Date: 20040615
Docket: IMM-5420-02
Citation: 2004 FC 866
Toronto, Ontario, June 15th, 2004
Present: The Honourable Madam Justice Snider
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
SALVADOR ABAD
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Salvador Abad, the Respondent, a 23 year old citizen of Argentina, claimed Convention refugee status on the basis of his sexual orientation. His claim was based primarily on police brutality suffered by himself and Alexis, a transvestite with whom he had a relationship.
[2] In a decision dated September 30, 2002, the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") determined the Respondent to be a Convention refugee. The Board rejected almost all of the Applicant's testimony regarding events that he claimed. Specifically, the Board concluded that "the police did not target the claimant and in particular that the claimant's story about Alexis is a fabrication and that none of the incidents involving Alexis actually occurred". Nevertheless, the Board accepted that the Applicant was gay, that state protection would not be reasonably available and that he did not have a viable internal flight alternative ("IFA").
[3] The Applicant seeks judicial review of that decision.
Issues
[4] Although three issues were raised in the written submissions, counsel for the Applicant focussed his oral submissions on the following issue:
1. Did the Board commit a reviewable error in finding that state protection is unavailable to the Respondent?
Analysis
[5] For purposes of this application, without deciding, I will assume that the presence or absence of state protection constitutes a finding of fact to which the standard of patent unreasonableness applies. Notwithstanding this very high standard of review, for the reasons that follow, I have concluded that the Board's decision should be overturned.
[6] The Applicant asserts that the Board member failed to give due consideration to the availability of state protection. The Respondent, in spite of being aware of this hearing, chose not to attend or to make any submissions beyond a brief, general letter to the Court.
[7] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 709, the Supreme Court of Canada confirmed that there exists a rebuttable presumption that states are able to protect their own citizens and that, in the absence of clear and convincing evidence lead by a refugee claimant indicating otherwise, this presumption stands. Further, the burden of showing the absence of state protection is difficult to satisfy and imperfect protection is not tantamount to a state's inability or unwillingness to protect a refugee claimant (Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 at 234(F.C.A.); Smirnov v. Canada (Secretary of State), [1994] F.C.J. No. 1922 (T.D.) (QL)).
[8] Evidence that a claimant might lead to rebut this presumption can relate to past personal incidents or even experiences of similarly situated individuals (Ward, supra; Smirnov, supra). However, where the state is the agent of persecution, it is unreasonable to expect a claimant to seek state protection.
[9] In the case at bar, the major incidents that gave rise to the Respondent's claim were found to be fabrications. The reasonableness of approaching the police for help in the past was, therefore, a moot issue. The Board went on to determine whether there was a possibility that the Respondent, owing to his sexual orientation, would be persecuted by the police if returned to Argentina. On this point, the Board was required to consider whether the Respondent discharged his burden of proving that no state protection would be available to him if this happened. The Board found that no such protection would be forthcoming. Was this finding patently unreasonable? I think that it was.
[10] The decision of the Board is nearly devoid of any analysis on the issue of state protection. Though excerpts from documentary evidence that was before the Board appear in the decision, the significance of this evidence is not discussed. The Respondent, having been determined not credible, could not hope to rebut the presumption of state protection using his own testimony of personal experience. As for evidence of similarly situated persons, the Board excerpted passages from the documentary evidence indicating that transvestites and gay activists in Argentina have suffered police brutality and then stated:
The panel finds that although the claimant is not a transvestite or an activist on behalf of any gay associations, the claimant is open about his sexual orientation. As he stated in testimony: "I know what I am." The panel finds that if he returned to Argentina, he would continue to pursue an open homosexual lifestyle including going to places where he would encounter persons belonging to other sexual minorities.
[11] To my mind, this falls short of a finding that the Respondent is similarly situated to transvestites or gay activists. The Board simply stated that the Respondent would "encounter" other sexual minorities but does not state that the Respondent is similarly situated to them. Even if it is inferred from this statement that the Applicant is similarly situated to transvestites and gay activists, the Board does not make a finding that the treatment suffered by these minorities is part of a broad pattern of state abuse and, therefore, state protection is unavailable. In fact, the Board suggests the opposite. Earlier in the decision, the Board states that the treatment of gays is inconsistent throughout Argentina and that, although gays in Argentina continue to suffer discrimination, there have been positive legislative and societal changes.
[12] The only other comment in the decision on the issue of state protection is the following:
As the state is the agent of persecution, state protection would not be reasonably forthcoming including in Buenos Aires, which was suggested as a possible internal flight alternative (IFA).
[13] Further, noted in the decision is the Respondent's testimony that, but for the incidents arising from his relationship with a transvestite, he would not have left Argentina. Given this comment and the finding that this relationship and the incidents arising therefrom were a complete fabrication, the dearth of analysis on the issue of state protection is even more worrisome. If the claimant himself testified that he would not have left his country of nationality but for an incident that has been determined to be a complete fabrication, then it seems imperative that a thorough analysis of the issue of state protection must follow. No such analysis followed. Given this and the seemingly incomplete and inconsistent findings of the Board on this point, the decision is patently unreasonable and cannot stand.
Conclusion
[14] The application for judicial review will be granted and the matter referred back to the Board for re-determination by a different panel of the Board.
[15] No question was proposed for certification. None will be certified.
ORDER
THIS COURT ORDERS that
1. The decision of the Board dated September 30, 2002 is set aside.
2. The matter is referred back to the Board to be reconsidered by a differently constituted panel of the Board.
3. No question of general importance is certified.
"Judith A. Snider"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5420-02
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Applicant
and
SALVADOR ABAD
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 14, 2004
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: JUNE 15, 2004
APPEARANCES BY:
Mr. Lorne McClenaghan
FOR THE APPLICANT
No appearance
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE APPLICANT
Salvador Abad
Mississauga, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040615
Docket: IMM-5420-02
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
SALVADOR ABAD
Respondent
REASONS FOR ORDER AND ORDER
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