Date:
20121204
Docket:
IMM-2944-12
Citation:
2012 FC 1419
Ottawa, Ontario,
December 4, 2012
PRESENT: The
Honourable Mr. Justice Barnes
BETWEEN:
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TERENTIY KORNIENKO
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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]
It
is a well-known fact that homosexuals are the frequent targets of
discrimination and abuse in many parts of the world. It is therefore not
surprising that some of them seek the relative safety of Canada by applying for refugee status. That was the basis of Terentiy Kornienko’s refugee
claim when he appeared before the Refugee Protection Division of the
Immigration and Refugee Board (Board) at Toronto, Ontario on February 22, 2012.
The Board rejected Mr. Kornienko’s claim because it did not believe he was a
homosexual and it is from that decision that this application arises.
[2]
The
Board had several concerns about Mr. Kornienko’s credibility. It faulted him
for failing to bring his relevant medical records before leaving the Ukraine, and drew an adverse inference on the basis that no reasonable person would leave
behind such important corroborating evidence. The Board also found Mr.
Kornienko’s medical documentation to be unreliable in part because it was
“highly unlikely that the police would go to the extent of obtaining a
‘forensic doctor expert of the higher category’ to conduct this higher level of
medical examination to benefit a gay person, against whom the police have shown
disdain and scorn”. The Board dismissed Mr. Kornienko’s explanation that
the police assisted him in this way because he insisted on it. This appears to
be an implausibility finding because there is no evidence underpinning it.
[3]
One
of the Board’s principal justifications for not believing that Mr. Kornienko
was gay is set out in the following passages from its decision:
[11] The claimant has been in Canada for almost three years. Upon questioning, he testified that he has not had any gay
relationship and is not currently in a homosexual relationship for the time he
has been in Canada, except for two isolated homosexual encounters in the summer
of 2010 with Victor Kutalov. When asked why he has not been involved in a gay
relationship given his activities in the 519 community centre and his
participation in the 2010 and 2011 gay parades, his explanation was that, “I
did not want anymore to have sexual experience with anybody else. Nobody
attracted me anymore other than Victor to the point of having a gay
relationship other than Victor.” Although the lack of promiscuity may not be
determinative of the claimant’s sexual orientation, I am not inclined to
believe that if the claimant is truly gay, he has lost all his interest in
having a gay relationship because of Victor, with whom he had a brief and
casual homosexual encounter for 2 days almost two years ago. I am also not
persuaded that given his exposure to the gay community for more than two years
he has not found another “Victor,” if he were truly gay. Based on common sense
and reason, I draw an adverse credibility finding on his testimony. On a
balance of probabilities, the claimant is not what he claims to be.
…
His oral testimony of lack of interest in having a
gay relationship after his very brief and casual encounter with Victor, and
given his exposure to the gay community for the last two years, although not
determinative of his sexual orientation, is highly suspect, if he were truly a
gay person
…
The photos he submitted showing him and Nikolay
Sokolov do not prove his being gay. The letter from the 519 community centre
and his pictures at the gay parades have little probative value as anyone,
including non-gays, can be part of the 519 community centre and the gay
parades.
It is readily apparent from these
passages that the Board believed that gay men are promiscuous and that anyone
who is not sexually active is unlikely to be “truly gay”. This, of course, is a
form of stereotyping that the Board has sometimes resorted to in dismissing
claims like this one. In light of this Court’s jurisprudence it is surprising
that any member of the Board would harbour such an ill informed view: see Essa
v Canada, 2011 FC 1493 at paras 30 – 31, [2011] FCJ no 1819, Herrera v
Canada (Minister of Citizenship and Immigration), 2005 FC 1233 at para 12,
[2005] FCJ no 1499, Menaj v Canada, 2008 FC 611at para 17, [2008]
FCJ no 754, Kravchenko v Canada, 2005 FC 387 at para 6, [2005] FCJ no
479, Trembliuk v Canada, 2003 FC 1264 at para 8, [2003] FCJ no 1590, Dosmakova
v Canada, 2007 FC 1357 at para 12, [2007] FCJ no 1742. This is clearly a
reviewable error that goes to the heart of the Board’s credibility finding and
dictates that the Board’s decision be set aside.
[4]
I
accept Respondent’s counsel’s point that there were credibility issues arising
out of Mr. Kornienko’s testimony, but for the most part the Board’s
reasons do not refer to that evidence. I am not inclined to look to the record
to supplement the Board’s reasons in the face of what the Board chose to rely
upon. It is one thing to supplement a set of reasons that lack detail, and
quite another to use that approach to overcome an obviously flawed conclusion
based on an improper stereotype.
[5]
I
would add that the Board’s criticism of Mr. Kornienko’s failure to bring his
medical records with him is unwarranted. Many refugee claimants come to Canada without their corroborating documents only to obtain them later. The failure to
provide highly corroborative evidence can be a basis for drawing an adverse
credibility inference. But a failure to travel with this evidence is so common,
and this is such a microscopic detail, that it should not be used as a basis
for an adverse credibility finding.
[6]
The
Board’s further finding that it was unlikely that the police would assist Mr.
Kornienko in the preparation of a forensic medical report is equally unsound.
As noted above, this is a plausibility conclusion. It is unsound because it is
not beyond the range of reasonable possibilities that the Ukrainian police
would actually do what was required of them notwithstanding their personal
views.
[7]
For
the foregoing reasons, this application is allowed. The matter must be
re-determined on the merits by a different decision-maker. Neither party
proposed a certified question and no issue of general importance arises from
these reasons.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
allowed with the matter to be re-determined on the merits by a different
decision-maker.
"R.L.
Barnes"
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