Date:
20120731
Docket:
IMM-8357-11
Citation:
2012 FC 957
Vancouver, British Columbia,
July 31, 2012
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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RENADI GERGEDAVA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Renadi
Gergedava sought refugee protection in Canada claiming to fear persecution in
his native Georgia because of his sexual orientation. The Refugee Protection
Division of the Immigration and Refugee Board refused Mr. Gergedava’s claim,
finding his story of persecution not to be credible and that he was not, in
fact, a homosexual.
[2]
Mr. Gergedava
asserts that the Board erred in making findings of fact without regard to the
evidence before it and in relying
upon assumptions
or preconceptions in determining that he is not gay.
[3]
For
the reasons that follow, I have concluded that a number of the Board’s factual
findings were indeed unreasonable, with the result that the application for
judicial review will be granted.
The Lack of Documentary Evidence
from Georgia
[4]
The
Board based its finding that Mr.
Gergedava
had not established that he had been involved in two same-sex relationships
prior to leaving Georgia in part upon his failure to produce any objective
documentary evidence with respect to either relationship.
[5]
According
to Mr. Gergedava,
his sexual relationship with his childhood friend, Tengo, had ended when
the relationship was discovered by Tengo’s
father. The father beat the two young men and threatened to kill them both,
claiming that Mr.
Gergedava had ruined Tengo’s family. When Mr. Gergedava’s
neighbours heard about the relationship they threatened Mr. Gergedava and his
mother, forcing them to move to another city approximately 200 kilometres away.
[6]
Mr.
Gergedava’s mother then allegedly pressured him into getting married so that he
would “be a ‘normal’ man”.
[7]
After
his marriage, Mr. Gergedava had his second gay relationship with a man by the
name of Tamaz. This relationship ended when a group of men broke into Tamaz’
apartment and beat the two men very badly. Shortly thereafter, Mr. Gergedava
learned that Tamaz had been murdered, likely by his own relatives or
neighbours.
[8]
The
Board noted that Mr.
Gergedava’s mother had provided him with some corroborative documents for his
refugee claim, but that no documents had been provided to corroborate either of
his two same-sex relationships. In particular, the Board noted that Mr.
Gergedava’s mother had not been able to locate a death certificate for Tamaz,
and that she had never tried to contact Tamaz’ family in order to get
documents.
[9]
This finding
was unreasonable.
[10]
As Justice
Russell observed in Ogunrinde v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FC 760, “the acts and behaviours which
establish a claimant's homosexuality are inherently private”: at para. 42. As a
result, there are often inherent difficulties in proving that a refugee
claimant has engaged in same-sex sexual activities.
[11]
Moreover, the
evidence before the Board in this case was that Mr. Gergedava’s mother was
mortified by her son’s behaviour, and his family had been stigmatized as a
result of his conduct. Tamaz’ family was enraged to discover that Mr. Gergedava
was engaged in a sexual relationship with Tamaz. Indeed, Mr. Gergedava
testified that Tamaz had likely been killed by his relatives for having
dishonoured the family.
[12]
In these
circumstances, it was simply unreasonable for the Board to have expected Mr. Gergedava’s
mother to have approached a family who blamed Mr. Gergedava for having brought
great shame to their family in order to obtain documents to support his
Canadian refugee claim.
Mr. Gergedava’s Wife’s Actions
[13]
The
Board drew two negative credibility inferences against Mr. Gergedava based on conduct
attributed to his wife.
[14]
Mr. Gergedava
did not seek medical attention after he and Tamaz were beaten, even though he
says that his nose was broken and he was badly bruised. He explained that going
to a doctor would have led to the police being called. Mr. Gergedava could not
tell the police what had really happened to him, as this would require him to
reveal his homosexuality. While Mr. Gergedava admitted that he lied to his wife
about what had happened to him, he says that he did not want to lie to the
police.
[15]
The Board
found that it was not credible that Mr. Gergedava’s wife would not have
insisted that he get medical care if he was as badly injured as he had claimed.
There was, however, no evidence before the Board as to whether Mr. Gergedava’s
wife did or did not encourage him to get medical help. The issue simply did not
arise. The absence of any evidentiary foundation for the Board’s finding in
this regard renders this finding unreasonable.
[16]
The Board
found that Mr. Gergedava’s claim was further undermined by the fact that Mr. Gergedava
was still legally married to his wife. Mr. Gergedava’s wife was allegedly
furious when she discovered his homosexuality, and her father had threatened to
kill Mr. Gergedava. Her failure to divorce Mr. Gergedava led the Board to
question the veracity of his entire claim.
[17]
There was,
however, no evidence before the Board with respect to family law in Georgia, whether it was even possible for a wife to obtain a divorce on the basis of a
husband’s homosexuality, and whether a woman can get a divorce on an ex
parte basis. There was, however, evidence before the Board that Georgian
society was religious and deeply conservative. The Board’s finding in this
regard thus lacked an evidentiary foundation and failed to take relevant
evidence into account, thereby rendering it unreasonable.
The Evidence of Mr. Gergedava’s Former Employer
[18]
The Board
also did not accept that after coming to Canada, Mr. Gergedava had been romantically
involved with a co-worker by the name of Carlos. The Board discounted an
affidavit provided by Mr. Gergedava’s former employer which confirmed that his
two employees had been engaged in a same-sex relationship. One of the reasons
given by the Board for discounting the affidavit was that the former employer
had not produced any employment records proving that Carlos actually existed.
[19]
Given that by
the time that he swore his affidavit, Mr. Gergedava’s employer had sold his
interest in the business and no longer had any association with the company, it
was unreasonable for the Board to assume that he would have ready access to the
employment records of his former employees.
The Evidence of Mr. Gergedava’s Landlady
[20]
The Board also
chose to give little weight to an affidavit sworn by Mr. Gergedava’s landlady,
which confirmed that Mr. Gergedava was indeed gay. The Board identified the
landlady being the wife of “the agent” who helped Mr. Gergedava when he arrived
in Canada. It is, moreover, apparent from the questions posed by the Board
member at Mr. Gergedava’s refugee hearing that the member understood “the
agent” to have potentially been involved in the smuggling of illegal aliens,
including Mr. Gergedava, into Canada.
[21]
Because of
what it described as “the investment” of “the agent” and his wife in Mr. Gergedava’s
refugee claim, the Board chose to give the evidence of the landlady little
weight.
[22]
Leaving aside
the question of whether a refugee claimant can properly be described as an
“illegal alien”, the difficulty with this finding is that there was no evidence
before the Board that the person who met Mr. Gergedava at the Vancouver airport
was indeed involved in people smuggling or that he had been involved in any way
in getting Mr. Gergedava into Canada. He could just as easily have been a
member of the Georgian community in Vancouver who had agreed to assist a
compatriot newly arrived in Canada.
Conclusion
[23]
While
the Board had a number of other reasons for finding that Mr. Gergedava’s story was not
credible, the cumulative effect of the errors identified above is to render the
Board’s decision unreasonable.
[24]
As a
consequence, the
application for judicial review is allowed. I agree with the parties that the
case does not raise a question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This application for judicial
review is allowed, and the matter is remitted to a differently constituted
panel for re-determination; and
2. No
serious question of general importance is certified.
“Anne Mactavish”
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