Date: 19991105
Docket: IMM-1559-98
Ottawa, Ontario, this 5th day of November, 1999
Present : The Honourable Mr. Justice Pinard
Between :
YAROSLAV DOLINOVSKY,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board dated June 14, 1996, in which it determined that the applicant was not a Convention refugee, is dismissed.
JUDGE
Date: 19991105
Docket: IMM-1559-98
Between :
YAROSLAV DOLINOVSKY,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated June 14, 1996, in which the Board determined that he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act (the Act).
[2] The applicant's claim for refugee status is based on a well-founded fear of persecution in both Ukraine and Russia on the grounds that he is homosexual.
[3] The Board concluded that the applicant is a national of Ukraine, which is not in issue, as neither the applicant nor the respondent raised the question of the applicant's nationality in their respective records.
[4] In addition, the Board found that the applicant does not have a well-founded fear of persecution. Although he is a member of a particular social group (homosexuals) and has the requisite subjective fear, the Board concluded that the requisite objective basis for a well-founded fear of persecution does not exist. The Board accepted the applicant's testimony regarding his experiences prior to his arrival in Canada as credible and trustworthy. However, it found that the evidence did not indicate that the hostile public attitude towards homosexuality in Ukraine "gives rise to a "reasonable possibility" that homosexuals in that country face problems that could be considered to amount to persecution". In particular, the Board pointed to the repeal of the criminal prohibition against consensual homosexual acts between males, the little evidence suggesting that Ukrainian police engage in abusive conduct towards homosexuals, the establishment of the gay rights organization "Two Colours" and the opening of a gay disco in Kiev. The Board was not prepared to accept evidence from Russia as a conclusive indication that the situation in Ukraine is the same as that reported in Russia. Furthermore, the Board found that the applicant's experience in Ukraine prior to 1987 did not amount to persecution as defined in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 734. Because the Board found that the applicant is a national of Ukraine and that he does not have a well-founded fear of persecution in that country, it did not make any determination with respect to his refugee claim against Russia.
[5] The applicant argues that the Board erred in law by overlooking evidence before it and by making erroneous findings of fact without regard to the evidence before it. The applicant further argues that the Board's decision is too summary and brief.
[6] These arguments are not very convincing. It is well established that it is incumbent upon the Board to appropriately weigh the evidence before it and support its conclusion with reference to the evidence. In this case, I am of the opinion that the Board took into account the totality of evidence before it.
[7] The Board found the applicant's testimony credible and trustworthy, but gave more weight to documentary evidence suggesting that attitudes in Ukraine towards homosexuals are improving. Under Zhou v. M.E.I. (July 18, 1994), A-492-94, the Board is entitled to rely on documentary evidence in preference to that of the applicant. Likewise, the Court of Appeal made it clear in Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11, that the issue of a change of country circumstances is a question of fact. "Given the direction that a change of country circumstances is a finding of fact, this Court should be reluctant to intervene unless that finding is truly erroneous"1, which has not been established here.
[8] The applicant raised three further issues, but in my opinion, they are not worth detailed discussion. First, the applicant contends that the Board did not explicitly conclude why the applicant was not a credible witness. In my view, this statement is wholly inaccurate and misleading as the Board did accept the applicant's testimony as credible and trustworthy. Second, the applicant claims that the members of the Board were unduly hostile to him. This allegation is unsupported by the transcript of the applicant's hearing. Third, the applicant submits that the Board erred in law by failing to apply the appropriate test, as outlined in Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680, of what constitutes a well-founded fear of persecution. This submission is inaccurate since the Board applied Adjei in its decision. The Board found that while attitudes in Ukraine towards homosexuals remain hostile, this hostility is not "such that it gives rise to a "reasonable possibility" that homosexuals in that country face problems that could be considered to amount to persecution".
[9] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 5, 1999
__________________
1 Elmi et al. v. Minister of Citizenship and Immigration (June 10, 1996), A-744-92.