Date: 20100615
Docket: IMM-4619-09
Citation: 2010 FC 650
Ottawa, Ontario, June 15, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
HOUSHAN
HOUSHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated August 18, 2009, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act. This conclusion was based on the Board’s finding that the
applicant lacked a well founded fear of persecution.
[2]
The
applicant requests that the decision of the Board be quashed and the claim
remitted for reconsideration by a differently constituted panel of the Board.
Background
[3]
The
applicant is a citizen of Syria and claims a fear of persecution there as
a member of a particular social group because of his sexual orientation as a
homosexual male.
[4]
The
applicant claims to have become aware of his sexuality when he was 14 years
old. He alleges that in Syria, there is no acceptance or tolerance for
homosexuals among the community, including police officers, and that
homosexuals are routinely beaten and killed. He claims that he met a man in
2003 and began a brief romantic relationship with him in 2005. On September 30,
2006, he and his partner were discovered by an individual who told people in
his community. The next day, several men showed up at his house to attack him.
He was able to escape and with the help of his family, left for Damascus. He remained
in Damascus until he
left for Canada on December
22, 2006.
The Board’s Decision
[5]
The
Board rejected the applicant’s claims on the basis that he did not have a
well-founded fear of persecution in Syria. The main issue of
concern was the identity of the applicant as a homosexual man and the
credibility of his story.
[6]
In
testimony, the applicant stated that he could not go to the police in Syria after the
attack because they would have exploited and blackmailed him. The Board found
this explanation insufficient because there was a lack of detail as to how the
police would do this. Accordingly, the Board concluded that there was
insufficient credible evidence of the persecution that would befall him in Syria. Having said
this, the Board cited documentary evidence which revealed that homosexuality is
a criminal offence in Syria and that individuals wishing to practice
homosexuality must do so in secret, though rarely are charges laid.
[7]
Primarily,
the Board was concerned with the answers the applicant gave when questioned
about his activities in Canada. He claimed he had come to Canada in order to
live an openly gay life. However, the applicant testified that he had not had
any homosexual relationships, casual or otherwise since his arrival and that he
had not frequented gay establishments because he wanted to work and learn
English. The Board found this extremely inconsistent with his stated desires
for coming to Canada, given that the applicant had been in Canada for several
years. The Board did not believe that he was gay. The Board also found that the
fact that he had had no contact with his former partner and the lack of any
supporting documentation to support his claims, further weakened the
credibility of his story.
Issues
[8]
The
issues are as follows:
1. What is the standard
of review?
2. Did the Board err in
its assessment of state protection?
3. Did the Board err in
determining that the applicant was not gay?
Preliminary Matter
[9]
At
the commencement of the hearing, counsel for the respondent conceded on the
issue of state protection based on the facts of this case. As a result, I will
not be dealing with this issue.
Applicant’s Written Submissions
[10]
The
applicant submits that the Board made significant errors in the analysis of the
applicant’s credibility and that its conclusion was unreasonable. For example,
the Board did not give any justification for doubting that the applicant would
have lost contact with his former partner. He testified that he fled to Damascus and that he believed
that his partner might have escaped too but did not know. Secondly, the Board
did not say what supporting documentation the applicant could have obtained to
support his story. While it is true that some gay organizations may provide
letters for their members, the applicant explained that he was not a member of
any such organization because he lacked the English ability; an entirely
reasonable explanation. This was also why the applicant had not been in any
relationships since arriving in Canada.
Respondent’s Written Submissions
[11]
The
respondent submits that the Board’s credibility finding was reasonable in light
of the evidence as a whole. The Board cited many reasons to support its
ultimate conclusion that the applicant lacked credibility.
Analysis and Decision
[12]
Issue
1
What is the standard of
review?
The Board is
in a much better position than a reviewing court to gage the credibility and
plausibility of a refugee claimant’s story. A credibility finding is not a
finding of mixed fact and law. It is a finding of fact, pure and simple.
Findings of fact made by the Board may only be interfered with by a reviewing
court if the finding was made in a perverse or capricious manner or without
regard for the material before it (see the Federal Courts Act, R.S.C.
1985, c. F-7, paragraph 18.1(4)(d)). Indeed, it was Parliament’s express
intention that administrative fact finding would command this high degree of
deference (see Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] S.C.J. No. 12 (QL) at paragraph 46).
[13]
Thus,
credibility findings of the Board are to be reviewed against the statutory
standard of review provided for in paragraph 18.1(4)(d) of the Federal
Courts Act (see Diabo v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1772, [2004] F.C.J. No. 2168 (QL) at paragraph 3).
[14]
Ultimate
refugee determinations of the Board are reviewable against the standard of
reasonableness (see Kaleja v. Canada (Minister of
Citizenship and Immigration), 2010 FC 252, [2010] F.C.J. No. 291 at
paragraph 19, Sagharichi v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 796 at paragraph 3, 182 N.R. 398 (C.A.)).
[15]
Because
the Board’s decision was based and can stand independently on both the
credibility finding and the state protection finding, the applicant must defeat
both findings separately before the decision can be quashed (see Carillo v.
Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4
F.C.R. 636 at paragraph 14).
[16]
Issue
2
Did the Board
err in its assessment of state protection?
As stated at
paragraph 9, this issue was conceded.
[17]
Issue
3
Did the Board
err in determining that the applicant was not gay?
The Board articulated one
primary reason for its finding that the applicant was not gay as he had
claimed. The applicant testified and explained in his Personal Information Form
(PIF) that he came to Canada in order to live an openly gay life. His
PIF also explained that after learning how happy being with another man made
him, he knew that he could not live a life of secrecy in Syria and would
eventually be discovered and persecuted. Yet when questioned, it was revealed
that the applicant had not had any homosexual relationships since arriving in Canada. Nor had he
joined any homosexual organizations or attended gay establishments. In short,
there was no evidence that he was living in an openly gay lifestyle as he had
claimed he wanted to do in his PIF, despite having been in Canada for several
years. This was a serious contradiction and given the deference owed to the
Board on findings of fact, this was sufficient to justify the Board’s negative
credibility finding. Given the applicant’s statements, I do not find that the
Board imposed any stereotypical views of gay lifestyle on the applicant.
[18]
This
finding was also supported by the Board’s finding that it was implausible that
he would have had no contact with his former partner or any supporting evidence
of his troubles in Syria.
[19]
The
burden before the applicant is to establish that the negative credibility finding
was perverse, capricious or made without regard for the evidence. The applicant
has failed to establish so. The applicant says his failure to live an openly
gay lifestyle in Canada is due to his inability to speak English. While
the applicant wishes the Board would have accepted this explanation, the law
does not require it to accept such an explanation. The Board is entitled to
come to its own conclusion. Reasoned disagreement with a Board finding is
insufficient.
[20]
On
a final note, the applicant’s reliance on Sadeghi-Pari v. Canada (Minister of
Citizenship and Immigration), 2004 FC 282, [2004] F.C.J. No. 316 (QL)
cannot be accepted. In that case, Mr. Justice Mosley took the view that since a
refugee claimant’s sworn and uncontradicted evidence creates a presumption of
its truthfulness (see Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 (C.A.)), a lack of corroborating evidence
of one's sexual orientation in and of itself, absent negative, rational
credibility or plausibility findings related to that issue, would not be enough
to rebut this presumption of truthfulness (at paragraphs 21 and 38). Yet, the
Board in the present case, did make rational plausibility findings as described
above, related to the precise issue.
[21]
I
would therefore dismiss the application for judicial review.
[22]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[23]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A person in need of protection is a
person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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