Docket: IMM-8229-14
Citation:
2015 FC 1099
Ottawa, Ontario, September 22, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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RAJU POURNAMINIVAS
V
(a.k.a. RAJU
POURNAMINIVAS VASUDEVAN)
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Mr. Pournaminivas, is a 47 year
old citizen of India who alleges he has been persecuted due to his
homosexuality. He came to Canada on a business visa in September 2009. In 2014,
he sought Canada’s protection after meeting Anthony, a gay man of Tamil
ethnicity, who told the Applicant he could apply for refugee protection on the
basis of his sexuality.
[2]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board rejected the Applicant’s claim for protection on
the basis of credibility, finding that the Applicant was not credible and is
not a homosexual. In addition, the RPD declared pursuant to subsection 107(2)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act],
that there was no credible basis for the Applicant’s claim. The Minister of
Citizenship and Immigration had intervened in the proceeding before the RPD by
filing submissions and documentation as to the Applicant’s credibility and
marital status and the delay in making the claim.
[3]
The RPD found the Applicant not to be credible
for several reasons: notably, (1) he did not provide a credible or consistent
account of his alleged same-sex relationship with Mathew in Chennai; (2) there
were inconsistencies around where the Applicant had been living in India prior
to his arrival in Canada; (3) there were inconsistencies and discrepancies
about his marital status and relationship with his wife; (4) there were discrepancies
concerning his same-sex relationships in Canada; (5) there were credibility
issues relating to the Applicant’s sexual orientation; and (6) the Applicant’s
delay in filing his refugee claim. Thus, the RPD concluded as follows:
[31] The panel finds that the claimant
has not provided consistent or reliable evidence that he has been in two
long-term same-sex relationships since arriving in Toronto, in light of the
negative inferences taken from the discrepancies and inconsistences [sic]
within his evidence and between his testimony and that of Sutharshan, with
respect to these alleged relationship [sic], as set out above. The panel
also gives little weight to the claimant’s testimony about other same-sex
relationships in India, as it finds that, on a balance of probabilities, the
claimant is not a homosexual, due to the numerous negative inferences taken
towards his credibility as a witness, as set out above. Therefore, the panel
finds that the claimant would not have a fear of persecution on that basis in
India, and has not considered the country condition evidence regarding the
situation of homosexuals in India.
II.
Issues
[4]
The application for judicial review now before
the Court, pursuant to subsection 72(1) of the Act, raises two
noteworthy issues: (1) whether the RPD’s findings with respect to the Applicant’s
credibility and his delay in making the claim are reasonable; and (2) whether
the RPD’s finding that there is no credible basis for the claim is reasonable.
III.
Credibility and Delay
[5]
I am satisfied that the RPD’s findings as to the
Applicant’s credibility are reasonable. Credibility findings by the RPD have
been described as “the heartland of the Board’s
jurisdiction”, since they are essentially pure findings of fact which
are reviewable on a reasonableness standard (Zhou v Canada (Citizenship and
Immigration), 2013 FC 619 at paragraph 26, [2013] FCJ No 687; Aguebor v
Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (QL) at
paragraph 4, 160 NR 315 (CA); Singh v Canada (Minister of Employment and
Immigration), [1994] FCJ No 486 (QL) at paragraph 3, 169 NR 107 (CA); and Cetinkaya
v Canada (Citizenship and Immigration), 2012 FC 8 at paragraph 17, 403 FTR
46). The Court must respect and cannot interfere with a credibility assessment
unless it is satisfied that the reasons of the RPD are not justified,
transparent or intelligible and that the result does not fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190).
[6]
I am also satisfied that the RPD’s determination
with respect to the Applicant’s delay of almost five years in making his claim
was reasonable. It is well-established that, absent a satisfactory explanation
for the delay, a delay in making a claim for protection can be fatal to the claim
even where there is no other reason to doubt a claimant’s credibility (see: Velez
v. Canada (Citizenship and Immigration), 2010 FC 923 at paragraph 28; also
see: Guarin Caicedo v. Canada (Citizenship and Immigration), 2010 FC 109
at paragraph 21 [Guarin Caicedo]). Although delay in making a claim for
refugee protection is not, in and of itself, determinative, “delay may, in the right circumstances, constitute sufficient
grounds upon which to dismiss a claim. It will ultimately depend upon the facts
of each claim.” (Duarte v. Canada (Minister of Citizenship and
Immigration), 2003 FC 988 at paragraph 14, 125 A.C.W.S. (3d) 137; also see Guarin
Caicedo). In this case, it was reasonable for the RPD to make a negative
inference towards the Applicant’s credibility and his subjective fear of
persecution from the lengthy delay in making his refugee claim.
IV.
No Credible Basis Finding
[7]
It was not reasonable, however, for the RPD to conclude
there was no credible basis for the Applicant’s claim, and for this reason the
RPD’s decision should be set aside and the matter returned to the RPD to be
re-determined. I agree with the Applicant that the RPD conflated its
credibility findings about the Applicant with a no credible basis finding. The
RPD failed to properly consider whether there was any credible evidence,
including the testimony of the other witnesses, to support the Applicant’s
claim.
[8]
There were no explicit credibility findings
about the two witnesses, namely, Anthony and Sutharshan, the Applicant’s
current same-sex partner. The lack of any credibility findings against
Sutharshan is particularly troublesome because it is the Applicant’s
homosexuality that was squarely in issue before the RPD. Sutharshan directly
testified that he and the Applicant have a sexual and romantic relationship. In
order to find that the Applicant is not a homosexual, the RPD must have
determined, at least implicitly, that Sutharshan was not credible in this
regard. This determination cannot be justified and, hence, it was unreasonable
for the RPD not to consider whether Sutharshan’s testimony and the documentary
evidence were sufficient to establish the Applicant’s claim.
[9]
The RPD’s finding that the Applicant was not
credible does not automatically result in a “no credible
basis” finding (see: Foyet v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1591 at paragraphs 23-26 (FC)). The threshold
for a no credible basis finding is a high one because it removes the automatic
stay of removal pending judicial review for claimants from countries designated
under subsection 109.1 (1) of the Act. As recently noted by my colleague
Madam Justice Cecily Strickland in Behary v Canada (Citizenship and
Immigration), 2015 FC 794:
[53] …The RPD must look to objective
documentary evidence before making such a [no credible basis] finding. Only if
there is no independent or credible documentary evidence, or if any such
evidence cannot support a positive decision, can the RPD make such a finding (Rahaman
v Canada (Minister of Citizenship and Immigration), 2002 FCA 89 at paras
19, 28, 51 [Rahaman]; Ramón Levario v Canada (Citizenship and
Immigration), 2012 FC 314 at para 19 [Levario]; Sinko v Canada
(Minister of Citizenship and Immigration), 2002 FCT 903 at para 21; Sadeghi
v Canada (Minister of Citizenship and Immigration), 2002 FCT 1083 at para
24).
[10]
In this case, there was substantial documentary
evidence before the RPD about the persecution of homosexuals in India, in
addition to the unchallenged testimony of one of the Applicant’s witnesses. This
evidence was not assessed by the RPD prior to making its no credible basis
finding. Consequently, the RPD’s decision is unreasonable and is not a
defensible or acceptable outcome in respect of the facts and law.
V.
Conclusion
[11]
For the reasons stated above, the application
for judicial review is allowed and the matter is returned for re-determination
by a different panel member of the RPD. Neither party suggested a question for
certification; so, no such question is certified.
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