Date: 20070731
Docket: IMM-4665-06
Citation: 2007 FC 803
Ottawa, Ontario, July 31,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
KAILA
YASMEIRA PARIS ROMERO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Ms.
Romero’s application to the Immigration and Refugee Board, that as a lesbian
she would be persecuted/at risk in Panama, was rejected by the
Board. The Board found there to be discrimination but not persecution. The
Board found that state protection existed in Panama even though
the Applicant never attempted to seek state protection. This is the judicial
review of that Board decision.
II. FACTUAL
BACKGROUND
[2]
The
Applicant had a lesbian relationship which ended in turmoil. She left Panama for her undergraduate
education but returned for post-graduate studies and thereafter set up her own
consulting business. She says that she faced discrimination in school, from her
family and church, and that discrimination continued when she returned to Panama.
[3]
The
Applicant contacted her former lover and as a result, her ex-lover’s father
threatened to kill her. She alleged that the father tried to convince the
police that she had forced her ex-lover into a sexual relationship. She went
into hiding for two weeks until the police determined that she had done nothing
wrong. The death threats continued so the Applicant left the country – she
never reported the threats to the police because she thought that the police
would not protect homosexuals.
[4]
The
Board’s decision turns on two findings. The first is that the Applicant may
have shown discrimination but not persecution, noting that she had not been
expelled from school, had returned from Costa Rica, had done post-graduate work
even when her sexual preference was known, had built a successful business and
was living with her family until she left for Canada.
The second
finding is that there was no failure of state protection since she never sought
it. There was no evidence that if she had sought it, it would have been
withheld. Finally, the documentary evidence confirms that homosexuals could
access state protection.
III. ANALYSIS
[5]
The
Court is aware of a pending appeal on the issue of whether state protection is
a legal or factual presumption. This case does not turn on that issue. I adopt
the standard of review of reasonableness as discussed in Chaves v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 232 (QL).
[6]
The
Applicant has been unable to overcome the finding of absence of persecution.
The Applicant’s conduct is arguably inconsistent with that of a person who
fears persecution in Panama. The Board’s conclusion, based on the
facts referred to in paragraph 4, is entirely reasonable.
[7]
As
to the issue of state protection, Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689 has outlined that state protection is a presumption which
can be rebutted on the basis of clear and convincing evidence.
[8]
The
documentary evidence establishes that Panama is a democracy with a
functioning police and judicial system. There are no reported incidents of
harassment against people in the gay-pride parades and that the laws against
homosexuality are not enforced (see U.S. DOS Report).
[9]
The
Applicant relies on two factors – the absence of more positive information that
Panama would
protect homosexuals and the Applicant’s belief that there was no such
protection.
[10]
As
to the first point, it was not unreasonable for the Board to conclude, in the
absence of any negative information, that state protection was available.
[11]
As
to the second point, the Applicant never sought out state protection even when
the police concluded that she had done nothing wrong in respect of her
ex-lover. The only evidence she proffered was her own unsubstantiated feeling.
[12]
Generally,
the more democratic the country and the more developed the organs of state
apparatus, the greater the burden on an applicant to invoke this apparatus
before concluding that there is no utility in seeking state protection.
[13]
It
was not unreasonable for the Board to conclude that state protection was
available in the face of the documentary evidence and the absence of convincing
evidence of its unavailability as a futility.
IV. CONCLUSION
[14]
Having
concluded that the Board’s decision was reasonable, this application for
judicial review will be dismissed.
[15]
Given
the basis upon which the Court reached its conclusion, there is no question to
be certified as was done in Carrillo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 320.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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