Docket: IMM-3613-16
Citation:
2017 FC 432
Toronto, Ontario, May 2, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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CHIMA ESTHER
ADEJUWON
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DAMILOLA
ADEJUWON AND
ADEWOLE SOMTO
ADEJUWON
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Applicants
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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
I.
Background
[1]
The Applicants challenge an August 19, 2016
decision [the Decision] of a Senior Immigration Officer [Officer], refusing an
application for permanent residence based on humanitarian and compassionate
[H&C] grounds made under section 25 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act or IRPA].
[2]
The Principal Applicant [PA]
is a Nigerian citizen who identifies herself as bisexual. The two Minor
Applicants, aged 13 and 10, are the PA’s children and are also Nigerian
citizens. The PA’s husband (and father of the two Minor Applicants) passed away
in June 2008.
[3]
After the PA’s same-sex relationship was
allegedly discovered by her family-in-law and exposed to the community, the Applicants
fled Nigeria to Canada and made a claim for refugee protection in November
2014, which was denied by the Refugee Protection Division [RPD] in May 2015. A
judicial review of the Refugee Appeal Division [RAD]’s decision was dismissed.
[4]
In 2015, the PA says she met a woman in Canada,
and entered into a relationship. On January 23, 2016, the Applicants were
advised that they would be removed on March 17, 2016. On January 25, 2016, the
Applicants filed an application for permanent residence on H&C grounds. On
February 9, 2016, the PA married her alleged same-sex partner. The H&C application,
which is the subject of this judicial review, was refused on August 19, 2016.
[5]
The Officer relied on the RAD’s decision, which
held that the PA was not credible, failed to claim in the UK and the US, and
with respect to the Minor Applicants, that they had an internal flight
alternative available to them in Nigeria in any event. The Officer further
found that the evidence submitted by the Applicant did not overcome those
findings.
[6]
In making these findings, the Officer gave
little weight to some of the documentary evidence submitted by the Applicants, including
a letter from the Black Coalition for Aids Prevention [BCAP]. The Officer found
that the evidence did not convince him of the PA’s bisexual orientation. The
Officer also found that the removal would not offend the best interests of the
children [BIOC], given their short stay in Canada, educational options in
Nigeria, possibility to stay in touch with friends, and adaptability. Lastly,
the Officer found that the Applicants did not have sufficient establishment in
Canada to trigger a section 25 exception.
II.
Analysis
[7]
The Applicants attack the Decision for being
incorrect in its application of (1) the BIOC test, and for being unreasonable
in its treatment of (2) sexual orientation, (3) BIOC, and (4) establishment. As
I am persuaded by issue (2), which falls under a reasonableness standard of
review (Liang v Canada (Citizenship and Immigration), 2017 FC 287 at
para 14 [Liang]), I will not consider the other issues raised, because
issue (2) is central to the outcome.
[8]
The PA argues that the Officer’s sexual
orientation analysis was unreasonable in its treatment of the documentary
evidence, including the BCAP letter. The evidence shows that BCAP is a
non-for-profit organization providing HIV/AIDS support to Black African and
Caribbean communities in Toronto, including the LGBT community. The letter
speaks, in a very personal way and with substantial detail, to the PA’s sexual
orientation and identification as a bisexual refugee claimant. The Officer
noted that one need not be bisexual to be part of BCAP.
[9]
The totality of the Officer’s analysis of the
BCAP letter reads as follows:
With respect to the Black Coalition for Aids
Prevention, it is a non-profit organization which provides HIV/AIDS education,
prevention, settlement and other support to the culturally diverse Black
communities in Toronto “including” the LGBT community. The focus of the Black
CCAP LGBT Settlement Program is to provide settlement support services to Black
African and Caribbean newcomers to Canada. They provide advocacy, counselling,
workshops, referrals, support groups, translation and interpretation services
for our clients amongst other supports. Again there is no requirement to be
either homosexual, lesbian, bisexual or transgender to join and participate in
these programs. I will give this letter little weight in support that the
claimant is bisexual.
[My emphasis added; I would note that the
word “again” in the underlined section refers to the 519 organization,
discussed below]
[10]
The Respondent counters that the Officer decided
on the basis of insufficiency of evidence, such that the evidence provided
could not overcome the RAD’s findings with respect to the PA’s sexual
orientation. The Respondent also highlights a number of inconsistencies or
omissions in the record relating to the issue of sexual orientation, none of
which were addressed by the Officer, namely that the initial H&C
application made no mention of the PA’s (now) wife.
[11]
While the Respondent is correct that the role of
an officer when reviewing an H&C application is to determine whether
additional or special considerations exist (Bhalrhu v Canada (Citizenship
and Immigration), 2011 FC 49 at para 15), the decision must nevertheless be
reasonable. To that end, I agree with the Applicants that the Officer’s
assessment of the BCAP letter was unreasonable for the following reasons.
[12]
First, to the extent that the Officer did rely
on the RAD’s findings, it is important to highlight that while the RAD in this
case explicitly held that it did not believe that the PA was bisexual, the BCAP
letter postdates the RAD decision. Her same sex marriage also post-dated her
RAD decision, which should have heightened the Officer’s duty to consider the
contents of the letter.
[13]
Clearly, the Officer may make a finding that the
evidence submitted by the Applicants does not overcome the RAD’s negative
credibility findings; however, in order to come to this conclusion, it logically
follows that the Officer should have addressed, in some manner, the contents
of key new evidence-- namely evidence that postdates the RAD decision which specifically
addresses the issue of sexual orientation -- and weigh that evidence against
the RAD’s findings. Here, the evidence, coming from an objective source
(BCAP), may have led the Officer to come to a different conclusion, when
weighed alongside the evidence of the same-sex marriage.
[14]
If, as the Respondent argues, the Officer
limited the reasons to insufficiency of evidence going towards the issue of
sexual orientation, then there was a heightened duty to address the letter
given its source and contents. If the Officer then decides to discount its
weight, which may be one fully reasonable outcome, the Officer must at minimum
provide cogent reasons for doing so.
[15]
Of course, the Officer might have theoretically
found the letter to be deficient for any number of reasons. However, the fact
that BCAP does not deal exclusively with (although specializes in) individuals
from the LGBT community, does not suffice as a reasonable basis on which to
entirely discount the evidence. In other words, the fact that BCAP welcomes
individuals from all walks of life with HIV/AIDS, including or with a focus on
LGBT persons, is irrelevant. The Officer completely failed to engage in any way
with the contents of the letter as it applies to the PA, and instead
unreasonably discounted it solely based on its author’s organization.
[16]
Indeed, if the Officer’s rationale was acceptable,
any document authored by an organization in support of a LGBT applicant or
claimant could be discounted solely on the grounds that the organization does
not exclusively limit its support and services to the LGBT community.
[17]
Likewise, this line of reasoning would also
stand for the proposition that any evidence provided by an organization or
person in support of a claimant could be discounted based on the fact that the
organization or person does not exclusively provide services geared to the
claimant’s individual characteristics or circumstances, be it a battered woman,
an abused child or an addict joining a support group. That analysis is not
reasonable; it is misguided and lacks the requisite justification, transparency
and intelligibility to pass the scrutiny of this Court.
[18]
I am cognisant of the fact that in others cases,
decision-makers have relied on the non-exclusiveness of services to the LGBT
community to discount evidence. For instance, most recently in Ikeji v
Canada (Citizenship and Immigration), 2016 FC 1422 [Ikeji], the Pre-Removal
Risk Assessment officer discounted a letter from the 519 Space for Change [519]
organization in Toronto in part because “there was
insufficient evidence that membership or active participation in the
organizations was restricted to persons who identify themselves as LGBTQ”
(at para 48). The officer was not convinced that the letter established the applicant’s
sexual orientation.
[19]
However, in Ikeji, Justice Strickland
noted that the 519 letter did not speak to the applicant’s sexual
orientation; it only made mention of volunteering and participating in support
groups and workshops. She accordingly found the officer’s weighing of the
letter to be reasonable.
[20]
Indeed, in the case at bar, there was a
membership card from the 519 presented, and the Officer placed no weight on
that card, because it did not have the PA’s name, date of issue or expiry date,
and because the 519’s services are not restricted to the LGBT community. Given
that the membership card did not speak to the PA’s sexual orientation, the
Officer’s observation regarding the 519, given the contents of the evidence
coming from it, was reasonable.
[21]
However, the BCAP letter does speak
directly to the PA’s experience in Canada as a bisexual woman. It provides
detail, in its two pages, regarding her experiences with her alleged sexual
orientation. This is independent evidence which, given the additional new
evidence of the same-sex marriage, makes it difficult for a reviewing court to
understand why the Officer would have categorically discounted it on the basis
s/he did.
[22]
Finally, I will note that although an officer
need not address every piece of documentary evidence, the more a piece of
evidence is important and not analysed, the more a reviewing court may be willing
to intervene: Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35 at paras 14-17. And while there is a
presumption that the decision-maker has considered all the evidence (and its
contents), the reasons in the Decision undermine this presumption: the content
of the letter should at the very least have been considered, as it is an
important piece of evidence regarding sexual orientation, the primary issue
with respect to the PA. At minimum, the Officer should have explained why the
contents of the letter failed to overcome the RAD’s findings regarding the PA’s
sexual orientation.
III.
Conclusion
[23]
While I make no finding on the PA’s sexual
orientation, the Officer’s failure to consider the contents of the letter from
BCAP is unreasonable, given the evidence on the marriage, the post-RAD date of
the letter, the erroneous and non-transparent reasons discounting the letter,
and its significance and relevance to the issues underlying this application.
This application for judicial review is accordingly granted.
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