Cascante v. Canada (Citizenship and Immigration)

Cascante v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2008-02-07
Neutral citation
2008 FC 161
File numbers
IMM-820-06
Decision Content
Date: 20080207
Docket: IMM-820-06
Citation: 2008 FC 161
Toronto, Ontario, February 7, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ORLANDO QUIROS CASCANTE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns a young man from Costa Rica who claims protection on the basis of well-founded fear as a homosexual transvestite who is HIV/AIDS positive. The Applicant’s claim is that he is a member of a social group of persons experiencing all three attributes. It is obvious that a central feature of the Applicant’s claim is whether he can receive state protection in Costa Rica for persecution and risk with respect to each of these attributes and, indeed, for the three on an accumulated basis.
[2] The RPD found that the Applicant is who he claims to be, that is, a homosexual transvestite who is HIV/AIDS positive. In reaching a conclusion on state protection, the RPD chose to follow a Jurisprudential Guidelines precedent and doing so, without critical evaluation, found that the precedent applied to the Applicant’s claim. It is not disputed that, in fact, the precedent only speaks to treatment of homosexuals in Costa Rica and does not address state protection with respect to transvestites and persons who are HIV positive. As a result, I find that the RPD’s application of the precedent constitutes a reviewable error.
[3] In addition, on the state protection issue the RPD found that:
There are legislative, enforcement and correctional institutions and arms of the different levels of government to protect transvestites’ victims of corruption. It is well known that such victims are entitled to state protection in Costa Rica.
(Decision, p.8)
It is not disputed that the reference footnoted from making this statement has no such expression contained within it. Therefore, I find that the RPD’s statement, upon which it relied in rejecting the Applicant’s claim, is capricious.
[4] As a result, I find that the RPD’s decision is patently unreasonable.
ORDER
Accordingly, I set aside the RPD’s decision and refer the matter back for re-determination before a differently constituted panel.
“Douglas R. Campbell”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-820-06
STYLE OF CAUSE: ORLANDO QUIROS CASCANTE v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 6, 2008
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: FEBRUARY 7, 2008
APPEARANCES:
JOHN NORQUAY FOR THE APPLICANT
MARTINA KARVELLAS FOR THE RESPONDENT
SOLICITORS OF RECORD:
VANDER VENNEN LEHRER
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT