Date:
20140305
Docket:
IMM-773-13
Citation:
2014 FC 214
Ottawa, Ontario,
March 5, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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RICARDO STEVENSON BEST
(AKA RICARDO STEVENS BEST)
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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] This is an application
for judicial review of the decision of Paul Ariemma, a member of the Refugee
Protection Division of the Immigration and Refugee Protection Board [the
Board], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The Board dismissed the
Applicant’s claim for refugee protection, concluding that he was not a
convention refugee or person in need of protection under sections 96 and 97 of
the Act.
I. Issue
[2]
Was
the Board’s decision unreasonable?
II. Background
[3]
The
Applicant is citizen of Barbados. He is homosexual and HIV positive.
[4]
In
his Personal Information Form [PIF] narrative, the Applicant details his life
as a homosexual in Barbados. He realized he was homosexual when he was
11-years-old but states that he has not been able to live openly for fear of
being the target of physical and verbal abuse. He started attending private
parties for the gay community when he was a teenager.
[5]
In
1991, a group of men started yelling homophobic slurs and threw a bottle at the
Applicant. In 1999, the Applicant became a radio announcer, hosting his own
radio show. In 2001, the Applicant began hosting private parties in his home for
the gay community in Barbados.
[6]
In
2004, a gossip column appeared in the Daily Nation newspaper [the Article]
which strongly hinted that the Applicant was gay. The Applicant alleges that
this Article caused him to lose work as a voice actor for beer commercials and
his job with the radio station. Since that time, the Applicant has maintained
employment as master of ceremonies and as a host of private parties for the gay
community, but alleges that his employment situation has been more tenuous and
short-term since the Article was published and his sexuality became known. In
addition, since the Article was published, he was verbally abused on several
occasions and was the subject of much gossip.
[7]
In
November, 2006, the Applicant was evicted from his home, a fact he attributes
to rumours that he was hosting private parties for the gay community. During
the final party, the police raided his home, and took the names and addresses
of the guests. The Applicant alleges that this was done for intimidation purposes.
[8]
Between
2006 and 2011, the Applicant travelled to various countries, including Canada on several occasions, but did not apply for refugee protection. He alleges that he
was unaware it was possible to claim refugee protection in Canada on the basis of sexual orientation until a friend informed him in 2011. On August
22, 2011, the Applicant applied for refugee protection in Canada.
[9]
The
Board found that the discrimination and harassment suffered by the Applicant did
not amount to persecution as per section 96 of the Act nor does it bring him
within the scope of section 97.
[10]
The
Board accepted that the Applicant is homosexual and acknowledged that
homosexuality is illegal in Barbados but cites a United States Department of
State Report which states that the law is rarely enforced. The Board also found
that the Applicant faced some discrimination and harassment in Barbados, but
prospered as an entrepreneur, bar owner, radio and television personality and a
master of ceremonies until May, 2011, just prior to applying for refugee
protection in Canada.
[11]
Finding
that the Article was central to the Applicant’s claim, and allegedly the
impetus for him leaving the country, the Board notes that the Applicant did not
provide the Article at the hearing. In addition, the Board notes that the
Applicant visited Canada after the Article was published, in 2007, 2008, 2010
and 2011, before applying for refugee protection. He also travelled to St. Lucia, Guyana and St. Martin from 2008-2010. As a result, the Board found that the Applicant’s
repeated re-availment to Barbados shows he lacked a subjective fear of
persecution.
[12]
The
Board states that contrary to the Applicant’s claim that his sexual orientation
became known only after the Article was published, there is evidence that shows
he was living openly prior to this. In particular, the Applicant points to a
letter from Sylvester Shepherd, director of the United Gays and Lesbians
Against Aids Barbados (UGLAAB) which states that the Applicant hosted several
parties for the gay community between 2001 and 2006 and briefly in 2007 which
provided an arena where members of the same sex community could socialize
openly. In describing this letter, the Board noted that UGLAAB operates openly.
The Board concluded that this is evidence that the Applicant lived an openly
homosexual life prior to the Article being published. At paragraphs 25-27, the
Board cites letters of support submitted by friends, co-workers and former
partners of the Applicant to further support this conclusion.
III. Standard of Review
[13]
The
parties agree that the standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at paras 47, 49).
IV. Analysis
[14]
The
Applicant argues that the Board committed a serious error in reaching its
conclusions and that the Board’s decision is unreasonable.
[15]
First,
the Board allegedly ignored five letters, from a former partner, two former
friends, and two former co-workers, which detail the societal backlash and
under-employment suffered by the Applicant after his sexuality was publicized
in an Article.
[16]
Second,
the Applicant argues that the Board was wrong to conclude that the Applicant’s activities
and recognition within the gay community meant that he “maintained a gay
lifestyle openly.” The Applicant and many of his letters of support were clear
that parties held were private events, attended mostly by members of the gay
community and were kept secret from wider society in Barbados, for fear of
homophobic reprisals.
[17]
The
Applicant also argues that the Board ignored relevant evidence in failing to
describe objective evidence of the systemic persecution faced by homosexuals in
Barbados. This evidence shows that homosexuality is illegal in Barbados, that there are no laws prohibiting discrimination on the basis of sexual
orientation, and that anecdotal evidence confirms societal discrimination
against homosexuality, including physical and verbal abuse, continues to take
place. By ignoring evidence which directly contradicted its conclusions, the
Board’s decision was unreasonable (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at paras 15, 17; Hall
(Litigation guardian of) v Canada (Minister of Citizenship and Immigration),
2008 FC 865, at paras 1-5).
[18]
The
Applicant also argues that the Board erred in failing to consider and
articulate whether the Applicant’s claims of discrimination cumulatively
justified a finding that he had a well-founded fear of persecution (Canada
(Minister of Citizenship and Immigration) v Munderere, 2008 FCA 84, at para
41).
[19]
In
addition, the Applicant argues that aside from mentioning the Applicant’s delay
in claiming refugee protection in Canada, no analysis is undertaken with regard
to subjective fear. Given that delay alone is not determinative in assessing
subjective fear, and that the Applicant provided a reasonable explanation for
the delay, the Board’s analysis was unreasonable (Rodriguez v Canada (Minister of Citizenship and Immigration), 2012 FC 1291, at paras 57-62).
[20]
Finally,
the Applicant argues that the Board undertook no analysis of whether he was a
refugee under section 97 of the Act (Thuraiveerasingam Kandiah v Canada (Minister of Citizenship and Immigration), 2005 FC 181, at para 18).
[21]
In
the Applicant’s Further Memorandum of Argument, he notes that the Board ought
not to have drawn an adverse inference based on the fact the Applicant failed
to claim elsewhere (Ay v Canada (Minister of Citizenship and Immigration),
2010 FC 671, at paras 39-40; Rajadurai v Canada (Minister of Citizenship and
Immigration), 2013 FC 532, at para 65).
[22]
The
Applicant cites testimony from the Board hearing where he explains why he did
not know about the possibility of receiving refugee protection in Canada based on sexual orientation. The Applicant notes that the Board’s decision does not
discuss this testimony.
[23]
I
find that the Board’s decision was reasonable.
[24]
I
do agree with the Applicant that the Board’s conclusion that he lived as an
openly gay man prior to the Article being published is not supported by the
evidence before the Board. Absent a clear negative finding of credibility, the
evidence as presented by the Applicant shows that while he was well-known
within the Barbados gay community, the Applicant was not publicly homosexual. Additionally,
while the Board’s summary of the Applicant’s letters of support and
psychological report at paragraphs 25-27 and 30 was cursory in nature, I do not
find that these issues make the Board’s decision unreasonable as a whole.
[25]
The
Board was reasonable in asserting that while the discrimination and harassment
suffered by the Applicant is unfortunate, the evidence of verbal harassment and
gossip which occurred after he was publicly exposed by the Article in 2004 does
not rise to the level as articulated in Portuondo Vasallo v Canada (Minister
of Citizenship and Immigration), 2012 FC 673, at para 15:
The concept of persecution is not defined in the
IRPA. In Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at paragraph
63 (available on CanLII), the Supreme Court defined the concept of persecution
as a "sustained or systemic violation of basic human rights demonstrative
of a failure of state protection.
[26]
Moreover,
while the Applicant argues that he was under-employed as a result of his sexual
orientation, the evidence provides a reasonable basis for the Board to conclude
that the Applicant was able to live a successful and productive life in Barbados. Additionally, while the Board did not clearly articulate that he considered
cumulative persecution based on this harassment, it can reasonably be inferred
here that the Board did so (Szabados v Canada (Minister of Citizenship and
Immigration), 2004 FC 719, at paras 9-10).
[27]
With
regard to the documentary evidence in this case, the Board did acknowledge
evidence of discrimination and harassment of homosexuals in Barbados. Accordingly, Applicant has not met his high burden to show that specific
contradictory evidence should have been mentioned by the Board. Moreover, the
Supreme Court of Canada has made it clear that a decision-maker is not required
to make an explicit finding on each constituent element of an issue when
reaching its final decision (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paras 12, 16).
[28]
As
well, even if the Board failed to specifically mention contradictory evidence,
the Applicant’s repeated re-availment to Barbados provides a reasonable basis
for the Board to conclude that the Applicant lacked a subjective fear of
persecution (Ortiz Garcia v Canada (Minister of Citizenship and Immigration),
2011 FC 1346, at para 11). While the Applicant is correct that he offered an
explanation, it was within the Board’s discretion to consider and reject that
explanation, and it is clear from the transcript of the hearing that the Board
did so (Abu Ganem v Canada (Minister of Citizenship and Immigration),
2011 FC 1147, at para 29).
[29]
Finally,
with respect to the Applicant’s argument that the Board failed to conduct a
section 97 analysis, the Board clearly concluded at paragraph 31 that the
Applicant did not fall within the scope of section 97. While a distinct
analysis was not conducted, the Board’s decision makes it evident how that
conclusion was arrived at.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicant’s application is dismissed;
2.
There
is no question for certification.
"Michael D.
Manson"
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