Date: 20080411
Docket: IMM-3659-07
Citation: 2008
FC 466
Ottawa, Ontario, April 11, 2008
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
OSCAR CASTILLO RAMIREZ, HECTOR
ANTONIO VICCON PALACIOS
Applicants
and
THE
MINSITER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Castillo Ramirez and Mr. Viccon Palacios are Mexican nationals. They seek
judicial review of the decision of the Refugee Protection Division (RPD)
rejecting their claim for protection under sections 96 and 97 of the Refugee
Protection Act, S.C. 2001, c.27.
Facts
[2]
The
applicants are a gay couple and have been together for eight years. Prior to
coming to Canada, they resided in the city of Cancun, where Mr. Castillo Ramirez
worked as an architect and Mr. Viccon Palacios worked as a music teacher. Both
have been the victims of homophobic incidents in the past going beyond hurtful
words. For instance, in 2000 Mr. Viccon Palacios was attacked by a group of
young men in a city park upon leaving a gay bar. And in 2004, an apartment
administered by Mr. Castillo Ramirez was vandalized by the outgoing tenants,
who scribbled anti-gay graffiti on the walls. Since they have lived a common life, the
applicants have been compelled to move several times because they were harassed
by homophobic neighbours whenever the latter became aware of their
relationship.
[3]
Because of
such incidents and the prevalence of homophobic sentiments in Mexican society
generally, over the years both applicants said that they have felt it necessary
to be more or less discrete about their sexual orientations, particularly in
their working lives. Nonetheless, until the series of incidents which provoked
their actual departure from Mexico, the applicants considered
their lives and situation to be tolerable despite the discrimination they faced.
[4]
This
series of incidents began on November 5, 2005, when the applicants were arbitrarily
stopped by a group of police officers after leaving a Cancun gay bar. These
police officers took down the applicants’ names and vehicle information, and
were going to bring them in to the police station. When the applicants refused
arrest and threatened to report the incident, they were essentially told by the
police to watch out for their lives, who warned that “fags who carry on like
that, we kill them (…) things will go badly for you.” (“Les tapettes qui se conduisent comme
cela on les tues (…) cela ira très mal pour vous.” ) In the end, however, the applicants
were not arrested.
[5]
Several
days later on November 13th, in the middle of the day, the
applicants were in their car driving when someone shot a bullet through their
windshield. Neither of them was injured but both were frightened. At this time
they decided against reporting the incident out of fear that it was the police
themselves who were responsible. Also, a cousin of Mr. Castillo-Ramirez who is now
a judge advised against reporting the incident, since there were no
identifiable suspects and the police would not investigate seriously without a
bribe in any case (see p.46 of the certified record). As a result of this
incident, the applicants sought therapy with a psychologist and later a
psychiatrist, and filed documentary evidence in that respect.
[6]
On
December 10, 2006, Mr. Castillo Ramirez’ mother received a phone call at her
home in Mexico City. The caller claimed he had
kidnapped her son and demanded ransom money. The caller had detailed
information about Mr. Castillo Ramirez, including his full name and address.
The kidnapping was in fact a ruse, but Mr. Castillo Ramirez’ mother reported
the extortion attempt to the Office of the Attorney General for the Federal District nonetheless. In her
complaint, she does not mention anything about possible police involvement or a
relation to earlier incidents involving her son in Cancun (see pp. 128-132 of
the certified record).
[7]
Similar
calls followed later in December, while Mr. Castillo Ramirez was with his
parents in Mexico
City, prompting
him to file his own complaint with the Office of the Attorney General for the
Federal District on the 29th of December (at pp. 131-135 of the
record). The unknown caller said that he and Mr. Viccon Palacios could expect
to be attacked upon their return to Cancun.
[8]
Thereafter
the applicants resolved to report the shooting incident of November 13th to
the Cancun police, having concluded on the advice of Mr. Castillo Ramirez’
father and a Cancun gay activist named Guzman that it would be prudent to make
an official report despite their misgivings about police involvement. This
they did on January 16 (see pp. 145-147). The Cancun police took the complaint
and evidence submitted by the applicants (which included the bullet retrieved
from the cabin of the car), but asked for a bribe to actually investigate.
[9]
After
this, the applicants went unmolested for some time, until on March 18, 2006,
Mr. Castillo Ramirez’ mother received another threatening phone call. In her
police report of the same day, she stated that the caller had made reference to
the shot fired at the applicants’ car.
[10]
A little
over a week later, the applicants were again targeted; this would be the final
straw which allegedly prompted them to flee the country. It was around 10PM on
March 30th when the applicants realized they were being followed by
a vehicle of the type used by the judicial police (as opposed to the traffic
police), which at one point even turned on its police flasher. They were
followed for about three kms, until they turned into a well-lit supermarket
parking lot and waited until they felt secure enough to proceed home. They arranged
a hasty departure and left for Canada three days later, claiming
protection upon arrival.
[11]
In Canada, Mr. Viccon Palacios was
diagnosed with HIV, in May of 2006. His medical condition was raised as an
additional element of his claim by way of an affidavit dated May 14, 2007,
supported by a letter of his physician Dr. Martin Potter (at pp. 107-109 of the
certified record). In his affidavit, Mr. Viccon Palacios alleges that he fears
that he would not be able to receive adequate medical treatment in Mexico
particularly as regards medicines, and that like his ex-partner who died of
AIDS in 1999, he would not be able to find employment on account of his HIV
status, and he would face discrimination from doctors and nurses in the actual
dispensation of medical care. At the hearing, he elaborated on these elements
of his claim.
[12]
In its
decision of August 17, 2007, the RPD rejected the applicants’ claims on the
following grounds:
i) with regard to Mr. Viccon
Palacios’ HIV status, the RPD dismissed this portion of the claim on the basis
that the documentary evidence speaks of treatment possibilities for the HIV
infected in Mexico, and it was not established that the Mexican government
would refuse to offer Mr. Viccon Palacios adequate treatment; moreover, the RPD
notes that even if Mexico were unable to provide sufficient medical services,
this could not found a claim under s. 96 of the Act, and is in fact expressly
excluded as a basis for a claim for protection under s. 97;
ii) as for the common elements of the applicants’
claim, the RPD concluded that the incident of November 5, 2005 could not be
counted as persecution against which there would be no state protection, as the
police refrained from arresting the applicants and “thereby” showed an
awareness that their actions could be sanctioned in accordance with mechanisms
put in place by the state; that nothing in either Mr. Castillo Ramirez’ or his
mother’s complaints to the police indicates that the police were definitely the
perpetrators of the mock kidnapping, in a country where the practice is
commonplace;
and that the alleged link between the three incidents and the police was purely
speculative. The
RPD then adds “[l]e tribunal n’ajoute pas foi à cette histoire, il n’y croit
tout simplement pas.” (“The tribunal doesn’t accept
this story, and simply doesn’t believe it”). As for the incident of March 30,
2006, the RPD concludes that it could not be counted as persecution.
iii) finally, the RPD comments
that in light of the information related in its Mexico National Documentation
Package,
nothing would have prevented the applicants from filing a complaint after the
incident of March 30, 2006, and opines in the final paragraph of its analysis that
the applicants failed to avail themselves of every means of obtaining domestic
state protection. The RPD also notes, at p.6 of its decision, that the
applicants’ two-month delay in reporting the shooting incident to the police
reflects negatively on the seriousness of their efforts to secure state
protection.
[13]
The
applicants challenge the decision on numerous grounds; the Court will only
refer to the main ones. They argue that the RPD erred i) by failing to assess
whether discrimination faced by the HIV positive and their families in Mexico
amounts to persecution, and whether such discrimination, coupled with anti-gay
discrimination generally and the specific series of incidents experienced by the
applicants, amounts cumulatively to persecution; and ii) by failing to explain and
provide reasons for the finding that the applicants’ story was not credible.
The applicants also argue that the RPD’s analysis of the state protection issue
was insufficient and cannot stand given that its analysis of the risk faced by
the applicants did not include all grounds raised, namely HIV status,
generalized discrimination against gays, and the cumulative effects thereof.
Analysis
[14]
In light
of the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008
SCC 9, and the extensive prior case law of this Court applying the pragmatic
and functional approach to the RPD’s findings on factual questions (including credibility
and plausibility) and questions of mixed fact and law (such as state
protection), it appears that the RPD’s findings in this case are reviewable
against a reasonableness standard.
[15]
In Dunsmuir,
it was explained at paragraph 47 that “[a] court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes in respect of the facts and the law.”
[16]
Turning back
to the decision before the Court, in its treatment of the portion of Mr. Viccon
Palacios’ claim relating to his HIV status, the RPD appears to deal only with
the availability of medical services and accessibility thereof to the HIV
infected. It does not address the allegation that HIV infected patients are
discriminated against by doctors and nurses in the provision of care and
services (see the decision of the Federal Court of Appeal in Covarrubias v. Canada (Minister of Citizenship and
Immigration), 2006
FCA 365). Nor does the RPD address the allegation that Mr. Viccon Palacios
would face discrimination in employment, whereas the applicants clearly alleged
that Mexican employers conduct medical testing and will dismiss or refuse to
hire HIV positive workers out of a concern to minimize their contributions to
the public health care scheme, although this is apparently illegal.
[17]
This
matter of employment-related discrimination (and its alleged connection to the
availability of health care) was discussed at considerable length by Mr. Viccon
Palacios and his counsel on the last day of the hearing. As such, it cannot
be dismissed as an issue that had not been argued and that did not emerge
perceptibly from the evidence presented as a whole, as the respondent urges on
the authority of the Federal Court of Appeal’s decisions in Guajardo-Espinoza
et al. v Minister of Employment and Immigration, [1993] F.C.J. No. 797, and Pierre-Louis
v. Canada (Minister of Employment and Immigration),[1993] F.C.J. No.
420, and the decision of this Court in Mbokosa v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1806. In the circumstances,
the Court can only conclude that the RPD effectively disregarded a significant
element of the Mr. Viccon Palacios’ claim.
[18]
Moreover,
the Court agrees with the applicants that the RPD failed to consider whether
the cumulative effect of all of the grounds raised by the applicants could amount
to persecution (notwithstanding its apparent finding that even taken together the
events of November 5 and 13, 2005 and March 30, 2006 did not amount to
persecution).
[19]
Also
problematic is the ambiguity of the RPD’s statement cited previously, that “it
doesn’t accept this story and does not believe it.” If the RPD is referring to the plausibility of police
involvement in the mock kidnapping, then the Court would be reluctant to intervene
as this was within the range of possible outcomes reasonably open to the RPD,
even if it was poorly reasoned. If the statement refers rather to the veracity
of the mock kidnapping (or even the veracity of the story altogether, as it was
understood by the applicants), the RPD would clearly have had to review and
explain its dismissal of the corroborating evidence adduced by the applicants,
such as their numerous complaints to the police and Office of the Attorney
General (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998]
F.C.J. No. 1425). This ambiguity affects the intelligibility of the RPD’s
reasons.
[20]
There
remains the question of whether the RPD’s finding on the applicants’ failure to
seek state protection is sufficient to save the decision, as argued by the
respondent. But here again, the Court must conclude that the RPD’s reasons fall
short. Where the applicants testified to multiple and essentially fruitless
attempts to seek the assistance of the authorities in two localities, the RPD
should have articulated why this evidence was not sufficient to meet the evidentiary
burden recently discussed by the Federal Court of Appeal in Carrillo v.
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, at para. 38, and how one
more complaint might have made any difference. Moreover, the Court agrees with
the applicants that the analysis of state protection must be personalized and
take account of all grounds raised. Here, the RPD approached the issue as if
the applicants’ claim related solely to their alleged targeting by the police,
whereas their situation is somewhat more complex, as may be appreciated from
these reasons. Accordingly, the RPD’s laconic statements on the applicants’
failure to seek state protection cannot be regarded as sufficiently
well-explained to meet the reasonableness threshold.
Conclusion
[21]
In light
of the above, the Court finds that the RPD’s decision cannot be qualified as
reasonable. Alone, any one of the defects canvassed herein might not have been
determinative but their cumulative effect vitiates the decision as a whole. The
decision is quashed.
[22]
The
parties did not propose any question of general importance for certification
and the Court is satisfied that this case turns on its own facts.
ORDER
THIS COURT ORDERS that the application is granted.
The decision is set aside and the matter will have to be reconsidered (after a
new hearing) by a panel differently constituted.
“Johanne
Gauthier”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3659-07
STYLE OF CAUSE: OSCAR
CASTILLO RAMIREZ, HECTOR ANTONIO VICCON PALACIOS
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 20, 2008
REASONS FOR JUDGMENT
AND JUDMENT: The Honourable Justice Johanne
Gauthier
DATED: April 11, 2008
APPEARANCES:
|
Peter Shams
|
FOR THE APPLICANT
|
|
Lisa Maziade
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Peter Shams
St-Pierre
Grenier Avocats Inc.
Montréal,
Québec
Lisa
Maziade
Department
of Justice
Montréal,
Québec
|
FOR THE APPLICANT
FOR THE RESPONDENT
|
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