TB5-08323

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-08323 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 28, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pablo Andres Irribarra Valdes Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX), (the Appellant), who is a citizen of Barbados, is appealing the decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. The Appellant submits in her memorandum that she is relying on documentary evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), however, she has not submitted any. She is not requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. She is requesting that the RAD substitute a positive determination, or in the alternative, that the matter be remitted to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. BACKGROUND [3] The Appellant's claim is based on her sexual orientation, namely, lesbian. She realized that she preferred girls around the age of 13, and she alleges that she has faced mistreatment in Barbados due to this. The Appellant claimed refugee status at the airport on June 1, 2015. ROLE OF THE RAD [4] It is submitted by the Appellant that the appropriate standard of review to be applied in this appeal is the one set out in the Federal Court case of Huruglica.1 In fact, the RAD has taken guidance from the aforementioned case,2 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT * Did the RPD err in finding that the Appellant's fears were not well-founded? * Did the RPD err in finding that adequate state protection was available? [5] The RPD after listening to several hours of testimony was satisfied that the Appellant was credible and was, in fact, a lesbian, notwithstanding issues relating to previous visits to Canada to attend pride parades, her re-availments and failure to claim during those visits. It was after much questioning of both the Appellant and her partner in Canada that the RPD concluded that it was abundantly clear that the Appellant and her partner in Canada are in a same-sex relationship, given their consistent testimonies. ISSUES [6] After making the foregoing determination, the RPD identified the remaining issues as the well-foundedness of the Appellant's fears, cumulative discrimination and the adequacy of state protection. Well-founded fear [7] The RPD noted the incidents, which occurred in Barbados as described by the Appellant in her testimony, namely an incident in XXXX 2010 when she was asked in a restaurant if she would have takeout instead of eating in the restaurant; a month later in 2010 when a man asked her in public if she was a lesbian and then made a physical threat; an incident in 2011 when a man made advances towards her only to be told by another man that she was a lesbian; an incident in early 2013 when at the beach an attendant told her she had to use the men's washroom; an incident in XXXX 2014 when the Appellant was approached by a man asking why she was with another woman and when she refused to give her his number, he threw a drink on her. The RPD noted that the police laughed, given that they consider such an incident to be a minor assault; however they apologized but refused to pursue the matter. However, the RPD noted that this was not due to the Appellant's sexual orientation, just a reluctance to pursue the investigation of this magnitude, or lack thereof. The RPD further noted that this same perpetrator approached the Appellant and told her if she made another complaint, he would cut her throat, however, the Appellant did not report this to the police. [8] The RPD reviewed the evidence in the documentary package3 and noted that although the law criminalizes consensual same-sex activity between adults, the laws against homosexuality are not enforced. The RPD, at the same time, acknowledged that the government has declined to repeal these laws, citing a lack of public consensus. It is also noted that Barbados is a place where homophobia exists but that it is "not a hateful or extreme society and that LGBT people are not usually subject to physical violence". [9] The Appellant takes issue with the conclusion by the RPD that although the Appellant would face discrimination in Barbados due to being a lesbian, the harm feared did not constitute persecution. It is argued that "persecution" has not been defined by Canadian courts but has generally been defined, for example, as a serious interference with a basic human right4. Moreover, the Appellant submits that she does not have to demonstrate that the "serious interference with a basic human right" has happened to her personally when assessing whether her fears of persecution are objectively well-founded,5 i.e. the persecution is liable to be committed against a member of her group, essentially, a "similarly-situated person". The RAD rejects the foregoing argument and concurs with the RPD that the incidents described in the Appellant's testimony, while discriminatory are not tantamount to persecution. For example, while annoying, the RAD finds that throwing a drink on the Appellant in the RAD's opinion does not constitute a well-founded fear of persecution. Moreover, the RAD notes that by the Appellant's own acknowledgment, this incident was not due to her sexual orientation and could have occurred for any reason. The RAD has also considered the documentary evidence6 wherein it indicates that physical violence is not the norm in its society, even for acts against LGBT people. The audio recording reveals that the Appellant was asked to describe any similarly situated persons, however she was unable to provide any specific evidence in this regard. Cumulative discrimination [10] Moreover, it is argued that the RPD must assess the individual's acts of discrimination to determine if on a cumulative basis, they are tantamount to persecution.7 It is submitted that the RPD failed to provide reasons for rejecting the cumulative aspect of the discriminatory acts against the Appellant. It is further submitted by the Appellant when examining the NDP DOSS report8 that the laws do not protect against discrimination in a wide variety of spheres, like employment, housing, education and health care, and that violent incidents based on sexual orientation maybe underreported in Barbados due to social stigma and fear of retribution. The Appellant also cites the Board's documentation,9 in which LGBT life in Barbados is best described as subtle oppression. This report cites abandonment, unemployment and rejection, which then leads to homelessness, prostitution, drug use and depression. [11] As articulated by the RPD, after reviewing the audio recording of the proceedings, the RAD concurs that there was insufficient persuasive evidence to suggest that this Appellant had sustained any social stigma as described above. She was able to complete her education, she was gainfully employed, and able to move out of her mother's house, when she found the situation uncomfortable. The RAD finds that the Appellant's basic human rights and needs were not infringed upon based on the evidence adduced at the hearing. [12] Having said this, the RPD examined the NDP package containing a report by the legal advisor for marginalized groups for the group AIDS-Free World, who is noted to be the "leading and supporting" legal advisor who challenges the repeal of anti-sodomy and homophobic laws around the Caribbean.10 This report notes the draconian anti-gay laws, however also notes that very few savage homophobic attacks have occurred in Barbados. [13] The RPD further noted the annual regional trans show the "Queen of Queens" and the fact that the government has also provided a major LGBT group on the island, namely, United Gay and Lesbian Society of Barbados (UGALAB), with office space for its HIV outreach. In addition, the RPD noted that Barbadian politicians have made very supportive statements with regard to LGBT rights, although it is acknowledged that the prime minister and government in general have been unsupportive of legalizing same-sex marriage or repealing its dormant laws against same-sex intercourse. Nevertheless, another report indicates that "whether homosexual behaviour derived from nature or from nurture, it does not lie within our competence to sit in seats of judgment and to condemn those who pursue that practice."11 [14] The RPD also noted other articles submitted by the Appellant dealing with the positions taken by particularly intolerant members of society, etc. and other documents which detail the consequences of being found out as a homosexual within families. Other documents reiterate the existence of unenforced laws against same-sex intercourse, and argue that this fosters a climate of intolerance. The RAD finds that the foregoing unbiased documentary evidence leads the RAD to concur with the RPD's findings that even on a cumulative basis, the Appellant has not suffered harm, which would be tantamount to persecution. We conclude this based on the testimony of the Appellant, along with the foregoing documentary evidence. State Protection [15] The RPD noted that the NDP package12 addressed the subject of protection from the police and in particular the statement that law enforcement authorities will respond to serious cases of harassment, however, the RPD acknowledged that this same document notes a study wherein some of the gay men surveyed said that the police had not taken them seriously. [16] The Appellant argues that the test for state protection is clearly defined in Ward.13 (The Appellant argues that this state protection must function on an operational basis and therefore the RPD must look at whether adequate state protection is in fact available to the Appellant.14 It is further argued that the RPD must take into consideration all of the evidence before it. It is submitted that it is, therefore, an error for a decision-maker to focus on certain positive developments or successes in the country in question, while ignoring evidence demonstrating that homosexuals face persecution, and that adequate state protection is not available to them.15 Although the RPD indicated that it had considered all the evidence, the Appellant submits that there were a number of documents on the record which corroborate the Appellant's sworn testimony about the hostile environment faced by homosexuals in Barbados, and the lack of adequate state protection for victims of homophobic abuse. It is further argued that the UNHCR publication (RPD exhibit 5, Tab 7) indicates that members of the LGBTI community are entitled to live in society as the person who they are and need not hide that, and (as noted at paragraph 31), the fact that an applicant has been able to avoid persecution in the past by concealing their sexual orientation is not a valid reason for denying refugee status. This is particularly noteworthy the Appellant submits, given the illegality of homosexual behaviour in Barbados. It is submitted that notwithstanding the fact that the laws are rarely enforced, the very existence of this type of legislation can help justify and perpetuate an environment of widespread homophobia amounting to persecution. (RPD exhibit 5, Tab 8). This same article, it is submitted, refers in particular to lesbians and bisexual women (RPD exhibit 5, Tab 8, p. 29-39) and the fear of contamination that is involved as girls are warned to stay away from lesbians and homosexual activity in general. [17] Counsel for the Appellant also points to an Amnesty International report16 which indicates the refusal by the government in Barbados to change its legislation despite international pressure to do so. Similarly it is submitted by the Appellant that this same article refers to the lack of enforcement, nevertheless it provides the societal justification for the continuing homophobic abuse faced by homosexuals. Moreover, this report indicates that there may be biased policing, notwithstanding only a few official reports of arbitrary arrests. [18] The Appellant submits that the Board's own NDP package17 notes the reluctance of victims of homophobic abuse in Barbados to report the incidents, out of fear of recrimination and fear of identification within their small communities. [19] With respect to the Appellant's argument that individuals are hesitant to report incidents to the police, and in particular, the Appellant's argument that her name and address, possibly her place of work would be published, the RAD concurs with the RPD that in the absence of evidence to corroborate this, other than court cases, it is implausible that a simple report to the police would contain such information. [20] The RAD further finds that the Appellant went to the police on only one occasion, when a drink was thrown at her. However, after a review of the audio recording of the proceedings, the RAD finds that the Appellant chose not to report incidents which she considered to be more serious to the police. [21] The RAD has examined all the documentary evidence, both the Appellant's and the Board's NDP package, and after conducting an independent assessment of the entire record finds the following. The laws against same-sex intercourse are not enforced and they are not used to foster impunity or widespread violence as is the case in some other countries. Moreover, reports indicate that individuals can live openly as same sex partners.18 The RAD also finds that the documentary evidence indicates that violence is rare and the police generally deal with it adequately. [22] The RAD concurs with the RPD that the Appellant has not rebutted the presumption of state protection as her explanation for not seeking state protection in Barbados when confronted with a more serious incident, is not accepted as being credible, and is not supported by the country's documentary evidence. [23] After examining all of the documentary evidence, both the Appellant's and the Board's NDP package, and conducting an independent assessment of the entire record, the RAD concurs with the findings of the RPD that the Appellant's claim is not well-founded, the acts of discrimination, even cumulatively, are not tantamount to persecution, and the Appellant has not rebutted the presumption of state protection, in the particular circumstances of her claim. CONCLUSION [24] The RAD finds that counsel's submission that the RPD ignored evidence which was contrary to its findings, is without merit. The RAD finds that the RPD examined all the evidence and acknowledged articles or statements which were not favourable to its decision. [25] In light of the foregoing, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. The RAD concludes that Appellant's counsel's submissions are without merit with respect to both issues of state protection and the well-foundedness of the claim. [26] Accordingly, pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara October 28, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid. 3 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Barbados (23 December 2014), item 2.1 and item 6.1. 4 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282. 5 Vahe Salibian v. Minister of Employment and Immigration Canada (1990) 3 FC 250, 24 May 1990. 6 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 2.1 and item 6.1. 7 Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005, 2005 FC 840. 8 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 2.1. 9 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 6.5. 10 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 6.3. 11 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 6.5. 12 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 6.1. 13 Ward v. Canada (Attorney General), 1993 Can LII 105 (SCC), (1993) 2 S.C.R. 689. 14 Pinto, Ponce v. Canada (Citizenship and Immigration), 2012 FC 181 (CanLII). 15 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC), para. 18. 16 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 6.4. 17 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 6.1. 18 Exhibit RPD-1, RPD Record, NDP for Barbados (23 December 2014), item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08323