Date:
20121024
Docket:
IMM-2958-12
Citation:
2012 FC 1141
Ottawa, Ontario, October 24, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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CARLEEN CHRISTI FRANCIS
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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 ORDER AND
ORDER
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [“IRPA”] of a decision
by the Refugee Protection Division [“RPD”] by Mr. J. Gallagher that Carleen
Christi Francis, a citizen of Saint Vincent and the Grenadines, was
neither a “refugee” within the meaning of section 96
of the IRPA nor a “person in
need of protection” under section 97 of the IRPA.
I. Facts
[2]
The
Applicant left
Saint Vincent and the Grenadines [“Saint Vincent”] to come to Canada on September 20, 1998. She never regularized her status until she applied for
refugee status on April 14, 2010.
[3]
The
Applicant is a
homosexual and suffered from discrimination in Saint Vincent because of her
sexual orientation. As
a child, she
was physically and sexually abused and neglected by family members and was the
target of discrimination in Saint Vincent.
[4]
At
the age of fourteen, her mother forced her to live with her
and her abusive boyfriend but was then abandoned when her mother discovered her
sexual orientation. Other family members sheltered her but all required her to
leave when they discovered her sexual orientation. She therefore started living
on the streets and working odd jobs such as cleaning yards in Vermont.
[5]
In
1990, her cousin, Mr. Julian Clarke who was a police officer and who works now
as a prison guard, raped her while she was sleeping on his porch. It appears
that his motivations were driven by the fact that the Applicant is homosexual
as he had asked her a week before why she “did not hafe a man.” Since that
event, she has been living in great fear of him.
[6]
Her
brother and her aunt
helped
her pay for her ticket to come to Canada. When she arrived in Canada, she first attempted to regularize her status in 2006 but the person who offered to help
committed fraud. In 2010, after speaking with a pastor, she discovered that she
could claim refugee status which she did.
[7]
Her
refugee
claim was refused by the RPD on March 5, 2012.
[8]
Five
days after the hearing, the Applicant’s counsel filed a motion for
recusal of the decision-maker, Mr. Gallagher, based on some comments he made at
the hearing and on some
of his previous
publications. As a result of his comments after the hearing, counsel made a
research and discovered that Mr. Gallagher had previously
published chapters in books on Canadian immigration policy. On February 14,
2012, Mr. Gallagher dismissed the motion for recusal in a written decision, of which
no notice was forwarded to the Applicant.
II. Decision under Review
[9]
The
decision-maker was satisfied with the evidence submitted pertaining to the Applicant’s identity. He found
the Applicant credible in most
areas of her testimony such as the timeline and occurrence of events.
[10]
However,
the RPD found
inconsistent the fact that a number of persons seemed to be concerned with her
situation in Saint Vincent and helped her leave the country but that the Applicant claimed that no one was able to
assist her. Moreover, when the RPD asked the Applicant what pushed her to leave Saint
Vincent, the Applicant did not identify a
clear triggering event but mentioned that she did not want to have to hide her
sexual orientation anymore, that she wanted to put an end to the discrimination
she suffered and that she did not feel accomplished in Saint Vincent.
[11]
The
RPD considered reports
submitted on Saint Vincent’s current situation regarding treatment of
homosexuals and came to the conclusion that the testimony of the Applicant is consistent with the situation
described in the said reports. Homosexuals face discrimination and are harassed
and homosexual acts are condemned by the Criminal Code of Saint Vincent.
[12]
The RPD
concluded that the Applicant’s discrimination did not reach the level of
severity required to be considered a case of persecution as the mistreatment
or the anticipation of the mistreatment was not “eminently” serious and did not
occur repeatedly. The RPD found that in the
present case, there is no evidence that the Saint Vincent government is “policing”
the law against homosexuality or that the State is incapable of
addressing physical assault complaints.
[13]
As
for the incident identified by the Applicant, the RPD considered that it is isolated, that it was never reported to the police and that Mr. Clarke has not pursued the Applicant since the assault during the six
years she spent in Saint Vincent following the incident. The RPD found that the Applicant did not demonstrate subjective
fear because otherwise she would have at least left the city of Vermont.
[14]
As for the
existence of an objective fear of persecution, it cannot be found to exist as there is no
evidence demonstrating that Mr. Clarke would keep on harassing the Applicant should she return to Saint Vincent.
[15]
The
RPD determined that the Applicant is neither a Convention refugee nor a “person
in need of protection.”
III. Issues
1)
Did
the RPD breach procedural fairness by not communicating to the Applicant the
written
decision on the motion for recusal?
2)
Did
the member’s comment at the hearing and his previous academic writings give
rise
to a
reasonable apprehension of bias?
3)
Did
the RPD fail to consider important evidence regarding treatment of homosexuals
in
Saint Vincent?
4)
Are the
reasons provided in the decision as to why the Applicant would not face
persecution in Saint Vincent as a homosexual sufficient?
IV. Standard of Review
[16]
The
applicable standard of review to the two first issues is that of correctness as
both relate to considerations of procedural fairness, which the Federal
Court of Appeal determined should always be reviewed on the standard of review of
correctness (Sketchley v Canada (Attorney General), 2005 FCA 404 at para
53, [2006] 3 FCR 392).
[17]
The
applicable standard of review to the RPD’s assessment of evidence is that of reasonableness
(Dunsmuir v New Brunswick, 2008 SCC 9 at
paras 164-166, [2008] 1 S.C.R. 190 [Dunsmuir]).
[18]
The determination of whether or not the reasons
provided by the RPD are sufficient is subject to the standard of
reasonableness. Indeed, the Supreme Court of Canada in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 22, [2011] 3 S.C.R. 708 [Newfoundland and
Labrador Nurses’ Union] established
that the issue of whether reasons provided by a decision-maker are sufficient
should be reviewed under the standard of reasonableness as it is a
consideration subsumed in the broader analysis of the reasonableness of those reasons.
V. Analysis
A.
Did the
RPD breach procedural fairness by not communicating to the Applicant the
written decision on the motion for recusal?
Applicant’s Submissions
[19]
The
Applicant argues that the RPD had a duty under procedural fairness to inform
her of the written decision on the motion for recusal even if it is not
required to do so by the statute.
Respondent’s
Submissions
[20]
The
Respondent argues that the motion for recusal was disposed of in a procedurally
fair manner as the decision-maker had no duty under statute law or procedural fairness to communicate
to the Applicant the written decision on the
motion for recusal. The Respondent adds that the RPD took note of the decision
rendered which became part of the
RPD’s record on February 14, 2012.
[21]
The
Respondent argues that in the alternative the Court finds that the RPD should have communicated the
decision to the Applicant,
this
cannot constitute a determinative reviewable error as the application for
judicial review based on an allegation of
reasonable apprehension of bias can be made only when the final decision has
been rendered (Canada
(Border Services Agency) v C.B. Powell Limited, 2010 FCA 61 at para 4, 400
NR 367 (FCA)) and
therefore the Applicant had ample time to
prepare the application for judicial review on that basis. Therefore, no
prejudice arises from the non-communication of the decision.
Analysis
[22]
Section
169(b) of the IRPA and Rule 61(1) of the Refugee Protection Division Rules,
SOR/2002-228
[“RPDR”] are
clear. The RPD is under a duty to give reasons for decisions “other than
interlocutory decisions” and when the RPD makes a decision, “other than an
interlocutory decision, it must provide a notice of decision in writing to the
claimant or the protected person, as the case may be, and to the Minister.”
[23]
The
decision on a motion for recusal is an interlocutory matter and it has been
recognized by the Federal Court that decision-makers are not under an
obligation to provide reasons when deciding upon such decisions (Alhajyousef v Canada (Minister of
Citizenship and Immigration),
2004 FC 924 at para 7, 2004 CarswellNat 2066). In the present case, the problem
does not arise as written reasons have been given for dismissing the motion for
recusal. As for the need to communicate the decision to the Applicant, since
this is an interlocutory decision, section 61(1) of the RPDR does not impose
such an obligation upon the RPD.
[24]
When
a statute stipulates explicitly what the obligations of the tribunal are in
such cases, it is not for the Court to interpret such obligations as being in
contradiction with the wording of the statute.
[25]
But
also important is that the Applicant has suffered no prejudice by not receiving
communication of the decision. It is an interlocutory decision; no final
decision was made then and the Applicant has not lost any recourses from such
situation.
[26]
Moreover,
the Applicant cannot sustain that she suffered a prejudice from the absence of
the notification of the decision on the motion for recusal; as stated by the Respondent,
it is a well established rule that the Federal Court will not review an
interlocutory decision until a final decision has been rendered.
B. Did the member’s comment at
the hearing and his previous academic writings give rise to a reasonable
apprehension of bias?
Applicant’s Submissions
[27]
The
Applicant submits that there was a reasonable apprehension of bias of the
decision-maker because of comments he made at the hearing and because of
previous publications pertaining to immigration matters. The Applicant submits
that the publications are evidence of the fact that the decision-maker believes
that Saint Vincent cannot produce refugees.
[28]
Also,
the Applicant is not satisfied with the reasons given in the decision on the
motion for recusal as he claims that they insufficiently address the concerns
that were raised in the motion for recusal.
Respondent’s
Submissions
[29]
The
Respondent submits that no reasonable apprehension of bias can be found in the
present case because the Applicant cannot rebut the legal presumption that the
decision-maker is impartial. The comments made at the hearing when contextualized
show that the decision-maker was solely testing the plausibility of the Applicant’s
explanation as to why she did not submit a refugee claim earlier. As for the
decision-maker’s publications, they can in no way demonstrate that he had
specifically prejudged the Applicant’s case as the decision-maker had solely
expressed general views on immigration-related matters. They merely demonstrate
that he is a qualified person to act as a member of the RPD because he has
prior relevant experience in those matters. Moreover, the Respondent adds that
the writings predate Mr. Gallagher’s appointment in 2010.
Analysis
[30]
The
test of bias is well-known and was first established by the Supreme Court of
Canada in Committee for Justice and Liberty v
Canada (National Energy Board), [1978] 1 SCR 369 at 394,
9 NR 115:
[. . .] the apprehension of bias must be a reasonable one held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information. . . . [T]hat test is “what would an
informed person, viewing the matter realistically and practically -- and having
thought the matter through -- conclude. Would he think that it is more likely
than not that [the decision-maker], whether consciously or unconsciously, would
not decide fairly.”
[31]
In
the case at bar, while questioning the Applicant as to the reasons why she did
not make a refugee claim earlier and as to when she was first made aware of the
possibility to make a refugee claim, the decision-maker made a reference to the
fact that a number of Saint Vincent citizens are now established in Canada
“because of the refugee system.”
[32]
Mr.
Gallagher
has published a number of academic writings in the area of immigration law,
some dealing most specifically with the Canadian refugee system and Canadian
immigration policy, in which he criticizes some aspects of the processing of
refugee claims and the negative impact of mass-immigration on Canadian social
cohesion.
[33]
The
threshold for an allegation of bias is a very high one and the onus of
demonstrating the existence of such an apprehension rests on the Applicant as administrative adjudicators
benefit from a presumption that they are impartial (R. v S. (R.D.), [1997] 3 S.C.R. 484 at paras
113-115, 151 DLR (4th) 193 [R. v S.]). The Applicant
bears the onus of demonstrating that a reasonably informed person would
conclude it more likely than not that the decision would consciously or
unconsciously, not be fairly made.
[34]
In
the present case, no allegation of bias can be found to exist
for the following reasons. First, Mr. Gallagher, did not make
any declaration at the hearing which could be deemed as constituting ground for
reasonable apprehension of bias as the comments made by Mr. Gallagher have
to be contextualized. It was appropriate to inquire as to why the Applicant had
not heard about the Canadian Refugee System since many of the Applicant’s
compatriots had successfully dealt with it. Therefore, a reasonable person
having heard the decision-maker’s comments would have understood the context
within which they were said.
[35]
In
one of his publications, Mr. Gallagher illustrated his proposition that
the refugee system, in its current state, has given rise to “anomalous
decision-making” as it is too generous in conferring refugee status. References
were made to Saint Vincent as an example among a number of other countries that
produced refugees. Mr.
Gallagher’s
critical scholarly comments about the refugee system were not specifically
targeting Saint Vincent citizens making refugee claims but are to be considered
as a broader, more general evaluation of the refugee system’s processing of
refugee claims originating from a number of countries. In light of this, it is
not appropriate to consider that a reasonable person would have reasons to believe
that the decision-maker had specifically predetermined the Applicant’s
case because of the scholarly comments made.
[36]
As
for the second publication, which addresses mass immigration to Canada, Mr. Gallagher’s
writing focused on his views that allowing mass immigration will eventually
threaten Canada’s social cohesion. This academic article discusses a societal
question that is unrelated to the case at bar. Therefore, it cannot be said
that because of such written views, Mr. Gallagher had predetermined the Applicant’s
case. A reasonable person could not come to such conclusion.
[37]
It
is not because a person has expressed prior views through academic work on a
subject matter that such a person should be disqualified as a decision-maker.
To the contrary, having had such experience may be a valuable asset and may
help in making such persons better decision-makers. On this subject, Justice
Cory in R. v S., above, made the following
comments:
[119] The requirement for neutrality does not require judges to
discount the very life experiences that may so well qualify them to preside
over disputes. It has been observed that the duty to be impartial
does not mean that a judge does
not, or cannot bring to the bench many existing sympathies, antipathies or
attitudes. There is no human being who is not the product of every social
experience, every process of education, and every human contact with those with
whom we share the planet. Indeed, even if it were possible, a judge free of
this heritage of past experience would probably lack the very qualities of
humanity required of a judge. Rather, the wisdom required of a judge is to
recognize, consciously allow for, and perhaps to question, all the baggage of
past attitudes and sympathies that fellow citizens are free to carry, untested,
to the grave.
True impartiality does not
require that the judge have no sympathies or opinions; it requires that the
judge nevertheless be free to entertain and act upon different points of view
with an open mind.
[38]
As
for the reasons given by Mr.
Gallagher in his decision not to recuse himself, they are sufficient as he
correctly applied the test for bias as set out in Committee for Justice and Liberty, above, and considered
whether his past writings and comments could constitute a valid ground for
reasonable apprehension of bias. He also addressed the duty of RPD members
under the Code of Conduct for Members of the Immigration and Refugee Board
of Canada,
to decide every case on its merits and to not be influenced by any extraneous
factors.
C.
Did the
RPD fail to consider important evidence regarding treatment of homosexuals in Saint Vincent?
Applicant’s Submissions
[39]
The
Applicant claims that the RPD erred in law by not
considering some important pieces of evidence and that this constitutes a reviewable error as important
evidence needs to be specifically analyzed in the RDP’s reasons. He cites Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35 at para 17, 1998 CarswellNat 1981 (FCTD) [Cepeda-Gutierrez]
to support his argument.
[40]
Furthermore,
it is submitted that the RPD failed to deal specifically with a document
(VCT103276.E) which includes a report by Caribbean Vulnerable Communities to
the effect that the laws prohibiting homosexual acts are still enforced as of
September 2009. It is also argued that the report also contains information
contrary to the RPD’s finding that the State is equipped to offer adequate
protection as it identifies cases where apprehended homosexuals were
discriminated against
by the
police.
Respondent’s
Submissions
[41]
The
Respondent submits that the RPD does not have to mention every piece of
evidence in its decision and recalls that it is not the role of the Federal
Court to reassess the evidence submitted by the parties (Antrobus v Canada
(Minister of Citizenship and Immigration), 2012 FC 3 at para 6, 2012
CarswellNat 29).
Analysis
[42]
In
the case at bar, the decision-maker considered the evidence pertaining to Saint Vincent's general non acceptance of homosexuality and specifically identified two
reports in its decision, namely the United States Department of State, Country
Reports on Human Rights Practices and the Response to Information Request, Number VCT103851.E.
[43]
It
is a long-standing principle that a decision-maker is not under a duty to
comment on every piece of evidence (Hassan v Canada (Minister of
Employment and Immigration) (1992), 147
NR 317 at para 3 (FCA)). A
statement by the decision-maker that he considered the evidence that was placed
before him is generally satisfying for a reviewing court, subject to the
following comments (Cepeda-Gutierrez, above, at para 16).
[44]
However, the more important a piece of evidence is, the most the
burden on the decision-maker to address it increases. In the context of state
protection, the words of the late Justice Layden-Stevenson in Castillo v Canada (Minister of Citizenship and Immigration), 2004 FC 56, [2004] FCJ 43 at para 9
(QL), are particularly instructive in this case:
“The question of effective state
protection was identified as the central issue. Where evidence
that relates to a central issue is submitted, the burden of explanation
increases for the board when it assigns little or no weight to that evidence or when it prefers specific documentary evidence over other documentary evidence.
Here, there is virtually no indication that the RPD considered the applicants'
documentary evidence or the submissions of their
counsel in relation to the issue of state protection. The applicants were
entitled to know that the board had not ignored these matters. A general
statement that all of the evidence was considered,
in the circumstances, does not suffice.”
[45]
In the case
at bar, the RPD failed to address the documentary evidence that states that as
of 2009, there are reported cases of men apprehended by the police for
committing homosexual acts. Such evidence is important as it may explain the
Applicant’s objective fear of returning to Saint Vincent. The RPD’s finding
“that there is no indication that the Saint Vincent government is “policing”
the law against homosexuality” is therefore erroneous. The RPD was under a duty
to comment on the relevant documentary evidence and explain why in the specific
case such risk does not exist.
[46]
The
RPD failed to address important documentary evidence and the conclusion that the
Applicant does not face an objective risk of persecution is therefore unreasonable.
D.
Are the
reasons provided in the decision as to why the Applicant would not face
persecution in Saint Vincent as a homosexual sufficient?
Applicant’s Submissions
[47]
The
Applicant submits that the RPD’s conclusion that
“homosexuality in Saint Vincent is not publicly accepted and generally
practiced covertly” is a strong indication that she should live a closeted
lifestyle in Saint Vincent. She argued that such a finding is contrary to the
principle that a case of a refugee is made when expecting the person to
dissociate from the group that faces discrimination would require them to
renounce to his or her human rights, which were recognized by the Supreme Court
in Chan v Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at para 70, 128 DLR (4th) 213.
[48]
In general,
the Applicant argues that the RPD made an error when it determined that, based
on the evidence submitted, homosexuals do not face discrimination at the level
of persecution.
Respondent’s
Submissions
[49]
In response,
the Respondent submits that without reliable evidence showing that should the Applicant
go back to Saint Vincent, her cousin, Mr. Clarke, would go after her, no such
conclusion can be inferred and the evidence before the decision-maker is to the
effect that he did not try to pursue her during the six years preceding her
departure for Canada and that the incident was never reported to the
authorities.
[50]
It
is also argued that the RPD reasonably concluded that the Applicant should have
at least left the town of Saint Vincent after the traumatic event and correctly
drew a negative inference from the fact that she stayed for six years after the
triggering event of her refugee claim. Moreover, the Respondent argues that
even though the decision-maker did not draw a negative inference from the fact
that she waited to claim refugee status in Canada, this Court should consider
this as evidence pointing to a lack of subjective fear.
[51]
In order for
acts of discrimination to amount to persecution, there must be evidence that
the acts are serious and occur on a systemic basis and such evidence is lacking
in the present case.
Analysis
[52]
The
RPD adequately established that the Applicant had shown to suffer discrimination on the basis of her sexual
orientation. Homosexuals have been recognized to constitute a social group that
can be the target of persecution (Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 at para 78, 20
Imm LR (2d) 85 [Ward]). The RPD found that the Applicant's testimony
corroborates the documentary evidence demonstrating that homosexuals face
discrimination in Saint Vincent.
[53]
But,
in Sadeghi-Pari v
Canada (Minister of Citizenship and Immigration) 2004 FC 282 at para 29 [Sadeghi-Pari],
this Court found that requiring a person to suppress their sexual orientation
amounts to persecution:
“The
meaning of persecution, as set out in the seminal decisions of Canada
(Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 S.C.R. 689 and Chan
v. Canada (Minister of Employment and Immigration), 1995 CanLII 71 (SCC),
[1995] 3 S.C.R. 593, is generally defined as the serious interference with a
basic human right. Concluding that persecution would not exist because a gay
woman in Iran could live without punishment by hiding her relationship to
another woman may be erroneous, as expecting an individual to live in such a
manner could be a serious interference with a basic human right, and therefore
persecution.”
[54]
It was an
obligation upon the RPD to specifically discuss why the Applicant, as a
homosexual living in a place where it has been demonstrated that homosexuals
are harassed, would not be subjected to persecution as she cannot live her
sexual orientation openly. Although the facts in Sadeghi-Pari, above
differ from the case at bar as the Applicant in the said case had effectively
been apprehended for homosexual acts, it remains that the RPD should have
discussed why the Applicant does not face such a risk. The Applicant had
specifically expressed that one of the triggering events that caused her to leave
Saint Vincent was, in addition of her fear of Mr. Clarke, the fact that she
had to live a closeted life as a homosexual.
[55]
Furthermore,
the RPD also failed to analyze in its decision the Applicant’s desire to adopt
a child that she had clearly expressed. The decision-maker had to discuss why
she would not have to abandon her dream of adopting a child with her partner,
as a homosexual woman in Saint Vincent.
[56]
Having
said that, the RPD reasonably concluded that, as for her fear of her cousin, the fact that
the Applicant remained in the town of Saint Vincent during the six years that
followed the triggering event of her claim pointed to a lack of subjective fear of persecution.
[57]
Although
the RPD did not mention the fact that the Applicant’s late refugee claim
demonstrates a lack of subjective fear, it may have been one of the facts of
the case that supported its decision not to grant the Applicant refugee status.
This is consistent with the principle established in Newfoundland and
Labrador Nurses’ Union, above at para 12, according to which a
reviewing court must pay attention to what could be offered in support of a
decision and that “it must first seek to supplement them before it seeks
to subvert them.”
[58]
However,
when we apply this principle to the case at bar, it remains that on the issue
of whether or not repressing one’s sexual orientation amounts to persecution,
the reasons provided by the RPD are insufficient and that it is not this
Court’s role to supplement them. Moreover, the Federal Court of Appeal in Turner v Canada (Attorney
General), 2012
FCA 159 at para 40, 431 NR 327 established that “ having regard to the record
before the tribunal, [the reasons] must “allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes . . .” The
RPD’s failure to deal with some very important evidence related to the
Applicant’s alleged subjective fear makes this decision insufficient.
[59]
In conclusion,
the RPD came to an unreasonable conclusion that the discrimination faced by the
Applicant does not amount to persecution. Based on the evidence that
was submitted, its finding does not fall within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above at para 47).
VI. Questions for
Certification
[60]
The
Applicant suggested the two following questions for certification:
“Do Member Gallagher’s previous
publications give rise to a reasonable apprehension of bias, his oath of office
notwithstanding?”
“When
the Refugee Protection Division fails to address, in its reasons, an issue that
involves either a question of fact or of fact and law, does the Supreme Court
of Canada’s decision in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708
allow a Federal Court judge sitting on a judicial review to perform his or her
own assessment of that issue based on the evidence in the record in order to
determine whether or not the decision was reasonable?”
[61]
The
Respondent argues that the first question is not of general importance and
should not be certified. He suggested that the second question be certified as
follows:
“Given
the decision of the Supreme Court in Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708, can the Federal Court, sitting in judicial review, consider facts not
expressly mentioned in the reasons of an administrative tribunal, but contained
in the record, in order to determine whether a conclusion reached by that same
tribunal is reasonable?”
[62]
For
the reasons given, it will not be necessary to consider certifying any of the
questions submitted. The RPD’s decision is found not to be reasonable for not
having dealt with some of the issues such as suppressing one’s own sexual
orientation, which may amount to persecution or affirming that Saint Vincent
government is not “policing” the law against homosexuality without having the
proper documentary evidence to support such a statement. A new panel will be
able to deal with all relevant issues including the ones mentioned above.
[63]
The
Applicant is claiming costs against the Respondent. I do not see why in the
present case this Court should depart from the general rule of not granting
costs in immigration cases, except when special reasons warrant it (Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, s
22).
ORDER
THIS
COURT ORDERS THAT:
1. The
application for judicial review is granted;
2. The matter is referred to a new panel in order to deal with all
the issues; and
3. No question
is certified and no costs will be granted.
“Simon Noël”
_______________________________
Judge
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