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Wednesday, 6 July 2011

In Canada, Jamaican bisexual asylum case given second chance

Image source Wikipedia
Source: The Caribbean Camera

By Sukhram Ramkissoon

According to a recent Federal Court decision published in its website a 30 year old Jamaican had a negative decision with respect to his claim for refugee protection set aside and it is to be heard by another Refugee Board member.

According to the facts presented to the Federal Court, the client who I will refer to as Paul is bisexual man who lived a predominately straight life in Jamaica, hiding his sexual relationships with men.

In February 2005, he was photographed having sex with his male partner. Rumors about the incident spread in his community. Around August 2005, a man arrived at his door with a copy of the photograph. The man requested one million Jamaican dollars or he would reveal the picture to the police and public. The applicant paid J$50,000 and agreed to pay the remainder two weeks later.

He fled to Canada later in August 2005 following this incident Upon realizing that Paul had left Jamaica, the man showed the photograph to the police and public. The applicant’s girlfriend in Jamaica was visited by the police on several occasions and her home was vandalized. She closed the business that she shared with Paul and moved to live with her parents in another town.

Paul married a Canadian citizen in May 2006 and his wife submitted a spousal sponsorship application. The marriage broke down because, he states, he wanted to be honest about his sexual orientation as a bisexual.

After he was arrested in November 2008 and detained for a criminal offence, he said that he learned about the Canadian refugee process from other inmates. He made a claim for refugee protection in July 2009.

The Refugee Board in rejecting the claim found that the delay in claiming refugee status was inconsistent with a person living in fear of persecution. The Board drew an adverse inference from the delay and found that it affected the credibility of the applicant’s claim.

The Board also found that the claimant did not rebut the presumption of state protection.   Jamaica is a democratic state which is attempting to combat police corruption and gang violence. The Board acknowledged that gays and lesbians face violence and discrimination in Jamaica, but found that the Prime Minister, although not willing to make homosexuality legal, has stated that Jamaica does not condone acts of violence or threats against person due to their sexual orientation. The Board also found that Paul did not approach the police at any time and had failed to provide clear and convincing evidence of Jamaica’s inability to protect him.

Counsel for Paul submitted to the Court that the Board erred in several instances.
(a )    that it violated the principles of natural justice by stating that the applicant did not have to make submissions about state protection and then making findings on state protection in its decision.

(b)    that it erred in its state protection analysis. The Board accepted that the claimant was bisexual. The documentary evidence demonstrated that homosexuality is illegal in Jamaica and that the police persecute homosexuals. Yet, the Board found that the applicant had not rebutted the presumption of state protection as he had not approached the police for protection.

(c)    Finally, counsel submitted that the Board erred in the finding that the delay in claiming refugee status showed a lack of subjective fear. The claimant presented reasonable explanations for the delay, including lack of knowledge about the refugee process and at no time did the Board state that it did not believe these explanations.
Counsel for the Minister argued that there was no breach of natural justice as state protection was clearly an issue in the claim and even if the Board did not make a finding on state protection, the findings on delay are sufficient to dismiss the judicial review. The claimant’s delay of four years in claiming refugee protection belied his credibility. The Board weighed his explanations for delay but reasonably found that his conduct was inconsistent with a person fearing persecution in their country.

The judge, in finding for judicial review of the matter, in his reasons stated that “the Board made clear that it did not find state protection to be a central issue in the hearing and because of this, the applicant did not make full submissions regarding state protection. This was an error. The Board also erred in its analysis of state protection”.
“The Board itself noted that while there was a lengthy delay in the applicant claiming refugee protection, it is ‘insufficient to cause his claim to fail.’ I, too, believe that the Board’s rejection of the refugee claim cannot rest alone on the applicant’s delay in seeking refugee protection.”
The application for judicial review was allowed, and the decision of the Board was set aside and the matter was referred to a different panel of the Board for predetermination.

Sukhram Ramkissoon is a member of CSIC and specializes in immigration matters.
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