Docket: IMM-7468-13
Citation:
2015 FC 299
Ottawa, Ontario, March 9, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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VIACHESLAV NEZHALSKYI
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Viacheslav Nezhalskyi (the Applicant) has
brought an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (Board). The Board
determined that the Applicant is neither a Convention refugee within the
meaning of section 96 of the IRPA, nor a person in need of protection as
defined in subsection 97(1) of the IRPA.
[2]
For the reasons that follow, the application for
judicial review is allowed and the matter is remitted to a differently
constituted panel for redetermination.
II.
Background
[3]
The Applicant is 24 years old and a citizen of
the Ukraine. He seeks protection as a refugee on the ground of his sexual
orientation. His claim is based on the following contentions.
[4]
The Applicant has considered himself to be
homosexual since the age of 13. He had his first homosexual relationship at the
age of 20 while he was in the United States of America (USA) on a working
holiday visa in the summer of 2010. The Applicant then returned to the Ukraine to attend university, where he concealed his sexual orientation until a classmate discovered
him reading a romantic Facebook message from his American boyfriend. The
classmate threatened the Applicant, saying that he would “get him”.
[5]
Following this incident, the Applicant says that
he was “outed” as a homosexual and was targeted
by the classmate and the classmate’s friends. He was confronted or attacked by
classmates on three occasions. On the first occasion, in November 2010, the Applicant
was pushed by the classmate and his friends and his personal belongings were
damaged. The Applicant complained to the dean of the university, who said that
he would speak to the other students. In January 2011, the Applicant was
attacked by three other students and had to be taken to hospital. He gave a
statement to the police but no help was provided. In August 2011, the Applicant
was threatened with a knife and beaten up by a group of people. He lost
consciousness and awoke in hospital. He again made a complaint to the police
but no help was provided.
[6]
On the recommendation of an immigration agent, the
Applicant applied to study English at a language school in Toronto. The Applicant
received a letter of acceptance from the school on August 18, 2011 and his
student visa on October 19, 2011. He left the Ukraine and arrived in Canada on November 6, 2011. He made a claim for refugee protection on December 19, 2011.
III.
The Board’s Decision
[7]
The Board found that the Applicant was not
credible. It based its conclusion on the following:
a) The Board drew a negative inference with respect to the Applicant’s
subjective fear because he did not make a refugee claim at the earliest
opportunity, when he was in the USA in the summer of 2010, and he then returned
to the Ukraine. The Board rejected the Applicant’s explanation why he had not
claimed refugee status at that time: he was very young, he was not aware that
he could claim refugee status in the USA, and he did not fear for his life
because he had not yet been attacked or beaten in the Ukraine. The Board remarked
that the Applicant’s university education indicated that he was not lacking in
sophistication.
b) The Board drew a negative inference from the Applicant’s failure to
adduce sufficient corroborative evidence of his relationships with two of his
former partners—his American boyfriend and his Ukrainian boyfriend once he
returned to the Ukraine. The Board found that the single photograph presented
of each of these former partners had little probative value.
c) The Board found that the Applicant’s testimony that his relationship
with his former Canadian boyfriend ended after a violent argument was
contradicted by the boyfriend’s account, which referred only to household
issues and confirmed that they remained friends. Furthermore, the Board drew an
adverse inference from the fact that the Canadian boyfriend, who resides in
Toronto, did not testify during the hearing.
d) Finally, the Board found that the Applicant’s delay in leaving the
Ukraine after the second attack cast doubt upon his subjective fear.
[8]
The Board ruled that it was not persuaded, on
the balance of probabilities, that the Applicant is in fact homosexual. As the
Applicant did not allege any other ground of persecution, the Board determined
that he was neither a Convention refugee nor a person in need of protection.
IV.
Standard of Review
[9]
Determinations of credibility are reviewable on
the standard of reasonableness: Aguebor v Canada (Minister of Employment and
Immigration) (1993), 160 NR 315, [1993] FCJ No 732 (FCA) at para 4; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 58; Rahal v Canada (Minister of Citizenship and Immigration), 2012
FC 219, [2012] FCJ No 369 at para 22.
[10]
A reasonable decision is one that is justified,
transparent and intelligible, and that falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V.
Analysis
[11]
In my view, the Board made several unreasonable findings
respecting the Applicant’s credibility which were not supported by the record.
[12]
First, the Board erred in concluding that the Applicant’s
failure to claim asylum in the USA in the summer of 2010 evinced a lack of
subjective fear. This Court has established that a delay in making a refugee claim
is a relevant consideration that the Board may take into account in assessing
both an applicant’s credibility and his subjective fear (Ortiz Garzon v
Canada (Minister of Citizenship and Immigration), 2011 FC 299 at para 30
and Goltsberg v Canada (Minister of Citizenship and Immigration), 2010
FC 886 at para 28). However, in this case it was unreasonable for the Board to
expect the Applicant to make a claim for asylum in the USA. The Applicant explained, under oath, that he was very young at the time (aged 20), that he was
not aware that he could claim refugee status in the USA, and that he did not
fear for his life because he had not yet been attacked or beaten in the Ukraine. This is a plausible explanation for the Applicant’s failure to claim asylum in the
USA, and the Board did not provide a reasonable explanation for rejecting it.
[13]
Second, the Board erred in drawing an adverse
inference from the lack of sufficient corroborating evidence of the Applicant’s
sexual orientation. It is settled law that a refugee claimant’s testimony is
presumed to be true unless there is a valid reason to doubt its truthfulness: Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA) at
para 5. As Justice Mosley stated in Sadeghi-Pari v Canada (Minister of
Citizenship and Immigration), 2004 FC 282, 37 Imm LR (3d) 150 at para 38, “a lack of corroborating evidence of one’s sexual
orientation, in and of itself, absent negative, rational credibility or
plausibility findings related to that issue, would not be enough, in my
opinion, to rebut the Maldonado principle of truthfulness”.
[14]
Moreover, as Justice Russell observed in Ogunrinde
v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC
760 at para 42, “the acts and behaviours which
establish a claimant’s homosexuality are inherently private. When evaluating
claims based on sexual orientation, officers must be mindful of the inherent
difficulties in proving that a claimant has engaged in any particular sexual
activities”.
[15]
In this case, the Board did not articulate any
other reason for doubting the Applicant’s homosexuality, nor did the Board cite
any inconsistencies or implausibilities in the other evidence that was provided
to establish the Applicant’s sexual orientation. This included several
photographs, affidavits, and letters from the Applicant’s mother and former
Canadian boyfriend.
[16]
Third, the Board erred in finding that there was
a contradiction between the Applicant’s testimony and a letter from his former boyfriend
in Toronto with respect to the manner in which their relationship came to an
end. According to the Board, the Applicant testified that the relationship
ended due to a violent argument, while the former boyfriend said that they
broke up over “household issues”. A review of
the transcript confirms that there is nothing to support the Board’s finding
that the Applicant characterised the break-up as “violent”,
nor is there anything to suggest that there was a contradiction between the two
accounts. The former boyfriend’s statement that the relationship ended over “household issues” is consistent with the Applicant’s
testimony that the couple began to argue frequently and he eventually grew
tired of their disagreements.
[17]
Fourth, it was not open to the Board to make a
negative finding of credibility based on the Applicant’s failure to produce his
former Canadian boyfriend as a witness. As Justice Tremblay-Lamer remarked in Naidu
v Canada (Minister of Citizenship and Immigration), 2007 FC 527, [2007] FCJ
No 719 at para 28, referring to Justice Russell’s decision in Mui v Minister
of Citizenship and Immigration, [2003] FCJ No 1294, 2003 FC 1020, in the refugee context “there is a presumption of truth that whatever a claimant
swears to is true and the truthfulness of a claimant’s allegations cannot be
rebutted through negative inferences.”
VI.
Conclusion
[18]
For the foregoing reasons, the application for
judicial review is allowed and the matter is remitted to a differently
constituted panel for redetermination.
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