Docket: IMM-6195-14
Citation:
2015 FC 1056
Ottawa, Ontario, September 8, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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CARLO ALFREDO
CAMPODONICO PALMA
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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]
The applicant’s claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada [the Board]. He now applies for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a citizen of Ecuador. He is
homosexual.
[4]
On January 16, 2012, the applicant met his
boyfriend, Abraham Josue on an internet chat line.
[5]
On March 17, 2012, the applicant was robbed by
three armed men while his taxi was stopped at a traffic light. The applicant was
sexually assaulted. The applicant testified that this incident was more likely
because he was in the wrong place at the wrong time.
[6]
On April 4, 2012, the applicant reported the
incident to the police. The police prepared a report.
[7]
In June 2012, the applicant and Mr. Josue were
robbed in the park by three police officers on motorcycles. The applicant did
not file a complaint.
[8]
In July 2012, the applicant’s brother threatened
to have the applicant raped if he learned the applicant was in a relationship
with another man. The applicant went to the police, but ultimately decided not
to file a complaint against his brother given the potentially serious
repercussions to his brother.
[9]
On September 15, 2012, the applicant and Mr. Josue
were in a taxi at night. As the taxi was traveling in the wrong direction, a
car stopped in front of them. Two men got into the taxi and ordered the driver
to resume his driving and later they arrived at an isolated location. The
applicant and Mr. Josue were sexually assaulted.
[10]
On September 17, 2012, the applicant and Mr. Josue
went to the Redima centre and got tested for AIDs. Mr. Josue tested positive.
They were counseled to report the sexual assault to the police.
[11]
In October 2012, the applicant accompanied Mr. Josue
to report the incident to the police. The police referred the matter to the prosecutor’s
office, sexual and family violence department. While at the prosecutor’s
office, the applicant approached an unnamed lady whom he felt looked like
someone with a position of importance. He inquired about the March 2012 complaint
to police and the lady stated the office would ask the police.
[12]
On October 18, 2012, the Attorney General
requisitioned a medical legal examination for the applicant and Mr. Josue. On
the same day, the examining physician conducted the medical examination and
prepared the medical report.
[13]
On November 1, 2012, the applicant flew to New
York. On November 5, 2012, he arrived in Vancouver on a visa. He then claimed
refugee protection on November 29, 2012.
[14]
On December 13, 2012, the applicant and Josue
sent a letter to the Attorney General’s office in Ecuador and requested support
from the GLBTI [gay, lesbian, bisexual, transgender and intersex] community
concerning the September 15, 2012 incident.
II.
Decision Under Review
[15]
The Board hearing took place on July 23, 2014.
On July 31, 2014, the Board rejected the applicant’s claim and determined he is
not a Convention refugee and is not a person in need of protection. The Board communicated
the negative decision on August 5, 2014.
[16]
The Board found the applicant to be credible. It
found the determinative issue in this claim is state protection. It stated if
the applicant alleges that the state cannot or will not protect him, the onus
is on him to produce clear and convincing evidence of the state’s inability to
protect him. The Board found the applicant did not meet this onus. Here, the
applicant did not take his dissatisfaction with the police response to any
higher authority either within the police hierarchy or any other government
agency.
[17]
The Board stated this Court has found that just
because the police did not apprehend the culprits or that the applicant’s
complaint was not pursued with the diligence which the applicant would have
preferred, this does not mean state protection in his home country is not
adequate.
[18]
The Board did not find the March 2012 incident to
be an example of the lack of state protection. Here, the applicant did not
provide the police report. The Board found there was no documentary evidence as
to what was recorded and the applicant did not seek out a higher authority if
he was dissatisfied with the progress of the investigation. It found the
applicant’s discussion with the unnamed woman at the prosecutor’s office does
not count as seeking state protection from higher authorities.
[19]
The Board found the June 2012 incident was not
an example of the lack of state protection. Here, the applicant chose not to
file a police report and there was no indication that the prosecutor was not prepared
to take his complaint.
[20]
Regarding the September 2012 incident, the Board
found the police did take the complaint seriously. Here, the police took the
applicant’s complaint and referred it to the prosecutor’s office. The
prosecutor arranged for a medical examination of the applicant and Mr. Josue.
The medical report also noted that the applicant needed medical and
psychological assessment and treatment. The Board found this indicates a
concern for the medical and psychological health of the applicant.
[21]
The Board found that the applicant had no
conclusive or even probable evidence that the police were not taking his
complaint seriously. It determined the applicant’s allegation of inadequate
state protection is based on subjective belief. The Board acknowledged that a
letter was sent by Mr. Josue to the Attorney General’s department about seeking
help from the LGBT [lesbian, gay, bisexual, transgender] community. It
acknowledged that there is corruption in the national police. It further noted
a government news report of the dismissal of 340 officers between January and
August 2013. The Board found this indicates corruption is not tolerated. It
referenced country documents which reflect significant moves toward gay rights
under the administration of President Correa and found the government is taking
steps to deal with LGBT issues.
[22]
The Board stated although the protection
provided by the national police has a long way to go in order to meet the
standard of police forces in other democratic countries such as Canada,
perfection is not the standard. Referencing Smirnov v Canada (Secretary of
State), [1995] 1 FC 780, [1994] FCJ No 1922, it stated effectiveness of
protection should not be set too high. It found as long as the government is
taking serious steps to provide or increase protection for individuals, then an
applicant must seek state protection. It stated the efforts made by the state
must adequately protect citizens in practice.
[23]
The Board determined the evidence has
demonstrated that adequate protection does exist. It found the applicant was
not satisfied with the status of the investigation, but this does not mean that
state protection was not adequate in a refugee determination context.
[24]
Further, the Board found there is no credible
evidence of similarly situated individuals who did not receive state
protection.
[25]
Therefore, the Board concluded that under these
circumstances, “state protection would reasonably be
forthcoming to the claimant should he require it and should he seek it.”
The Board rejected the applicant’s claim under sections 96 and 97 of the Act.
III.
Issues
[26]
The applicant raises the following issues for my
review:
1.
The Board has misstated the evidence of the
applicant and the country document evidence on the issue of state protection, “cherry picked” the evidence and ignored material
evidence on the issue of state protection.
2.
The Board has misstated the burden on the
applicant when assessing whether he has rebutted the presumption of adequate
state protection in Ecuador and therefore misapplied the legal test.
[27]
The respondent raises one issue: whether the
applicant has demonstrated reviewable error so as to warrant judicial
intervention.
[28]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Did the Board misunderstand the state protection
test?
C.
Was the Board’s analysis on state protection
reasonable?
IV.
Applicant’s Written Submissions
[29]
The applicant submits the standard of
reasonableness should apply for reviewing findings of fact or mixed law and
fact.
[30]
The Board cannot ignore the evidence relevant to
the issue before it (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425, 157 FTR 35 [Cepeda-Gutierrez]).
[31]
First, the applicant submits the Board misstated
and ignored material evidence. He submits the Board erred in finding that there
is no credible evidence of similarly situated individuals who did not receive
state protection that would lead the applicant to believe that state protection
would not reasonably be available to him. He argues there was credible
documentary evidence that LGBT organizations were making complaints to the
government that the police and prosecutors were not thoroughly investigating
the deaths of LGBT individuals. This information is contained in the US Country
Reports on Human Rights Practices for 2013: Ecuador, the same resource the
Board cited to support its statement about the training of police cadets.
[32]
The applicant submits this evidence of similarly
situated individuals was relevant to the issue of the capacity and willingness
of the Ecuadorian state to provide protection to LGBT individuals. Although the
Board does not have to accept this evidence, it was obliged to consider it and
weigh it as part of its assessment (Koky v Canada (Minister of Citizenship
and Immigration), 2011 FC 1407 at paragraphs 57, 59 and 70, [2011] FCJ No
1715).
[33]
Also, the applicant takes issue with the Board’s
statement that he had no conclusive or even probable evidence that the police
were not taking his complaint seriously. He argues the police were not taking
his complaint seriously because given the behaviour of the taxi driver during
the September 2012 incident, the police never asked the name of the taxi
company or any identifying features of the driver. Also, the Board referred to
the letter written by Mr. Josue to the Attorney General’s office, but did not
analyze it in any way on the issue of state protection. The applicant argues
the very fact that the letter had to be written was relevant to the issue of
the willingness of the police to protect similarly situated individuals.
[34]
Second, the applicant submits the proposition
stated by the Board as to the burden on the applicant at paragraph 43, is not
the law and not supported by Kadenko v Canada (Minister of Citizenship and
Immigration), [1996] FCJ No 1376, 124 FTR 160 [Kadenko]. In Kadenko,
the burden of proof rests on the claimant in a way that is directly
proportional to the level of democracy in the state in question. The more
democratic the state’s institutions are, the more the claimant must have done
to exhaust all courses of action. The applicant argues the Board did not
recognize the proportionality of the burden. The Board erred in finding once a
state is said to be democratic, an applicant is then required to show that “they should not have been required to exhaust all of the
avenues of the recourses available to them domestically before claiming refugee
status in Canada.”
[35]
Here, the Board concluded the national police in
Ecuador have a long way to go to meet the standard of police forces in other
democratic countries. The applicant argues the Board failed to address this
finding in its assessment of the burden on the applicant when attempting to
rebut state protection. The applicant argues the Board’s statement raised more
questions than answers. It is unclear as to how bad the Board thought the
Ecuadorian police’s investigative abilities are.
V.
Respondent’s Written Submissions and Further
Memorandum
[36]
The respondent agrees with the applicant that
the applicable standard of review in this case is the standard of
reasonableness. (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
[Dunsmuir]). It submits the Board’s reasons must not be reviewed
microscopically.
[37]
First, the respondent submits the Board properly
considered the evidence. It argues the Board is deemed to have considered all
of the evidence before it and it does not need to refer to every piece of
evidence unless it bears mentioning [Cepeda-Gutierrez].
[38]
Regarding the country conditions document on
police investigation of LGBT deaths, this evidence was not that of “similarly
situated” individuals. The reported assertion was very specific to
investigations of deaths of LGBT individuals, not how the police generally
handle investigations of crimes against LGBT individuals. Therefore, the Board
cannot be faulted for not expressly mentioning that evidence, which, on its
face, was not relevant in this case.
[39]
The Board addressed LGBT issues by acknowledging
that the government is aware of the problems that exist within the police force
at paragraph 55. It argues the Board addressed evidence of human rights
training; and this is prima facie broad enough to encompass LGBT issues.
Also, the LGBT group evidence does not assert that state protection is
non-existent, only that it is allegedly inadequate.
[40]
Regarding the failure of the police to pursue
certain lines of questioning regarding the taxi, the respondent argues this
lack of questioning did not bear express mention as it was not conclusive or
probable evidence that the police were not taking the applicant’s complaint
seriously. The investigation was in its early stages and there was nothing to
stop the applicant at any point from taking the initiative to provide the
police and prosecutors with this information. The applicant left the country
two weeks after the medical examination. The Board had no evidence that he made
any further effort to assist with the investigation.
[41]
The respondent argues the Board expressly
mentioned the Attorney General’s letter and did consider and analyze it. Here,
the Board acknowledged that the applicant and Mr. Josue were dissatisfied with
the police response and hence, sought support from the LGBT community in
writing to the Attorney General. However, the Board was entitled to also take into
account other considerations and make a decision based on the totality of the
evidence.
[42]
The respondent argues the applicant is asking
this Court to reweigh the evidence which is beyond the scope of judicial
review.
[43]
Second, the respondent submits the Board did
consider the principle of proportionality in its state protection analysis. It
argues the applicant’s argument focuses upon form over substance. Here, the
Board considered the level of democracy and country conditions in Ecuador. It
noted that Ecuador was found to be a functioning democracy. The Board
acknowledged that it was not enough for a state to be willing to provide
protection, but the efforts must adequately protect its citizens in practice.
It found that the applicant made insufficient efforts to test the effectiveness
of state protection available to him in Ecuador.
[44]
The respondent argues the Board, in applying the
proportionality principle to the facts of this case and specifically
considering the applicant’s personal circumstances, the Board was not satisfied
that the applicant had taken sufficient steps to seek state protection in
Ecuador. It submits that it is not enough for the applicant to merely disagree
with this finding.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[45]
Where the jurisprudence has satisfactorily
resolved the standard of review, the analysis need not be repeated (Dunsmuir
at paragraph 62).
[46]
Insofar as the test for state protection is
concerned, the standard of correctness should be applied. In Ruszo v Canada
(Minister of Citizenship and Immigration), 2013 FC 1004 at paragraph 20 to
22, [2013] FCJ No 1099, Chief Justice Paul Crampton found the standard of
correctness should be used in examining whether or not the Board misunderstood
the test for state protection. I further confirmed this in Dawidowicz v
Canada (Minister of Citizenship and Immigration), 2014 FC 115 at paragraph
23, [2014] FCJ No 105.
[47]
Insofar as the reasonability of the state
protection analysis is concerned, the standard of reasonableness should be
applied. The Federal Court of Appeal has determined in Carrillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94 at paragraph 36,
[2008] FCJ No 399, that the standard of review is reasonableness for the
analysis of state protection.
[48]
The standard of reasonableness means that I should
not intervene if the Board’s decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47).
Here, I will set aside the Board’s decision only if I cannot understand why it
reached its conclusions or how the facts and applicable law support the outcome
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the
Supreme Court held in Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 59 and 61, [2009] 1 S.C.R. 339, a court reviewing for
reasonableness cannot substitute its own view of a preferable outcome, nor can
it reweigh the evidence.
[49]
I wish to deal first with Issue 3.
B.
Issue 3 - Was the Board’s analysis on state
protection reasonable?
[50]
I find the Board’s determination on state
protection was unreasonable.
[51]
First, regarding the country conditions document
on police investigation of LGBT deaths, I find the Board ignored this evidence
in making the statement that there is no credible evidence of similarly
situated individuals who did not receive state protection.
[52]
In Cepeda-Gutierrez at paragraph 16, Mr. Justice
John M. Evans found the Board is deemed to have considered all of the evidence
before it and it does not need to refer to every piece of evidence unless it
bears mentioning. The Board’s duty to consider the evidence increases with the
increase of the significance of the evidence, where “the
more important the evidence that is not mentioned specifically and analyzed in
the agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the
evidence”” (Cepeda-Gutierrez at paragraph 17).
[53]
I find the evidence that the police and
prosecutors were not thoroughly investigating the deaths of LGBT individuals is
relevant evidence of similarly situated individuals and is pertinent to the
issue of the capacity and willingness of the Ecuadorian state to provide
protection to LGBT individuals. This evidence is contradictory to the Board’s
conclusion that there is no credible evidence of the lack of state protection
for similarly situated individuals. I do not agree with the respondent that
this evidence is not worthy of mentioning because it is too specific. In my
view, whether the evidence is on investigations of deaths of LGBT individuals
or investigations of sexual assaults of LGBT individuals, it would likely be an
indication of how the police generally handle investigations of crimes against
LGBT individuals.
[54]
In the present case, the Board acknowledged that
there is corruption with the national police and the police force is not up to
the standard of other democratic countries. Nowhere did the Board mention any
negative evidence that relates to the lack of adequate protection to similarly
situated individuals. This leads me to the view that the Board was being
selective of its review of evidence and made an erroneous finding of fact
without regard to the evidence before it.
[55]
In light of the above, I find the Board’s
decision was unreasonable because it erred in finding there is no credible
evidence of the lack of adequate protection for similarly situated individuals.
It is unclear to me what the Board’s determination would be if it had properly
considered all the evidence.
[56]
Because of my finding on Issue 3, there is no
need for me to deal with Issue 2.
[57]
As a result, the application for judicial review
is allowed and the matter is referred to a different panel of the Board for
redetermination.
[58]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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