Docket: IMM-5005-15
Citation:
2016 FC 803
Ottawa, Ontario, July 13, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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FILOMENO
SEBASTIAO
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES, AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review application
challenging a decision of the Refugee Appeal Division [RAD] dated October 21,
2015. The RAD upheld the Refugee Protection Division’s [RPD] earlier determination
that the Applicant, Mr. Filomeno Sebastiao, was neither a Convention refugee nor
a person in need of protection under section 96 or subsection 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], respectively.
[2]
For the following reasons, the application is
dismissed.
I.
FACTS
[3]
Mr. Sebastiao is a citizen of Angola. In August
2013, he left Angola for Houston, Texas, where he resided for a short time before
eventually arriving in Canada in April 2014. In September 2014, Mr. Sebastiao
filed a claim for refugee protection, alleging fear of persecution by reason of
his homosexuality and Mormon faith, to which he converted while residing in the
United States.
[4]
In his claim, Mr. Sebastiao alleged that
homosexuals in Angola are subjected to physical and sexual abuse, and receive
no protection from the police. Mr. Sebastiao claimed that he would be perceived
to be a spy in Angola due to his Mormon beliefs.
[5]
In support of his claim, Mr. Sebastiao recounted
one specific incident from 2002. On that occasion, a group of men approached Mr.
Sebastiao and his male friend and began to insult and beat them due to his
friend’s effeminate appearance. Mr. Sebastiao was forced to flee, escaping into
a house that was under construction before ultimately injuring himself on building
materials.
[6]
Mr. Sebastiao’s refugee claim was heard by the
RPD in November 2014 and rejected in January 2015. The RPD accepted that Mr.
Sebastiao was an Angolan national, Mormon and homosexual, but determined that
he had failed to establish his objective risk and subjective fear of persecution.
In arriving at this decision, the RPD concluded that: 1) the objective documentary
evidence on record did not indicate that homosexuals were at risk in Angola;
and, 2) Mr. Sebastiao’s delay in making his claim and failure to submit
corroborating documentarian in support of his claim undermined his subjective
fear. The RPD also determined that he would not be at risk by virtue of his
Mormon faith, having failed to provide any documentation to that effect.
[7]
Mr. Sebastiao appealed the decision to the RAD,
alleging that the RPD had erred by disregarding key evidence in support of his
claim that he faced a risk of persecution as a homosexual in Angola.
[8]
The RAD revisited the record before the RPD and completed
a detailed review of the thirteen pieces of evidence presented by Mr. Sebastiao
in support of his claim. Without explicitly addressing the discrete elements of
objective risk and subjective fear, as the RPD had done, the RAD concluded that
there was some evidence as to a lack of social acceptance of homosexuality in
Angola, but found that the evidence did not suggest that homosexuals would
suffer persecution in Angola. Having reached this conclusion, the RAD confirmed
the decision that Mr. Sebastiao was neither a Convention refugee nor a person
in need of protection, and dismissed the appeal.
II.
ISSUES
[9]
Mr. Sebastiao raised the following three issues
before the Court:
- Did the RAD
apply the wrong legal test to determine whether the Applicant faces a
reasonable chance of persecution by overlooking the impact of laws
criminalizing homosexuality?
- Did the RAD err
in increasing the standard of proof to establish a reasonable chance of
persecution?
- Did the Board
Member err by providing inadequate reasons?
[10]
I have considered these issues below; however,
in my view the determinative issue is whether the RAD reasonably concluded that
the documentary evidence does not present a case that homosexuals face a
reasonable chance of persecution in Angola.
III.
ANALYSIS
A.
The Legal Test
[11]
The test for establishing a fear of persecution was
laid down by the Supreme Court of Canada in Ward v Canada (Minister of
Employment and Immigration), [1993] 2 S.C.R. 689 [Ward] at para 54, and
is bi-partite in nature: (1) the claimant must subjectively fear persecution;
and, (2) this fear must be well-founded in an objective sense.
[12]
The subjective component of this bi-partite test
relates to the existence of the fear of persecution in the mind of the refugee
claimant; the claimant must be a credible witness with consistent testimony.
The objective component requires the applicant to lay an evidentiary foundation
that the fear is well-founded, having regard to the objective situation (Rajudeen
v Canada (Minister of Employment and Immigration), [1984] FCJ No 601(FCA)
at para 14: Chan v Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R. 593 [Chan] at paras 128, 133-134).
[13]
In considering whether a refugee claimant’s fear
is well-founded, it must be established, on a balance of probabilities, that
there is a “reasonable chance” or “serious possibility” of persecution (Adjei v
Canada (Minister of Employment and Immigration), [1989] 2 FC 680 (FCA) at
paras 5-6, 8 [Adjei]).
[14]
This evidentiary standard was usefully explained
by Justice James O’Reilly in Alam v Canada (Minister of Citizenship and
Immigration), 2005 FC 4 [Alam] at paragraph 8:
8 The lesson to be taken from Adjei
is that the applicable standard of proof combines both the usual civil
standard and a special threshold unique to the refugee protection context.
Obviously, claimants must prove the facts on which they rely, and the
civil standard of proof is the appropriate means by which to measure the
evidence supporting their factual contentions. Similarly, claimants must
ultimately persuade the Board that they are at risk of persecution. This again
connotes a civil standard of proof. However, since claimants need only
demonstrate a risk of persecution, it is inappropriate to require them to prove
that persecution is probable. Accordingly, they must merely prove that there
is a "reasonable chance", "more than a mere possibility" or
"good grounds for believing" that they will face persecution.
[Emphasis added]
[15]
Practically speaking, this requires the RAD to
consider, on the balance of probabilities, the evidence adduced by the claimant
for purposes of making its factual findings, then assess whether those facts
place the claimant at risk of persecution (Ye v Canada (Minister of
Citizenship and Immigration), 2014 FC 1221 at para 19; Avagyan v Canada
(Minister of Citizenship and Immigration), 2014 FC 1004 at para 37; Pararajasingham
v Canada (Minister of Citizenship and Immigration), 2012 FC 1416 at para 49).
This entails an objective assessment as to the level of risk faced by the
claimant, as well as consideration of whether the harm that the claimant
allegedly fears meets the definition for persecution. In considering this
issue, it is important to remember that, as the Federal Court of Appeal
explained in Li v Canada (Minister of Citizenship and Immigration), 2005
FCA 1 at paragraphs 10-14, the standard of proof on a balance of probabilities
should not be confused with the legal threshold used to establish a risk of
persecution.
[16]
It is worth noting that concept of persecution
as set out in section 96 is not defined in the IRPA, but the jurisprudence of this
Court has broadly established the term to mean the serious interference with a
basic human right (Warner v Canada (Minister of Citizenship and Immigration),
2011 FC 363 at para 7, citing Sadeghi-Pari v Canada (Minister of Citizenship
and Immigration), 2004 FC 282 at para 29). Relying on the Supreme Court of
Canada’s decisions in Ward and Chan, above, Justice Bédard, then
of the Federal Court, determined that an assessment of persecution requires a
determination as to whether a basic right was violated and then verification as
to whether the violation was repetitive or systematic (Vasallo v Canada
(Minister of Citizenship and Immigration), 2012 FC 673 at para 15 [Vasallo]).
B.
Standard of Review
[17]
The standard of review applied by the RAD to the
decision of the RPD was not challenged by Mr. Sebastiao in this application. It
should be mentioned, however, that in the time between the granting of leave
and the judicial review hearing, the Federal Court of Appeal released the
decision in Canada (Minister of Citizenship and Immigration) v Huruglica,
2016 FCA 93 [Huruglica], a judgment which is materially relevant to this
issue. I canvassed the matter at the hearing and both parties agreed that the
RAD had properly employed the correctness standard of review in considering the
RPD’s decision (Huruglica, above, at para 103).
[18]
To the extent that the jurisprudence can be said
to have established a clear test for what constitutes persecution within the
meaning of section 96, the question of whether the RAD erred in understanding
or articulating that test is reviewable on a standard of correctness; however,
where an applicant challenges how the test for persecution was applied to the
facts, that is a question of mixed law and fact which is reviewable on the
reasonableness standard (Dawidowicz v Canada (Minister of Citizenship and
Immigration), 2014 FC 115 at para 23; citing Ruszo v Canada
(Minister of Citizenship and Immigration), 2013 FC 1004 at paras 20-22; Gur
v Canada (Minister of Citizenship and Immigration), 2012 FC 992 at para
17).
[19]
Whether the RAD erred in increasing the standard
of proof to establish a reasonable chance or serious possibility of persecution
is a question law, reviewable on the correctness standard (Rajadurai v
Canada (Minister of Citizenship and Immigration), 2013 FC 532 at para 22; Ospina
v Canada (Minister of Citizenship and Immigration), 2011 FC 681 at para 20;
Alam, above, at paras 9-10).
[20]
The adequacy of reasons is not a stand-alone
basis for quashing a decision. The reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes. It follows that any challenge to the
reasoning/result of the decision is assessed on the reasonableness standard (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland Nurses’] at paras 14, 21-22).
C.
Did the RAD Apply the Wrong Legal Test to
Determine Whether the Applicant Faces a Reasonable Chance of Persecution by
Overlooking the Impact of Laws Criminalizing Homosexuality?
[21]
Mr. Sebastiao contends that the RAD applied the
wrong legal test in considering whether he faces a reasonable chance of
persecution. However, his submissions do not attack the RAD’s formulation of
the test for persecution; rather, the argument focuses on the RAD’s application
of the test to the facts at hand. Specifically, Mr. Sebastiao challenges the
RAD’s finding that the objective documentary evidence did not present a case
that homosexuals would suffer persecution in Angola, despite the panel’s ostensible
acknowledgment of Angolan penal code provisions that appear to criminalize
homosexual behaviour.
[22]
In support of his position, Mr. Sebastiao relies
on the Office of the United Nations High Commissioner for Refugees’ [UNHCR] Guidelines
on International Protection No. 9: Claims to Refugee Status based on Sexual
Orientation and/or Gender Identity [the Guidelines]. He submits that the Guidelines
support the notion that persecution should be assessed on the premise that refugees
must to be able to live openly without concealing their sexual identity, and
further argues that this principle of non-concealment has found favour in the
jurisprudence of the Federal Court, citing the decisions in Fosu v Canada
(Citizenship and Immigration), 2008 FC 1135 at paragraph 17 [Fosu],
and V.S. v Canada (Citizenship and Immigration), 2015 FC 1150 at paragraph
12. While Mr. Sebastiao acknowledges that the RAD did not state that he needed
to conceal his sexual identity in order to avoid persecution, he argues that
the RAD should have assessed his well-founded fear of persecution on the basis
that he is entitled to live openly and without the need to conceal his gay
identity – something, he argues, sections 70 and 71 prevent him from doing.
[23]
A further impassioned argument was presented to
me that Mr. Sebastiao need not prove that these laws are actually enforced. He
takes the position that the mere existence of a law that prescribes punishment
and discriminates on a protected Convention ground amounts to a well-founded
fear of persecution. Relying on the decisions Zolfagharkhani v Canada
(Minister of Employment and Immigration), [1993] 3 FC 540 (FCA) [Zolfagharkhani]
at paragraphs 18-22, and Hinzman v Canada (Minister of Citizenship and
Immigration), 2006 FC 420 [Hinzman] at paragraph 80, Mr. Sebastiao
argues that the it is well-established that the existence of laws that
prescribe punishment amounting to persecution or that discriminate on a
protected Convention ground will constitute a well-founded fear of persecution
and that the jurisprudence has never established that refugee claimants must
prove that the legal provisions to which they fear being subjected are actually
enforced.
[24]
Counsel for Mr. Sebastiao filed a number of
decisions from foreign jurisdictions, including courts in Italy and Australia,
as well as the European Court of Human Rights, in support of his position. I note
that these cases were not before the RAD or the RPD, and mostly arose in the
context of human rights claims, as opposed to asylum appeals.
[25]
On the contrary, the Minister submits that Mr.
Sebastiao is incorrect in stating that the enforcement of a law is irrelevant
to determining a well-founded fear of persecution. The Minister points to a
number of decisions from this Court to argue that it is open for the RAD to
find that a claimant does not face persecution where a potentially persecutory
law is not enforced (Birsan v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1861 [Birsan] at para 4; Afolabi v
Canada (Minister of Citizenship and Immigration), 2006 FC 468 at para 14; Aire
v Canada (Minister of Citizenship and Immigration), 2004 FC 41 at paras
13-15; Best v Canada (Minister of Citizenship and Immigration), 2014 FC
214 [Best] at paras 10, 23; Bowen v Canada (Minister of Citizenship
and Immigration), 2008 FC 112 at paras 23-24, 27; Gillani v Canada
(Minister of Citizenship and Immigration), 2012 FC 533 [Gillani] at
para 37; Mamoon v Canada (Minister of Citizenship and Immigration), 2009
FC 578; Nnemeka v Canada (Minister of Citizenship and Immigration), 2004
FC 1130 at paras 6, 14-15).
[26]
In light of this line of jurisprudence, the
Minister submits that the decision of the RAD is reasonable and points to the
evidence on record, specifically a United States Department of State report
[the US DOS report] on human rights practices in Angola, which states there are
no reported cases of articles 70 and 71 being enforced to criminalize same-sex
activity. Moreover, the Minister observes that the rest of the evidence submitted
by Mr. Sebastiao was inconclusive insofar as it did not pertain specifically to
either the conditions in Angola or Mr. Sebastiao’s personal circumstances. As a
result, the Minister takes the position that it was reasonable for the RAD to
conclude that, while there was some evidence as to a lack of social acceptance
of homosexuality in Angola, there were no reports of the persecutory law at
issue being enforced.
[27]
The Minister also points out that the decision
in Fosu, above, is distinguishable on the basis that the RAD did not
suggest, or find it necessary, that Mr. Sebastiao conceal his sexual identity
in order to avoid persecution in Angola.
[28]
In light of the evidentiary record, the reasons
of the RAD and the arguments advanced by Mr. Sebastiao, it is apparent that the
crux of the issue before me is the RAD’s treatment of articles 70 and 71 of the
Angolan penal code. The panel’s decision focused on the objective element of
the bi-partite test set out in Ward, above, and it was decided that the
documentary evidence on record did not indicate that homosexuals would suffer
persecution in Angola.
[29]
Mr. Sebastiao’s submissions challenge this
finding, making specific reference to objective documentary evidence that
indicates that articles 70 and 71 of the Angolan penal code impose sanction on
those who commit acts “against the order of nature.”
He argues that the existence of laws that criminalize consensual same
sex-relationships alone amount to persecution and argues that the RAD’s finding
is erroneous for that reason. This is a matter which goes to the panel’s
application of the test for persecution to a given set of facts, and is a
question of mixed law and fact, reviewable on the reasonableness standard.
[30]
Although the provisions in question are
seemingly of general application, the RAD acknowledged that the evidence on
record indicates that “homosexuality is viewed as an
affront to the laws of nature” in Angola, contrary to articles 70 and 71
which impose criminal sanctions on those who practice acts “against the order of nature.” However, the RAD also
made reference to documentary evidence, namely the US DOS report, that
suggested “The law criminalizes same-sex activity,
although there were no reported cases of this law being enforced. A draft penal
code to replace the existing code (which was adopted in 1886 and, with several
amendments, was valid at year’s end) was passed in 2011, but was waiting
approval by the national assembly. Nevertheless, the draft code was used
intermittently by the justice system and recognizes the right to same-sex
relationships. The constitution defines marriage as between a man and a woman…”
(US DOS report, found at pages 313-353 of the CTR at pages 347-348).
[31]
In light of this contradictory evidence, the RAD
determined that the country documentation did not suggest persecution. This
finding obviously implicated the ability of Mr. Sebastiao to lay an objective evidentiary
foundation to support his claim. In my view, this was the determining factor
that ultimately proved fatal to his appeal.
[32]
As noted above, when considering whether a
refugee claimant’s fear is well-founded, it must be established, on a balance
of probabilities, that there is a reasonable chance or serious possibility of
persecution (Adjei, above, at para 8). This is an exercise which entails
an objective assessment as to the level of risk faced by the claimant, as well
as consideration of whether the harm that the claimant allegedly fears meets
the definition for persecution.
[33]
In my view, it is not enough, as Mr. Sebastiao
contends, to demonstrate that the intent behind a law of general application is
persecutory. While this evidence may be used to determine whether the harm
which a claimant fears amounts to persecution, it says nothing as to whether
that fear is well-founded insofar as it pertains to the level of risk faced by
the claimant; the claimant must still establish that they face more than a mere
possibility of persecution (Chan at para 20). In this respect, I do not
agree that the decisions in Zolfagharkani and Hinzman, above,
stand for the proposition that Mr. Sebastiao argues they do.
[34]
Although not explicitly stated in the impugned
decision, from reading the reasons provided and reviewing the accompanying
record, it is apparent that the RAD took the view that the existence of
articles 70 and 71 of the Angolan penal code, absent further evidence
enforcement, does not amount to persecution. In my view, even if the RAD was
satisfied that sections 70 and 71 of the Angolan penal code are persecutory on
their face, the lack of evidence of enforcement and introduction of new penal
provisions, which are accepting of same-sex relationships, meant that it was
open for the panel to conclude that Mr. Sebastiao did not face more than the
mere possibility of facing persecution.
[35]
In arriving at this decision, I find that the
panel properly reflected on the country conditions as depicted by the objective
documentary evidence, and, in my view, there is little doubt that the
application of laws that are seemingly persecutory on their face is a relevant
consideration (Chan, at paras 133-134). Moreover, such a consideration
is contemplated at paragraph 42 of the UNHCR’s Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees Guidelines. Therefore, based on
the evidence on record, I believe that the RAD reasonably applied the test for
persecution to the facts before it.
D.
Did The RAD Err in Increasing the Standard of
Proof to Establish a Reasonable Chance of Persecution?
[36]
Mr. Sebastiao submits that the RAD imposed an
excessively high standard of proof in determining whether he faces a reasonable
chance of persecution in returning to Angola. He argues that it was
unreasonable for the RAD to expect him to provide probative evidence of
homophobic persecution in the form of supporting documentation for 3 reasons:
1) it may be dangerous for human rights advocates to accurately document this
type of persecution; 2) there may be a self-inflicted stigma, shame and/or fear
that hampers the ability of sexual minorities to advocate for their fundamental
rights, which, in turn, leads to the underreporting of homophobic violence and
abuses; and, 3) the Angolan government has repeatedly denied that it refuses to
protect the fundamental human rights of sexual minorities and it is therefore
not in the interest of the Angolan government to document the prosecution of
those who engage in same sex relations, or to document the homophobic attacks
that non-state agents commit.
[37]
While Mr. Sebastiao argues that the RAD imposed
an elevated standard of proof, he points to nothing in the RAD’s decision to
indicate that the panel relied on anything other than the civil standard when
considering whether he had provided the necessary factual basis to establish
that there was a serious possibility that he would face persecution. Rather, the
substance of Mr. Sebastiao’s argument, as I understand it, is that it was
unreasonable for the RAD to rely on a lack of probative evidence, particularly
with respect to the enforcement of sections 70 and 71 of the Angolan penal
code, to find that he was not at risk of persecution. Mr. Sebastiao suggests
that the RAD should have been satisfied with the evidence that he presented. Namely,
that he is homosexual, that homosexuality is not culturally acceptable in
Angolan society and that Angola has laws in place to persecute sexual
minorities. He argues the RAD should have been cognizant of the reasons why
other probative evidence establishing persecution may not have been available. In
my view, Mr. Sebastiao’s argument in this respect essentially takes issue with
the weight that the RAD assigned to the evidence on record.
[38]
I recognize that there are evidentiary
challenges that lie in demonstrating that the harm which a claimant fears
amounts to persecution as opposed to discrimination or harassment. The academic
research in this area, including the work of Professor Nicole LaViolette, is
both substantial and insightful. However, the jurisprudence is clear that in
the context of a refugee claim, it is the role of the RAD to draw conclusions
in a particular factual context by proceeding with a careful analysis of the
evidence adduced and a proper balancing of the various elements contained
therein (Sagharichi v Canada (Minister of Employment and Immigration),
[1993] FCJ No 796 (FCA) at para 3).
[39]
The RAD is presumed to have to have weighed and
considered all the evidence presented to it (Florea v Canada (Minister of
Citizenship and Immigration), [1993] FCJ No 598 (FCA)). In reviewing the
RAD’s decision, this Court must show deference to the RAD's findings and only
intervene where they were made in a perverse or capricious manner or without
regard for the material before it (Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 [Khosa] at para 72; Idony v Canada (Minister
of Citizenship and Immigration), 2010 FC 970 at para 13). In other words,
the issue is not whether a reassessment of the evidence could lead to a
different result, but whether not having given predominant weight to certain
evidence affected the reasonableness of the RAD's decision (Mondragon v
Canada (Minister of Citizenship and Immigration), 2015 FC 603 at para 18.)
[40]
While there was evidence that sections 70 and 71
may be used to persecute homosexuals, there was contradictory evidence to
indicate that there were no reported instances of these laws being enforced,
and further evidence that Angola had introduced a draft penal code that is used
intermittently by the courts in that country and which recognizes the right to
same-sex relationships. To the extent that the RAD preferred the latter
evidence over the former, I find that it was certainly open for the panel to do
so and Mr. Sebastiao has not persuaded me that the panel erred in this respect.
Furthermore, there can be no argument that the RAD misapprehended the evidence
as the panel made specific reference to every piece of evidence on record.
[41]
As a result, I do not accept Mr. Sebastiao’s
argument that the RAD elevated the standard of proof, nor do I believe that the
panel's findings were made in a perverse or capricious manner or without regard
for the material before it.
E.
Did the Board Member Err in Providing Inadequate
Reasons?
[42]
Mr. Sebastiao submits that the RAD erred by
providing inadequate reasons. Specifically, he argues that the RAD did not
explain why it gave probative weight to the US DOS report while giving little
weight to the evidence addressing the impact of articles 70 and 71 on
homosexuals in Angola. He also argues that the panel failed to properly address
Professor’s LaViolette’s research explaining why the absence of evidence
detailing homophobic persecution should not be seen as being indicative of a
lack of persecution. Mr. Sebastiao takes the position that the failure of the
panel in this regard is contrary to subsection 50(2) of the Refugee Appeal Division
Rules (SOR/2012-257) and the jurisprudence of this Court.
[43]
Moreover, Mr. Sebastiao submits that the RAD did
not address his argument that he would have to live his life discreetly if he
returned to Angola and posits that not assessing the evidence from the
perspective of a gay refugee applicant is a reviewable error.
[44]
Respectfully, I disagree and find no error on
the part of the panel in this respect. In my view the RAD properly considered
the basis of Mr. Sebastiao’s claim and reasonably found that while the evidence
on record suggests a certain lack of social acceptance of homosexuality in
Angola, it does not amount to persecution.
[45]
To the extent that Mr. Sebastiao argues that the
RAD failed to address his argument that he would have to live his life
discreetly upon returning to Angola, the Supreme Court of Canada in Newfoundland
Nurses’, at paragraphs 14-17, told us that the inadequacy of reasons is not
a standalone basis for challenging a decision and indicated that the courts may
find it necessary to look to the record to assess the reasonableness. Furthermore,
the Supreme Court has made it clear that a decision maker does not have to make
an explicit finding on each element of an issue:
14 Read as a whole, I do not see Dunsmuir
as standing for the proposition that the "adequacy" of reasons is a
stand-alone basis for quashing a decision, or as advocating that a reviewing
court undertake two discrete analyses — one for the reasons and a separate one
for the result (Donald J. M. Brown and John M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at § 12:5330 and 12:5510). It
is a more organic exercise — the reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of
possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir
when it told reviewing courts to look at "the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes" (para. 47).
15 In assessing whether the decision is
reasonable in light of the outcome and the reasons, courts must show
"respect for the decision-making process of adjudicative bodies with
regard to both the facts and the law" (Dunsmuir, at para. 48). This
means that courts should not substitute their own reasons, but they may, if
they find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome.
16 Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (S.E.I.U., Local 333 v.
Nipawin District Staff Nurses Assn. (1973), [1975] 1 S.C.R. 382 (S.C.C.),
at p. 391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
17 The fact that there may be an
alternative interpretation of the agreement to that provided by the arbitrator
does not inevitably lead to the conclusion that the arbitrator's decision
should be set aside if the decision itself is in the realm of reasonable
outcomes. Reviewing judges should pay "respectful attention" to
the decision-maker's reasons, and be cautious about substituting their own view
of the proper outcome by designating certain omissions in the reasons to be
fateful.
[Emphasis added]
[46]
The RAD’s reasons when read together with the
evidentiary record are not inadequate, as they allow me to understand why the
RAD confirmed the RPD’s decision. Therefore, I am of the view that the decision
is justifiable transparent and intelligible (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
F.
Conclusion on Determinative Question
[47]
In reviewing the RPD’s decision, I am satisfied
that the RAD did its own analysis of the documentary evidence and determined
that the decision of the RPD was correct. The RAD found that, while there was
minimal evidence as to a lack of social acceptance, indicative of harassment, the
documentary evidence did not indicate that homosexuals in Angola face a
reasonable chance or serious possibility of persecution. Seemingly underpinning
this finding was the fact that the same two anecdotes concerning gay persons were
repeated three times in the documentary evidence, and that one of those
anecdotes dated back to 2005.
[48]
When I review the RAD’s decision, I am satisfied
that the reasons, when viewed with the record, are understandable and rational,
and I believe that the RAD reached one of the possible outcomes that one could
envisage legitimately being reached on the applicable facts and law. For this
reason, I find the decision to be reasonable and I am dismissing this judicial review
application.
IV.
PROPOSED QUESTION FOR CERTIFICATION
[49]
At the hearing, counsel for Mr. Sebastiao
presented the following question for certification:
“Does the criminalization of consensual
same-sex conduct between adults constitute an act of persecution, regardless of
evidence of enforcement?”
[50]
The test for whether I should certify a question
was set out by the Federal Court of Appeal in Zhang v Canada (Minister of
Citizenship and Immigration), 2013 FCA 168 at paragraph 9 [Zhang].
The question must:
- be dispositive of the appeal
- transcend the interests of the immediate
parties to the litigation as well as contemplate issues of broad
significance or general importance.
- not have been raised and dealt with at
the court below and must not arise from the judge’s reasons but from the
case itself.
[51]
In support of certification, counsel for Mr.
Sebastiao states that “[t]here are over 75 countries
where consensual same-sex relationships between adults are criminalized…[and] the
Federal Court has never contemplated how laws criminalizing consensual same-sex
relationships constitute persecution and why evidence of enforcement of such
laws is necessary.”
[52]
Relying on Zhang, above, the Minister
opposes the certification of the proposed question and submits that it is not a
serious question of general importance. The Minister argues that the existence
and enforcement of laws criminalizing same-sex conduct are relevant factors to
be taken under consideration by the RAD when the panel is fulfilling its
function of determining whether a claimant has met the test for a well-founded
fear of persecution under section 96 of the IRPA. As the RAD’s determination
will be dependent on the factual matrix of a given case, the Minister takes the
position that an answer to the question proposed for certification cannot be
one of general application to all cases, as each will have its own factual
scenario.
[53]
I will not certify the question proposed by Mr.
Sebastiao, as I do not believe that it is dispositive of the application before
me. Beyond imposing criminal sanctions on those who practice acts “against the order of nature,” sections 70 and 71 of
the Angolan penal code do not explicitly criminalize homosexual behaviour. They
are laws of general application, which the evidence on record indicates may be
selectively applied and enforced against homosexual individuals in a
discriminatory manner. Therefore, it is my view that the enforcement of these provisions
is a necessary consideration, as it is in the application of these laws that
they engender persecution.
[54]
While I do not disagree that this question is
ripe for consideration, the facts presented in this case do not justify the
certification. In my view that is better reserved for a situation where the
penal code at issue is explicit in its criminalization of consensual same-sex
conduct.
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