Date: 20080630
Docket: IMM-4904-07
Citation: 2008 FC 819
Ottawa, Ontario,
June 30, 2008
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
MARIYA TSYHANKO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mariya Tsyhanko (the “Applicant”) applies for a
judicial review of the decision made by the Refugee Protection Division of the
Immigration and Refugee Board (“the Board”) issued on November 2, 2007 wherein
it was determined that the Applicant was neither a Convention Refugee nor a
person in need of protection as per sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”).
[2]
For reasons that follow, I have decided to grant
the judicial review.
Background
[3]
The Applicant is a 20 year old Ukrainian
citizen. She makes a refugee claim on the ground that she is a lesbian and has
suffered persecution in the Ukraine because of her sexual orientation.
[4]
The Applicant began a homosexual relationship
with her professor at the University in Lviv where she was studying. In
November 2005, the two were caught in a compromising position by another
professor who castigated them for being homosexual. Following a report of the
incident to the University, the Applicant was informed by the administration
that while she would be permitted to complete the academic year, she would not
be allowed to re-enroll. Her partner was dismissed from her University
teaching position.
[5]
News of the Applicant’s sexual orientation
spread to her hometown of Gorodok, approximately 25 kilometres from Lviv. When
the Applicant returned home in January 2006, her family did not permit her to
participate in church ceremonies. On the way home from the church, she was
attacked by assailants who denounced her homosexuality. Her father, a Greek
Orthodox Priest, disowned her and banished her from the family home. The Applicant
reported the assault to the police but no action was taken once the police
learned the attack was because of her homosexuality.
[6]
In March 2006, the Applicant says she began
receiving threatening letters because of her sexual orientation. At her
mother’s suggestion, the Applicant applied for a Canadian visitor’s visa to
visit relatives. In June 2006, she had a farewell dinner with her partner. The
two were later confronted by homophobic attackers, seriously assaulted and
hospitalized as a result. The Applicant reported the attack to the police who
attended and accompanied her to the hospital. The police became disinterested in
pursuing their investigation when they learned of her homosexuality.
[7]
The Applicant was hospitalized for five days and
had to postpone her June travel plans. The Applicant arrived in Canada in July 2006 and lodged with
relatives. The Applicant’s intention was to return to the Ukraine. After being unable to contact
her partner in the Ukraine, she
telephoned her partner’s neighbour. The neighbour informed her that her
partner had been attacked on July 24th and that she was in the
hospital. Her partner later died as a result of the injuries she suffered.
[8]
The Applicant made her application for refugee
status in August 2006.
The Decision
Under Review
[9]
The Board, while not challenging the Applicant’s
homosexuality, decided that the Applicant was not credible. In the
alternative, the Board found that she was not a Convention refugee or a person
in need of protection as she had not exhausted all avenues of state protection
and that an internal flight alternative (“IFA”) was available.
Issues
[10]
There are three issues to be considered in this
judicial review:
a.
Did the Board err in making its credibility
findings?
b.
Did the Board err in its state protection
analysis?
c.
Did the Board err in finding that an IFA was
available in Kiev?
Standard of
Review
[11]
The Supreme Court of Canada’s decision in Dunsmuir
v. New Brunswick,
2008 SCC 9 has established that there are now only two standards of review:
correctness and reasonableness (Dunsmuir at para. 34).
[12]
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).
[13]
State protection is a question of mixed fact and
law. As set out in Dunsmuir, above, at para. 51, questions of mixed
fact and law are to be reviewed on the reasonableness standard. This standard
has been applied post-Dunsmuir with respect to the issue of state
protection (Zepeda v. Canada (Minister of Citizenship and Immigration), 2008 FC 491 at para. 10).
[14]
The standard of review with respect to the
existence of an IFA is reasonableness (Huerta v. Canada (Minister of Citizenship and
Immigration), 2008 FC 586 at para. 14).
[15]
In Dunsmuir, above, at paragraph 47, the
Court stated that reasonableness is concerned with the existence of
justification, transparency and intelligibility within the decision-making
process. It is also concerned with “whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law”. Justification requires that a decision be made with regard to the
evidence before the decision-maker. A decision cannot be a reasonable one if
it is made without regard to the evidence submitted (Katwaru v. Canada (Minister of Citizenship and
Immigration), 2007 FC 612 at paras. 18, 22).
Analysis
Credibility
[16]
Even considering the deference afforded to
findings of credibility, the Board’s findings are not reasonable. The Board
accepted that the Applicant was a homosexual but found that the Applicant was
not a credible witness. The Board’s credibility determination is based on
erroneous implausibility findings and on peripheral inconsistencies while
implicitly accepting, or not questioning, the central elements of the
Applicant’s refugee claim.
[17]
The Board made two implausibility findings:
·
The Applicant testified about her father calling
her relatives and telling them she is gay. The Board found it implausible the
father would call his relatives to spread his shame.
·
The Applicant testified that her mother had also
disowned her but it was her mother who suggested that she visit her relatives.
The Board also found it implausible the mother financed the trip to Canada since she had no earnings of her
own.
[17]
The Board’s implausibility findings about the
father’s telling relatives of the Applicant’s homosexuality and the mother’s
providing money for the Applicant’s trip to Canada do not meet the standard for
implausibility findings. Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 776 at paras. 6-7, stated:
Presumption of Truth and Plausibility
6 The tribunal adverts
to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302
(C.A.) at 305, that when a refugee claimant swears to the truth of certain
allegations, a presumption is created that those allegations are true unless
there are reasons to doubt their truthfulness. But the tribunal does not apply
the Maldonado principle to this applicant, and repeatedly disregards his
testimony, holding that much of it appears to it to be implausible. Additionally,
the tribunal often substitutes its own version of events without evidence to
support its conclusions.
7 A tribunal may make
adverse findings of credibility based on the implausibility of an applicant's
story provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu. [see L. Waldman, Immigration Law
and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[18]
The Board offers no evidence to support its
speculation that the father’s shame over the Applicant’s homosexuality would
outweigh his outrage. Nor does the Board consider the Applicant’s explanation
that her mother has authority over the family finances even if derived from her
father’s income. The Board’s implausibility findings cannot be sustained.
[19]
The Board had also based its credibility
findings on the following:
·
The Applicant informed the Visa Officer in May
2006 that she planned to travel in July but said she bought a ticket for June
and later had to postpone it to July because of her hospitalization.
·
The Applicant initially informed the Visa
Officer (in May) that she was going to visit her father’s relatives, while at
the Board hearing she testified that she came to Canada to visit her mother’s
relatives.
·
The Applicant testified she obtained a passport
in May 2005 “just in case I wanted to leave the country.”
[20]
In Mohacsi v. the Minister of Citizenship and
Immigration, 2003 FCT 429, at para. 20, this Court offered guidance on the
relationship between peripheral findings of inconsistency and credibility and
the core elements of a refugee claim:
…not
every kind of inconsistency or implausibility in a claimant's evidence will
reasonably support the Board's negative findings on overall credibility. It
would not be proper for the Board to base its findings on an extensive
"microscopic" examination of issues irrelevant or peripheral to the
claim. Furthermore, the claimant's credibility and the plausibility of her or
his testimony should also be assessed in the context of her or his country's
conditions and other documentary evidence available to the Board. Minor or
peripheral inconsistencies in the claimant's evidence should not lead to a
finding of general lack of credibility where documentary evidence supports the
plausibility of the claimant's story.
[21]
By not discussing the central elements of the
Applicant’s claim, the Board implicitly accepted them. Specifically, the Board
does not challenge that the Applicant became involved in a homosexual
relationship with her professor; that she was twice assaulted because of her
homosexuality, once in her home village and once in Lviv; that she reported
both assaults to the police and each time the police immediately lost interest
once they learned the homophobic reason for the assaults; and that her partner
died as a result of an assault shortly after the Applicant left for Canada. An
Applicant is presumed to be truthful. Where an applicant offers a reasonable
explanation, it requires consideration. It is to be noted that the Applicant
provided corroborative evidence concerning her hospitalization after the second
assault and also about the death of her partner.
[22]
I find the Board’s conclusion that the Applicant
is not credible because of peripheral inconsistencies while implicitly
accepting the main elements of the Applicant’s claim to be unreasonable.
State
Protection and Internal Flight Analysis
[23]
The Board found, in the alternative, that the
Applicant did not provide clear and convincing proof of the state’s inability
to protect her. The Board also found that the Applicant had viable flight
alternatives (IFA) in Kiev or
other large urban centres in the Ukraine.
[24]
In this case, having found that the Board erred
in its credibility analysis, I also find that the Board committed a reviewable
error when it concluded, in the alternative that state protection was available
and in the further alternative that there was an IFA available in Kiev. After not challenging the
Applicant’s sexual orientation and the persecution suffered as a result, the
Board selectively relied on the documentary evidence favouring its conclusion
that state protection was available. It was open to the Board to arrive at
such a conclusion, but such a conclusion cannot be reasonably arrived at by
selectively relying on the documentary evidence while not providing an
explanation for discounting the Applicant’s testimony regarding her attempt to
seek state protection.
[25]
Similarly, with respect to its finding that an
IFA was available in Kiev, the
Board again selectively relied on the documentary evidence without fully
addressing the true nature of the Applicant’s fear of persecution. The
Applicant fears persecution at the hands of ultra-nationalists in general,
rather than merely a particular group of ultra-nationalists based in Lviv as
set out in the Board’s reasons.
CONCLUSION
[26]
I find the Board’s decision on the Applicant’s
credibility, directed as it is on peripheral inconsistencies rather than
central elements of the Applicant’s claim, to be unreasonable.
[27]
The application for judicial review is granted.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This application for judicial review is
granted and the matter is to be returned to a differently composed Board for
reconsideration
2. No question of general importance is certified.
“Leonard S. Mandamin”
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