Muckette v. Canada (Citizenship and Immigration)

Muckette v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2008-12-17
Neutral citation
2008 FC 1388
File numbers
IMM-2360-08
Decision Content
Date: 20081217
Docket: IMM-2360-08
Citation: 2008 FC 1388
Ottawa, Ontario, December 17, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALEX HANIEL MUCKETTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] The Applicant is a citizen of Saint Vincent and the Grenadines (St. Vincent) whose refugee claim was based upon the persecution he experienced as a gay man in his home country. The Refugee Protection Division (RPD) rejected his claim. This is the judicial review of that RPD decision.
II. BACKGROUND
[2] The Applicant’s evidence detailed a long history of stigma and actions against him because of his sexual orientation. These incidents, commencing when he was approximately 13, included being ejected from his mother’s house, being slapped or beaten by several family members, routinely being called names, and being threatened with death. These incidents culminated in being stoned by a group of men from whom he ran.
[3] His testimony that homosexuals are routinely harassed and discriminated against in St. Vincent is supported by documentary evidence.
[4] In 2004, at the age of 22, the Applicant began working on a cruise ship, and returned to St. Vincent from time to time.
[5] St. Vincent has on its “books” laws making homosexual acts illegal. It is accepted that the law is not enforced.
[6] The RPD accepted the Applicant’s evidence, but found that the various incidents were discriminatory and not individually or cumulatively persecutory. The RPD dismissed the importance of the death threats on the grounds that the threats were not acted upon.
III. ANALYSIS
[7] The central issue in this case is whether the RPD erred in treating the incidents experienced by the Applicant as mere discrimination.
[8] I concur with the Applicant’s submission that the cumulative effect of the incidents tipped into the area of persecution when death threats, which had some degree of reality to them, were made.
[9] The RPD’s error in this case was to adopt a dismissive attitude towards complaints which were found to be credible. The RPD failed to address whether the death threats had a degree of reality to them and in effect dismissed them because no one had attempted to kill the Applicant.
[10] There are a number of issues which the RPD did not address, such as failure to seek state protection, reavailment, and lengthy delay in departing St. Vincent. These issues may be considered as part of the redetermination.
[11] This judicial review will be granted, the RPD’s decision quashed, and the Applicant’s claim remitted to a different panel for a fresh determination. There is no question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is granted, the RPD’s decision is quashed, and the Applicant’s claim is to be remitted to a different panel for a fresh determination.
“Michael L. Phelan”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2360-08
STYLE OF CAUSE: ALEX HANIEL MUCKETTE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 25, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: Phelan J.
DATED: December 17, 2008
APPEARANCES:
Mr. Kirk J. Cooper
(Agent for Rodney L.H. Woolf)
FOR THE APPLICANT
Ms. Judy Michaely
FOR THE RESPONDENT
SOLICITORS OF RECORD:
RODNEY L.H. WOOLF
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT