Date: 20080506
Docket: IMM-3085-07
Citation: 2008 FC 570
Ottawa, Ontario, May 6, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ALEA
ALTENOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Alea Altenor left her home in St. Lucia in 2006. She claimed refugee
protection in Canada based on her fear of persecution as a bi-sexual woman. She
says that she was beaten both by her boyfriend and her mother and that the
police refused to help her.
[2]
A panel of the Immigration and Refugee Board dismissed Ms. Altenor’s
claim because it disbelieved her account of events. Ms. Altenor argues that the
Board’s conclusion was unreasonable and asks me to order a new hearing. I agree
and must, therefore, allow this application for judicial review.
I.
Issue
[3]
Was the Board’s conclusion unreasonable?
II. Analysis
[4]
I can overturn the Board’s decision only if it was unreasonable, in the
sense that it falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir v. New
Brunswick, 2008 SCC 9, at para. 47.
- Factual Background
[5]
Ms. Altenor explained that she had an older boyfriend, age 21, when she
was only 14. Soon after she began that relationship, she realized she had
feelings for other girls. She had her first sexual relationship with a girl
when she was 16. She did not tell her boyfriend. Later, she had another
relationship with a girl. Her boyfriend found out about it after the two girls
had been seen kissing on a street corner. As a result, he beat and raped her.
He told Ms. Altenor’s mother about her daughter’s sexuality, and her mother
beat her, too. Ms. Altenor went to the police, who told her she should be
ashamed of herself. They threatened to tell her father, who was out of town at
the time. At age 17, she fled to Canada.
2. The Board’s Decision
[6]
The Board did not believe Ms. Altenor’s account of events for the
following reasons:
• Ms.
Altenor said that she had not been sexually active since arriving in Canada
because she was too busy going to school and too young to enter gay clubs. The
Board doubted that a person with her sexual history would now be celibate.
• The
Board wondered why Ms. Altenor would kiss her girlfriend on a street corner
when her girlfriend was staying in a hotel.
• Ms.
Altenor said that she was living with her boyfriend at the time she had had
relationships with other girls. The Board wondered how this was possible.
• When
she arrived at the border, Ms. Altenor gave confusing answers when asked how
long she had lived with her boyfriend. The Board reviewed her answers and found
“she had been living with him for four years, two years, a month, take your
pick”.
• The
Board was surprised by Ms. Altenor’s description of her departure from St.
Lucia. It seemed to the Board that events unfolded too quickly. The beating
and rape by her boyfriend, the departure of her girlfriend, the beating by her
mother, the reports to police, and the arrangements to fly to Canada all
transpired over the course of two or three days.
[7]
Counsel for the Minister conceded that some of the Board’s findings were
“silly” and that the Board’s language was “inappropriate” and “unpolished” in
places. Still, the Minister submitted that, read as a whole, the Board’s
analysis was reasonable.
[8]
In my view, the Board’s findings about Ms. Altenor’s sexual inactivity
in Canada, the location of the witnessed kiss, and her ability to have affairs
while living with her boyfriend are clearly unreasonable. They are unsupported
by any evidence and devoid of logic.
[9]
With respect to the confusing answers she gave at the border about the
length of time she lived with her boyfriend, I note that Ms. Altenor was only
17 years old at the time and had not been assisted by a designated representative
as required by s. 167(2) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27. In my view, the duty to appoint a designated representative
arose prior to that interview and, therefore, the Board should not have used
her answers to impugn her credibility: See Duale v. Canada
(Minister of Citizenship and Immigration), 2004 FC 150.
[10]
All that remains, therefore, is the Board’s skepticism about the timing
of events surrounding Ms. Altenor’s departure from St. Lucia. The Board found
the evidence “confusing to say the least” as it was entitled to do. However,
this confusion would not have been a reasonable basis, on its own, to dismiss
Ms. Altenor’s claim. I must, therefore, allow the application for judicial
review and order a new hearing before a different panel. Neither party proposed
a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1. The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2. No question
of general importance is stated.
“James
W. O’Reilly”
Annex
|
Immigration and Refugee Protection Act, S.C. 2001,
c. 27
Representation
167. (2) If a person who
is the subject of proceedings is under 18 years of age or unable, in the
opinion of the applicable Division, to appreciate the nature of the
proceedings, the Division shall designate a person to represent the person.
|
Loi sur l'immigration et la protection des réfugiés, L.C.
2001, ch. 27
Représentation
167. (2) Est commis d’office un représentant à l’intéressé
qui n’a pas dix-huit ans ou n’est pas, selon la section, en mesure de
comprendre la nature de la procédure.
|
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