Date: 20050531
Docket: IMM-6328-04
Citation: 2005 FC 784
Toronto, Ontario, May 31st, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MIROSLAW PITROWSKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Miroslaw Pitrowski is a Polish citizen. He is also gay. The Refugee Protection Division of the Immigration and Refugee Board rejected his claim for refugee protection, finding that his story of persecution in Poland because of his sexual orientation was not credible. The Board also went on to find, in the alternative, that state protection is available to gays and lesbians in Poland, and that Mr. Pitrowski also had a valid internal flight alternative (or 'IFA') in Warsaw.
[2] Mr. Pitrowski now seeks judicial review of the Board's decision, asserting that the Board's credibility assessment was flawed. He also contends that the Board erred in making its findings as to the availability of an IFA and the adequacy of state protection for gays and lesbians in Poland by its selective use of the country condition information. Each of these arguments will be addressed in turn.
Did the Board Err in Finding That Mr. Pitrowski Was Not Credible?
[3] While the Board accepted that Mr. Pitrowski was gay, it did not accept his claim to have been persecuted in Poland because of his sexual orientation. The Board's finding that his story was not credible was based on a number of inconsistencies and implausibilities in Mr. Pitrowski's testimony, as well as inconsistencies between his testimony at his refugee hearing, and the information that he provided at the port of entry and in his Personal Information Form (or 'PIF').
[4] By way of example, Mr. Pitrowski alleges that in October of 2000, he was attacked and beaten because of his sexual orientation. In his PIF, Mr. Pitrowski says that there were two attackers, whereas at one point in the course of his testimony, Mr. Pitrowski stated that there were three attackers. Later on, he claimed that there were five or six attackers.
[5] The Board confronted Mr. Pitrowski with these inconsistencies. Mr. Pitrowski explained that the incident was traumatic for him, and that he had tried to block it out. The Board did not accept this explanation, and found that the incident did not occur. From my review of the evidence, I am satisfied that this finding was open to the Board, and was not patently unreasonable.
[6] Similarly, there was nothing unreasonable about the Board's finding that the beating that Mr. Pitrowski claims to have sustained in August of 2001 also did not happen, given the inconsistencies in Mr. Pitrowski's description of this event. Mr. Pitrowski claimed at one point that on this occasion, he and his friends were attacked and beaten by 12 men. On another occasion, he says that they were threatened by two men and three women, but not beaten.
[7] I am also satisfied that the Board's implausibility finding regarding an incident that allegedly occurred in March of 2002 was one that was reasonably open to it. Mr. Pitrowski claims that as he and his partner were walking through a park full of hooligans one night, they stopped and embraced. They were then attacked and beaten by some of the hooligans. The Board found that it was implausible that someone who claims to have previously been beaten because of his sexual orientation would put himself in such a dangerous predicament.
[8] Mr. Pitrowski submits that in this instance, the Board was effectively 'blaming the victim'. I do not agree. Mr. Pitrowski claims to have a subjective fear of persecution in his homeland because of his sexual orientation. The behaviour that he describes is inconsistent with such a fear. In my view, the Board could reasonably draw an inference that this aspect of Mr. Pitrowski's story was not plausible.
[9] Mr. Pitrowski's story was further undermined by the fact that at the port of entry he claimed that he had been threatened because he was gay, but made no mention of having been beaten on several occasions. While I accept that the form provided to applicants gives them little space to tell their story, this does not, in my view, explain the fundamental differences in the stories told by Mr. Pitrowski.
[10] Similarly, the difficulties that Mr. Pitrowski says that he had with the interpreter that he used early in the process does not explain the internal inconsistencies within his testimony.
[11] Finally, the Board found that the fact that Mr. Pitrowski was in Canada for over five months before applying for refugee protection was inconsistent with a subjective fear of persecution on his part. It is well established in the jurisprudence that while delay in claiming is not determinative, it is a factor that the Board can properly consider in assessing a claim: see, for example, Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271 (FCA).
[12] For these reasons, I am satisfied that there is no basis for interfering with the Board's decision as it relates to the finding that Mr. Pitrowski was not credible.
[13] While that is arguably the end of the matter, Mr. Pitrowski submits that regardless of whether or not he had been persecuted in the past, the refugee analysis is forward-looking. Given that the Board accepted that he was gay, Mr. Pitrowski says that it nevertheless had to go on to determine the availability of state protection and an IFA, and that, as a result, it is also necessary to consider the Board's findings in this regard.
[14] While he did not use the term, it appears that Mr. Pitrowski is essentially arguing that his profile as a gay man is such that he is at risk in Poland, regardless of whether or not he has been persecuted in the past. I will therefore consider whether the Board's conclusion as to the availability of state protection is one that can withstand scrutiny.
Was the Board's Finding with Respect to the Issue of State Protection Based Upon a Selective Reading of the Evidence?
[15] According to Mr. Pitrowski, the only time that he himself sought the assistance of the police was after the October, 2000 assault. He says that the police refused to help him. As noted above, the Board found that this incident never happened.
[16] After reviewing the documentary evidence before it relating to country conditions in Poland for gays and lesbians, the Board found that Poland is increasingly tolerant of gays and lesbians, and that police assistance is available to victims of violence.
[17] Mr. Pitrowski submits that the Board erred in finding that state protection was available to gays and lesbians in Poland. In this regard, he points to a report from 2001 that mentions several incidents of 'gay-bashing'.
[18] It is well established that there is no obligation on a tribunal to mention every piece of evidence before it: Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102. In this case, the overwhelming preponderance of the evidence before the Board supports its findings with respect to the availability of state protection, and I see no basis for interfering with the Board's conclusions in this regard.
[19] In the circumstances, it is not necessary to address the availability of an IFA.
Conclusion
[20] For these reasons, the application is dismissed.
Certification
[21] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6328-04
STYLE OF CAUSE: MIROSLAW PITROWSKI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 31, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: MAY 31, 2005
APPEARANCES:
Mr. David Yerzy FOR THE APPLICANT
Mr. Alexandre Tavadian FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Yerzy
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT