Sukhram Ramkissoon

Alex (not his real name) fears returning to Barbados due to his sexual orientation. He alleges that he was publicly known to be gay due to a relationship with an ex-partner who protected him in Barbados from harassment but since passed away.

In 2019, he came to Canada to make a refugee claim but was found ineligible due to his prior criminal conviction in the United States. Canadian immigration law stipulates who is eligible to make a claim and those who are ineligible, are offered to apply for a Pre-Removal Risk Assessment (PRRA) by applying with a Senior Immigration Officer.

The officer accepted Alex’s sexual orientation claim but concluded, “While discrimination may exist in Barbados, it does not amount to persecution.” The officer also found that “there is little documentary evidence on file to demonstrate that the perception of the applicant’s sexual orientation in Barbados would pose a risk to his life, or of cruel and unusual punishment or treatment.” Alex’s PRRA application was refused in January 2023, and he immediately sought judicial review of his negative decision, in the Federal Court of Canada.

Alex submitted several documents as evidence including an article from Barbados Todaytitled “LGBT discrimination costly for Barbados,” and an article titled “‘I’m free’: How Canada’s Rainbow Railroad helped a Barbados couple fleeing persecution find peace” published by the CBC.

In brief, the two articles discussed the following:

• The Barbados Today article, dated May 18, 2022, primarily discusses a report that outlines that systemic discrimination against the LGBTQI+ community in the Caribbean has cost the region between USD $1.5-4.2 billion, which amounts to 2.1-5.7% of the Caribbean’s collective GDP per year
• The CBC article, dated June 17, 2020, recounts the story of a lesbian couple from Barbados who found safety in Canada with the help of Rainbow Railroad after facing harassment and persecution for their sexual orientation.

The officer stated in its decision, “I find that the aforementioned documentary evidence contains some bias and therefore assigned them little probative value.”

Alex submitted in his judicial review that, the officer erred in finding the news articles contained some bias, without any explanation. Alex argued that since the officer never mentioned these articles again, they were effectively excluded or ignored as evidence. The officer’s finding of bias, lacks transparency and justification and the learned judge agreed.

The judge stated that according to case law, “an allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. While in this case, the officer did not allege bias against a decision-maker, the officer’s allegation of bias challenges the integrity of two media outlets, one of which is this country’s public national news broadcaster. As such, the caution expressed in case law that such an allegation cannot be done lightly is apt.”

Similarly, the officer did not explain as to why the Barbados Today article, which reported on a study about the cost of systemic discrimination against the LGBTQI+ community in the Caribbean, contained bias. Was the officer concerned about the bias within the study itself or was the officer of the view that the newspaper article’s summary of the report was biased? Without any explanation, the court was left to speculate on the source of the officer’s concern and rejected all the Minister’s submissions.

Alex’s application for judicial review was allowed and the matter was referred for redetermination by a different decision‑maker.  Good luck Alex on your second chance!

SUKHRAM   RAMKISSOON is a member of CICC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.