Docket: IMM-4670-15
Citation:
2016 FC 520
Ottawa, Ontario, May 10, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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DELINE MARLA
ANTOINE
ADELLA ANTOINE
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Background
A.
Nature of the Application
[1]
This application, brought pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
seeks to set aside the September 29, 2015 decision of the Refugee Protection Division
[RPD] of the Immigration and Refugee Board of Canada, where the RPD found that the
applicants were neither Convention refugees nor persons in need of protection
pursuant to sections 96 and 97 of the IRPA respectively. The RPD found there
was no credible basis for the claim.
[2]
The application is granted for the reasons that
follow.
B.
Facts
[3]
The applicants are a mother, Deline Marla
Antoine the Principal Applicant [PA], and her daughter Adella Antoine, born on
September 26, 2003. Both are citizens of St. Lucia.
[4]
The PA alleges that in 2003 she entered a common-law
relationship with Marvin Baptiste, the father of Adella. Mr. Baptiste physically
and emotionally abused the PA, leaving her in 2005. The PA subsequently became
involved with another male who she subsequently discovered was married. That
relationship failed.
[5]
In October, 2011 the PA met Julietta Charley and
entered a relationship with her. The couple was discovered by Julietta’s sister.
The sister attended at the PA’s workplace accusing her of turning Julietta into
a lesbian and trying to rape her. This led to the PA’s firing.
[6]
The PA was subsequently beaten by Julietta’s
sister and her boyfriend, an incident the PA reported to the police. In
following up with the police the PA was threatened with arrest as a result of
the allegations of her attempted rape of Julietta. The PA then received threats
at her home, and the sister and some men insulted and physically attacked the
PA for going to the police. She also received threats from her neighbours. As a
result, the PA and her daughter fled to Canada.
[7]
The PA alleges that as a bisexual women she
would face persecution were she to return to St. Lucia. She also fears that
Adella could be attacked or kidnapped by Jullietta’s sister or other members of
the community.
C.
Decision under Review
[8]
The RPD dismissed the claim on the basis that
the evidence did not demonstrate that: (1) the PA is a bisexual woman; (2) Julietta’s
sister or the community would target her upon return to St. Lucia; and (3) there
is a basis to support the fear of an attack or kidnapping of her daughter upon
return to St. Lucia.
[9]
The RPD found it improbable that the police
would only have threatened arrest if they truly believed the PA had attempted
to rape Julietta since the Criminal Code in St. Lucia defines same-sex
relationships as gross indecency and the applicants’ documentary evidence shows
there are elements of homophobia in the police. Nor did the PA provide any
evidence of reporting to the police.
[10]
The RPD did not give any weight to emails the PA
provided as evidence to establish the existence of Julietta and her sister and
the events alleged. The RPD held that that the emails are not reliable or
persuasive.
[11]
The RPD also disbelieved that the PA is currently
in a same-sex relationship in Canada. The RPD drew an adverse inference as a result
of a discrepancy between the partner’s affidavit and the PA’s testimony relating
to the length of the relationship and the partner’s failure to appear at the
hearing. The RPD held that photographs of the PA with a young woman alleged to
be her same-sex partner in Canada were not persuasive or sufficient evidence of
her claim to be a bisexual woman.
[12]
Finally, the RPD did not give any weight to a
psychological assessment of the PA finding her exhibiting symptoms consistent
with major depressive disorder and generalized anxiety disorder. The RPD
concluded that the report does not establish whether the symptoms were the
result of her refugee claim or that she is a victim of persecution in St. Lucia
based on sexual orientation.
II.
Issues and Analysis
A.
Positions of the Parties
[13]
The applicants argue that the decision is
unreasonable and is based on misstatements, misunderstandings and
mischaracterizations of the evidence. The applicants submit that the RPD’s global
credibility finding is the result of an overly vigilant and microscopic
examination of the applicants’ evidence. In written submissions the applicants
identify bias as an issue but confirmed in oral submissions that a bias
argument is not being advanced.
[14]
Specifically, the applicants submit the RPD
erred in finding it improbable that the police would only threaten the PA with
arrest if they truly believed she attempted to rape Julietta. The applicants
submit that this amounts to an implausibility finding based on speculation.
The applicants further argue that the credibility findings and the conclusion
that the PA was not a bisexual were based upon concerns with peripheral issues and
disregarded supporting evidence including letters, emails from Julietta and her
sister and the psychological report. Finally, the applicants submit that the RPD
erred in ignoring the merits of the PA’s partner’s affidavit because (1) the
RPD did not bring the alleged inconsistency of the length of the relationship
to the PA’s attention and (2) the RPD cannot reject an affidavit merely because
the affiant is not present for cross-examination.
[15]
The applicants further argue that, contrary to
the PA’s reasonable expectations, the RPD erred in failing to consider the Chairperson’s
Gender Guidelines [Gender Guidelines]. Finally, the applicants argue the RPD
erred in failing to carry out a proper analysis under section 97 of the IRPA.
[16]
The respondent argues that the RPD reasonably concluded
the applicants’ claim had no credible basis and that the applicants essentially
disagree with the weight the RPD placed on evidence. The respondent further
submits that it was not unreasonable for the RPD to find it implausible that
the police would only threaten the PA with arrest for allegedly attempting to
rape her former girlfriend.
[17]
The respondent also advances the position that
the RPD’s failure to expressly mention the Gender Guidelines does not vitiate
the decision as there is no suggestion that the RPD ignored the Gender
Guidelines. Instead, the RPD found the PA was not credible and the Gender Guidelines
cannot cure reasonably made credibility findings. The credibility findings also
relieved the RPD of the need to provide a separate analysis under section 97 of
the IRPA because no evidence existed that could establish that the applicants
were persons in need of protection.
B.
Issues
[18]
The application raises the following issues:
1.
Did the RPD err in finding it improbable that
the police only threatened to arrest the PA;
2.
Did the RPD err in failing to discuss the Gender
Guidelines;
3.
Did the RPD err in failing to conduct a separate
section 97 analysis; and
4.
Did the RPD otherwise err in rendering it’s no
credible basis finding?
III.
Analysis
A.
Standard of Review
[19]
The reasonableness standard applies to the RPD’s
decision on questions of fact and mixed fact and law including the finding of
no credible basis (Behary v Canada (Minister of Citizenship and Immigration),
2015 FC 794 at para 7; Mahdi v Canada (Minister of Citizenship and
Immigration), 2016 FC 218 at para 9).
B.
Issue 1 - Did the RPD err in finding it
improbable that the police only threatened to arrest the PA?
[20]
I am of the opinion that the RPD committed a
reviewable error in concluding that it was improbable that the police had only
threatened the PA with arrest for the alleged rape of Julietta.
[21]
The RPD notes that, pursuant to the Saint Lucian
Criminal Code, same sex relationships fall within the definition of gross
indecency and that item 6.2 in the National Documentation Package indicates
that “there are elements of homophobia in the police.”
Relying on these two indicators alone the RPD then concludes that it was
improbable that the police would only threaten arrest in light of the
allegation of attempted rape.
[22]
It is well-established in the jurisprudence that
while the RPD can make adverse credibility findings based on an implausibility,
this must only occur in the clearest of cases (Valtchev v Canada (Minister
of Citizenship and Immigration), 2001 FCT 776 at paras 7-8, 208 FTR 267
(TD); Habibi v Canada (Minister of Citizenship and Immigration), 2016 FC
253 at para 28).
[23]
In this case the RPD did not consider other
reasonable explanations for the reported police response. As submitted by the
applicant, it is equally probable to conclude that the police lacked sufficient
evidence to effect an arrest. In addition, the very report relied on by the RPD
to justify the finding states, under the heading “Protection”
that “LGBT persons who do report abuse to the police
end up being ridiculed and their case is treated as “insignificant” or “not
important” [emphasis added]”. This
introduces another equally probable explanation for the reported police conduct;
the police were ridiculing the PA in response to her complaint.
[24]
In my view, the documentary evidence identifying
homophobia in the police force coupled with reports to the effect that the
police ridicule persons bringing LGBT related complaints conforms with rather
than contradicts the PA’s allegations that the police threatened her once they
learnt of the LGBT nature of the case and the allegations against her. The RPD
could not reasonably rely on item 6.2 in the National Documentation Package to justify
its negative credibility finding based on a perceived implausibility in this
case.
[25]
My conclusion that the RPD erred in making this implausibility
finding also undermines the negative finding arising out of the PA’s failure to
provide a report from the police. The PA explained, when asked about this, that
“When I went back, they actually threaten – said to me
that they would arrest me because a report was made against me that I tried to
rape Julietta. So, I left it at that”.
[26]
The error in rendering the implausibility finding
in turn impacted upon the RPD’s consideration of the applicants’ supporting
documentary evidence, all of which the RPD determined deserved no weight.
[27]
On the basis of the unreasonable implausibility
finding alone, a finding which impacted other key elements of the RPD’s
analysis, I am satisfied the application should succeed. I need not address the
other issues raised. The parties did not identify a question for certification.
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