Ottawa, Ontario, March 16, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by Mardie Weir, Immigration and Refugee Board, Refugee Protection Division (the Board), dated May 12, 2006, which found that the applicant was neither a Convention refugee nor a person in need of refugee protection, based on his claim of fear of persecution because of his membership in a particular social group (homosexual) and the lack of adequate state protection of people like him in Argentina.
ISSUE
[2] The application raises the following issues:
1. Did the Board err in finding that the applicant can seek state protection in the city where he was abused?
2. Did the Board err in finding that the “compelling reasons” exception of subsection 108(4) is not applicable to the applicant’s situation?
[3] For the reasons that follow, the answer to each question is positive. As a result, the application for judicial review shall be allowed.
BACKGROUND
[4] The applicant was born in Buenos Aires, Argentina on July 7, 1978 and claims a well-founded fear of persecution in Argentina because of his sexual orientation. He claims that he was a victim of police torture and will likely be harmed by the police who continue to torture with impunity members of the gay and lesbian communities in Argentina.
[5] In particular, the applicant claimed that because he is a homosexual, he was stopped by police officers in Buenos Aires, on two separate occasions and was sexually and physically assaulted as follows:
a) In May 1998, while walking home after a night at a gay bar, the applicant was detained under a false pretext by the police and taken to the Comisaria 39 police station. There, he was placed in a cell by himself. Later, he was beaten up by three police officers, to such an extent that they broke his nose. They then forced him to perform oral sex on two officers while the third officer watched. When the sexual assault ended, the officers told him that he was lucky he was being allowed to leave and if he told anyone about what had transpired, they would kill him.
b) In the early hours of July 14, 2002, the applicant was stopped by different police officers who asked to see his identification documents. One of the police officers asked if the documents identified him as a “fagot.” He was then arrested, shoved into the police car, where he was insulted and driven to a deserted industrial site. There, he was thrown out of the car and asked to strip naked, between barrages of insults. The officers then physically abused him, and in particular, one officer held him down while another punched him in the face and took a piece of broken glass and sliced into his right upper arm leaving two gaping vertical wounds, each approximately 6 cm and 10 cm long. The police officers left the applicant lying and bleeding on the ground, warning him to pretend that nothing happened to him. He should never tell anyone about the incident or they would retaliate against him.
[6] Out of fear of reprisals, the applicant claims he neither went to the hospital nor sought to avail himself of government or community assistance to address these two instances of victimization by the police. Instead, he decided to leave Argentina and in September 2002, a family friend assisted him to obtain a visitor’s visa to Canada. The applicant came to Canada on a visitor’s visa on December 3, 2002, where he claimed refugee protection in January 2003.
[7] In a letter dated June 16, 2003, Dr. Maria del Junco, a physician licensed in Ontario with a private family practice in Toronto, examined the applicant on June 5, 2004 in order to document evidence of the injuries the applicant alleged to have sustained when assaulted by the police in Argentina. Dr. del Junco’s examination found the following:
§ small bump and deformity on the bridge of the nose consistent with a fracture of the nasal septum
§ right upper arm – two vertical scars, 6 and 10 cm. long, with raised borders (keloid formation), consistent with lacerations that healed without suturing.
In summary, my findings were consistent with Mr. Gorria’s account of how he received his injuries.
[8] In a letter dated June 18, 2003, Dr. Hung-Tat Lo, a psychiatrist qualified to practice in Ontario, and an Assistant Professor of Medicine, University of Toronto, confirmed that the applicant was seen in psychiatric assessment on May 27, 2003. Based on his assessment of the applicant, Dr. Hung-Tat Lo states as follows:
In summary, my professional opinion is that Mr. Gorria is suffering from an adjustment disorder with features of a posttraumatic stress disorder. These are the direct consequence of his persecution in his home country. With the freer environment in Canada and the support available to him, prognosis is good. However, a return to his home country will have grave, adverse effect on his health.
[9] The applicant’s refugee claim was dismissed by the Board on April 24, 2004. However, this decision was quashed in a judicial application, in an Order rendered by Justice Sean Harrington on June 14, 2005. The matter was remitted back to the Board for re-determination before a differently constituted panel. The newly constituted panel in turn dismissed the applicant’s claim on May 12, 2006. It is this second rejection, which forms the basis of the present application for judicial review.
DECISION UNDER REVIEW
[10] After considering all of the evidence including the transcripts of the hearing from the first decision, the Board found that the applicant was neither a Convention refugee nor a person in need of refugee protection.
[11] Credibility was not an issue. Indeed, the Board accepts that the two incidents of sexual and physical assaults did occur. However, the Board made the following findings:
a) There is adequate state protection for the claimant in Buenos Aires. The decision states as follows:
[. . .] (T)he claimant’s failure to diligently seek protection in his country of origin does not provide clear and convincing evidence to rebut the presumption that the constitutional democracy of Argentina can protect its citizens. [. . .]
There are laws enforcing the rights of homosexuals in Buenos Aires and the documentary evidence notes that there are laws in place protecting people including homosexuals from discrimination in employment, property rights and many supportive and active non-governmental agencies supporting homosexuals. […]
[…] There are several references in the documentary evidence that refer to Buenos Aires and Rosario as leaders in Argentina in their acceptance of homosexuals. The documentary evidence also states that there have been issues between the police and some homosexuals during protests and at gay bars; however, these have not been addressed as problems by Amnesty International. CHA [(Homosexual Community Argentina)] was founded in 1984 and gained official recognition in 1992 and Argentina celebrated its first Gay Pride week in 1992. I find it is reasonable that the claimant could live openly and support himself with no more than a mere possibility of persecution in Buenos Aires.
b) The consolidated grounds of risk to life or risk of cruel and unusual treatment or punishment or to danger of torture must necessarily fail because it is established that there is adequate state protection for the applicant in Buenos Aires.
c) There are no compelling reasons including the two incidents of 1998 and 2002 in Argentina that would warrant according refugee protection to the applicant. The decision notes in particular:
The claimant has been absent from Argentina for a period of four and one-half (4-½) years and I rely [on] the current documentary evidence. I find that the problems experienced in 1998 and 2002 in Argentina, by the claimant, were neither so appalling nor atrocious that he would be found to be in need of refugee protection based on compelling reasons.
[12] It is noteworthy that the Board makes no reference in its decision that it considered Dr. del Junco’s findings that the applicant’s injuries are consistent with the applicant’s account of how he received his injuries. The Board’s decision also makes no reference to Dr. Hung-Tat Lo’s psychiatric assessment confirming that the applicant suffers from an adjustment disorder with features of a post traumatic stress disorder, which are the direct consequence of persecution in his home country.
RELEVANT LEGISLATION
[13] Where the reasons for which a person has sought refugee protection no longer exist, the Act provides for one exception, whereby refugee protection can be granted. The relevant passages of the Act read as follows:
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Rejection 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. [. . .] Exception (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. |
Rejet 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. [. . .] Exception (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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ANALYSIS
Did the Board err in finding that the applicant can seek state protection in the city where he was abused?
(1) Standard of Review
[14] The standard of review applicable to a determination of state protection has been established by this Court as that of reasonableness simpliciter, as analyzed by my colleague Justice Carolyn Layden-Stevenson at paragraphs 9 to 11 of Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232 (QL):
i) The Standard of Review
9 The four contextual factors comprising the pragmatic and functional approach, which potentially overlap, are: "the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question - law, fact, or mixed law and fact" (Dr. Q, supra at para. 26).
10 Turning to the first of those factors, decisions of the Board are not protected by a strong privative clause (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). The second and third factors, however, militate in favour of curial deference. Whether state protection is available, or whether the claimant has sought that protection, engages the relative expertise of the RPD. And though the provision in question in effect requires a determination of the rights of individuals claiming refugee status, the legislation gives substantial discretion to the RPD.
11 However, the nature of the question is key in this application and also brings into play relative expertise. Deciding whether a particular claimant has rebutted the presumption of state protection involves "applying a legal standard [i.e. "clear and convincing confirmation of a state's inability to protect": Ward, supra, at para. 50] to a set of facts", which according to the Supreme Court constitutes a question of mixed fact and law: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise with respect to the findings of fact and assessing country conditions. However, the Court has relative expertise with respect to whether the legal standard was met. Accordingly, the appropriate standard of review is in my view reasonableness simpliciter. This is consistent with the rulings characterizing the issue of state protection as a question of mixed fact and law: Smith, supra and Racz, supra.
12 Briefly, before considering whether the RPD appropriately decided whether the applicant demonstrated the state's inability to protect, it is useful to describe what constitutes an unreasonable decision, as explained by the Supreme Court in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247:
55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, [1997] 1 S.C.R. 748, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[15] I adopt the reasons of my colleague in Chaves for as in that case, the Board in the present application found that the applicant had failed to diligently seek the protection of his country before coming to Canada. As a result, the applicant did not provide clear and convincing evidence to rebut the presumption that the constitutional democracy of Argentina can protect its citizens. To succeed, the applicant must show that the decision of the Board was not reasonably open to it.
(2) Rebutting the presumption of state protection
[16] Before addressing the issue of the Board’s finding of state protection in Buenos Aires, it is necessary to address the bipartite test the claimant must meet in order to establish a well-founded fear of persecution. This test is set out by the Supreme Court of Canada at paragraphs 47 and 52 of Canada (Attorney General) v. Ward, [1993] 2. S.C.R. 689. The relevant portions are as follows:
47 More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
See also Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), at p. 173. [. . .]
52 In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. [. . .].
(3) State protection in city where applicant was abused
[17] The applicant argues that the Board’s finding is unreasonable in that the Board noted that Argentina is a democracy. Moreover, Argentina passed anti-discrimination legislation and has celebrated Gay Pride Week since 1992. The Board also noted that there have only been “issues between the police and some homosexuals during protests and at gay bars.” Based on this, the Board found that there is adequate state protection for the claimant in Buenos Aires today.”
[18] The respondent submits that in spite of his two experiences with the police in Buenos Aires, the applicant has not sufficiently rebutted the presumption that the state could provide him with protection. Furthermore, the applicant seeks to have this Court reweigh the evidence and arrive at a different conclusion with regard to the documentary evidence before the Board. This is not in the province of the reviewing Court particularly where as in this case, the determination with respect to state protection involves findings of fact and are entirely within the Board’s authority to make.
[19] While I agree with the respondent’s assessment of the role of the reviewing Court, this Court finds that the Board has erred in its conclusion that the applicant can return to live and work in Buenos Aires with no more than a mere possibility of persecution. The Board’s decision is based on the premise that the circumstances upon which the applicant’s fear of persecution is based have changed such that his application for refugee protection must be rejected based on paragraph 108(1)(e). However it failed to recognize that some of the changes it considered occurred prior to and indeed were in place on the two separate occasions when the applicant was victimized. The applicant was not only sexually assaulted but he was also noticeably physically maimed on the two separate occasions.
[20] The applicant was stopped at random by the police because of his mannerisms and associations, which were revealing of his sexual orientation. The Board failed to explain why it believed that the applicant could live openly and support himself with no more than a mere possibility of persecution in Buenos Aires even after an absence of four and a half years from the country. The Board has not addressed any evidence that would suggest that the applicant has changed his mannerisms or associations or characteristic traits that readily identify him as a homosexual. Moreover, the applicant was stopped and assaulted by different police officers in Buenos Aires, first in 1998 and then four years later, by altogether different officers in 2002. These incidents occurred in the early hours of the morning and in isolation, during the phase of Argentinean enlightenment and public acceptance of the gay and lesbian elements of its society.
[21] For this reason, I find that the Board’s decision in this regard is incongruous with the facts before it and the specific circumstances of the persecution the applicant suffered at the hands of the police, agents of the state.
Did the Board err in finding that the “compelling reasons” exception of subsection 108(4) is not applicable to the applicant’s situation?
(1) Standard of Review
[22] I must ordinarily first proceed with a pragmatic and functional analysis in order to determine the applicable standard of review in this case as required in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. However, in 2005, I had occasion to determine the applicable standard of review for subsection 108(4) and while the facts are altogether dissimilar between that case and the present matter, the principles of the pragmatic and functional analysis of this particular part of the Act is, I believe, of universal application. That is why, it bears reproducing the pragmatic and functional analysis, in its entirety, taken from paragraphs 14 to 19 of Kotorri v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1457 (QL) :
14 [. . .] The appropriate standard of review when dealing with this issue must be determined by the application of the four contextual factors of the pragmatic and functional approach established by the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purpose of the legislation and the provision in particular; and (4) the nature of the question - law, fact or mixed law and fact.
15 Firstly, the Act does not contain a privative clause. Yet, it is recognized that the absence of such a clause does not indicate a high standard of scrutiny where the other factors suggest a low standard (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 30).
16 Secondly, the intention behind subsection 108(4) of the Act is twofold: first, to recognize the legitimacy of the psychological hardship that would be faced by the victims of persecution were they to be returned to the country responsible for their maltreatment; and second, to protect the victims of past atrocities (James C. Hathaway, The Law of Refugee Status, Toronto: Butterworths, 1991, at pages 203-204). As mentioned in Pushpanathan, supra, at paragraph 36 where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes. Accordingly, the purpose of this provision calls for some deference.
17 Thirdly and fourthly, it is widely recognized that the Board's role to assess the documentary evidence and the credibility of the Applicant is part of its primary function. The Board, recognized to be a specialized tribunal, is therefore in a better position than the Court to weigh the documentary evidence in the record and the credibility of an Applicant's testimony (R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL)). This implies a higher degree of deference (Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at paragraph 50).
18 In Isacko v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1128 (F.C.T.D.) (QL) at paragraph 8, the issue as to whether there are "compelling reasons" in a given case has been considered as a question of fact (Rasanayagam v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1080 (F.C.T.D.) (QL)). It is the Board, with its expertise and experience that is best able to assess whether the Applicant falls within the ambit of the "compelling reasons" provision (Hassan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 630 (F.C.T.D.) (QL)). Questions of fact are recognized to imply more deference. However, the delineation of the concept of "compelling reasons" is a question of law for which the Board has no specific expertise.
19 Balancing all of these factors, it is my opinion that questions of fact should be reviewed only if patently unreasonable. On the other hand, the standard of review for question of law is correctness.
[23] In this particular case, the Board was called upon to determine whether subsection 108(4) of the Act is applicable to the applicant’s particular set of circumstances, after having found that the applicant was not a refugee in need of protection because of paragraph 108(1)(e), “the reasons for which the person sought refugee protection have ceased to exist.” This is a question of mixed fact and law and the applicable standard of review is one of correctness only where the Board has committed a pure error of law. Otherwise, the error is fact based and this Court will intervene if the Board’s error is patently unreasonable.
[24] The applicant submits, that the Board erred in fact by finding that the applicant was a victim of atrocious and appalling abuse at the hands of the police, but that it was not “so” atrocious or appalling to warrant acceptance. In so doing, the Board has imposed its own test for determining the compelling reasons without providing adequate reasons for so doing. The applicant further draws the attention of the Court to the decision in Arguello-Garcia v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 635 (QL), in which the Federal Court confirmed that sexual assault is an atrocious and appalling form of prior persecution such that it should trigger the application of the exception provisions of section 108(4) of the Act. More notably, Justice William P. McKeown stated as follows:
7. In my view the two incidents in 1981 and 1987 amount to persecution. There is detention of the Applicant for 45 days, serious physical abuse of the Applicant, sexual abuse of the Applicant and killing of his relatives. This is torture or cruel, inhuman or degrading treatment or punishment contrary to Article 5 of the Declaration of Human Rights. Ill treatment of family members has constituted persecution. Surujpal v. M.E.I. F.C.A. A-515-84, Heald J.A. in Oyarzo v. M.E.I. 2 F.C. 779 at p. 782 and 783 found persecution when a 16 year old was placed in detention for three weeks where he was beaten with rifle butts and with fists and was continually interrogated. Although the Applicant was 53 at the time of the 1987 incident the facts are far more serious than in Oyarzo. Accordingly there is previous persecution. It was patently unreasonable for the Board to come to the opposite conclusion. In my view the Board was not competent to consider s.2 (3) when they had already found there was no persecution.
[25] For its part, counsel for the respondent argues that this was not a case in which the Board was required to consider compelling reasons because the applicant has not ceased to be a refugee because he was never previously found to be a refugee [emphasis in the original]. In particular, counsel for the respondent relies on a series of cases for the proposition that the panel is obliged to consider subsection 108(4) only [emphasis in the original] after finding that a claimant was at one time a Convention refugee but then ceased to be so. These cases include: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.), Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577 (C.A.) (QL) at para. 20; Kudar v. Canada (Minister of Citizenship and Immigration), 2004 FC 648 and Naivelt v. Canada (Minister of Citizenship and Immigration), 2004 FC 1261 at para. 37.
[26] With all due respect, the respondent’s argument is based on a reasoning that is inherently flawed. As such, it must fail. The Board did find that the applicant’s prior persecution was credible. While the Board at no time makes reference to the medical reports confirming that the applicant’s injuries are consistent with his accounts of physical assault, an omission or oversight, which this Court finds regrettable, it at no time called into question the veracity of the applicant’s accounts or by extension, those of the medical reports.
[27] Also, the Board went on to indicate that the documentary evidence was such that the circumstances had changed in Buenos Aires to such an extent that after four and a half years of absence, the applicant had no longer a well-founded fear that he would be subject to abuse by the police should he return to live openly as a gay man in Buenos Aires. While the Board was correct in its decision to undertake an assessment of compelling reasons under subsection 108(4), it erred in its factual analysis of the applicant’s specific situation. Sexual assault and physical assault such as to which the applicant was subjected are not to be measured on a sliding scale of atrocity when the immutable factor giving rise to such victimization and human degradation, forms one of the very core characteristics enunciated and protected under Article 5 of the Declaration of Human Rights.
[28] I agree with counsel for the respondent that the test for compelling reasons is a difficult one to meet such that only a tiny minority of claimants cross this threshold. However, our paths diverge in that on the basis of the applicant’s specific circumstances, the Board erred in its application of this fact based test. Sexual assault is appalling and atrocious particularly in this instance where it is used as a tool by the police against the applicant’s sexual orientation. Similarly, physical assault and the form of prior persecution inflicted on the applicant were such that it was patently unreasonable for the Board to ask the applicant to return to not only his country, Argentina, but to his home city Buenos Aires, where the events took place.
[29]
Neither
party submitted a question of general importance for certification and none
arise.
JUDGMENT
THIS COURT ORDERS that:
- The application for judicial review is allowed;
- The matter is sent back for re-determination by a newly constituted panel;
- No question is certified.
« Michel Beaudry »
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3003-06
STYLE OF CAUSE: PABLO MAURO GORRIA and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 13, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: March 16, 2007
APPEARANCES:
Raoul Boulakia FOR APPLICANT
Kristina Dragaitis FOR RESPONDENT
SOLICITORS OF RECORD:
Raoul Boulakia FOR APPLICANT
Toronto, Ontario
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario