Docket: IMM-2111-11
Citation: 2011 FC 1493
Ottawa, Ontario, December 20,
2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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MOHAMMAD ESSA
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated February 24, 2011, which refused the
applicant’s refugee claim to be deemed a convention refugee or a person in need
of protection under sections 96 and 97 of the Act.
[2]
The applicant seeks an order setting aside the decision and
remitting the matter for redetermination by a differently constituted panel of
the Board.
Factual
Background
[3]
The
applicant is a twenty-five (25) year old citizen of Jordan. The
applicant seeks protection in Canada as he alleges a fear of persecution as a
member of a particular social group – that of homosexuals – if he were to
return to Jordan.
[4]
On
July 27, 1993, the applicant was granted permanent resident status in Canada as a
dependant of his father who was admitted as an immigrant in the entrepreneur
category. However, due to the fact that the applicant’s father did not comply
with the terms and conditions pertaining to permanent residence in Canada, the
applicant later lost his status and a removal order was issued against him by
the Immigration Division on February 5, 2008. His appeal of this decision was then
dismissed by the Immigration Appeal Division on June 15, 2009. The details of
these events are explained in more depth in Essa v Canada (Public
Safety and Emergency Preparedness), [2009] IADD No 1565 (IRB).
[5]
In the case at hand, the applicant alleges that during a visit to
his family members in Jordan in the summer of 2005, he met
and began a relationship with an individual named Mr. Maher Awmy.
[6]
The applicant claims that he later returned to Jordan in
2006. During this visit, the applicant alleges that he was discovered by his
uncle in a residence owned by his family in a compromising situation with Mr.
Awmy.
[7]
The applicant maintains that his uncle proceeded to attack and
beat him, which injured his back and which has caused him continuing problems
to this day. As well, he contends that his uncle, after having learned of his
nephew’s sexual orientation, sought a fatwa from a religious leader in Jordan in
order to have the applicant killed.
[8]
After being discovered, the applicant claims that he hid at a
friend’s house and then left for Canada, where he
claimed refugee status on February 2, 2008.
[9]
The
applicant’s claim was heard by the Refugee Protection Division of the
Immigration and Refugee Board on December 9, 2010 and January 13, 2011. The Board
rendered its decision on February 24, 2011.
Decision under Review
[10]
The
Board found that the applicant was not a Convention refugee or a person in need
of protection under the Act as he had not met his burden of establishing that
he would face a risk to his life if he were to return to Jordan. Though the
Board determined that the applicant’s identity had been established, the Board
explained that it had reservations concerning his credibility.
[11]
Essentially,
the Board noted that the applicant had not been truthful in his past
immigration proceedings. As well, the Board observed that the
applicant’s testimony was not credible and that there existed numerous
contradictions and inconsistencies in his refugee claim.
Issues
[12]
The
issues are as follows:
1.
Was
the Board’s conclusion regarding the applicant’s credibility unreasonable?
2.
Did
the Board breach the principles of natural justice by demonstrating an apprehension
of bias?
Statutory Provisions
[13]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS
IN NEED OF PROTECTION
Convention refugee
96. A Convention refugee is a person who, by reason
of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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NOTIONS D’ASILE, DE REFUGIE ET
DE PERSONNE À PROTEGER
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention —
le réfugié — la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a
pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
97. (1) A person in need of protection is a person in
Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
(b) to a risk to their life or to a risk
of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la personne
qui se trouve au Canada et serait personnellement, par son renvoi vers tout
pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans
lequel elle avait sa résidence habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Standard of Review
[14]
With
respect
to the Board’s findings of fact, including its conclusions on the applicant’s credibility,
the appropriate standard of review is reasonableness (see Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Houshan v Canada
(Minister of Citizenship and Immigration), 2010 FC
650, [2010] FCJ No 790). Regarding the second issue at hand, questions of procedural fairness and bias are
reviewable on the standard of correctness (see Ellis-Don Ltd. v Ontario
(Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; Congrégation des
témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC
48, [2004] 2 S.C.R. 650).
Arguments
Position of the
Applicant
[15]
On
the first issue concerning the Board’s credibility findings, the applicant
alleges that the Board’s conclusions were made arbitrarily, capriciously and
without regard to the evidence.
[16]
The
applicant maintains that the Board was overzealous in discrediting his
testimony and evidence. The applicant submits that the Board was entirely
ignorant of his culture and religion (Valtchev v Canada
(Minister of Citizenship & Immigration), 2001 FCT
776, [2001] FCJ No 1131).
[17]
On
the second issue concerning the possibility of an apprehension of bias, the
applicant submits that the Board made stereotypical comments and did not
mention important and relevant witnesses that corroborated the applicant’s
allegations regarding his sexual orientation.
[18]
The
applicant stresses that during the first hearing of December 9, 2010, the Board
stated that it did not have to hear the testimony of the applicant’s witness, Mr.
Riyad Hassan (a Palestinian from Lebanon who claimed refugee status in Canada
due to his sexual orientation), as it had no issue with the fact that the
applicant is a homosexual. Mr. Hassan was therefore dismissed and left the
hearing. During the course of the hearing, the applicant testified that he did
not go to gay bars or hung out in Montreal’s gay village since he
was a private individual who was discreet about his sexuality. However, after a
fifteen (15) minute break, the Board reversed its position and stated that it
no longer accepted the fact that the applicant was a homosexual due to “the
reticence on the part of claimant to explore behaviour that is often
characteristic of the gay community”. The applicant states that his attorney
explained that this was a problem since the applicant’s witness had been
dismissed. The applicant’s attorney also requested a motion for the Board
member to recuse himself due to possible bias (Tribunal Record, pp. 223 and
following). The applicant states that the Board then declared another short
break and sought advice from the Immigration and Refugee Board’s legal
department. After the break, the applicant alleges that the Board dismissed the
applicant’s motion “stating that he has to do research on this issue of
homosexual behaviour”. At the request of the applicant’s attorney, the Board then
postponed the case in order for the applicant’s witness to be present.
[19]
The
applicant contends that during the second hearing of January 13, 2011, Mr.
Hassan could not attend and therefore the applicant invited another witness, Mr.
Imad Khattadi, who is Muslim and bisexual. Mr. Khattadi testified on behalf of
the applicant. However, the applicant submits that the Board never questioned
Mr. Khattadi and failed to refer to his testimony in its decision.
[20]
In
light of the case of Herrera v Canada
(Minister of Citizenship and Immigration), 2005 FC
1233, [2005] FCJ No 1499 [Herrera], the applicant propounds that the
Board demonstrated a clear apprehension of bias and therefore breached the
principles of natural justice.
Position of the
Respondent
[21]
With
regards to the first issue, the applicant’s credibility, the respondent reviews
and highlights the contradictions and inconsistencies noted by the Board in its
decision. The respondent affirms that the Board was justified to draw the
negative conclusions on the applicant’s credibility that it did in light of
these apparent contradictions (Cienfuegos v Canada (Minister of Citizenship and
Immigration),
2009
FC 1262, [2009] FCJ No 1591; Soto v Canada (Minister of Citizenship and
Immigration),
2011 FC 360, [2011] FCJ No 446; Lawal v Canada (Minister of Citizenship and
Immigration), 2010 FC 558, [2010] FCJ No 673). Moreover, the
respondent notes that the Board was entitled to make an adverse finding
regarding the applicant’s credibility on the basis of the implausibility of his
testimony alone. As well, the respondent observes that the explanations
provided by the applicant fail to demonstrate that the Board’s conclusions were
unreasonable (Onofre
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1219, [2010] FCJ No 1516).
[22]
On
the issue of the alleged apprehension of bias, the respondent provides a
summary of the applicable principles that have been established by the case
law. The respondent submits that the applicant must rebut the presumption of
impartiality if he wishes to establish an apprehension of bias (Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 39, [2005] 2 RCS 91).
[23]
As
such, the respondent contends that the threshold for proving bias is quite high
as mere suspicion is not enough. The respondent recalls that the test for a reasonable
apprehension of bias is whether or not an informed person, viewing the matter
realistically and practically having thought the matter through, would think it
more likely than not that the decision-maker would unconsciously or consciously
decide an issue unfairly.
[24]
The
respondent also contends that the Board in no way demonstrated bias as it “kept
an open mind” and agreed to postpone the hearing in order for the applicant to
present his witnesses. Finally, the respondent argues that the case at hand can
be distinguished from the case of Herrera, above, as the Board did not
state in its reasons that it found the applicant not to be credible because he
did not fit a particular stereotypical profile. Rather, the respondent affirms
that the present case resembles that of Lawal v Canada
(Minister of Citizenship and Immigration), 2008
FC 861, 173 CRR (2d) 309, where the allegation of bias was unfounded.
Analysis
[25]
The
Court will begin its analysis by examining the Board’s conclusions on the applicant’s
credibility.
[26]
Upon
review of the Board’s decision, the Court finds that the Board made adverse
findings as to the applicant’s credibility based on a number of highlighted
contradictions and inconsistencies. Among the contradictions and
implausibilities observed by the Board were the following remarks at paras 12
and 13 of the decision:
[12] In testimony, the
claimant himself was found to be extremely discreet and exposed a very private
lifestyle. The claimant states that you never know who might see you and there
is a danger if the “word gets around” to people who knew him in the Muslim
world. This discretion was manifest in testimony in that the claimant was
very unfamiliar with the common knowledge, well known bars and landmarks of Montreal’s gay community. The claimant
testifies that he chooses not to involve himself in this more open lifestyle.
[13] The claimant was asked
given that he was so discreet in Canada, how did it come to pass that he acted
indiscreetly in Jordan by striking up a relationship with Mr. Awmy in an Irish
Pub? The claimant’s responded that his life in the west had made him less
guarded. The panel does not find this reasonable because the claimant appears
very private in Montreal which would imply that he would be even more guarded
in Jordan.
[Emphasis added]
[27]
As
well, the Court notes that at pages 28 and 29 of the hearing
transcript dated December 9, 2010, the following exchange is recorded:
Q: Okay. So
if I were to ask you some questions about the gay village in hopes of
establishing your sexual orientation and how you have manifested that in Montreal would you be able to answer
some questions?
A: I never
lived in it to be honest with you. I’ve been there a couple of times, different
occasions.
Q: And by going there a couple
of times on what occasions did you go there?
A: Partying, it was mainly
partying to be honest with you.
Q: And were do you party?
A: I went to 182, it’s a strip
club and ---
Q: What is the address of 182?
A: I’m not sure.
Q: Can you locate it on what
street?
A: If you tell
me any address of any club I can’t tell you. I know it’s on St. Catherine and
like it’s on a side street but if you tell me the address of any club I can’t
tell you.
Q: What is it close to?
A: There’s different
restaurants and bars close to it, restaurant, there’s ---
Q: Okay. What else have you
gone to?
A: I don’t hang out in the
gay village to be honest with you.
Q: Why not?
A: Because I don’t live there.
Q: A lot of
people who don’t live there go there because of their sexual orientation.
A: I know, it doesn’t mean
that I’m gay that I have to go to the gay village, I’m sorry but it doesn’t
mean that I have to go there.
Q: Have you been to gay
pride?
A: I practice
my sexuality on my, like it’s my private life, I don’t just go and expose and
say I’m gay. It’s a private thing for me, just so you know.
Q: I’m
trying to give you an opportunity, sir, to establish your sexual orientation.
A: I totally
understand. However if you’re going to start asking me about the gay village
I’m telling you, I’m telling you the honest truth, I don’t hang out there.
…
[Emphasis added]
[28]
Page 30 of the transcript, dated December 9, 2010, reveals the
following exchange after Mr. Hassan had been dismissed and after the line of
questioning on the applicant’s homosexuality:
Q: Okay, we’re
back and the recorder is going again. And there’s an issue I would like to
bring up on the record and that is given some of the testimony I’ve heard I
would like to reintroduce the question of credibility with respect to the
homosexuality issue on the basis that it wasn’t introduced at the initial
claim. And also there seems to be some equivocation about his behaviour with
respect to gay village and those kind of questions.
So just to draw your attention
to the fact that I’m going to revisit that issue.
A: Well you do understand, Mr.
Chairperson, that I will want my witness then.
Q: Yes, I understand. We’ll
have to ---
…
[Emphasis added]
[29]
The
Board continued on page 35 to 37 of the transcript, dated December 9, 2010, with
the following set of comments:
Q: Okay. So if
somebody were to ask you where does he rank on the list what would you say?
A: Rank on the list in terms
of what?
Q: Is he like
an A lister, a B lister, a C lister, are you aware of the list that is used?
A: That’s what they use here I
know that.
Q: Mm-hmm.
A: But it’s really different
there, so.
Q: Given what
you know about how the list is used here how would you describe Mahar?
A: To be
honest with you the way I’m living my life here is not the way that the gay
community here is, like I don’t go, as I said before, like I don’t want to open
the subject again but I’m gay just because of the fact that I sleep with other
men, okay? I mean there is other gay people that they dress like girls or they
look gay, I’m not like that. I’m just gay by the fact that I sleep with other
men.
Q: Yeah.
A: And that’s how I’m actually
gay, that I sleep with other men.
Q: So explain
this to me, how can you make a link between your religion, your sexual orientation
and your reticence to display your sexuality in Canada? Do you understand where I’m coming from?
A: No.
(To the interpreter)
Q: Perhaps, Mrs. Razuk, you
can explain that to him?
A: The link between your?
Q: Between your sexual
orientation and ---
BY THE TRIBUNAL OFFICER (to
the person concerned)
Q: Because how do you make the
link between being a Muslim man and ---
A: Because I am a Muslim.
Q: You’re a Muslim.
A: Because I am a Muslim,
ma’am.
Q: Tell us
why in Canada you’re not likely to go out and
exhibit your sexual orientation?
A: Because until now I don’t
have a status. Like until now I’m not ---
Q: Okay, you are
not understanding me. Okay, you like to sleep with others, with other men.
A: Yeah, yeah.
Q: You’ve been
living in Canada since 2008, how do you find –
explain to us how you’re sleeping with other men.
A: Until now, I
mean even though I was still living here since 2008 it’s not easy for me to
come out and to the public and live life as a (inaudible) gay because ---
Q: Okay. Is
there a link between your inability to come up and live your life as being gay?
A: Yes of
course, because there is a fear of me going back, absolutely, because of the
fear of me going back because I mean until now it’s stable for me, until now I
can’t live my life normally. And that’s my main fear.
…
[Emphasis added]
[30]
These
above-mentioned excerpts by the Board are perplexing. The Court is of the
opinion that the Board’s statement amounts to more than an “unfortunate
statement”. Indeed, the Board’s insistence that an individual needs to go to
the gay village to be gay is not reasonable. To this effect, a witness provided
evidence to the contrary in testifying that he has knowledge of a couple “who
have been together for a long time and never go to the Village and do not
attend the Gay Parade” (Tribunal Record, p. 263). This evidence is not referred
to by the Board in its decision.
[31]
While
the Court is cognizant that the Board is owed great deference in its findings
of fact – including its conclusions on credibility – this Court finds that the
comments made by the Board are stereotypical and thus unreasonable.
[32]
Moreover,
the Board erred in merely ignoring pertinent evidence provided by witnesses
corroborating the applicant’s testimony. For instance, Mr. Khattadi testified
that the applicant was a homosexual (Tribunal Record, p. 249). Mr. Khattadi
also affirmed that he had met the applicant in a club in Montreal and that he
had sexual relations with the applicant between seven (7) and eight (8) times
(Tribunal Record, pp. 250-251). Also, Mr. Beausoleil, a retired psychologist
and expert witness who was involved in the gay rights movement in Montréal, testified
that there are many stages regarding the context of openness or ability for an
individual to refer to his homosexuality openly. The Court therefore finds that
the Board also erred when it based its conclusions on the applicant’s credibility
without regard to the testimony provided by the applicant’s witness and expert
witness. In these circumstances, the Court’s intervention is thus warranted.
[33]
Given
the Court’s conclusion, there is no need for this Court to address the bias
issue.
[34]
For
all of these reasons, the Court concludes that the Board’s decision must be set
aside. As neither party has proposed a question for certification, none will be
certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1. The
application for judicial review is granted.
2. The matter is referred back for redetermination by a
differently constituted panel in accordance with the reasons given in this
Judgment.
3. No question of
general importance is certified.
“Richard
Boivin”
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