Date: 20050406
Docket: IMM-3507-04
Citation: 2005 FC 456
Toronto, Ontario, April 6th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
LASZLO LASZLO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Laszlo Laszlo, is a 27 year old Romanian homosexual male who claims to fear persecution due to his sexual preference. He claims to have been kicked out of his house by his father and to have been beaten up repeatedly by school mates, people from his town and the authorities for being gay.
[2] On one occasion, he was brought into the police station so that the police could try to find out where his lover was. He refused to tell them and was beaten, again to the point of unconsciousness. The police claimed that a 16 year old boy was molested and they believed the Applicant and his friend were responsible. He was in hospital for two weeks following the assault. When he was released, he learned his friend was in jail for the molestation of the boy.
[3] From that time on, the Applicant was constantly harassed. Given that his friend was in prison and he did not know if he was alive or dead, he decided to leave Romania. He went to Hungary where he met someone who helped him acquire documentation to come to Canada. He arrived in Canada on November 15, 2000 where he claimed refugee status.
[4] The Board did not find the Applicant's claim that he is homosexual to be credible because he had no knowledge of any gay group of organization in his country and is not involved in the gay community in Canada. The Board also found many other aspects of his story not credible and his evidence unreliable and untrustworthy.
ISSUE
[5] Did the Board make any patently unreasonable findings by basing its findings on stereotypical analysis and unfounded conclusions.
STANDARD OF REVIEW
[6] Both sides agree that the applicable standard of review for findings of fact and credibility is patent unreasonableness (see Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17.)
ANALYSIS
[7] The Applicant argues makes two points:
(a) the finding regarding the Applicant's alleged homosexuality is based on stereotypical profiles of homosexuals; and
(b) the Board made several findings of facts, such as findings regarding his employment history, the medical evidence, his friend's conviction, the status of persecution of gays in Rumania, that are not substantiated by the record.
[8] Regarding point (a) the Applicant points to the following excerpt of the Board's decision:
"In contrast to his contention that he is homosexual and that he suffered consequences because of his sexual orientation during the course of several years, the claimant had no knowledge of any gay group or organization in his Country. He had no knowledge of an organization called "Accept" that promotes gay rights. It would seem reasonable to accept that the existence of an organization that is supportive of gay rights would go unnoticed by a gay person, especially if the panel is to believe the claimant that homosexuals in his country were mistreated and marginalised.
As well, because of his alleged sexual orientation, the claimant left his country, however, he testified that he is not involved in the gay community in Canada and that he lives alone.
[9] In support he relies on Trembliuk v. Canada (MCI) [2003] F.C.J. No. 1590 where Gibson J. states at paragraph 5:
5 At the close of the hearing before me, I advised counsel that I would allow the application for judicial review on the basis that the RPD applied to the applicant a stereotypical view of the life-style and preoccupations of homosexual persons including a view that a person such as the applicant, if he were homosexual, would dissociate himself from the Roman Catholic church and from Roman Catholic schools, despite the fact that he was born Catholic. The RPD further adopted a stereotypical view of how a Roman Catholic priest would conduct himself in his living arrangement and interaction with a young man such as the applicant in the current climate in North America. In this latter regard, the applicant alleged that he resided with a Roman Catholic priest in a two-room apartment, with the support of his god-mother, in order to be close to the Roman Catholic school that he attended.
The RPD wrote:
I find this situation implausible for two reasons. The first is that I do not believe that a priest would put his professional reputation at risk by living in a two-room apartment with an eighteen-year-old student. A reasonable person would expect that, given the current climate in North America and indeed around the world with respect to the sexual abuse of minors and young adults by Roman Catholic clergy, any priest would exercise due diligence with respect to how he relates to young people in his charge. I do not believe that the claimant lives in a two-room apartment with [a particular priest is named] because I do not believe that a priest would engage in behaviour risking his professional reputation.
6 The RPD's finding that the applicant was not of homosexual orientation was based on what it determined to be implausibilities regarding not seeking out the homosexual community in Toronto, not knowing much about gay pride day in Toronto and attending a Roman Catholic school and occasionally the Roman Catholic church. The applicant testified that his single-minded focus upon arrival in Canada was to improve his education and to ensure regularization of his status in Canada. ....
8 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 and to all Roman Catholic priests. They ignore the rational and reasonable testimony provided by the applicant in explanation.
[10] The facts in this case however are different. First the bulk of these observations concern the behaviour of priests. Secondly they are observations about behaviour rather than observation about knowledge or interest. In the present case the Board merely makes a logical plausibility finding that a person belonging to a persecuted minority would be interested in how members of that persecuted minority is treated in his country of refuge and/or show an interest in their community . In addition the Applicant himself introduced lengthy documentation from 'Accept' to support his claim. It is up to him to satisfy the Board as to the particulars of his claim. His failure to know about a homosexual support association in his country ( the documentation of which he submits as evidence) can be held against the Applicant. While the choice of words of the Board could have been more felicitous, this is not a situation of stereotyping along the lines of Tremliuk supra but rather one where the applicant failed to establish his homosexuality with credible evidence. As stated in Zamanibakhsh v. MCI [2002] FCT 1137:
The CRDD could not conclude on a balance of probabilities that he was indeed a homosexual because it simply did not believe the Applicant's story. My reading of the decision is that the CRDD made a general finding of non credibility and that he was not a practising homosexual.
Homosexuality is an integral part of a human being. In order to prove such a state, the Applicant must present factual evidence that demonstrates such a way of being. The Applicant bears the onus of proof, and the CRDD found that he did not satisfy this onus.
[11] Regarding point (b) it is undisputed that the Board is entitled to make findings based on implausibility, common sense and rationality. The burden is on the Applicant to rebut any findings of the Board regarding credibility. (see Kahandani v. M.C.I. [1999] F.C.J. 1769).
[12] However, even if there were mistakes or over generalizations in this part of the Board's decision ( as the Applicant alleges), these findings were clearly secondary, in effect obiter dicta , to its main conclusion that it did not find credible his allegations of homosexuality.
[13] This is very similar to the situation encountered by Nadon J. ( as he then was) in Polyakov v. M.C.I. [1996] F.C.J. 300.
9 On the evidence before it, the Board concluded that the Applicant had not demonstrated that he was a homosexual. As I indicated to the parties during the hearing, that conclusion cannot, by any stretch of the imagination, be qualified as unreasonable. The Applicant testified before the Board that, while he lived in Moldova and since he arrived in Canada, he had not established any homosexual relationships.
10 The Board went further and concluded that the Applicant's testimony in regard to his sexual orientation lacked credibility. Because it could not, and did not accept his story, the Board could also not accept, and did not accept, that he could be persecuted, by reason of his membership in a particular social group, named homosexuality. Consequently, the issue raised by the Applicant with respect to the persecuting agent is irrelevant.
[14] Accordingly, upon reviewing the evidence, I am not satisfied, in spite of the able presentation of counsel for the Applicant, that the Board, which is a specialized tribunal, made a patently unreasonable finding regarding the credibility of the Applicant with respect to his sexual orientation. Therefore this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3507-04
STYLE OF CAUSE: LASZLO LASZLO
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 5, 2005
REASON FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
APPEARANCES BY:
Gregory Willoughby FOR THE APPLICANT
Mielka Visnic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gregory Willoughbyo
London, Ontario FOR THE APPLICANT
John H. Sims, Q.C
Deputy Attorney General of Canada FOR THE RESPONDENT