Date: 20071206
Docket: IMM-6274-06
Citation: 2007 FC 1279
Ottawa, Ontario, December 6,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
KATERYNA
VYBYRANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
Discrepancies
between the Personal Information Form (PIF) and oral testimony, in addition to
inconsistencies in respect of the overall narrative of the Applicant, have led
to a first-instance tribunal decision, which on the basis of the inherent logic
of its findings, is not patently unreasonable.
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review of the decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (Board), on October 28, 2006,
that the Applicant was not a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
FACTS
[3]
The
Applicant, Ms. Kateryna Vybyrana, is a citizen of Ukraine.
[4]
Ms.
Vybyrana alleges that she is at risk because she is a lesbian. She knew that
she was a lesbian from 1974 to 1979 while she was attending a technical school.
She tried to express her interest in a lesbian relationship in 1979 but her
advances were rejected. She married to hide her situation and did not attempt a
lesbian relationship until after her husband died, in 1993, which was again
rejected. In 2002, she met Svetlana and had a relationship with her which
remained hidden for two years until Ms. Vybyrana’s brother found them kissing.
He, thereafter, extorted money from Ms. Vybyrana for drinking and threatening
to expose her if she did not pay. The Applicant described beatings by her
brother and some of his alcoholic friends.
[5]
She
claimed protection on the basis that she suffered abuse at the hands of her
brother because he found out that she was a lesbian. The Refugee Protection
Division (RPD) determined that the Applicant was not a Convention refugee and
not a person in need of protection, as she was not credible.
ISSUE
[6]
In
view of its credibility findings, is the RPD’s decision patently unreasonable?
ANALYSIS
[7]
The
RPD’s decision is not patently unreasonable. The RPD is a specialized tribunal
entitled to decide whether an Applicant is not credible on the basis of
implausible testimony and contradictions and inconsistencies in an Applicant’s
evidence before the RPD. The RPD’s credibility findings are entitled to high
deference. (R. v. Gagnon, [2006] 1 S.C”R. 621, paras. 10, 20, 24; Dr.
Q v. College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226, paras. 34, 38; Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982.)
[8]
The
RPD provided examples of inconsistencies and contradictions in Ms. Vybyrana’s evidence
to support the conclusion that she was not a lesbian and did not suffer the
harm alleged:
(a) Ms.
Vybyrana alleged that she reported to the police that her brother beat her. She
also told the police that her brother beat her because she was a lesbian,
despite knowing that it would be dangerous for the police to know that she was
a lesbian and despite stating that she tried to keep her sexual orientation a
secret because Ukrainian society was very homophobic;
(b) In
her oral testimony, Ms. Vybyrana explained that her girlfriend Galina turned
down her advances because she had become frightened and wanted to preserve her
marriage. On the other hand, in her PIF, Ms. Vybyrana stated that Galina
rejected her because she did not expect the advances from her.
[9]
Further,
Ms. Vybyrana stated in oral testimony that she had to seek medial attention
because of the beating she sustained; however, this is not mentioned in her PIF
and she did not provide any medical reports in support of her claim. Ms.
Vybyrana also did not provide any documentation to prove that she was involved
with a woman in Canada except for photographs of her with a woman in a
pool. This Court has held that a credibility finding may be made in respect of
a document that under existing country condition circumstances would be
provided. In such a situation, therefore, it was reasonable for the RPD to draw
negative inferences from the lack of corroborating documents in support of Ms.
Vybyrana’s claim. (Matarage v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 460 (F.C.T.D.) (QL), paras. 8-9; Najam v. Canada (Minister of
Citizenship and Immigration), 2004 FC 425, [2004] F.C.J. No. 516 (QL),
para. 20; De Barros Canada (Minister of
Citizenship and Immigration), 2005 FC 283, [2005] F.C.J. No. 361 (QL),
para. 12.)
[10]
Ms.
Vybyrana argues that the RPD erred when it stated that she was 23 years old and
had a Master’s degree; however, this is the evidence which is found in her PIF.
There appears to be a discrepancy in Ms. Vybyrana’s narrative wherein she
states that she expressed her lesbian feelings during her Technical School
education; however, even if she had been of a younger age when she had
expressed her feelings to her friend, this would not necessarily make her
conduct more plausible, given the RPD’s other negative credibility findings.
[11]
The
RPD did not exhibit any bias nor did it raise a reasonable apprehension of
bias. Ms. Vybyrana has not rebutted the presumption of impartiality. She
argues that the RPD was biased because of the Member’s conclusion that she
could not have had three unsuccessful relationships with women, and, that,
furthermore, it was implausible that her husband would have married her,
knowing that she had a reputation of being a lesbian. The latter conclusion is
reasonably based on Ms. Vybyrana’s own evidence in regard to a time of intense
homophobia in Ukraine; however, it
is noted that, in any case, the assertion of the RPD was inappropriate.
Nevertheless, the assertion is insufficient to override all of the other
negative credibility findings and the decision as a whole. (Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 91, para. 13.)
CONCLUSION
[12]
In
view of its credibility findings, the RPD’s decision is not patently
unreasonable; therefore, the application for judicial review is dismissed. (Bains
v. Canada (Minister of Employment and Immigration) (1990), 109 N.R. 239
(F.C.A.), [1990] F.C.J. No. 457 (QL).)
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2. No serious question of general
importance be certified.
“Michel M.J. Shore”
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