Toronto, Ontario, February 16, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of a decision of the Refugee Protection Division ("RPD") dated December 17, 2004, wherein the Applicant's claim for refugee protection under s.96 and s.97 of the Immigration and Refugee Protection Act (the "IRPA") was rejected.
[2] The Applicant is a 41 year-old homosexual male citizen of Chile who claims a well-founded fear of persecution on account of his sexual orientation. The Applicant testified that in July 1999, while serving as a lieutenant in the Chilean army, he was discovered in a sexual act with a male partner. As a result, the Applicant was beaten by two colleagues, detained, and then forced to resign from the army. The Applicant testified that, after he resigned from the army, he started receiving threatening phone calls from one of the former colleagues who had previously assaulted him and that, in November and December of 1999, he was badly beaten again by the same two colleagues. The Applicant left Chile on March 1, 2000, arriving in Canada on March 7, 2000, and claimed refugee protection on April 25, 2002.
[3] In rendering its decision, while the RPD found the Applicant to be credible with respect to the persecution he suffered in the past, it found a lack of evidence that there is a reasonable chance that he will face persecution from his former army colleagues if he were to return to Chile.
[4] After making this critical finding, the RPD went on to find that, in any event, upon his return to Chile, if the Applicant's former colleagues were to attempt to harm him, he would receive state protection from the police. However, in the analysis of the availability of state protection, the RPD made important findings respecting the police in Chile: they abuse their authority; they have a homophobic attitude; and they show that attitude in unacceptable fashion to homosexuals with whom they are in contact (Decision, p.5). While the RPD's decision cites steps taken by the government of Chile to correct this police misconduct, no precise evidence is cited as to whether the steps taken have been successful.
[5] In his evidence before the RPD, the Applicant clearly stated that his claim is based on subjective and objective fear of the individual army colleagues (Tribunal Record, p. 213). However, in the present Application, Counsel for the Applicant argues that the Applicant's claim of prospective fear of persecution and risk placed before the RPD was not restricted to just the Applicant's army colleagues, but was with reference to the community at large, including the police. I agree with this argument.
[6] The "Submissions of Counsel" placed before the RPD includes the following statement:
To reiterate, the claimant has explained that he has a well-founded fear of persecution and would continue to face a catalogue of compelling and identifiable risks, ranging from homophobic cultural harassment, overt and covert discrimination, physical and emotional abuse through socio-economic victimization, should he be returned to Chile, his country of citizenship, as a consequence of:
1. his known and perceived socially -unacceptable sexual orientation (homosexual) and gay lifestyle;
2. his known transgression of cultural-social norms through his failure and inability to conform to the customary heterosexual lifestyle; and
3. his over-all, cultural and societal undesirability.
(Tribunal Record, p.55)
In addition, it is important to note that the Tribunal Record contains a wealth of evidence that the Applicant's fears with respect to misconduct towards him by the police are well founded. On the basis of this evidence, I find that the police in Chile constitute a potential agent of persecution under s.96 and risk under s.97 of the IRPA. While the RPD found that the police in Chilecan protect the Applicant from his army colleagues, there is no evidence that the police can protect the Applicant from itself. This issue was before the RPD for determination, and it was not determined.
[7] As a result, I find the RPD's decision was made in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision, and refer the matter back to a differently constituted panel for re-determination.
By agreement, I direct that the re-determination be conducted on the basis that the Applicant is homosexual.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-237-05
STYLE OF CAUSE: ADAN ESTEBAN ESPEJO GUIÑEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 15, 2006
APPEARANCES:
Rocco Galati FOR THE APPLICANT
Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Galati, Rodrigues, Azevedo & Associates
Toronto, Ontario FOR THE APPLICANT
John H Sims, Q.C
Deputy Attorney General of Canada FOR THE RESPONDENT