Date: 20110519
Docket: IMM-2492-10
Citation: 2011
FC 585
Ottawa, Ontario,
May 19, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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DWAYNE BROWN
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated March 30, 2010, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
The applicant also requests costs for this judicial review.
Background
[3]
Dwayne
Brown (the applicant) was born on March 1, 1981 and is a citizen of Jamaica.
[4]
The
applicant identifies as a bisexual man. He lived a predominately straight life
in Jamaica, hiding his
sexual relationships with men.
[5]
In
February 2005, the applicant was photographed having sex with his male
partner. Rumours about the incident spread in his community. Around August
2005, a man arrived at the applicant’s home with a copy of the photograph. The
man requested one million Jamaican dollars (JMD) or he would reveal the picture
to the police and public. The applicant paid 50,000 JMD and agreed to pay the
remainder two weeks later.
[6]
The
applicant fled to Canada later in August 2005 following this incident.
[7]
Upon
realizing that that applicant had left Jamaica, the man
showed the photograph of the applicant to the police and public. The
applicant’s girlfriend in Jamaica was visited by the
police on several occasions and her home was vandalized. She closed the taxi
business that she shared with the applicant and moved to live with her parents
in another town.
[8]
The
applicant married a Canadian citizen in May 2006 and his wife submitted a
spousal sponsorship application. The applicant’s marriage broke down because,
he states, he wanted to be honest about his sexual orientation as a bisexual.
[9]
The
applicant was arrested in November 2008 and detained until June 2009 for
possession of cocaine for the purpose of trafficking. At this time, he states
that he learned about the Canadian refugee process from other inmates.
[10]
The
applicant filed for refugee protection in July 2009.
Board’s Decision
[11]
The
Board found that the applicant’s four year delay in claiming refugee status was
inconsistent with a person living in fear of persecution. The Board drew an
adverse inference from the delay and found that it affected the credibility of
the applicant’s claim.
[12]
The
Board found that the applicant did not rebut the presumption of state
protection. Jamaica is a
democratic state which is attempting to combat police corruption and gang
violence. The Board acknowledged that gays and lesbians face violence and
discrimination in Jamaica, but found that the Prime Minister, although
not willing to make homosexuality legal, has stated that Jamaica does not
condone acts of violence or threats against person due to their sexual
orientation.
[13]
The
Board found that the applicant did not approach the police at any time and had
failed to provide clear and convincing evidence of Jamaica’s inability
to protect him.
Issues
[14]
The
applicant submitted the following issue for consideration:
Did the Board commit a reviewable
error in light of the standard of review set out in such cases like Dumsuir
and Khosa?
[15]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
its state protection findings?
3. Did the Board err in
its findings regarding delay in claiming refugee protection?
4. Should costs be
awarded to the applicant?
Applicant’s Written Submissions
[16]
The
applicant submits that the Board violated the principles of natural justice by
stating that the applicant did not have to make submissions about state
protection and then making findings on state protection in its decision.
[17]
The
applicant further submits that the Board erred in its state protection
analysis. The Board accepted that the applicant was bisexual. The documentary
evidence demonstrated that homosexuality is illegal in Jamaica and that the
police persecute homosexuals. Yet, the Board found that the applicant had not
rebutted the presumption of state protection as he had not approached the
police for protection.
[18]
Finally,
the applicant submits that the Board erred in the finding that the delay in
claiming refugee status showed a lack of subjective fear. The applicant
presented reasonable explanations for the delay, including lack of knowledge
about the refugee process and at no time did the Board state that it did not
believe these explanations.
[19]
The
applicant submits that special reasons exist to award costs as the Board did
not follow the established principles or common sense in reaching its
conclusions.
Respondent’s Written Submissions
[20]
The
respondent submits that there was no breach of natural justice as state
protection was clearly an issue in the claim. The applicant understood this and
submitted documentary and oral evidence about the inability of the police to
protect him. The onus was on the applicant to present clear and convincing
evidence to rebut the presumption of state protection, which he failed to do.
[21]
Even
if the Board did not make a finding on state protection, the respondent submits
that the findings on delay are sufficient to dismiss the judicial review. The
applicant’s delay of four years in claiming refugee protection belied his
credibility. The Board weighed his explanations for delay but reasonably found
that his conduct was inconsistent with a person fearing persecution in their
country.
[22]
The
respondent submits that the applicant has not demonstrated special reasons for
awarding costs.
Analysis and Decision
[23]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[24]
Recent
jurisprudence from this Court confirms that the applicable standard of review
in determining whether an applicant has established a subjective fear of
persecution is reasonableness (see Cornejo v Canada (Minister of
Citizenship and Immigration), 2010 FC 261).
[25]
Assessments
of the adequacy of state protection raise questions of mixed fact and
law and are also reviewable against a standard of reasonableness (see Hinzman
Re 2007 FCA 171 at paragraph 38).
[26]
In
reviewing the Board's decision using a standard of reasonableness, this Court
will not intervene unless the Board has come to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47).
[27]
Issue
2
Did the Board
err in its state protection findings?
The Board’s
state protection analysis contains several errors. First, during the oral
hearing, the Board specifically told the applicant’s counsel not to make
submissions concerning state protection (see page 200 of the certified tribunal
record):
COUNSEL: … I am going to talk about state
protection at this point.
MEMBER: You do not need to…I know it is a
law against, so you do not need to deal with that…
COUNSEL: Okay, but you had asked me…okay,
so do not deal with state protection?
MEMBER: Well, I think it all comes down
to well foundedness of the fear, credibility, which is all to do with delay, it
is to do with intentions, it is to do with whether or not he is bi-sexual, it
is…you know, we know there is a law on the books in Jamaica…
Despite these assertions to counsel, the
Board then found that state protection was a key issue in the applicant’s
claim.
[28]
The respondent submits that the Board was simply acknowledging
that there is a law against homosexuality in Jamaica, not that
there was not available state protection, and, in addition, the applicant did
present oral and documentary evidence regarding state protection.
[29]
This
Court, along with the Federal Court of Appeal, have held that where the Board
indicates on what issues submissions should be made, it is a denial of natural
justice to render a decision on issues other than those which it mentioned.
This behaviour prevents an applicant from fully answering the case against him
(see Velauthar v Canada (Minister of Employment and Immigration) (1992), 141
NR 239 and Butt v Canada (Minister of Citizenship and
Immigration) (1998), 145 FTR 122, [1998] FCJ No. 325 (QL) (FCTD) at paragraphs
9 and 10).
[30]
The
Board made clear that it did not find state protection to be a central issue in
the hearing and because of this, the applicant did not make full submissions
regarding state protection. This was an error. The Board also erred in its
analysis of state protection.
[31]
The Board
acknowledged that “the claimant was in two significant homosexual relationships
in Jamaica.” The Board found that the applicant did
not approach the Jamaican authorities for protection, but did not address the
reasonableness of this decision given that homosexuality is illegal.
[32]
Despite not approaching the
police himself, the applicant had the opportunity to rebut the presumption of
state protection with evidence of similarly situated individuals let down by
the state protection arrangement in Jamaica
(see Ward v Canada (Minister of Employment and
Immigration),
[1993] 2 S.C.R. 689, [1993] SCJ No. 74 (QL) at paragraph 50). The applicant
presented extensive documentary evidence of gay and bisexual people persecuted
by the police in Jamaica.
[33]
The Board reviewed this evidence and itself
recognized the violence faced by the lesbian, gay, bisexual and transgendered
(LGBT) community in Jamaica. At
paragraph 24 of its reasons, the Board stated:
With respect to treatment of
homosexuals by society and government authorities, documentary evidence
indicates that homosexual men and women in Jamaica face violence and discrimination on a daily basis. Members of the
lesbian, gay, bisexual and transgendered community endure horrific assaults and
have been beaten, cut burned, raped and shot, threatened with death and
murdered on the basis of their sexual orientation. Persons who are suspected
or found out to be homosexual are frequently driven from their homes and
communities, sometimes violently, rendering them homeless and without support.
They are also harmed by their own families, where relatives may pursue violence
to uphold traditional gender and sexual roles.
[34]
In
addition, the Board’s own Response to Information Request (RIR) Research
Directorate, Immigration and Refugee Board of Canada “Jamaica: Treatment
of homosexuals by society and government authorities; availability of support
services (2004-2006)”, which was before the Board, highlights the failure of
state protection for the LGBT community. This RIR, found at page 91 of the
certified tribunal record, states that:
…members of the police force shared
homophobic attitudes common in the general community....
HRW [Human Rights Watch] found that
victims of homophobic violence were often frightened of the police, who were
known to “harass and attack” men they perceive to be gay….
Police in Jamaica stop vehicles carrying male passengers
at night and use homophobic insults against them….
…police protection for gay men and
lesbians was not forthcoming and that police “routinely” fail to investigate
complaints brought to them….
Police were documented to be arresting,
detaining, and blackmailing persons that they suspected to be homosexual….
According to AI [Amnesty International],
police in Jamaica have in some cases tortured
and mistreated LGBT victims of hate crimes….
HRW has documented cases of police
attacking and inciting violence against men they perceive to be gay….
[35]
Despite
the Board’s acceptance that the applicant engaged in homosexual relationships
in Jamaica which are
now public knowledge, and despite the documentary evidence before it concerning
the intense violence and discrimination faced by the LGBT community in Jamaica, including
by the Jamaican police force, the Board concluded that the applicant had not
rebutted the issue of state protection.
[36]
This
conclusion cannot follow from the evidence before the Board and consequently
does not fall within the range of possible, acceptable outcomes which are
defensible on the facts and law (see Dunsmuir above, at paragraph 47).
[37]
Issue
3
Did the Board
err in its findings regarding delay in claiming refugee protection?
The
respondent submits that, the state protection finding aside, it was open to the
Board to find that the applicant’s delay of over four years in claiming refugee
protection belied his credibility and showed a lack of well founded fear.
[38]
It
is well settled that the Board may consider delay in assessing the credibility
of a refugee claimant’s subjective fear. However, delay is not usually
determinative of a refugee claim (see Nelson v Canada (Minister
of Citizenship and Immigration), 2010 FC 1167 at paragraph 15).
[39]
The
Board itself noted that while there was a lengthy delay in the applicant
claiming refugee protection, it is “insufficient to cause his claim to fail.”
[40]
I,
too, believe that the Board’s rejection of the refugee claim cannot rest alone
on the applicant’s delay in seeking refugee protection.
[41]
For
the above reasons, the application for judicial review must be allowed, the
decision of the Board is set aside and the matter is referred to a different panel
of the Board for redetermination.
[42]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
[43]
Issue
4
Should costs
be awarded to the applicant?
Under Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, costs
are only to be awarded in immigration cases where “special reasons” exist. Special
reasons may exist where one party acts in a manner that is unfair, oppressive,
improper, or in bad faith, or, where there is conduct that unnecessarily or
unreasonably prolongs the proceedings (see Huot v Canada (Minister of
Citizenship and Immigration), 2009 FC 917). This Court has held that the “threshold
for ‘special reasons’ within the meaning of Rule 22 is high” (see Yadav v Canada (Minister of
Citizenship and Immigration), 2010 FC 140 at paragraph 39).
[44]
In
this case, the applicant has failed to establish the type of behaviour which
would qualify as special reasons. As such, costs will not be awarded.
[45]
Finally,
I am not prepared to declare that the applicant is a Convention refugee as that
shall be the task of the Board.
JUDGMENT
[46]
IT IS ORDERED
that:
1. The application for judicial review
is allowed, the decision of the Board is set aside and the matter is referred
to a different panel of the Board for redetermination.
2. There shall be no order for costs.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration and Refugee
Protection Act, SC 2001, c 27
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72.(1) Judicial review by the Federal Court
with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
108.(1) A claim for refugee protection
shall be rejected, and a person is not a Convention refugee or a person in
need of protection, in any of the following circumstances: . . .
(e) the
reasons for which the person sought refugee protection have ceased to exist.
. . .
(4) Paragraph
(1)(e) does not apply to a person who establishes that there are compelling
reasons arising out of previous persecution, torture, treatment or punishment
for refusing to avail themselves of the protection of the country which they
left, or outside of which they remained, due to such previous persecution,
torture, treatment or punishment.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
108.(1)
Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou
de personne à protéger dans tel des cas suivants :
. .
.
e)
les raisons qui lui ont fait demander l’asile n’existent plus.
. .
.
(4)
L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons
impérieuses, tenant à des persécutions, à la torture ou à des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
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