Docket: IMM-4828-15
Citation:
2016 FC 958
Ottawa, Ontario, August 24, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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DWAYNE BROWN
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
CANADA BORDER
SERVICES AGENCY
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Respondents
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JUDGMENT AND REASONS
[1]
Mr. Brown is a Jamaican national. His claim for
refugee protection on the basis that he is bi-sexual was dismissed by the
Refugee Protection Division [RPD], but it did accept that he was bi-sexual. This
Court allowed his application for judicial review, but before the claim was
reconsidered, Mr. Brown was convicted of a criminal offence and thus he is no
longer eligible to make a refugee claim.
[2]
Mr. Brown filed an application for a Pre-Removal
Risk Assessment [PRRA]. His first PRRA was denied on the basis that there was
insufficient evidence to support his claim that he was bi-sexual. That
decision was reviewed by this Court and the application for judicial review
dismissed in a speaking order dated October 7, 2014.
[3]
Mr. Brown submitted a second PRRA application,
with new evidence in January 2015, and this Court issued a stay of removal. A
negative PRRA decision was rendered on October 25, 2015, and that is the
decision under review.
[4]
In my view, the decision under review must be
set aside. The decision-maker never addresses the fundamental question of
whether or not Mr. Brown is bisexual and his risk can only properly be assessed
after that decision is made. The Court acknowledges that there have been differing
decisions on that fundamental question regarding Mr. Brown. Both the RPD and
this Court appear to have accepted that he is bisexual, however others have
not. A person’s sexual orientation is a difficult thing to determine. In this
case perhaps the officer ought to have accepted Mr. Brown’s invitation for an
interview to satisfy him or herself as to this issue.
[5]
The officer’s analysis is not intelligible
because at points the officer appears to proceed on the basis that he is
bisexual while at other points the officer appears to say that the evidence is insufficient.
[6]
In any event, the officer applied the wrong
test. The officer writes:
[T]he applicant has provided insufficient
objective evidence to support that his sexual orientation is common knowledge
in Jamaica or Canada…. I am not satisfied with the information before me that
the applicant would be perceived as bisexual upon returning to Jamaica,
as there is minimal information before me to demonstrate that the applicant’s
sexual orientation is public knowledge in Jamaica. As such I am not
satisfied that anyone has a vested interest in harming the applicant based on
his sexual orientation. [emphasis added]
[7]
If Mr. Brown is bisexual, then it is irrelevant
whether he would be perceived to be bisexual. Being perceived to be bisexual
may be relevant if one is not bisexual because the mere perception may create a
risk of harm in some societies.
[8]
Moreover, whether or not he is bisexual, the
question of whether his sexual orientation is common knowledge in Canada or Jamaica
is irrelevant to any legitimate examination by the PRRA officer.
[9]
The questions the officer must address but does
not are these:
1.
Based on the evidence, on the balance of
probabilities, is Mr. Brown bisexual?
2.
If he is not bisexual, then is there any evidence
that he would be at risk in returning to Jamaica.
3.
If he is bisexual, then is there evidence in the
record from which one can conclude on a balance of probabilities that he would
face a risk to life or a risk of cruel and unusual treatment or punishment
under paragraph 97(1)(b) of the Immigration and Refugee Protection Act?
[10]
This officer found that “there
continues to be some long standing and persistent human rights violations in
Jamaica and that the LGBT group continues to be a vulnerable one.” Mr.
Brown’s risk simply cannot be properly assessed unless and until it is
determined by the decision-maker whether he is or is not a member of the LGBT group.
[11]
For these reasons, this application is allowed
and Mr. Brown’s PRRA application is remitted to a different officer for
decision in accordance with these reasons. Neither party proposed a question
for certification.
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