Minister of Citizenship and
Immigration),
[1998] 1 S.C.R. 982). The second and third factors, however, militate in favour
of curial deference. Whether state protection is available, or whether the
claimant has sought that protection, engages the relative expertise of the RPD.
And though the provision in question in effect requires a determination of the
rights of individuals claiming refugee status, the legislation gives
substantial discretion to the RPD.
11 However, the nature of the
question is key in this application and also brings into play relative
expertise. Deciding whether a particular claimant has rebutted the presumption
of state protection involves "applying a legal standard [i.e. "clear
and convincing confirmation of a state's inability to protect": Ward,
supra, at para. 50] to a set of facts", which according to the Supreme
Court constitutes a question of mixed fact and law: Housen v. Nikolaisen,
[2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise with respect to
the findings of fact and assessing country conditions. However, the Court has
relative expertise with respect to whether the legal standard was met.
Accordingly, the appropriate standard of review is in my view reasonableness
simpliciter. This is consistent with the rulings characterizing the issue of
state protection as a question of mixed fact and law: Smith, supra and Racz,
supra.
12 Briefly, before considering
whether the RPD appropriately decided whether the applicant demonstrated the
state's inability to protect, it is useful to describe what constitutes an
unreasonable decision, as explained by the Supreme Court in Law Society of
New Brunswick v. Ryan, [2003] 1 S.C.R. 247:
55 A decision will be
unreasonable only if there is no line of analysis within the given reasons that
could reasonably lead the tribunal from the evidence before it to the
conclusion at which it arrived. If any of the reasons that are sufficient to
support the conclusion are tenable in the sense that they can stand up to a
somewhat probing examination, then the decision will not be unreasonable and a
reviewing court must not interfere (see Southam, [1997] 1 S.C.R. 748, at
para. 56). This means that a decision may satisfy the reasonableness standard
if it is supported by a tenable explanation even if this explanation is not one
that the reviewing court finds compelling (see Southam, at para. 79).
[15]
I adopt the reasons of my colleague in Chaves for as in
that case, the Board in the present application found that the applicant had
failed to diligently seek the protection of his country before coming to Canada. As
a result, the applicant did not provide clear and convincing evidence to rebut
the presumption that the constitutional democracy of Argentina can
protect its citizens. To succeed, the applicant must show that the decision of
the Board was not reasonably open to it.
(2) Rebutting
the presumption of state protection
[16]
Before addressing the issue of the Board’s finding of state
protection in Buenos Aires, it is necessary to address the
bipartite test the claimant must meet in order to establish a well-founded fear
of persecution. This test is set out by the Supreme Court of Canada at
paragraphs 47 and 52 of Canada (Attorney General) v. Ward, [1993] 2. S.C.R. 689.
The relevant portions are as follows:
47 More generally, what exactly must a
claimant do to establish fear of persecution? As has been alluded to above, the
test is bipartite: (1) the claimant must subjectively fear persecution; and (2)
this fear must be well-founded in an objective sense. This test was articulated
and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective
component relates to the existence of the fear of persecution in the mind of
the refugee. The objective component requires that the refugee's fear be
evaluated objectively to determine if there is a valid basis for that fear.
See also Minister of Employment and
Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), at p. 173. [. . .]
52 In summary, I find that state complicity
is not a necessary component of persecution, either under the
"unwilling" or under the "unable" branch of the definition.
A subjective fear of persecution combined with state inability to protect the
claimant creates a presumption that the fear is well-founded. [. . .].
(3) State
protection in city where applicant was abused
[17]
The applicant argues that the Board’s finding is unreasonable in
that the Board noted that Argentina is a
democracy. Moreover, Argentina passed anti-discrimination
legislation and has celebrated Gay Pride Week since 1992. The Board also noted
that there have only been “issues between the police and some homosexuals
during protests and at gay bars.” Based on this, the Board found that there is
adequate state protection for the claimant in Buenos
Aires today.”
[18]
The respondent submits that in spite of his two experiences with
the police in Buenos Aires, the applicant has not sufficiently rebutted
the presumption that the state could provide him with protection. Furthermore,
the applicant seeks to have this Court reweigh the evidence and arrive at a
different conclusion with regard to the documentary evidence before the Board.
This is not in the province of the reviewing Court particularly where as in
this case, the determination with respect to state protection involves findings
of fact and are entirely within the Board’s authority to make.
[19]
While I agree with the respondent’s assessment of the role of the
reviewing Court, this Court finds that the Board has erred in its conclusion
that the applicant can return to live and work in Buenos Aires with no more
than a mere possibility of persecution. The Board’s decision is based on the premise
that the circumstances upon which the applicant’s fear of persecution is based
have changed such that his application for refugee protection must be rejected
based on paragraph 108(1)(e). However it failed to recognize that some
of the changes it considered occurred prior to and indeed were in place on the
two separate occasions when the applicant was victimized. The applicant was not
only sexually assaulted but he was also noticeably physically maimed on the two
separate occasions.
[20]
The
applicant was stopped at random by the police because of his mannerisms and
associations, which were revealing of his sexual orientation. The Board failed
to explain why it believed that the applicant could live openly and support
himself with no more than a mere possibility of persecution in Buenos Aires even after an absence
of four and a half years from the country. The Board has not addressed any
evidence that would suggest that the applicant has changed his mannerisms or
associations or characteristic traits that readily identify him as a
homosexual. Moreover, the applicant was stopped and assaulted by different
police officers in Buenos
Aires,
first in 1998 and then four years later, by altogether different officers in
2002. These incidents occurred in the early hours of the morning and in
isolation, during the phase of Argentinean enlightenment and public acceptance
of the gay and lesbian elements of its society.
[21]
For
this reason, I find that the Board’s decision in this regard is incongruous
with the facts before it and the specific circumstances of the persecution the
applicant suffered at the hands of the police, agents of the state.
Did
the Board err in finding that the “compelling reasons” exception of subsection
108(4) is not applicable to the applicant’s situation?
(1) Standard
of Review
[22]
I
must ordinarily first proceed with a pragmatic and functional analysis in order
to determine the applicable standard of review in this case as required in Dr.
Q v. College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226. However, in 2005, I had occasion to determine the applicable
standard of review for subsection 108(4) and while the facts are altogether
dissimilar between that case and the present matter, the principles of the
pragmatic and functional analysis of this particular part of the Act is, I
believe, of universal application. That is why, it bears reproducing the
pragmatic and functional analysis, in its entirety, taken from paragraphs 14 to
19 of Kotorri v. Canada (Minister of
Citizenship and Immigration),
[2005]
F.C.J. No. 1457 (QL) :
14 [. . .] The appropriate
standard of review when dealing with this issue must be determined by the
application of the four contextual factors of the pragmatic and functional
approach established by the Supreme Court of Canada in Dr. Q v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226: (1) the
presence or absence of a privative clause or statutory right of appeal; (2) the
expertise of the tribunal relative to that of the reviewing court on the issue
in question; (3) the purpose of the legislation and the provision in
particular; and (4) the nature of the question - law, fact or mixed law and
fact.
15 Firstly, the Act does not contain a
privative clause. Yet, it is recognized that the absence of such a clause does
not indicate a high standard of scrutiny where the other factors suggest a low
standard (Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982 at paragraph 30).
16 Secondly, the intention behind subsection
108(4) of the Act is twofold: first, to recognize the legitimacy of the
psychological hardship that would be faced by the victims of persecution were
they to be returned to the country responsible for their maltreatment; and
second, to protect the victims of past atrocities (James C. Hathaway, The Law
of Refugee Status, Toronto: Butterworths, 1991, at pages 203-204). As mentioned
in Pushpanathan, supra, at paragraph 36 where the purposes of the statute and
of the decision-maker are conceived not primarily in terms of establishing
rights as between parties, or as entitlements, but rather as a delicate
balancing between different constituencies, then the appropriateness of court
supervision diminishes. Accordingly, the purpose of this provision calls for
some deference.
17 Thirdly and fourthly, it is widely
recognized that the Board's role to assess the documentary evidence and the
credibility of the Applicant is part of its primary function. The Board,
recognized to be a specialized tribunal, is therefore in a better position than
the Court to weigh the documentary evidence in the record and the credibility
of an Applicant's testimony (R.K.L. v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL)). This implies a higher
degree of deference (Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249
at paragraph 50).
18 In Isacko v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1128 (F.C.T.D.) (QL) at paragraph 8, the issue
as to whether there are "compelling reasons" in a given case has been
considered as a question of fact (Rasanayagam v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1080 (F.C.T.D.) (QL)). It
is the Board, with its expertise and experience that is best able to assess
whether the Applicant falls within the ambit of the "compelling
reasons" provision (Hassan v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 630 (F.C.T.D.) (QL)). Questions of fact are
recognized to imply more deference. However, the delineation of the concept of
"compelling reasons" is a question of law for which the Board has no
specific expertise.
19 Balancing all of these factors, it is my
opinion that questions of fact should be reviewed only if patently
unreasonable. On the other hand, the standard of review for question of law is
correctness.
[23]
In
this particular case, the Board was called upon to determine whether subsection
108(4) of the Act is applicable to the applicant’s particular set of
circumstances, after having found that the applicant was not a refugee in need
of protection because of paragraph 108(1)(e), “the reasons for which the
person sought refugee protection have ceased to exist.” This is a question of
mixed fact and law and the applicable standard of review is one of correctness
only where the Board has committed a pure error of law. Otherwise, the error is
fact based and this Court will intervene if the Board’s error is patently
unreasonable.
[24]
The
applicant submits, that the Board erred in fact by finding that the applicant
was a victim of atrocious and appalling abuse at the hands of the police, but
that it was not “so” atrocious or appalling to warrant acceptance. In so doing,
the Board has imposed its own test for determining the compelling reasons
without providing adequate reasons for so doing. The applicant further draws
the attention of the Court to the decision in Arguello-Garcia v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 635 (QL), in which the
Federal Court confirmed that sexual assault is an atrocious and appalling form
of prior persecution such that it should trigger the application of the
exception provisions of section 108(4) of the Act. More notably, Justice William
P. McKeown stated as follows:
7. In my view the two incidents in
1981 and 1987 amount to persecution. There is detention of the Applicant for 45
days, serious physical abuse of the Applicant, sexual abuse of the Applicant
and killing of his relatives. This is torture or cruel, inhuman or degrading
treatment or punishment contrary to Article 5 of the Declaration of Human
Rights. Ill treatment of family members has constituted persecution. Surujpal
v. M.E.I. F.C.A. A-515-84, Heald J.A. in Oyarzo v. M.E.I. 2 F.C. 779
at p. 782 and 783 found persecution when a 16 year old was placed in detention
for three weeks where he was beaten with rifle butts and with fists and was
continually interrogated. Although the Applicant was 53 at the time of the 1987
incident the facts are far more serious than in Oyarzo. Accordingly
there is previous persecution. It was patently unreasonable for the Board to
come to the opposite conclusion. In my view the Board was not competent to
consider s.2 (3) when they had already found there was no persecution.
[25]
For
its part, counsel for the respondent argues that this was not a case in which
the Board was required to consider compelling reasons because the applicant has
not ceased to be a refugee because he was never previously found to be a
refugee [emphasis in the original]. In particular, counsel for the
respondent relies on a series of cases for the proposition that the panel is
obliged to consider subsection 108(4) only [emphasis in the
original] after finding that a claimant was at one time a Convention
refugee but then ceased to be so. These cases include: Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Canada
(Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739
(C.A.), Cihal v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 577 (C.A.) (QL) at para.
20; Kudar v. Canada (Minister of
Citizenship and Immigration), 2004 FC 648 and Naivelt v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1261 at para. 37.
[26]
With
all due respect, the respondent’s argument is based on a reasoning that is
inherently flawed. As such, it must fail. The Board did find that the
applicant’s prior persecution was credible. While the Board at no time makes
reference to the medical reports confirming that the applicant’s injuries are
consistent with his accounts of physical assault, an omission or oversight,
which this Court finds regrettable, it at no time called into question the
veracity of the applicant’s accounts or by extension, those of the medical
reports.
[27]
Also,
the Board went on to indicate that the documentary evidence was such that the
circumstances had changed in Buenos Aires to such an extent that after four and
a half years of absence, the applicant had no longer a well-founded fear that
he would be subject to abuse by the police should he return to live openly as a
gay man in Buenos Aires. While the Board was correct in its decision to
undertake an assessment of compelling reasons under subsection 108(4), it erred
in its factual analysis of the applicant’s specific situation. Sexual assault
and physical assault such as to which the applicant was subjected are not to be
measured on a sliding scale of atrocity when the immutable factor giving rise
to such victimization and human degradation, forms one of the very core
characteristics enunciated and protected under Article 5 of the Declaration of
Human Rights.
[28]
I
agree with counsel for the respondent that the test for compelling reasons is a
difficult one to meet such that only a tiny minority of claimants cross this
threshold. However, our paths diverge in that on the basis of the applicant’s
specific circumstances, the Board erred in its application of this fact based
test. Sexual assault is appalling and atrocious particularly in this instance
where it is used as a tool by the police against the applicant’s sexual
orientation. Similarly, physical assault and the form of prior persecution
inflicted on the applicant were such that it was patently unreasonable for the
Board to ask the applicant to return to not only his country, Argentina, but to
his home city Buenos
Aires,
where the events took place.
[29]
Neither
party submitted a question of general importance for certification and none
arise.
JUDGMENT
THIS COURT
ORDERS that:
- The application for
judicial review is allowed;
- The matter is sent
back for re-determination by a newly constituted panel;
- No question is
certified.
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