Docket: IMM-5401-15
Citation:
2016 FC 1021
Ottawa, Ontario, September 9, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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JOEL GAUAN GO
(A.K.A. NIKKIE
GO)
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Ms. Go, is a citizen of the
Philippines. She was born as a biological male but lives as a transsexual
woman. Ms. Go is also HIV-positive. She lived in the United States between 1998
and 2005. While living in the United States and prior to her deportation to the
Philippines in 2005 she was convicted of a drug offence.
[2]
As a transsexual woman, Ms. Go alleges that she
was subject to severe mistreatment in the Philippines. She alleges that the
police, among others, subjected her to abuse, discrimination and sexual
violence. She further alleges that the police subjected her to arbitrary
detention and extortion because she is a transsexual woman.
[3]
Ms. Go arrived in Canada on a visitor’s visa in
2008. She claimed refugee protection in February 2012. On that same date, she
was arrested and detained on the grounds that she was in Canada without
authorization. Her claim was found to be inadmissible on grounds of serious
criminality for having been convicted of an offence in the United States that
would be punishable by a term of imprisonment of ten years in Canada. A
Humanitarian and Compassionate [H&C] application was refused in 2013 as was
a Pre-Removal Risk Assessment [PRRA]. The PRRA decision was quashed and
returned for reconsideration. Ms. Go’s second PRRA application was refused in
October 2015. It is that decision that is now before this Court.
[4]
Ms. Go asks that the second PRRA decision be set
aside and the matter returned for redetermination by a different Officer. She
argues that the PRRA Officer [Officer] adopted and applied the wrong test for
state protection by considering state efforts as opposed to the operational
adequacy of state protection for someone in her circumstances. She also submits
that it was unreasonable for the Officer to have imposed an obligation on her
to seek police protection where the police have been an agent of persecution.
She further submits that the Officer unreasonably relied on evidence of positive
state action related to gay and lesbian Filipinos that is not relevant to the applicant.
Finally, Ms. Go argues that the Officer erred by analyzing her gender and
medical condition separately thereby failing to consider the cumulative effect
of the risks she identified.
[5]
The application requires that I consider the
following issues:
A.
Did the Officer err in identifying the test for
state protection?
B.
Are the Officer’s state protection findings
unreasonable?
C.
Did the Officer err by not conducting a
cumulative assessment of Ms. Go’s risk profile?
[6]
I am not persuaded that the Officer committed a
reviewable error and dismiss the application for the reasons that follow.
II.
Standard of Review
[7]
Ms. Go argues that the Officer is owed no
deference in identifying the state protection test to be applied. I agree. The
test for state protection has been developed in the jurisprudence. Where it is
alleged that a decision-maker has misunderstood that test the Court will review
the issue on a standard of correctness (Dawidowicz v Canada (Minister of
Citizenship and Immigration), 2014 FC 115 at para 23 [Dawidowicz]
citing Ruszo v Canada (Minister of Citizenship and Immigration),
2013 FC 1004 at para 22).
[8]
Ms. Go also submits that the Officer’s alleged
failure to conduct a cumulative assessment of her risks amounts to an error in
law, to be reviewed on a correctness standard. I disagree.
[9]
A failure to consider a ground of persecution or
risk has been held to amount to a breach of procedural fairness (Varga v
Canada (Minister of Citizenship and Immigration), 2013 FC 494 at para 6). However,
in this case the issue is not whether the Officer considered all grounds, but
whether the Officer assessed the cumulative impact of all grounds. This, in my
opinion, involves an analysis of the facts and the law attracting the
reasonableness standard of review (Gorzsas v Canada (Minister of Citizenship
and Immigration), 2009 FC 458 at paras 15-18).
[10]
The Officer’s adequacy of state protection
findings also engages a question of mixed fact and law to which the
reasonableness standard of review applies (Hoo v Canada (Minister of
Citizenship and Immigration), 2016 FC 283 at para 8).
III.
Analysis
A.
Did the Officer err in identifying the test for
state protection?
[11]
Ms. Go submits that the Officer adopted the
wrong legal test for state protection, pointing to the following statement in
the Officer’s decision in support of this position:
No state is expected to provide perfect
protection to all citizens at all times rather, state protection is considered
adequate if a state is in effective control of its territory, has military,
police and civil authority in place, and makes serious efforts to protect its
citizens.
[12]
Ms. Go submits that this statement shows that
the Officer incorrectly applied a “serious efforts by
the state” test. I disagree.
[13]
The jurisprudence establishes that the test to
be applied in considering state protection is one of the adequacy of state
protection for someone in circumstances similar to those of the claimant (Dawidowicz
at paras 29 and 30). However, the extract cited above is not setting out
the test for state protection. Rather, the Officer was setting out the
presumption that a claimant must overcome to establish the inadequacy of state
protection where there is not a complete breakdown in the state apparatus. In
the next sentence the Officer notes “… that an
applicant can rebut the presumption of the state protection by providing clear
and convincing evidence that the state is unable to provide them with the
necessary protection.” In my opinion, this sentence demonstrates that
the Officer understood that the issue to be considered was the ability of the
Philippine authorities to provide Ms. Go “with the
necessary protection”. The decision demonstrates that the Officer’s analysis
not only addressed state efforts but also recognized the operational
shortcomings and gaps demonstrated by the evidence. This strengthens my view
that the Officer correctly identified the state protection test.
[14]
The Officer did not err in identifying the test
for state protection.
B.
Are the Officer’s state protection findings
unreasonable?
[15]
Ms. Go submits that the Officer’s state
protection findings were unreasonable in that the Officer (1) imposed a burden
on her to complain about police misconduct directed at her and (2) engaged in a
selective review of the evidence and considered inapplicable evidence.
[16]
The Officer undertook a review of the evidence
noting that Ms. Go was at risk both on the basis that she is a transsexual and
HIV-positive. The Officer notes that Ms. Go reported abuse and discrimination
emanating from her family, the police and society generally. The Officer also
noted that Ms. Go had never reported any abuse or discrimination to
authorities.
[17]
Relying on the Supreme Court of Canada’s decision
in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689[Ward], Ms.
Go argues that it was unreasonable for the Officer to expect her to have
complained to the police as the police had previously abused her. I disagree.
[18]
In this case, the Officer recognized that Ms. Go
had been abused by police officers, and also noted the documentary evidence
outlining the need for the police to do more to protect lesbian, gay, bisexual,
transgender [LGBT] and HIV-positive individuals. Contrary to Ms. Go’s
submissions, the Officer considered her personal circumstances in conducting
the state protection analysis. Ms. Go disagrees with the Officer’s conclusion
arguing that evidence was mischaracterized, cherry-picked or misread.
[19]
While Ms. Go disagrees with the result, the
Officer was required to weigh the evidence and come to a conclusion. I agree
with the respondents. Ms. Go’s disagreement is with the Officer’s weighing of
the evidence. This is not a basis upon which this Court will interfere.
[20]
It is true that a failure to approach the state
for protection will not automatically defeat a claim (Da Souza v
Canada (Minister of Citizenship and Immigration), 2010 FC 1279 at para 18
referring to Ward at para 49). However, this does not mean that police
misconduct will automatically alleviate a claimant of their obligation to seek
state protection. This is particularly so where there is evidence of
functioning mechanisms to investigate and punish misconduct (Beri v Canada
(Minister of Citizenship and Immigration), 2013 FC 854 at para 29).
C.
Did the Officer err by not conducting a
cumulative assessment of Ms. Go’s risk profile?
[21]
Ms. Go argues that the Officer conducted a
bifurcated analysis of the risks she faced as a transsexual, on the one hand,
and a HIV-positive individual, on the other. In conducting this analysis, she
submits that the Officer acknowledged the existence of discrimination and abuse
against transsexuals and HIV-positive persons, but failed to consider the
cumulative impact of this discrimination and abuse. Relying on Justice Anne
Mactavish’s decision in Djubok v. Canada (Minister of Citizenship and
Immigration), 2014 FC 497 [Djubok], Ms. Go argues that the failure
to conduct a cumulative analysis of the various forms of discrimination was a
reviewable error. Again, I disagree.
[22]
The Officer’s analysis begins by acknowledging
that Ms. Go alleges risk on two grounds. The Officer then addressed the risks
faced by LGBT individuals and individuals who are HIV-positive concurrently throughout
the decision. While the Officer did not expressly state that the cumulative
risks were being assessed, Ms. Go’s risks were not assessed in discrete silos
or addressed in isolation, as was the case in Djubok.
[23]
The Officer was aware of the risks faced by a
transsexual HIV-positive individual, and while Ms. Go argues that the Officer
erred in failing to mention specific evidence, it is well established that an
Officer need not to do so. The Officer did not err in addressing the risks
faced by Ms. Go.
IV.
Conclusion
[24]
The Officer did not commit a reviewable error in
determining Ms. Go’s PRRA. The parties have not identified a question for
certification and none arises.
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