Toronto, Ontario, March 17th, 2005
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Valeriy Kravchenko (the "Applicant") seeks judicial review of the decision, dated February 9, 2004, of the Immigration and Refugee Board, Refugee Protection Division (the "Board"). In its decision, the Board determined that the Applicant is not a Convention refugee nor a person in need of protection, as defined in the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act").
[2] The Applicant is a Ukrainian citizen and based his claim upon fear of persecution due to sexual orientation. He is a homosexual.
[3] The Board rejected his claim to be a homosexual, saying the following:
... The claimant was asked to confirm that he made the choice to be gay and he did so. I do not accept this as reasonable. The claimant is a well-educated man who understood the consequences of being gay. It is unreasonable that such a man would choose a life style which would inevitably cause him problems whether he was shy or not. It is also unreasonable that a man who was truly a homosexual would equate being a homosexual with being too shy to speak with girls. He also stated that if a man is not married by the age of twenty-five, he is considered a confirmed bachelor and that he had problems with health. Although not determinative, on a balance of probabilities, the claimant's description of his experience of his recognition of being a homosexual is inconsistent with someone who is truly gay.
[4] The applicable standard of review to decisions of the Board is patent unreasonableness; see Conkova v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.)(QL).
[5] In my opinion, the decision here in issue does not meet this test.
[6] The Board made findings of fact in a perverse and capricious manner; its decision is indefensible. At best, the Board's conclusions reflect an uninformed view of male homosexuality; at worst, they demonstrate reliance on preconceived ideas about homosexuality. I refer to the following:
... The situation which the claimant alleged occurred did not conform to one of caution in that it took place often, in an officer's dormitory and the claimant could not explain how the situation developed from an invitation to tea to that of sexual intimacy. When asked how he was able to visit Vladimir so many times without being caught, the claimant simply replied that what happened happened. On a balance of probabilities, I find that the claimant had difficulty in describing elements of the alleged relationship with Vladimir because no such relationship existed.
...
... He replied that whatever way they tried to hide it, it became apparent in their body language and facial expressions. I do not accept this as credible. The claimant alleged that he was a shy person. He was also an educated man of forty-three, one who was a department head. He was not an impetuous youth. It is unreasonable to accept that he would be unable to hide a relationship; though he tried. It is not credible that such a man would publicly display body language and facial expressions which would cause him public notice and trouble in a homophobic society. On a balance of probabilities, I find that the claimant did not have a homosexual relationship with a man named Alexander or with any other man in Ukraine.
[7] In Trembliuk v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1590, (T.D.)(QL), Justice Gibson criticized reliance on stereotypical impressions in assessing Convention refugee claims on the basis of homosexuality and said the following:
On the facts of this matter, I am satisfied that the inferences drawn by the RPD are so unreasonable as to warrant the intervention of this Court. Those inferences were based on stereotypical profiles that simply cannot be assumed to be appropriate to all persons of homosexual orientation ...
[8] In the result, this application for judicial review is allowed and the matter is remitted to a differently constituted panel for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel for redetermination. There is no question for certification arising.
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2487-04
STYLE OF CAUSE: VALERIY KRAVCHENKO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 16, 2005
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: MARCH 17, 2005
APPEARANCES:
Mr. Peter D. Woloshyn FOR THE APPLICANT
Mr. Stephen H. Gold FOR THE RESPONDENT
SOLICITORS OF RECORD:
Yallen Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT