Docket: IMM-4316-04
Citation: 2005 FC 498
Toronto, Ontario, April 12th, 2004
Present: The Honourable Mr. Justice Strayer
BETWEEN:
VIKTOR KHRYSTYCH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for Judicial Review of a decision of the Refugee Protection Division ("RPD") of the Immigration and Refugee Board ("Board") in which the Board determined the claimant, the Applicant herein, is not a Convention refugee or a person in need of protection.
[2] The claimant sought this status on the grounds that he is a homosexual and fears persecution if he is sent back to Ukraine. He testified that in his youth in Ukraine he gradually became aware that he was a homosexual. He was insulted and beaten from time to time by school mates who thought him effeminate. He once complained to the police about an assault without explaining his orientation. The police did nothing. He started university where he had a homosexual partner. They were both dismissed from the university for their homosexuality. He left Ukraine at the age of 20 and came to Canada, in August, 2000. He testified that here he had developed a friendship with one woman which ended when he told her of his homosexuality. He did father a child with another woman. In Toronto he "met many guys who have the same nature" and attended homosexual clubs.
[3] In very brief reasons, the Board dismissed the claim on the grounds that it did not find the claimant's testimony to be credible. After a short summary of his evidence the Board Member stated:
"I do not find the claimant's explanation to be reasonable. Although the claimant presented as an articulate young man with some intelligence, his testimony concerning this period of his life was vague and uncertain. His testimony did not have a ring of truth; that is to say, it was not genuine."
After briefly summarizing some of the evidence concerning the claimant's time in Toronto, the Board Member went on to say:
"On a balance of probabilities, I find that the claimant has not provided sufficient credible or trustworthy evidence that he is a homosexual. As the claimant's homosexuality is the crux of his case, I conclude that the claimant's story of his experiences in Ukraine and Canada relating to his homosexuality is not credible or trustworthy. I find, on a balance of probabilities, that the claimant has not provided sufficient credible or trustworthy evidence that he suffered any harm for any reason in the Ukraine."
[4] While the Court should normally defer to the Board's findings of credibility the Board is "under a duty to give its reasons for casting doubt upon the Appellant's credibility in clear and in unmistakable terms.": see, e.g., Hilo v Canada [1991] F.C.J. 228 (F.C.A.). The Board has failed to do so here. It nowhere shows any specific reason for disbelieving the claimant's evidence concerning his life in Ukraine. With respect to the evidence concerning his life in Toronto, the Board does not point to any significant contradiction in his evidence but simply dismisses it as "vague and uncertain" without "a ring of truth". Such reasons for doubting credibility are not "clear and unmistakable" as required in Hilo and cases which have followed it.
[5] I will therefore allow the Application for Judicial Review, set aside the decision of the Board, and refer the matter back to a differently constituted panel for redetermination.
ORDER
THIS COURT ORDERS that the Application for Judicial Review be allowed, the decision of the Board be set aside, and the matter be referred back to a differently constituted panel of the Refugee Protection Division for redetermination.
"B.L. Strayer"
D.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4316-04
STYLE OF CAUSE: VIKTOR KHRYSTYCH
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 11, 2005
REASONS FOR ORDER
AND ORDER BY: STRAYER D.J.
DATED: APRIL 12, 2005
APPEARANCES:
David Yerzy FOR THE APPLICANT
Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Yerzy
Barrister & Solicitor
Toronto, ON FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT