Date: 20080515
Docket: IMM-3611-07
Citation: 2008 FC 611
Ottawa, Ontario, May 15,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ELVIN
MENAJ
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Elvin
Menaj, the Applicant, pursuant to section 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, applies for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”), dated July 26, 2007, wherein it was determined that the
Applicant was not a Convention refugee or a person in need of protection.
[2]
The
Applicant is a citizen of Albania. He told of realizing
he was homosexual when he was a teenager. He did not disclose his sexual
orientation to his family or friends and at the age of 26 was pressured by his
family to marry. He and his wife had one child. They lived with his parents
in the village
of Fratar.
[3]
Although
married, the Applicant sought opportunities to meet with other homosexual
males. He had met another male in a café in October 2006. They went to a
nearby park where they kissed. Apparently this was recorded on a cell phone
camera by an observer and the picture was circulated in his village. As a
result, his wife left him, taking their child, and his father demanded he leave
the family home because of his sexual orientation. He relocated to Tirana, the
capital city of Albania. While there, he received telephone calls from
his brothers-in-law who threatened him for humiliating their sister.
[4]
The
Applicant sought out homosexual males in Tirana and agreed to meet one
individual in the city park. When he attended at the rendezvous point, the
individual pushed the Applicant down and three other males appeared. The four
men raped and brutalized the Applicant. He did not report the attack because
of the hostility toward homosexuals in Albanian society.
[5]
The
Applicant made arrangements to stow away on a ship, eventually arriving in Halifax on February
8, 2007, where he immediately made an application for refugee protection.
DECISION UNDER REVIEW
[6]
The
Board decided the Applicant was not credible. It disbelieved his description
of the events that occurred in his village of Fratar and in Tirana.
It doubted his report of agreeing to meet a strange man in a city park in
Tirana when he could have met the individual in his rooming house, a location
which the Board noted as more discreet than the public space of a park. The
Board also concluded that his conduct in Halifax was contrary
to the conduct one would expect of a homosexual male.
[7]
The
Board decided that the Applicant failed to produce sufficient credible evidence
to prove that he was homosexual and would be persecuted because of his
homosexuality should he return to Albania. The Board further concluded that
the Applicant came to Canada to find a better life quoting a
port-of-entry statement by the Applicant that if he returned to Albania he would
have nowhere to go and no chance of employment.
STANDARD OF REVIEW
[8]
The
transcript of the Refugee Protection Board hearing discloses a recording gap
during the Applicant’s testimony about his first homosexual encounter that led
to his estrangement from his wife and his alienation from his family.
[9]
In
Canadian Union of Public Employees, Local 301 v. Montreal (City of), [1997] 1
S.C.R. 793 at para. 81, Justice L’Heureux-Dubé set out the test for whether the
absence of a transcript violates the rules of natural justice:
In the absence of a statutory right to a
recording, courts must determine whether the record before it allows it to
properly dispose of the application for appeal or review. If so, the absence
of a transcript will not violate the rules of natural justice. Where the
statute does mandate a recording, however, natural justice may require a
transcript. As such a recording need not be perfect to ensure the fairness of
the proceedings, defects or gaps in the transcript must be shown to raise a
“serious possibility” of the denial of a ground of appeal or review before a
new hearing will be ordered. These principles ensure the fairness of the
administrative decision-making process while recognizing the need for
flexibility in applying these concepts in the administrative context.
[10]
Issues
related to natural justice are reviewed on the correctness standard (Ellis-Don
Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4
at para. 65).
[11]
Where
questions of fact and credibility are reviewed the standard of review is
reasonableness (Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at para. 15).
ANALYSIS
[12]
The
determinative issue for the Board was whether the Applicant was homosexual.
Setting aside for the moment the Board’s treatment of the Applicant’s evidence
about his first homosexual encounter, the Board’s decision that the Applicant is
not credible because he did not tell the Immigration Officer in the port-of-entry
interview that he had been raped and that his subsequent conduct in not
engaging in homosexual behaviour in Halifax was at odds with his proclaimed
homosexuality raises issues. The Board’s selective use of the Applicant’s
port-of-entry evidence to find that he left Albania for economic
reasons is also problematic.
[13]
The
Board considered the Applicant’s failure to tell the Immigration Officer about
being raped when he reported the humiliating assault by the four men in the
Tirana park to raise doubts about his credibility. The Board’s reasons do not
take into account the Applicant’s background and experiences when it evaluates
the Applicant’s failure to report his rape to the Immigration Officer.
[14]
In
R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT
116 at para. 16, Justice Martineau spoke to the relationship in making
credibility determinations based on the port-of-entry notes:
A person’s first story is usually the
most genuine and, therefore the one to be most believed. That being said,
although the failure to report a fact can be a cause for concern, it should not
always be so. That, again depends on all the circumstances: see Fajardo v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 915 at para. 5 (QL) (C.A.); Owusu-Ansah, supra;
and Sheikh v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 568 (QL) (T.D.). In evaluating the
applicant’s first encounters with Canadian Immigration authorities or referring
to the applicant’s Port of Entry Statements, the Board should also be mindful
of the fact that “most refugees have lived experiences in their country of
origin which give them good reason to distrust persons in authority”: see Prof.
James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworth, 1991) at
84-85; Attakora, supra: and Takhar, supra (emphasis added).
[15]
The
Board also doubted the Applicant was homosexual because he abstained from
homosexual behaviour in Halifax. The Board appears to
apply a specific perspective on homosexual behaviour stating (Reasons at 6):
[The Applicant] states that he has been
to the Reflection Club, which is allegedly a gay club in Halifax, on a couple of occasions.
He has never had any sexual relations with any man (either in Albania or in Canada), because he is too shy. He
knows what his sexual orientation is – he knows his feelings, but is too shy
and scared to engage in consensual sex with a male.
[16]
Again,
referring to the decision in R.K.L. above, at para. 12, Justice
Martineau stated:
Furthermore, the Board should not be
quick to apply the North American logic and reasoning to the claimant’s
behaviour: consideration should be given to the claimant’s age, cultural
background and previous social experiences: see Rahnema v. Canada (Solicitor General), [1993]
F.C.J. No. 1431 at para. 20 (QL) (T.D.); and El-Naem v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 185 (QL) (T.D.).
[17]
The
Board appears to have applied, for lack of a better term, the North American
perspective to assessing the Applicant’s behaviour when the Board speaks of
going to a “gay club” and engaging in “sexual relations with any man”. The
Board does not identify the basis for his reasoning nor does he take into
consideration the difference in how homosexuality may be viewed in Albania as
opposed to Canada.
[18]
The
Board decides that the Applicant is an economic refugee. The Board states
(Reasons at 7):
[i]t is my belief, and I so find, that he
came to Canada to find a better life. This
is confirmed by what he told the Immigration Officer when he was asked what he
expected would happen if he returned to Albania. He replied – “I have nowhere to go. No
chance of employment. Can’t get a job. Couldn’t get hired.” (Exhibit A-2) I
find that the claimant has failed to produce sufficient credible or trustworthy
evidence to prove that he is a homosexual and that because of his
homosexuality, he will be persecuted should he return to Albania.
This quote is taken from Question 18 in the
port-of-entry notes. The Board does not mention the more complete answer given
in Question 17, in particular the Applicant’s statement:
[b]ecause I am a homosexual male, I have
no future in Albania. I cannot hold a job because
eventually people discover I am a homosexual. Homosexuality is not accepted in
my country.
[19]
The
Board’s economic refugee conclusion also fails to address the Applicant’s
testimony that he was employed up until his homosexuality was made public in
his village.
[20]
In
assessing the Applicant’s evidence with respect to his first homosexual
encounter, the Board decided that the Applicant’s oral testimony was not
consistent with his Personal Information Form (“PIF”). The Board stated
(Reasons at 3-4):
The claimant’s oral testimony did not
coincide with what he alleges in his PIF narrative about that encounter. In
paragraph 15 of his narrative, the claimant alleges “One time in October 2006,
I found a guy, a man I met in a café. We went to a park in the afternoon.” ---
It seems clear from these sentences that the claimant met the guy in a café and
that later on in the afternoon, they went to the park. When asked to explain
this apparent discrepancy, he stated that the café was in the side or on the
side of the park. The claimant was quite certain in his oral testimony that he
met the guy who was sitting on a park bench (i.e. stone). He did not say – “I
met him in a café and that we went to the park in the afternoon.”
[21]
This
summary of the Applicant’s oral testimony cannot be reconciled with the Board’s
comments about the Applicant’s testimony in the hearing where the Board had the
following exchange with the Applicant’s counsel (Tribunal Record at 188):
A.
I suspect then
that I will not need to review my (inaudible) to the café/park questions.
-
I think I
know what he meant.
A.
There is…
Q.
Café in a
park remember he said that?
A.
Yes,
that’s right. There is a park in Halifax.
-
Oh, you
don’t have to worry. It’s a café in the park is a café in the park. He met at
the café in the park.
[22]
The
Applicant’s missing transcript testimony about his first homosexual encounter
is relied on by the Board in its finding that the Applicant is not credible. A
finding which it deemed determinative of the Applicant’s claim. The Board
stated in its reasons that the Applicant met the other male on a park bench not
at a café. Yet the Board’s own comments at the end of the hearing would appear
to contradict that description. The apparent contradiction can only be
examined if the full transcript of the Applicant’s testimony is available.
[23]
While
not all gaps in a transcript will automatically lead to a new hearing, in this
case, the Applicant does not have full opportunity to launch a judicial review
of the Board’s decision because of the unrecorded portion of the hearing (Goodamn
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No 342
at para. 72). In result, the Applicant’s right to natural justice has been
breached.
[24]
The
application for judicial review is granted. The decision of the Board will be
set aside and the matter referred back to a different Board member for
re-determination
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
decision of the Board is set aside and the matter is referred back for
re-determination by a differently constituted Board.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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