Date: 20070206
Docket: IMM-592-07
Citation: 2008 FC 154
Ottawa, Ontario,
February 6, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
BADRI
NATSVLISHVILI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board) dated
January 8, 2007, concluding that the applicant was not a Convention refugee or
a person in need of protection.
I. The facts
[2]
The
applicant is a citizen of Georgia who claims fear of
persecution in that country based on his sexual orientation.
[3]
He
was married to a woman for seven years and has two children (14 and 16 years
old) who remain in Georgia with his sister. He declared in his Personal
Information Form (PIF) that he was separated from his wife but in his testimony
he declared that he was divorced. He did not produce either a marriage
certificate or a divorce order.
[4]
He
claims he was divorced because his wife was dissatisfied with his sex life. He
alleges that he had been gay since he was sixteen years old but he did not openly
express his orientation because of the homophobic attitude of Georgian society.
He was married, he alleges, to give the appearance that he was “normal”.
[5]
He
lived for 23 years without expressing his homosexuality except for one brief
relationship at age 39 with a co-worker named Giorgi. Giorgi left him for six
months, returning on October 2005. He then appeared to be under the influence
of drugs and asked for money, threatening to expose the applicant’s sexual
orientation. The applicant gave him $100.00. Later he asked for money from the
applicant’s sister, but she refused. He decided to come to Canada because he
feared the black mail and discrimination and harassment in Georgia.
[6]
According
to the documentation produced in evidence, a report of Legal Affairs and Human
Rights Committee of the Parliamentary Council of Europe of February 16, 2000,
homosexuality was taboo in Georgia.
[7]
An
update produced on November 24, 2004 reveals that Georgia has
decriminalized homosexuality on November 16, 2004. According to this document,
homosexuals are still discriminated against in Georgia.
II. The decision under
review
[8]
In
her decision of January 8, 2007, the Board member determined that the applicant
was not a Convention refugee or a person in need of protection. She based her
decision on the applicant’s lack of credibility and the implausibility of his
version of events. She took into account “claimant’s lack of education and
sophistication” (a grade 10 education) and “the homophobic society in which he
lived.”
III. Issues
A.
Did
the Board err in its assessment of the credibility and implausibility of the
applicant’s version of the facts and events?
B.
Did
the Board commit a reviewable error in its assessment of the consequences of
sexual orientation in Georgia?
IV. Standard of review
[9]
It
is very clear that in law, the Board’s factual findings, including its
credibility determinations and the weight to be given to evidence, is to be
given high deference and can only be set aside if found to be patently
unreasonable.
[10]
These
findings will only be reviewed or set aside if they are “clearly irrational”,
or “evidently not in accordance with reason” (Law Society of New Brunswick
v. Ryan, [2003] 1 S.C.R. 247; Aguebor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL); Harusha v. Canada
(Minister of Citizenship and Immigration), 2007 FC 2004).
V. Analysis
A. Did
the Board err in its assessment of the credibility and implausibility of the
applicant’s version of the facts and events?
[11]
The
applicant submits that the Board made several reviewable errors in the
assessment of the applicant’s sexual orientation and argues that the Board
disregarded the reality of how gay men are perceived by Georgian society,
particularly in a small town of 4000 people where the applicant resided.
[12]
The
applicant argues that the Board performed a microscopic examination of the applicant’s
evidence to support its conclusion, an exercise criticized in Attakora v. Canada (Minister of
Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.) (QL).
[13]
The
respondent replied that the only finding that was decided by the Board was the negative
credibility of the applicant and the implausibility of his version of the
events. This led to the denial of his claim that he had same-sex relationships,
either in Canada or in Georgia, or that he
was a homosexual. She held, therefore, that he was not in need of protection.
[14]
An
analysis of the Board’s findings on the applicant’s credibility is founded upon
several aspects of his testimony. The Board member made a thorough assessment
of the evidence to reach her conclusion.
[15]
I
do not accept that conducting a thorough examination of evidence constitutes
the type of microscopic examination criticized in the Attakora case.
[16]
While
interpreting the evidence about the claimant’s story, the Board member must
give
consideration to the claimant's age, cultural
background and previous social experiences: R.K.L. v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 162 (QL). And I must
add, when dealing with various countries, the moral and social values in those
countries.
[17]
However
in this case, the credibility finding was based upon a number of elements
arising from the applicant’s evidence. From a overall perspective, the general
conclusion can be justified by a rational assessment of the evidence.
[18]
Therefore,
the Board did not commit a reviewable error since the finding is not patently
unreasonable. As for the implausibility of the applicant’s version of events,
it is based on the totality of the evidence. Such a finding is inherently a
subjective assessment and should be approached with caution: Toth v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 305 (QL).
[19]
However,
I cannot conclude that in this case, the Board’s decision is patently
unreasonable on this point.
B.
Did the Board commit a reviewable error in its assessment of the consequences
of sexual orientation in Georgia?
[20]
The
applicant submits that the Board’s decision contains sufficient patently
unreasonable findings of fact and credibility to overcome the deference owed to
her by this Court in such decisions. He maintains that the decision contains
inappropriate and therefore erroneous projections of North American logic and
reasoning without properly taking into account of the life of a gay man in the conservative
and homophobic society which exists in Georgia.
[21]
The
respondent contests this argument and submits that the Board did consider the
country conditions in Georgia.
The Board’s decision clearly states that it
accepted the applicant’s evidence including documentation to the effect that Georgia was a homophobic
society. The documentation referred to reveals that homosexuality was a crime
in Georgia until
November 16, 2004 when the government passed a law decriminalizing such a
practise. It also documented the discrimination practised against homosexuals and
homophobic social attitudes in that country. An analysis of the decision shows
that the Board considered the applicant’s evidence on the issue of
homosexuality in Georgia and compared it to the situation in Canada.
[22]
I
therefore must conclude that this issue cannot be invoked as a reviewable error
in this case. There were no patently unreasonable errors made in the Board’s
decision.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed and no question is certified.
"Orville
Frenette"
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