Date: 20071211
Docket: IMM-6192-06
Citation: 2007 FC 1297
Ottawa, Ontario, December
11, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CONTRERAS HERNANDEZ,
JOSE ARTURO
Applicant
And
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated November 1, 2006, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant is requesting that the decision be set aside and the matter referred
back to a newly constituted panel of the Board for redetermination.
Background
[3]
Jose
Arturo Contreras Hernandez (the applicant) is a citizen of Mexico. The applicant sought
refugee status on the basis of his membership in a particular social group,
namely, homosexual men living in Mexico. The circumstances
which led to his claim for refugee status were set out in the narrative portion
of his Personal Information Form (PIF).
[4]
The
applicant was born in Victoria City. At the age
of fourteen, he was thrown out of his home by his family upon discovering his
sexual orientation. The applicant went to live with his godmother for seven to
eight months. One day, he saw his father on the street. His father grabbed him
by the neck and assaulted him; the applicant was left with a black eye and a
bleeding mouth. The applicant then decided to leave Victoria City and moved to
Monterrey where he
worked as a farmer for several years.
[5]
In
May 2001, the applicant was attacked in a workplace washroom by three men
working on the same floor as him in the Department of Agriculture in Mexico City. The three
men made comments about how gay people smelled bad. The applicant reacted and
one of the three men kicked the applicant. The applicant tried to stop the man,
but another man grabbed his neck. The initial aggressor then put his face close
to the applicant’s and told him that they did not like him at all and that they
were watching him. The applicant did not complain to his boss, or report the
incident
[6]
In
December 2001 while leaving the El Taller nightclub in downtown Mexico City, the
applicant was assaulted by four men. The men kidnapped the applicant in their
car, put a gun in his mouth and forced him to beg for his life. The men
eventually left the applicant alone on a highway where he hailed a taxi. The
applicant did not report the incident.
[7]
At
this point, the applicant decided to leave Mexico to learn English for a year
in Canada. The
applicant arrived in Canada in April 2003 and filed a claim for
refugee status in April 2005. In 2005 while in Canada, the
applicant was diagnosed HIV-positive. An immigration hearing took place on June
26, 2006 and a negative decision was rendered on November 1, 2006. This is the
judicial review of the Board’s decision.
Reasons for
Decision
[8]
The
Board stated that the determinative issue in this particular claim was whether
state protection was available to the applicant in Mexico. The Board
was persuaded by the documentary evidence on Mexico that the
applicant’s fear was not objectively well-founded. The Board noted that local
failures to provide effective policing do not amount to a lack of state
protection. The Board found that the documentary evidence was more credible and
trustworthy, and therefore gave it more weight than the applicant’s opinion. The
Board noted that the documentary evidence indicated that there continues to be
strong homophobic attitudes among the general public in Mexico, and that
gays and lesbians face discrimination. However, the Board stated that the
applicant has an obligation to first seek protection in his country of origin,
and that he had not done so. The Board found that there was no objective basis
for the applicant’s fear.
[9]
The
Board also stated that the documentary evidence indicated that the government
adequately addresses the issue of sexual orientation and health care. The Board
stated that the documents indicated that in recent years, there had been
substantial political and legal gains for sexual minorities, particularly at
the federal level. The Board noted that following the lead of Mexico City, the states
of Aguascalientes and Chiapas adopted
antidiscrimination laws that explicitly refer to sexual orientation, and
penalties for “crimes against personal dignity”. Given the documentary
evidence, the Board found that the onus of approaching the state for protection
was not unreasonable in these circumstances.
[10] The Board found
that it was unreasonable for the applicant not to have made efforts to seek
police protection or protection of other state authorities. The Board also
found it further unreasonable for the applicant not to have taken any steps or
measures to access the protection of the state of Mexico.
[11]
With
regards to the applicant’s claim of protection on the basis of his HIV-positive
condition, the Board perused the documentary evidence and noted that the
HIV/AIDS program in the City of Mexico provides full antiviral cocktail therapy
for all persons afflicted with HIV/AIDS who could not otherwise afford
treatment. The Board further noted that according to the program director, any
resident of the Federal District who can provide a voter registration card
plus proof of current residency is eligible for assistance.
[12]
In
conclusion, the Board found that having considered all of the evidence, the
applicant was not a Convention refugee, nor was he a person in need of
protection.
Issues
[13]
The
applicant submitted the following issue for consideration:
1. Did
the Board make a capricious or perverse credibility finding, without due regard
to the evidence properly before it?
[14]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the Board err in its finding that the applicant had not rebutted the
presumption of state protection?
3. Did
the Board err in finding that there was adequate state protection for the
applicant as an individual with HIV?
4. Did
the Board err in failing to address the applicant’s risk of persecution as a
cross dresser/transgender individual?
5. Did
the Board err in finding that the applicant’s testimony was implausible?
Applicant’s
Submissions
[15]
Firstly,
the applicant submitted that the Board’s analysis reflects a highly selective
use of the documentary evidence with regards to state protection. The applicant
submitted that while the Board is not required to refer in its decisions to all
of the documentary evidence, it may not base its findings on a highly selective
use of the evidence, ignoring significant evidence contrary to its findings (Hassanzadeh-Oskoi
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 644). The applicant noted that in its decision, the Board stated at
page 3 that “the documentary evidence indicates that the government adequately
address[ed] the issue of sexual orientation and health care.” The applicant
submitted that this finding was in contradiction to evidence before the Board
including the Amnesty International Report on Mexico released 2005 (page
1), and the World Policy Reports entitled “Sex Orientation and
Human Rights in the Americas” (pages 3, 55, 59, 60 to 61). Essentially,
these documents support the conclusion that homosexuals in Mexico are often
targets of various forms of abuse and discrimination and that while the law may
indicate otherwise, police officers and members of the judiciary have used their
positions in society to further victimize homosexuals in Mexico. Moreover,
the applicant submitted that the Board failed to consider a letter dated June
1, 2006 from Grupa Hola (a Toronto based Latin American
gay and lesbian organization) wherein the organization provided evidence of the
continual victimization of all homosexuals in Mexico and of the
reluctance of victims to seek state protection. The applicant submitted that
while the Board is not obliged to address all the evidence relied on by
counsel, it does not dispose of its duty by merely discounting evidence
contrary to its decision without explaining its reasons for doing so.
[16]
The
applicant’s second argument was to the effect that the Board failed to assess
the applicant’s risk of persecution as a cross dresser/transgender individual
who is a more visible target to homophobic persons. The applicant submitted
that according to page 61 of the World Policy Reports, which was before
the tribunal at the time of the decision, transvestites in Tijuana were being
abused and extorted by municipal police officers who targeted them because they
knew where they lived and waited for them to leave their homes.
[17]
The
applicant’s third argument was that the Board erred in its determination that
state protection exists for persons who suffer from HIV/AIDS in Mexico. The
applicant submitted that the Board relied on government documents as to the
funding programs available, but did not assess the actual evidence as to
whether the medication is readily available to the applicant. The applicant
also submitted that the Board ignored the information at page 61 of the World
Policy Reports which stated that the President of the Human Rights
Commission of the state of Yucatan had advocated that
“AIDS patients should be quarantined, and if an infected person crosses an
established security line, he should be shot dead…. It’s better if they die.
They should be on an island where they can’t infect others.” The applicant
submitted that the Board’s failure to consider this evidence is a reviewable
error (Owusu-Ansah v. Canada (1989), 8
Imm. L.R. (2d) 106 (F.C.A.)).
[18]
And
finally, the applicant alleged that the Board erred in concluding that the
applicant’s testimony was implausible. The applicant submitted that the
standard of review for implausibility findings is reasonableness: are the
inferences drawn by the Board so unreasonable as to warrant the intervention of
the Court? (Aguebor v. Canada (Minister of Employment and
Immigration) (1993), 160 N.R. 315)
Respondent’s
Submissions
[19]
The
respondent submitted that it is trite law that the Board is presumed to have
taken all of the evidence into consideration whether or not it indicates having
done so in its reasons, unless the contrary is shown. The respondent submitted
a review of the reasons suggests that the Board did indeed consider the
totality of the evidence before it (Hassan v. Canada (Minister of Employment
and Immigration) (1992), 147 N.R. 317 (F.C.A.)). The respondent submitted
that this is especially true given page 3 of the Board’s reasons wherein the
Board recognizes that the documentary evidence shows that there continues to be
“strong homophobic attitudes among the general public in Mexico, and that gays
and lesbians face discrimination and that despite legislation, some police
officers engage in arbitrary harassment and even arrest, particularly of
vulnerable groups such as homosexuals and lesbians.” The respondent submitted
that the adequacy of state protection is reviewable on a standard of patent
unreasonableness (Malik v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 1453).
[20]
With
regards to the applicant’s argument that the Board failed to consider the
applicant’s risk of persecution as a transvestite, the respondent submitted
that the applicant has not pointed to any evidence to show how he is more at
risk in Mexico than a
non-transvestite homosexual. The respondent also noted the inconsistencies in
the applicant’s submissions on his identity. Specifically, at paragraph 13 of
the applicant’s memorandum, he claims to be transgender, and then he submitted
he is a cross-dresser, yet at paragraph 14, he states that he is a
transvestite. Moreover, the respondent noted that none of these allegations
appears in the applicant’s PIF and in his affidavit he states that he is a
cross-dresser, but does not state he is transgender.
[21]
With
regards to the presumption of state protection, the respondent submitted that
the applicant submitted that the burden of proof rests on the applicant. The
respondent submitted that the more democratic the state’s institutions, the
more the applicant must have done to test the state’s ability to protect (Kadenko
v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.)).
In the case at bar, the applicant made no effort at all to seek protection.
[22]
The
respondent submitted that the applicant’s claim that he would be persecuted
because of his HIV-positive status must fail. The respondent submitted that the
inability of a country to provide medical care is not a valid basis for a
refugee claim. In any event, the Board considered this argument and came to the
conclusion that HIV drugs were widely available in Mexico.
Furthermore, the respondent submitted that the applicant’s claim that he would
be subject to persecution by others must fail. The respondent submitted that as
proof of this fact the applicant has provided one quotation from a government
official who spoke of quarantining those infected with HIV. The respondent
submitted that a statement from one official, over five years ago, from a state
in which the applicant has never lived, far from supports any argument that all
persons with HIV/AIDS in Mexico are at greater risk of persecution. The
Board considered this argument and came to a reasonable conclusion in relying on
the objective evidence before it that Mexico has in place sweeping
antidiscrimination laws.
[23]
And
finally, the respondent submitted that the applicant’s submission that the
Board made an implausibility finding is simply not true. At no time did the
Board conclude that any aspect of the applicant’s story was implausible.
Analysis and
Decision
[24]
Issue
1
What is
the appropriate standard of review?
With regards
to the issue of adequacy of state protection, the respondent submitted that the
appropriate standard of review is patently unreasonableness (Malik above).
In M.P.C.R. v. Canada (Minister of
Citizenship and Immigration), 2005 FC 772, this Court articulated the
following at paragraph 42:
The
prevailing view is that while the underlying factual findings are subject to
the standard of patent unreasonableness, the Board's findings on the adequacy
of state protection is a question of mixed fact and law that is reviewed on a
standard of reasonableness simpliciter (see Machedon v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1331 and Chaves
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No.
232).]
[25]
In
my opinion, the applicant takes issue with the Board’s overall finding on the
adequacy of state protection and as such, the appropriate standard of review is
reasonableness.
[26]
I
wish to now deal with Issue 4.
[27]
Issue
4
Did the Board err in failing
to address the applicant’s risk of persecution as a cross dresser/transgender
individual?
The applicant submitted that
the Board did not consider in its decision the ability of the state to protect
individuals such as the applicant who is a cross dresser and transgender. From
a review of the decision, there is no consideration of the applicant’s identity
as a cross dresser and transgender individual. The decision does not contain an
assessment of Mexico’s ability to
adequately protect such individuals.
[28]
I
have reviewed the Certified Tribunal Record (CTR) and while the applicant’s PIF
and Port of Entry examination are silent on this, there is a letter dated June
20, 2006 from applicant’s counsel at page 120 of the CTR wherein the applicant
amends his PIF to include the fact that during the night club incident, he “was
dressed as a woman”. Moreover, at page 133 of the hearing transcript, the
applicant discloses that he fears danger to return to Mexico because he
is a homosexual and likes to dress as a woman. When asked by the presiding
member at the hearing why the applicant left the fact that he was a
cross-dresser and transgender individual out of his PIF, the applicant said at
page 136 of the transcript that he was ashamed to tell his lawyer even once in Canada. At pages
137 to 138, the presiding member once again questioned the applicant on his
identity as a cross-dresser and transgender individual and in response the
applicant explains his fear of reporting the incident to the police.
[29]
In
my opinion, there was ample evidence before the Board to alert them to the fact
that the applicant’s identity was not only a homosexual man, but also a
cross-dresser and transgender individual. In failing to assess the state’s
ability to adequately protect homosexual individuals that are cross-dressers
and transgendered, the Board erred.
[30]
Because
of my finding on Issue 4, I need not deal with the other issues.
[31]
The
application for judicial review is therefore allowed, the decision of the Board
is set aside and the matter is referred to a different panel of the Board for
redetermination.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the Board is set aside and the matter is referred to a different panel of
the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées
au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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