Gorbanescu v. Canada (Minister of Citizenship and Immigration), 2006 FC 667

Date: 20060531

Docket: IMM-5070-05

Citation: 2006 FC 667

Ottawa, Ontario, May 31, 2006

PRESENT:      The Honourable Mr. Justice Mosley

BETWEEN:

MARIUS MARCEL GORBANESCU

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]                Mr. Gorbanescu spent most of the eight months prior to his arrival in Canada working on a cruise ship out of French Polynesia. He arrived in Canada in October, 2004 and claimed to be a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 due to his sexual orientation as a gay man. The Refugee Protection Division of the Immigration and Refugee Board found him to be neither a Convention refugee nor a person in need of protection. He seeks judicial review on the grounds that the Board erred in its credibility findings and in holding that he failed to rebut the presumption of state protection.

[2]                The Board Member's reasons contain a palpable factual error in that he found that the applicant had resided in the United States from February 15, 2004 to October 20, 2004 whereas he had just passed through the U.S. briefly, initially in transit to the cruise ship job from his home in Romania and then, upon his return, enroute to Canada. This was thoroughly explained at the hearing, which took place on March 22, 2005, but the Member did not come to write his decision until July 20, 2005, whereupon he confused the facts. That is all too easy to do when there is a prolonged delay between hearing and decision, as the Court is well aware.

[3]                This error might not, in itself, have proven to be material, as the respondent submits, but for the nature of the applicant's claim and the weight which the Member gave to the perceived American sojourn. He found that the failure to make a claim in the U.S. might be explained by the applicant's fear of bias against gay claimants in that country but that his delay in coming to Canada during that period was inconsistent with a subjective fear of persecution.

[4]                There were other adverse credibility findings, but the applicant's desire to come to Canada was central to his claim. He testified that before he left Romania he had met a Canadian visitor and inquired about the treatment of gays and the process for claiming refugee status here. His objective in taking the cruise ship job was to reach this country.

[5]                While credibility determinations lie within Athe heartland of the discretion of triers of fact," they must be supported by the evidence. In this case, I am not satisfied that the patently unreasonable finding made with respect to delay did not taint the Member's determination of a general lack of credibility.

[6]                Although the Member rested the decision on his credibility determination, he did go on to observe that the objective evidence was not sufficient to conclude that there was a serious risk of persecution by reason of sexual orientation in Romania and that the applicant had failed to seek the protection of the state in his country.

[7]                The record in this case discloses somewhat conflicting evidence as to persecution and the availability of state protection for gays in Romania. It was open to the Member on that evidence to conclude, as he did, that the applicant would not be at risk and that the presumption of state protection remained applicable but his brief analysis of these questions refers back to his assessment of the applicant's credibility. I am not, therefore, prepared to find that the decision as a whole was reasonable and should be upheld.

[8]                No question of general importance was proposed and none will be certified.

JUDGMENT

IT IS ORDERED that the application is granted and the matter remitted to a differently constituted panel of the Refugee Protection Division, Immigration and Refugee Board, for redetermination. No question is certified.

"Richard G. Mosley"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-5070-05

STYLE OF CAUSE:                           MARIUS MARCEL GORBANESCU

                                                            and

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       May 16, 2006

REASONS FOR JUDGMENT:        MOSLEY J.

DATED:                                              May 31, 2006

APPEARANCES:

SOLICITORS OF RECORD: