Date:
20120906
Docket:
IMM-8275-11
Citation:
2012 FC 1058
Ottawa, Ontario,
September 6, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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RUMALDO ANTONIO RINCON FERRER
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant, Rumaldo Antonio Rincon Ferrer, seeks judicial review of a negative
decision by the Refugee Protection Division of the Immigration and Refugee Board
(the Board), dated October 17, 2011. The Board found he was not a Convention
refugee or person in need of protection within the meaning of sections 96 and
97 of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA).
I. Facts
[2]
The
Applicant is a citizen of Venezuela who alleged persecution because he is a
homosexual and HIV positive. He was abused by family members of two of his
former partners. One former partner extorted money from him following their
relationship. He has been hospitalized twice as a result of related abuse,
including once after being shot. The Applicant also claimed he was forced to
resign from his job on two occasions when his employer discovered his
homosexuality.
[3]
On
January 23, 2010, the Applicant became involved with Juan Carlos Ballesteros. Fearing persecution
due to their relationship, they decided to come to Canada. They arrived on
April 26, 2010 and claimed refugee protection that same day. Both first
learned of their HIV status through the immigration medical examination
process.
[4]
The
refugee claims were initially joined, but at the hearing on August 8, 2011, the
Board decided to separate them. As well, their representative advised at the
hearing that she had only recently learned about the Applicant’s HIV status so
the Board held that she could make written submissions after the hearing
regarding the possibility of persecution on that basis.
II. Decision
under Review
[5]
The
Board found that there was adequate state protection and the Applicant had an
internal flight alternative (IFA).
[6]
Despite
accepting the many serious allegations made by the Applicant, the Board noted
that the he never reported any of the attacks, threats, or extortion to the
police. Although he filed a lawsuit after the first time he was forced to
resign from his job, the Board noted that he never informed his lawyer or the
presiding judge that he is gay and therefore rejected the allegation that he
had been forced to resign because of his sexuality.
[7]
The
Board also rejected the claim that he could not go to police because they would
not help him and he was afraid his sexuality would become public. Considering
documentary evidence as to the state’s efforts in addressing police corruption
and human rights violations, the Board found there was adequate state
protection.
[8]
The
Board further concluded that the Applicant had an IFA in Caracas, which
documentary evidence showed was relatively liberal and had an established gay
community.
III. Issue
[9]
The
Applicant raises three interrelated issues as to whether the Board failed to
consider persecution based on HIV status and was reasonable in its findings of
an IFA and the availability of state protection.
IV. Standard
of Review
[10]
The
Board’s findings related to state protection and the IFA must be reviewed
according to the reasonableness standard (see for example Mejia v Canada (Citizenship and Immigration), 2010 FC 530, [2010] FCJ no 631 at para 10). This
Court will therefore consider whether the decision demonstrates sufficient
justification, transparency, and intelligibility or represents an acceptable
outcome defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[11]
The
Applicant’s primary concern with the decision is whether the Board erred in its
treatment of his being HIV positive as leading to discrimination, particularly
in the area of employment. He asserts that the Board failed to conduct an
independent analysis or specifically address evidence related to practices of
Venezuelan employers in screening for the disease. According to the Applicant,
the Board committed a similar error to that identified by this Court in Dias
v Canada (Minister of Citizenship and Immigration), 2008 FC 1243, [2008]
FCJ No 1543 at para 33 in not giving sufficient consideration to
employment-related barriers associated with a claimant’s HIV status in Mexico.
[12]
Despite
the Applicant’s claims, I am prepared to accept that the Board’s determinative
findings regarding state protection and the availability of an IFA fell within
the range of possible, acceptable outcomes (Dunsmuir, above). In my
view, this Court need not adopt a formulistic approach in reviewing the Board’s
decision. Rather, the Supreme Court’s recent statements in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 reinforce that reasons must be read as a whole. The
critical question becomes whether, on considering the decision as a whole, the
Board’s conclusion are reasonable based on the particular circumstances of the
case.
[13]
It
is clear in reading the decision and supporting record that the Board was alive
to the Applicant’s alleged discrimination as a member of the gay community and
as an individual who is HIV positive. As a consequence, the Board proceeded to
consider whether state protection or an IFA was available to him. The Board
directs attention to the issue of the Applicant’s HIV status in the
determination with respect to state protection and with even more clarity in
addressing the availability of an IFA. This is evident in paragraphs 34 to 35
of the decision where the Board considers issues related to obtaining treatment
and employment. The Board is not required to refer to each and every piece of
documentary evidence (Hassan v Canada (Minister of Employment and
Immigration) (1992), 147 NR 317, [1992] FCJ no 946 (CA); Florea v
Canada (Minister of Employment and Immigration), [1993] FCJ no 598 (CA)).
[14]
In
the judicial review involving the decision of the Applicant’s partner (Romero
v Canada (Minister of Citizenship and Immigration), 2012 FC 709, [2012] FCJ
No 699), Justice Donald Rennie found that a lack of determination regarding his
HIV status amounted to an error based on the case of Dias, above. Regardless,
he also stressed that each case, and in particular that of the Applicant given
his relationship to Romero, was required to be decided based on the
particular facts of the case. The Board’s more extensive reasons regarding the
issue in the Applicant’s case is sufficient to distinguish Romero, above
on the facts presented. I also note that Dias was decided prior to the
clarity provided regarding reasons in Newfoundland Nurses, above.
[15]
On
the determinative issues of state protection and the IFA, it is readily
apparent why the tribunal made its overall decision and the Court is able to
determine that its conclusion is within the range of acceptable outcomes (Newfoundland
Nurses, above). Sufficient consideration was given to the Applicant’s HIV
status in this particular instance when the reasons are understood in their
entirety.
VI. Conclusion
[16]
Accordingly,
I consider the Board’s decision reasonable and dismiss the application for
judicial review.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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