Francis v. Canada (Minister of Citizenship and Immigration), (2012) 419 F.T.R. 42 (FC)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: September 27, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 419 F.T.R. 42 (FC);2012 FC 1141

Francis v. Can. (M.C.I.) (2012), 419 F.T.R. 42 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. NO.016

Carleen Christi Francis (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2958-12; 2012 FC 1141; 2012 CF 1141)

Indexed As: Francis v. Canada (Minister of Citizenship and Immigration)

Federal Court

Noël, J.

October 24, 2012.

Summary:

Francis, a citizen of Saint Vincent and the Grenadines, applied for refugee status. She claimed that she suffered from discrimination in Saint Vincent because she was a homosexual. The Refugee Protection Division (RPD) determined that Francis was neither a "refugee" within the meaning of s. 96 of the Immigration and Refugee Protection Act nor a "person in need of protection" under s. 97. Francis applied for judicial review.

The Federal Court allowed the application. The RPD's decision was "found not to be reasonable for not having dealt with some of the issues such as suppressing one's own sexual orientation, which may amount to persecution or affirming that Saint Vincent's government is not 'policing' the law against homosexuality without having the proper documentary evidence to support such a statement."

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Aliens - Topic 1322 ].

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Prejudgment of matter - [See Aliens - Topic 1329.3 ].

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The applicant, a citizen of Saint Vincent and the Grenadines, applied for refugee status - The applicant specifically expressed that one of the triggering events that caused her to leave Saint Vincent was the fact that she had to live a closeted life as a homosexual - The Refugee Protection Division (RPD) refused the refugee claim - The Federal Court concluded that the RPD came to an unreasonable conclusion that the discrimination faced by the applicant did not amount to persecution - The RPD had an obligation to specifically discuss why the applicant, as a homosexual living in a place where it had been demonstrated that homosexuals were harassed, would not be subjected to persecution as she could not live her sexual orientation openly - The RPD also failed to analyze why the applicant, as a homosexual woman in Saint Vincent, would not have to abandon her expressed desire of adopting a child with her partner - The reasons provided by the RPD were insufficient and it was not the court's role to supplement them - Moreover, the RPD's failure to deal with important evidence related to the applicant's alleged subjective fear made its decision insufficient - See paragraphs 47 to 59.

Aliens - Topic 1323.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Persecution - Protection of country of nationality or citizenship (internal flight alternative) - [See Aliens - Topic 1322 ].

Aliens - Topic 1326.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Reasons - [See Aliens - Topic 1322 ].

Aliens - Topic 1326.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Duties of - The applicant applied for refugee status - Five days after the hearing, the applicant's counsel filed a motion for recusal of the decision-maker based on comments he made at the hearing and on his previous publications on Canadian immigration policy - The decision-maker dismissed the motion in a written decision, of which no notice was forwarded to the applicant - The Refugee Protection Division (RPD) dismissed the refugee claim - On judicial review, the applicant argued that the RPD had a duty under procedural fairness to inform her of the written decision on the motion for recusal - The Federal Court rejected the argument - Since the decision on the recusal motion was an interlocutory decision, rule 61(1) of the Refugee Protection Division Rules did not impose an obligation upon the RPD to inform the applicant of the decision - "When a statute stipulates explicitly what the obligations of the tribunal are in such cases, it is not for the Court to interpret such obligations as being in contradiction with the wording of the statute" - Also, the applicant had suffered no prejudice - See paragraphs 22 to 26.

Aliens - Topic 1326.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Duties of - The applicant, a citizen of Saint Vincent and the Grenadines, applied for refugee status - She claimed that she suffered from discrimination in Saint Vincent because she was a homosexual - The Refugee Protection Division (RPD) refused her refugee claim, finding that the state was equipped to offer adequate protection - The Federal Court allowed the judicial review application - The RPD failed to address the important documentary evidence that stated that as of 2009, there were reported cases of men apprehended by the police for committing homosexual acts - "Such evidence is important as it may explain the Applicant's objective fear of returning to Saint Vincent. The RPD's finding 'that there is no indication that the Saint Vincent government is 'policing the law against homosexuality' is therefore erroneous. The RPD was under a duty to comment on the relevant documentary evidence and explain why in the specific case such risk does not exist" - The RPD's conclusion that the applicant did not face an objective risk of persecution was therefore unreasonable - See paragraphs 41 to 46.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The applicant, a citizen of Saint Vincent and the Grenadines, applied for refugee status - As to the reasons why she did not make a refugee claim earlier, the decision-maker (Gallagher) commented that a number of Saint Vincent citizens were now established in Canada "because of the refugee system" - The refugee claim was refused - On judicial review, the applicant submitted that there was a reasonable apprehension of bias of the decision-maker because of his comments at the hearing and because of his past publications pertaining to immigration matters - The Federal Court "contextualized" the comments, and concluded that Gallagher did not make any declaration at the hearing which could be deemed as constituting ground for reasonable apprehension of bias - As to whether his past writings could constitute a valid ground for reasonable apprehension of bias, "[i]t is not because a person has expressed prior views through academic work on a subject matter that such a person should be disqualified as a decision-maker. To the contrary, having had such experience may be a valuable asset and may help in making such persons better decision-makers" - As for the reasons given by Gallagher in his decision not to recuse himself, they were sufficient as he correctly applied the test for bias - See paragraphs 27 to 38.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See second Aliens - Topic 1326.6 ].

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - [See Aliens - Topic 1329.3 ].

Cases Noticed:

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 16].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 18].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. (2010), 400 N.R. 367; 2010 FCA 61, refd to. [para. 21].

Alhajyousef v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 534; 2004 FC 924, refd to. [para. 23].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 30].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 151 D.L.R.(4th) 193, refd to. [para. 33].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 39].

Antrobus v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 2; 2012 FC 3, refd to. [para. 41].

Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.), refd to. [para. 43].

Castillo et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 17; 2004 FC 56, refd to. [para. 44].

Chan v. Minister of Employment and Immigration, [1995] 3 S.C.R. 593; 187 N.R. 321; 128 D.L.R.(4th) 213, refd to. [para. 47].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321; 20 Imm. L.R.(2d) 85, refd to. [para. 52].

Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 131; 2004 FC 282, refd to. [para. 53].

Turner v. Canada (Attorney General) (2012), 431 N.R. 327; 2012 FCA 159, refd to. [para. 58].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 169(b) [para. 22].

Immigration Protection Division Rules, rule 61(1) [para. 22].

Counsel:

Peter Shams, for the applicant;

Normand Lemyre, for the respondent.

Solicitors of Record:

Peter Shams, Montreal, Quebec, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application for judicial review was heard at Montreal, Quebec, on September 27, 2012, before Noël, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated October 24, 2012.