[2013] 1 F.C.R. D-5
Citizenship and Immigration
Status in Canada
Convention Refugees and Persons in Need of Protection
Judicial review of decision by Immigration and Refugee Board, Refugee Protection Division (Board), finding that applicant not Convention refugee or person in need of protection—Applicant, member of U.S. Army, seeking protection from peers, superiors in Army because of her sexual orientation—Alleging harassment, mental, physical abuse, threats during training, posting—Board rejecting applicant’s claims on grounds of credibility, existence of state protection—Rejecting reports on discrimination, deficiencies in U.S. military as evidence of factors pushing claimant to flee—Whether Board making unreasonable credibility findings; erring in failing to apply Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], international human rights instruments; disregarding important expert evidence—Discrepancies in applicant’s evidence sufficiently supporting conclusion of lack of credibility—Board not erring in declining to consider application of Charter to question of validity of U.S. military law under that country’s Constitution—Nor was Board required to analyse U.S. law in light of international instruments—Obliged to apply Immigration and Refugee Protection Act, S.C. 2001, c. 27 to facts of present case in manner consistent with Charter, international human rights instruments—Board within its discretion to reject some expert opinions or all of them—Board’s brief recapitulation of material, explanation for discarding it not invalidating its choice—Finally, evidence supporting Board’s conclusion that remedies available to applicant within U.S. military justice system—Reasonable for Board to conclude that presumption of state protection not rebutted in present case—Application dismissed.
Smith v. Canada (Citizenship and Immigration) (IMM-5699-10, 2012 FC 1283, Mosley J., judgment dated November 2, 2012, 26 pp.)