Docket: IMM-1642-17
Citation:
2017 FC 870
Ottawa, Ontario, September 29, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ANTON HOHOL
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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]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the “IRPA”), of a decision made by the Refugee Protection
Division (“RPD”) of the Immigration and Refugee Board, finding that the
Applicant is not a Convention refugee or a person in need of protection and
that his claim was manifestly unfounded.
II.
Background
[2]
The Applicant is a citizen of Ukraine. He came
to Canada in early 2015 on a study permit to learn English.
[3]
In July 2015, the Applicant made a refugee claim
on the grounds that he fears persecution and violence in Ukraine due to his
sexual orientation, pursuant to sections 96 and 97 of the IRPA. His supporting
documents included country-conditions evidence, two medical reports and a
police report allegedly related to beatings he experienced, a letter from his
grandmother stating that the individuals who beat him returned to his house
looking for him, photographs with a former romantic partner as well as from the
Gay Pride Parade in Toronto, an orientation certificate from the 519 Church
Street community centre (“The 519”) and other personal documents.
[4]
On March 13, 2017, the claim was heard by the
RPD. At the conclusion of the hearing, the RPD delivered an oral decision
rejecting the Applicant’s claim and finding it to be manifestly unfounded.
Subsequently, the oral decision was provided in an edited, written version.
[5]
The RPD concluded that the Applicant had not
established there was a serious possibility of persecution on a Convention
ground or that, on a balance of probabilities, the Applicant personally would
be subjected to danger of torture or face a risk to life or a risk of cruel or
unusual punishment or treatment upon returning to Ukraine.
[6]
The RPD found the determinative issue was
credibility. In particular, the RPD found on a balance of probabilities that
two documents submitted by the Applicant were fraudulent: the police report and
the letter from his grandmother.
[7]
In finding those two documents were fraudulent,
the RPD gave no weight to other documents submitted by the Applicant.
Furthermore, the RPD found that the Applicant’s personal credibility and
statements were seriously impugned.
[8]
Regarding the Applicant’s sexual orientation,
the RPD gave no weight to the evidence submitted by the Applicant. The RPD
found that the 519 orientation sheet, the photos of him at the Gay Pride Parade
in Toronto and his claim to have attended gay bars and clubs, did not indicate
his sexual orientation because those spaces were available to the public as a
whole. As well, the RPD questioned the Applicant’s failure to ask two
ex-boyfriends to testify on his behalf.
[9]
The RPD concluded that the Applicant failed to
present credible evidence on the central part of the claim – that he was
homosexual.
[10]
Furthermore, the RPD found the claim was
fabricated and was therefore a manifestly unfounded claim, pursuant to section
107.1 of the IRPA.
III.
Issue
[11]
Was the RPD’s decision unreasonable?
IV.
Standard of Review
[12]
The standard of review is reasonableness (Wa
Kabongo v Canada (MCI), 2008 FC 348 at para 7).
V.
Analysis
[13]
The relevant provisions of the IRPA are attached
as Annex “A”.
[14]
The Applicant argues that the RPD committed a
number of errors that resulted in an unfair and unreasonable assessment of the
Applicant’s credibility. Specifically, the RPD erred by finding two of the
documents submitted by the Applicant to be fraudulent, and then relied on that
finding to summarily dismiss other documents submitted by the Applicant as well
as the Applicant’s testimony without due consideration.
[15]
The Respondent argues that the RPD provided
detailed reasons why the Applicant’s claim was not credible. As well, an
adverse credibility finding can affect all related evidence.
[16]
The RPD found the police report was fraudulent.
It found the report contained details the police couldn’t know about because
the Applicant was not interviewed by the police; he only told the hospital that
he had been beaten. Those details are the time the incident occurred and that
the incident was not hooliganism but was based on suddenly arising hostility. As
well, the Applicant claimed the letter was received in 2011 but it was dated
2012; however, this was a minor issue for the RPD. Finally, the National
Documentation Package for Ukraine indicated that fraudulent documents are
readily available in that country.
[17]
The RPD also found the grandmother’s letter was
fraudulent because the Applicant did not know who had beaten him, but the
grandmother stated that the same people who had beaten him returned to his
house. The RPD noted that the Applicant’s only explanation was that his
grandmother must have guessed they were the same people. As well, the RPD noted
the Applicant referred to the incident as having occurred on December 5, 2011,
but his narrative referred to the date as December 25, 2011; however, the RPD
noted that this was a minor detail.
[18]
The RPD’s credibility findings are entitled to
deference on judicial review: the Court is not in as good a position as the RPD
to assess the credibility of the evidence; and the reviewing Court’s analysis
should not involve determining whether each point in the RPD’s reasoning meets
the reasonableness test (Juarez v Canada (MCI), 2010 FC 890 at para 22).
[19]
The RPD is also entitled to make general
findings of lack of credibility. The accumulation of inconsistencies,
contradictions, etc., taken as a whole, can lead to such a finding. As well, a
general finding of lack of credibility can extend to all relevant evidence
emanating from the Applicant’s version and all documentary evidence he
submitted to corroborate his version of the facts (Lawal v Canada (Minister
of Citizenship and Immigration), 2010 FC 558 at para 22).
[20]
However, the RPD must not be zealous to find a
claimant is not credible (Jamil v Canada (MCI), 2006 FC 792 at para 24).
[21]
Moreover, sworn testimony is presumed true
unless there is a reason to doubt its truthfulness. Furthermore, 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, is
not enough to rebut the presumption of truthfulness (Sadeghi-Pari v Canada
(MCI), 2004 FC 282 at para 38).
[22]
As well, all evidence with respect to an
applicant’s claim for protection must be considered before a global credibility
finding is made (Owusu-Ansah v Canada (Minister of Employment and
Immigration), [1989] 98 NR 312 (FCA)). Similarly, a finding that one or
more documents are fraudulent does not necessarily mean that all documents are
fraudulent, even in a situation where fraudulent documents are readily
available. The RPD must make some effort to ascertain the authenticity of
documents that appear to be genuine (Lin v Canada (MCI), 2006 FC 84 at
paras 11-13).
[23]
While a tribunal may make a negative credibility
finding based on implausibility of evidence, that finding should only be made
in the clearest of cases, i.e., if the facts as presented are outside the realm
of what could reasonably be expected, or where documentary evidence
demonstrates that the events could not have happened in the manner asserted by
the claimant (Valtchev v Canada (MCI), 2001 FCT 776 at para 7).
[24]
In my opinion, it was unreasonable for the RPD
to make a general finding of lack of credibility based solely on the problems
it identified with the two documents considered. Reasonable alternative
explanations exist for those problems. Furthermore, the RPD misapprehended or
ignored important corroborative evidence.
[25]
The RPD found it implausible that the police and
grandmother could have known the information they conveyed, given the
Applicant’s testimony. As noted above, such a finding should only be made in
the clearest of cases. In my opinion, this is not a clear case.
[26]
Furthermore, the RPD misapprehended or ignored
important corroborative evidence:
- The Applicant
submitted a record of orientation from The 519. The 519 “…is committed to the health, happiness and full
participation of the LGBTQ community” and serves “…the evolving needs of the LGBTQ community, from
counselling services and queer parenting resources to coming out groups,
trans programming and senior’s support” (The 519, “About”, online:
<http://www.the519.org/about>). The RPD found it “…unlikely that the claimant actually attended any
events at The 519…” and “… [a]nyone member
of the public who wishes can attend there.” This Court has
previously found it to be unreasonable for the RPD to find that a
membership card at The 519 does not provide evidence that the member is
homosexual (Leke v Canada (MCI), 2007 FC 848 at paras 30-33).
- The Applicant also
submitted two medical reports. The first report, dated April 16, 2011,
stated: “Attended on April 16 around 7:30 pm after
being beaten (beaten by a group of persons unknown)… Diagnosis: multiple
contusions in soft parts of the face and both forearms, damage to the
nasal septum, bleeding surface cut wounds on the parietal part of the head”.
- The second
report, dated January 8, 2015, stated: “The
patient came to the trauma clinic at 10:30 am on January 1, according to
his statement, having been beaten by a homophobic group the night before;
criminal trauma reported to the police. Full diagnosis… An extensive
hematoma of the lumbar region from a strike by a blunt object, an incised
would of the right hand, para-orbital hematoma of the right eye, injuries
on the head, chest and lower extremities, psychological shock, depression”.
[27]
The two medical reports were not considered by
the RPD. Instead, the RPD stated:
I’m finding that at least two documents have
been shown to be, on a balance of probabilities, fraudulent, leads the panel to
give no weight to other documents produced from the same source.
[28]
It was unreasonable for the RPD to give no
weight to the medical reports. The reports are central to the Applicant’s claim
of persecution and violence based on his sexual orientation, and corroborates
the information contained in the police report and grandmother’s letter. The
more important the evidence that is not mentioned specifically and analyzed,
the more willing a court may be to infer from the silence that the agency made
an erroneous finding of fact without regard to the evidence (Cepeda-Gutierrez
v Canada (MCI), [1998] 157 FTR 35 at para 17).
[29]
Furthermore, the RPD provided no reason to
suggest the medical reports were fraudulent, aside from its negative findings
with respect to the police report and grandmother’s letter. A finding that one
or more documents are fraudulent does not necessarily mean that all documents
are fraudulent. It was unreasonable for the RPD to not make any effort to
ascertain the authenticity of the medical reports.
[30]
While it may have been open to the RPD to give
little or no weight to the police report or grandmother’s letter due to the
problems it perceived with respect to that evidence, it was not reasonable for the
RPD to make a general finding of lack of credibility on questionable grounds,
while ignoring or rejecting other, corroborative, important evidence
fundamental to the Applicant’s position and risk.
[31]
For those reasons, the RPD’s decision lacks
transparency, justification and intelligibility and is unreasonable.
[32]
I also find that the RPD erred in finding that
the Applicant’s claim was “manifestly unfounded”.
Even if I was to accept that the police report and grandmother’s letter were
fraudulent, which I need not determine, those documents did not relate to any
dishonesty material to the determination of the claim, which is based on the
Applicant’s sexual orientation (Warsame v Canada (Minister of Citizenship
and Immigration), 2016 FC 596 at para 30).
[33]
Finally, while the Applicant invited the Court
to consider an annual research paper by Professor Sean Rehaag entitled “2016 Refuge Claim Data and IRB Member Recognition Rates”,
that paper was not properly based on any expert evidence or qualified in any
acceptable manner – it is given no weight.
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