Date: 20060111
Docket: IMM-716-05
Citation: 2006 FC 20
Toronto, Ontario, January 11, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
SHALVA MAGRADZE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Shalva Magradze, the Applicant, is a Georgian male who bases his Convention refugee claim on an alleged fear of persecution by reason of his sexual orientation; specifically, the Applicant alleges that he is homosexual and would face a risk to his life or a risk to cruel or unusual treatment or punishment if returned to Georgia. In a decision dated January 7, 2005, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") denied his claim. In summary, the Board concluded that:
- The Applicant was unable to produce credible or trustworthy evidence to establish that he is a homosexual and that he would be persecuted because of his sexual orientation in Georgia;
- He could only present vague testimony with respect to the nature of his homosexual practices;
- He presented contradictory evidence about his alleged lover being beaten;
- He could not recall the apartment address of his alleged lover.
[2] The Applicant seeks judicial review of that decision.
Issues
[3] I would frame the sole issue as follows:
1. Did the Board reach its decision based on capricious or perverse findings of fact or without regard to the evidence before it?
Analysis
[4] The key determination of the Board was that the Applicant did not establish that he was homosexual. This is a finding of fact that is entitled to high deference (Aguebor v. Canada(Minister of Employment and Immigration), 106 N.R. 315 (F.C.A.)). As set out in s. 18.1 of the Federal Courts Act, the Court should only intervene where the Board based its decision "on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it."
[5] Looking at the decision as a whole, I am unable to conclude that the intervention of the Court is warranted. Although the Board erred in stating that the Applicant did not know the address of his alleged lover, this error was immaterial to the decision. The critical findings of the Board related to the Applicant's claim of being homosexual are supported by the evidence.
[6] In particular, it was open to the Board to draw a negative inference from the Applicant's inability to clearly describe his sexual activities with his alleged lover in Georgia. In this conclusion, the Board was not defining the Applicant's homosexuality by the performance of certain acts. Rather the Applicant's inability to give clear evidence in response to questioning on the subject led the Board to doubt his story. The awkward and vague responses cannot be attributed to embarrassment on the Applicant's part; the Applicant acknowledged that he was not having problems with the line of questioning or with the presence of a female interpreter. There is no error.
[7] I am also not persuaded that the Board erred in respect of its findings on the Applicant's activities in Canada. In sum, the Board found it implausible that a person who allegedly fled his country to escape persecution because of his sexual orientation would not take more active steps to pursue his lifestyle. There is nothing unreasonable in the Board's findings.
[8] The application will be dismissed. Neither party proposed a question for certification.
ORDER
THIS COURT ORDERS that
1. The application is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-716-05
STYLE OF CAUSE: SHALVA MAGRADZE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 11, 2006
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: JANUARY 11, 2006
APPEARANCES:
David Yerzy FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Yerzy,
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
Of Canada FOR THE RESPONDENT
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