|
Federal Court
|
|
Cour fédérale
|
Date: 20090617
Docket: IMM-4371-07
Citation: 2009 FC 640
Ottawa, Ontario, June 17,
2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
A. B.
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This is an application for judicial review of a Pre-Removal Risk
Assessment (PRRA) determination, dated September 12, 2007, which found that the
applicant would not be at risk of persecution, torture, death, or cruel and
unusual treatment or punishment if returned to Guyana, his country of
nationality. For the reasons that follow, his application is allowed.
Preliminary Motion
[2]
Prior to the hearing, the applicant filed a motion for an Order deleting
his name from these reasons and the Court's judgment, along with other specific
allegations he has made, on the basis that the disclosure of this information
may result in harm to the applicant if he is returned to Guyana. The
respondent took no position on this request.
[3]
The specific allegations the applicant sought to have excluded from
these reasons are not relevant to the issue before the Court and thus no such
order is required in that regard. There will be no reference herein to that
information.
[4]
Justice Gibson in A.B. v. Canada (Minister of
Citizenship and Immigration), 2009 FC 325, recently canvassed the law
regarding confidentiality orders. I am in agreement with him that they should
issue only when necessary to prevent a serious risk and where alternative
measures will not prevent the risk and when the salutary effects of the order
outweigh its deleterious effects, including the impact of a confidentiality
order on the public interest in open and accessible court proceedings.
[5]
At the commencement of the hearing I indicated that I was satisfied that
the salutary effects of modifying these reasons to delete the applicant’s name outweigh
the deleterious effects, notwithstanding the public interest in open and
accessible court proceedings. Thus, as Justice Gibson did, I will simply
identify the applicant as “A. B.” throughout these reasons, and in the judgment
itself, without issuing a formal order. The style of cause will also be
modified accordingly. This will allay the applicant’s concern that his identity
may become known through publication of these reasons on the internet,
resulting in harm to him if he is returned to Guyana.
Background
[6]
The applicant was born in Guyana in 1965 and came to Canada on March 18,
1976, acquiring landed immigrant status three years later, on November 29,
1979, as the dependent child of a couple who adopted him on May 18, 1978.
[7]
In submissions filed in support of his PRRA application, the applicant
relates an appalling history of childhood sexual abuse at the hands of various
adult men who came in and out of his life, after his adoption. He says that
his adoptive father was physically and emotionally abusive. When he was 13 or
14, his adoptive father put him into the “care” of a male friend who sexually
abused him and shared him with other pedophiles for several years. Afterwards,
A. B. lived with another middle-aged man who also sexually exploited him. At
the age of 16, A. B. stole some of this man’s possessions; this was the start
of his history of criminal offences.
[8]
The more serious of A. B.’s criminal offences involve sexual assaults on
men and robbery. A. B. came to the attention of immigration authorities in
1998, towards the end of a prison sentence he was serving in connection with a
1991 sexual assault conviction. He was duly reported as inadmissible to Canada
for serious criminality. In October of 1998, a delegate of the Minister of
Citizenship and Immigration issued opinions under subsection 70(5) and
subparagraph 46.01(1)(e)(iv) of the former Immigration Act, to the
effect that the applicant constitutes a danger to the Canadian public.
[9]
The deportation order against A. B. issued on January 24, 2001. Under subsection
70(5) of the former Immigration Act, inadmissibility for serious
criminality was not subject to appeal; hence A. B.’s appeal of the order before
the Immigration Appeal Division was dismissed for lack of jurisdiction.
[10]
In January of 2002, the applicant began serving a seven year sentence in
connection with a fresh conviction for robbery and other offences. In May 2007,
the Canada Border Services Agency advised him that he would be deported upon
completion of his sentence. On June 14, 2007, the applicant filed the PRRA
application which is the subject of this proceeding.
[11]
The applicant raised three grounds in his submissions to the PRRA Officer.
Only one has been pursued in this application, namely that he would face a risk
in Guyana on account of his homosexuality. It was accepted by the PRRA Officer
that the applicant is a homosexual. His other allegations were not pursued
before this Court and as noted, they reveal information that he does not wish
to become known, and they need not be discussed here.
[12]
The impugned PRRA deals with the applicant’s allegations concerning the
risks he would face if removed to Guyana. The risk assessment was conducted
only with respect to the risks listed in section 97 of the Act as the applicant
is barred from consideration as a Convention refugee under section 96 of the Act
on account of his criminal inadmissibility.
[13]
The PRRA Officer found that the applicant had not established that he
faces a personalized risk to his life or of cruel and unusual treatment or punishment,
or a danger of torture, within the meaning of section 97 of the Act and
accordingly, that he is not a person in need of protection.
Issues
[14]
The applicant raised the following issues:
a.
Whether the PRRA Officer misconstrued the law with respect to the
meaning of “cruel and unusual treatment” in section 97 of the Act, failed to
properly apply the law to the evidence, and failed to provide adequate reasons;
and
b.
Whether the PRRA Officer’s decision is unreasonable on the evidence.
Analysis
[15]
The applicant in his submissions to the PRRA Officer alleged that he
faced a risk of cruel and unusual treatment or punishment if returned to Guyana
because he faced the risk of
a.
being jailed or persecuted by a state agent for his sexual orientation;
and
b.
being physically abused, threatened or killed by state agents or by a
homophobic public.
[16]
The evidence on the record is that in Guyana, sexual activity between
adult men is punishable by imprisonment for a term of between two and ten years
and the Guyanese criminal code further provides that those convicted of buggery
are liable to imprisonment for life.
[17]
The PRRA Officer found that there was very little mention in the record
before him of actual prosecutions under these criminal code provisions. I have
reviewed the record and have concluded that this assessment was reasonable as
was the resulting conclusion that there was no evidence that the applicant
would face “cruel and unusual punishment” because of his sexual
orientation.
[18]
In Birsan v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 1861, Justice Pinard held that “it is certainly not
unreasonable to conclude that the mere existence of a law prohibiting homosexuality in public cannot
prove, if it is not enforced, that homosexuals are persecuted.” In my view,
the same observation applies equally when examining cruel and unusual
punishment.
[19]
There are two possible reasons why there may be few reports of the criminal
prosecution of homosexuality: it may be that the law is not enforced, or it
may be that homosexuals in Guyana are not open and public about their sexual
orientation. Based on the country reports summarized by the PRRA Officer, the
latter appears to be a likely reason.
[20]
In his assessment, the PRRA Officer writes: “[c]ountry reports agree
that homosexuality is illegal in Guyana, and that homosexuals there face almost
universal discrimination, stigma, and condemnation” and that “it is rare and
risky for homosexuals to reveal their orientation publicly”; however, he then observed
that there are “few reports” of actual violence against homosexuals. Although
there were in fact two reports of violent incidents in the evidence before the
PRRA Officer, he did not see the applicant as similarly situated to either of the
men implicated in these incidents, one of whom was convicted for
cross-dressing, and the other of whom was shot for participating in a gay wedding.
[21]
The PRRA Officer did note that there was a documentary reference to the
“large incidence of unreported physical harassment and violence perpetrated on
men perceived to be openly gay” but he discounted this by remarking that if the
incidents are unreported, it is unclear how their incidence can be described as
large. The reference the PRRA Officer cites is found in a Press Release issued
December 11, 2005 by the Society Against Sexual Orientation Discrimination
(SASOD), with reference to International Human Rights Day 2005.
[22]
Although the PRRA Officer reviewed and commented upon the Country of
Origin Research of the Immigration and Refugee Board of Canada, he did not make
mention of passages in it that add credence to the claim that homosexuals face
a risk of physical and psychological harassment in Guyana and that crimes
against them are under-reported due to fears of police violence against
homosexuals. The following passages from the Country of Origin Research are
germane:
In
correspondence sent to the Research Directorate, a co-chair of the Society
Against Sexual Orientation Discrimination (SASOD) stated that homophobia is
widespread in Guyana (4 Sept. 2006). In October 2006, a representative of the
Guyana Human Rights Association (GHRA) sent correspondence stating that it was
"both rare and dangerous for gay/lesbian individuals to publicise
their sexual status."
Amnesty
International USA notes that it is difficult for members of the LGBT [lesbian,
gay, bisexual and transgender] community to reveal their sexuality, even to
friends and family, and that discrimination against homosexuals is common
practice (10 Feb. 2006).
In an
interview with the Guyana Chronicle, the SASOD co-chair indicated that
two homosexuals cannot cohabitate and that those who show public displays of
affection are verbally or physically abused (31 May 2006).
…
SASOD states
that crimes against homosexuals are under-reported and that there are no
statistics on homophobic crimes or on the legal procedures undertaken as a
result of those crimes (4 Sept. 2006). SASOD has received complaints of
police brutality and of sexual violence against homosexuals, who do not file
complaints mainly out of fear (ibid.). The GHRA has also investigated police
brutality against homosexuals (ibid.). No information on such
investigations could be found among the sources consulted by the Research
Directorate.
(emphasis
added)
[23]
In light of the evidence before him that “crimes against homosexuals are
under-reported and that there are no statistics on homophobic crimes”, and that
SASOD has received “complaints of police brutality and of sexual violence
against homosexuals, who do not file complaints mainly out of fear”, I am of
the view that the PRRA Officer erred in discounting reports of violence against
homosexuals on the basis that conduct of this sort was unreported when there
was evidence as to why that was so; namely, fear of police brutality and sexual
violence.
[24]
In light of the above, the Court can only conclude that the PRRA Officer’s
decision ignores or fails to consider relevant evidence.
[25]
Although this would be sufficient reason to grant this application on
its own, there is another finding which further undermines the reasonableness
of the PRRA Officer’s decision. Notwithstanding A. B.’s exclusion from
consideration under section 96 of the IRPA on account of his criminality, the
PRRA Officer nonetheless comments that homosexuals in Guyana face “pervasive
discrimination which could cumulatively amount to persecution [and] this could
potentially result in a successful application under section 96 of IRPA.” Yet
he goes on to find that this pervasive discrimination does not amount to cruel
and unusual treatment.
[26]
From the PRRA Officer’s findings that the applicant’s treatment as a gay
man in Guyana could cumulatively amount to persecution, but fails to meet the threshold
of cruel and unusual treatment, one can only conclude that he was of the view
that “cruel and unusual treatment” refers to something more severe than
“persecution”, as that term is used in relation to section 96 of the Act and the
definition of a Convention refugee. It is hardly obvious that this is so, and
such a proposition does not appear to have ever been endorsed by this Court.
[27]
The Federal Court of Appeal in Rajudeen v. Canada (Minister of Employment
and Immigration)
(1984), 55 N.R. 128 (F.C.A.), looked to definitions from the Living Webster Encyclopedic
Dictionary and the Shorter Oxford English Dictionary to define “persecution”,
where the term is explained as follows:
To harass or afflict with
repeated acts of cruelty or annoyance; to afflict persistently, to afflict or
punish because of particular opinions or adherence to a particular creed or
mode of worship. ... A particular course or period of systematic infliction of
punishment directed against those holding a particular (religious belief);
persistent injury or annoyance from any source.
[28]
Justice Mosley of this Court more recently reviewed the jurisprudence on
the meaning of “persecution” in Sadeghi-Pari v. Canada (Minister
of Citizenship and Immigration, [2004] F.C.J. No. 316, 2004 FC 282, and
summarized it at para. 29 as follows:
The meaning of persecution, as set out in
the seminal decisions of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 and Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, is generally
defined as the serious interference with a basic human right.
[29]
It has been held that harassment and discrimination may amount to
persecution. In Sagharichi
v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 796 (F.C.A.), Justice Marceau wrote:
It is true that the dividing
line between persecution and discrimination or harassment is difficult to
establish, the more so since, in the refugee law context, it has been found
that discrimination may very well be seen as amounting to persecution. It is
true also that the identification of persecution behind incidents of
discrimination or harassment is not purely a question of fact but a mixed
question of law and fact, legal concepts being involved.
The Court of Appeal did indicate,
however, that discrimination will only amount to persecution when it is
“serious or systematic enough to be characterized as persecution”: See also Ramirez
v. Canada (Minister of Citizenship and Immigration), [1994]
F.C.J. No. 1888, 88 F.T.R. 208 at para 8.
[30]
The words “cruel and unusual” in section 97 have not been defined in the
case law. Justice Marceau in Kindler v. Canada (Minister of
Justice), [1989] 2 F.C. 492 (F.C.A.), aff’d [1991] 2 S.C.R. 779, stated
that these words have “not been attributed a literal and frozen meaning” but
are to be “interpreted in a flexible and dynamic manner to accord with evolving
standards of decency”.
[31]
In this case, the PRRA Officer found that the harassment and
discrimination of homosexuals in Guyana could amount to persecution. He
specifically found that the discrimination, harassment and disdain from the
general public that the applicant would experience, if he is open about
his sexual orientation, is “serious”. In my view, if the harassing and
discriminatory treatment he would receive is serious and could amount to
persecution, it is unreasonable to conclude, as the PRRA Officer did, that the
applicant is not likely to experience cruel and unusual treatment in Guyana because
of his homosexuality. If anything, cruel and unusual treatment on account of
sexual orientation may be established in circumstances where persecution cannot
be established. In light of the PRRA Officer’s finding that persecution could
be established, his conclusion that the same treatment was not cruel and
unusual is unreasonable.
[32]
Accordingly, the decision will be set aside and referred back to another
officer for a new determination.
[33]
In the unique circumstances of this case, counsel asked for and will
be given an opportunity to propose a question for certification following the
issuance of these reasons. Both counsel are to serve and file their
submissions, if any, within seven days of receipt of these Reasons for
Judgment. Each shall have a further period of three days to serve and file any
reply to the submissions of the opposite party. The Court shall issue a
Judgment following consideration of these submissions.
“Russel W. Zinn”
Email this Content