Date: 20081028
Docket: IMM-1875-08
Citation: 2008 FC 1208
BETWEEN:
DARIA GLUKHOVA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON D.J.
I. Introduction
[1]
These
reasons follow the hearing at Toronto, of the 21st of October, 2008,
of an application for judicial review of a decision of the Refugee Protection
Division (the “Tribunal”) of the Immigration and Refugee Board wherein the
Tribunal determined the Applicant not to be a Convention refugee or person otherwise
in need of like protection within Canada. The decision under
review is dated the 25th of March, 2008.
II. Background
[2]
The
Applicant is a female citizen of Russia who, on the date of the
hearing before this Court, was 21 years of age.
[3]
The
Applicant testified before the Tribunal and by affidavit before the Court that,
between the ages of 12 and 14, she realized that she was “different” from her
female friends. By the age of 14, she testified, she was having sexual
fantasies about another female. She concluded that her sexual orientation was
as a lesbian. She further concluded that Russia was a
dangerous place to be for gay males and lesbian females and she therefore
determined to suppress her sexual orientation and to discuss it with no one,
not even her parents.
[4]
The
Applicant twice travelled outside Russia during her teenage
years and before completing her schooling in Russia. After
completing her schooling in Russia, she came to Canada on a study
permit in January, 2006. She worked diligently to improve her English language
skills while in Canada. Similarly, while in Canada, she
determined that Canadians, generally speaking, were much more tolerant in their
attitudes towards gays and lesbians, than were Russians.
[5]
On
completing her course of study in Canada, she returned to Russia in August of
2006. She disclosed her sexual orientation to her parents who were supportive
of her efforts to deal with the difficult situation in which she found herself.
Less than a month after returning to Russia, that is to say on the 20th
of September, 2006, the Applicant, with her parents’ support, returned to Canada and on the
13th of October, 2006, she claimed refugee protection.
III. The Decision under Review
[6]
In
the opening paragraphs of its decision, the Tribunal wrote:
In arriving at my decision, I took into
consideration the Chairperson’s Guidelines, the claimant’s age and
education and the fact that homosexuality is seen as “perversion or mental
disorder” in Russia, which is a homophobic state. Attitudes toward
homosexuality have gradually been changing, particularly in the urban areas,
but most gays and lesbians cannot live a free and open life.
[7]
Nonetheless,
the Tribunal determined that the Applicant was neither a Convention refugee,
nor was she in need of like protection in Canada since she
does not have a well-founded fear of persecution based on a Convention ground,
in Russia.
[8]
The
Tribunal found the Applicant’s identity as a national of Russia to be
established. It determined that the Applicant’s identity as a homosexual was a
determinative factor in deciding against her claim. It found her actions not
to appear to be consistent with someone fleeing persecution.
[9]
The
Tribunal wrote:
The claimant [the Applicant] left the
safety of Canada in August 2006, after a stay of 8 months but without claiming
refugee status and left voluntarily to go back to her home country of Russia. The claimant also testified
that she has been afraid about her safety in Russia due to her sexual orientation since
2001. The Refugee Protection Division (RPD) recognizes that some claimants feel
compelled to go back to their home country, despite apparent risks to
themselves but only under very unusual circumstances such as death in the
family, serious illness of a close family member or other serious family
emergencies. In this case, the claimant re-availed herself without any such
reasons or emergencies.
[10]
In
essence, the Tribunal found the Applicant’s determination to return to Russia to explain
her conviction regarding her sexual orientation and her fears resulting from that
conviction in support of her conclusion to flee Russia not to
amount to “very unusual circumstances” or “serious illness” or “other serious
family emergency”.
[11]
The
Tribunal further noted that the Applicant’s failure to avail herself of earlier
opportunities to abandon Russia while she was a teenager to amount to
re-availments without justification.
[12]
Having
found that the Applicant lacked a well-founded fear of persecution by reason of
her re-availments, the Tribunal went on to comment on other concerns supporting
its conclusion that the Applicant was not a Convention refugee or a person in
need of like protection. It wrote of a “major material omission” in the
Applicant’s PIF and in the notes of her “CIC Interview” relating to a lesbian
relationship that she entered into while in Canada. The
Tribunal clearly misinterpreted the facts before it in this regard since that
relationship did not occur until early 2007, after her PIF had been filed and
her CIC Interview had been conducted. Nonetheless, no explanation was provided
as to why the Applicant had not amended her PIF, prior to her hearing before
the Tribunal, to disclose her lesbian relationship.
[13]
The
RPD expressed concern about the Applicant’s failure to provide evidence to
corroborate her claim as to her sexual orientation. It found purportedly
corroborative documentary evidence to be unsatisfactory.
IV. The Issues
[14]
Counsel
for the Applicant raised a range of issues regarding the Tribunal’s analysis
which, he urged, rendered the decision under review unsupportable. Those
issues ranged from allegedly ignoring the Applicant’s age and dependence on her
parents untenable in the re-availment analysis, to misunderstanding or
misinterpretation of the evidence before it and engaging in a microscopic
examination of certain of the evidence before it.
V. Analysis
[15]
I
am satisfied that certain elements of the decision under review are suspect. In
particular, the failure of the Tribunal to acknowledge the dependence of the
Applicant on her parents when she travelled within Europe while still a
teenager and the resulting impact of that age and dependence on her then re-availment
to be questionable. In contrast, I find the Applicant’s determination to return
to Russia in August of 2006 to explain her orientation and her related fear to
her parents, without first having claimed Convention refugee or like status in
Canada to be particularly difficult to rationalize given her alleged fear. No
disclosure that she made in Russia could be seen to strengthen the
well-foundedness of her fear. Similarly, her conduct while first in Canada and
then later on her return to Canada in failing to effectively pursue the
strengthening of her claim could be legitimately seen by the Tribunal as
inconsistent with a well-founded fear of persecution if she were required to
return to Russia in circumstances that might well result in public knowledge of
her sexual orientation.
[16]
On
balance, and against a standard of review of reasonableness or, in respective
factual matters that set out in paragraph 18.1(4)(d) of the Federal Courts
Act, I am satisfied that the decision under review was open to the Tribunal.
In the result, this application for judicial review will be dismissed.
VI. Certification of a Question
[17]
Counsel
were advised at the close of hearing of the Court’s conclusion. Neither
counsel recommended certification of a question. The Court itself is satisfied
that no serious question of general importance arises out of this matter that
would be determinative on an appeal of my decision. In the result, no question
will be certified.
“Frederick E. Gibson”
OTTAWA, ONTARIO
October
28, 2008
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