Date:
20121206
Docket:
IMM-3456-12
Citation:
2012 FC 1429
Ottawa, Ontario,
December 6, 2012
PRESENT: The
Honourable Mr. Justice Barnes
BETWEEN:
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SERGO LATSABIDZE
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Sergo Latsabidze challenging a
decision by the Refugee Protection Division of the Immigration Refugee Board
(Board) by which his claim to refugee protection was denied. Mr. Latsabidze
claimed to be a homosexual who had been persecuted in Georgia by virtue of his sexual orientation. The Board rejected the claim because it did
not believe that he was a homosexual.
[2]
The
Board questioned Mr. Latsabidze about his involvement in the Toronto gay community and about his sexual activities. He testified that he was not
active in the gay community because of language limitations, stress and his
commitment to his Georgian boyfriend. The Board rejected these explanations
for the following reasons:
Although the lack of promiscuity may not be
determinative of the claimant’s sexual orientation, I am not inclined to
believe that if the claimant is truly gay, he has no interest in involving
himself with gay activities, without necessarily getting into a gay
relationship here in Toronto, without his Gocha. I do not believe that language
is a barrier for him to be involved in gay activities in Toronto, that he is
still under stress and that he does not feel protected because there are
Georgians here. On a balance of probabilities, the claimant is not what he
claims to be.
The above passage constitutes a
plausibility finding that is based on an unacceptable stereotype. The Board
was effectively saying that gay men are promiscuous and that they are incapable
of living in monogamous relationships. The Board also assumed that no gay man
would choose to live outside of the gay community. It is worth noting that
this Board member dismissed a similar claim in the matter of Kornienko v Canada (MCI), 2012 FC 1419 using language that is almost identical to that used here.
[3]
The
inappropriateness of using stereotypes of this sort is reflected in several
decisions of this Court including Dosmakova v Canada, 2007 FC 1357,
[2007] FCJ no 1742 where Justice Eleanor R. Dawson observed at para 12
“that plausibility findings cannot be made on the basis of stereotypical
attitudes or projected behaviours that is unsupported by the evidence”. Also
see: Essa v Canada, 2011 FC 1493 at paras 30 – 31, [2011] FCJ no 1819, Herrera
v Canada (Minister of Citizenship and Immigration), 2005 FC 1233 at para
12, [2005] FCJ no 1499, Menaj v Canada, 2008 FC 611 at para 17,
[2008] FCJ no 754, Kravchenko v Canada, 2005 FC 387 at para 6, [2005]
FCJ no 479, Trembliuk v Canada, 2003 FC 1264 at para 8, [2003] FCJ no
1590.
[4]
Counsel
for the Respondent urged me to uphold the decision notwithstanding this problem
because of the Board’s other credibility concerns.
[5]
I
am not prepared to excuse such a serious error. The idea that gay men are
invariably promiscuous and incapable of establishing stable relationships is a
pejorative characterization and it colours all of the Board’s evidentiary
findings, as well as its state protection finding.
[6]
The
state protection analysis is also flawed because it is perfunctory and made
without reference to the evidence.
[7]
For
the foregoing reasons, this application is allowed. The matter must be re-determined
on the merits by a different decision-maker. Neither party
proposed a certified question and no issue of general importance arises on this
record.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
allowed with the matter to be re-determined on the merits by a different
decision-maker.
"R.L. Barnes"
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