Date: 20041216
Docket: IMM-9915-03
OTTAWA, Ontario, December 16th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
DERICK T. CHARLES
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 of the Immigration and Refugee Board ("Board") dated November 17, 2003, in which the applicant was found not to be a Convention refugee or person in need of protection.
FACTS
[2] The applicant is a 25 year-old citizen from Grenada who alleges a fear of persecution based on his sexual orientation as a homosexual. He claims that at the age of 19, he moved to the city of St. George in Grenada and became involved in his first homosexual relationship. When his family learned of the relationship, they ostracized him and his step-father threatened and beat him. His partner was also threatened and beaten, causing him to leave the relationship with the applicant.
[3] Shortly after commencing another relationship, the applicant was again badly beaten by his step-father on two more occasions. He sought medical attention for his injuries and a medical report was submitted to the Board. He also reported the incident to the police who did not assist him. The applicant alleges that following this incident, his male partner from the second relationship was found dead on the beach.
[4] Fearing further reprisals, the applicant moved to another part of the country. He claims that despite this move, his step-father located him, beat him severely and left him to die. The applicant reported the abuse to the police, however, they were unwilling to help him. Consequently, with the assistance of his brother, the applicant went into hiding until he departed for Canada in July 2001.
DECISION
[5] The Board rejected the applicant's claim due to credibility concerns. It found that there was insufficient trustworthy evidence to establish that the applicant was a homosexual. In making this determination, the Board relied on a number of findings, including the following:
· the applicant had difficulty remembering key dates. For example, he was unable to recall with any specificity when he began his first homosexual relationship, nor was he able to provide details of this relationship. He was also unable to recall when in 1998 his step-father learned he was homosexual;
· the applicant was unable to provide any details about the family of his first partner, with whom he had had a serious relationship;
· there was no corroborative evidence of the applicant's serious homosexual relationships in Grenada or Montreal, such as memorabilia, letters or photos (with the exception of the T-shirt the applicant was wearing);
· the applicant was not involved with any homosexual organizations in Canada;
· the medical report submitted by the applicant suggested that the injuries he sustained from a beating were far less serious than those indicated in his personal information form.
ISSUES
[6] Did the Board err in its assessment of the applicant's credibility?
ANALYSIS
[7] It is established that the standard of review for findings of credibility is patent unreasonableness. Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). The Board is a specialized tribunal with direct access to the viva voce testimony of the applicant and is in the best position to assess his or her credibility.
[8] If the applicant's evidence is true, I am satisfied that the applicant has been persecuted because of his sexual orientation and the state has shown that it is unwilling and unable to protect him. The applicant has been severely beaten on three occasions by his step-father because the applicant is a homosexual. The applicant's first homosexual partner was also harassed and beaten by the step-father. The applicant's second homosexual partner was allegedly found dead on the beach. The applicant provided a medical report to corroborate his injuries from the beatings. The report stated that the beating was by the step-father. Asked by the panel to produce photographs of the applicant with his boyfriends, the applicant said he had no photographs except for a T-shirt which he was wearing under his clothes. That T-shirt had a photograph of the applicant with one of his male friends.
[9] In my view, the panel rejected the credibility of the applicant on the basis of the following patently unreasonable findings:
1. while the applicant could remember his age of 19 when he started his first homosexual relationship, the Board stated "... there is nothing that stuck in his mind with respect to the date, he mentioned there was none that he could recall now";
2. the panel also notes that the claimant "is not involved in homosexual organizations in Canada, which is perhaps further indication that the claimant is not a homosexual";
3. the Board stated "When the panel asked if the claimant had any pictures, however, the claimant was able to show his T-shirt, which he was wearing under his over-shirt and that had a picture of himself and his friend with their names on it. Unfortunately, the panel could not make this an exhibit as it was a piece of clothing that the claimant was wearing. The panel was asking the applicant to provide photographs of "his alleged previous lovers";
4. the panel expected that the applicant would remember "whether it was the beginning of July, the middle of July, or the end of July 2000" when the applicant began his relationship with John, a gay person from the U.S.;
5. the panel found that the medical report confirming that the applicant was beaten by a step-father and required medical treatment does not corroborate that the claimant was beaten because the claimant was gay.
[10] The Court is of the view that it is patently unreasonable:
1. to expect the applicant at age 19 to remember the exact date when he had his first homosexual relationship;
2. to expect that the applicant would not belong to a homosexual organization in Canada if he was a homosexual;
3. to discount the picture of the applicant and his current boyfriend printed on the T-shirt that he was wearing under his over-shirt because the panel could not enter this piece of clothing as an exhibit because the applicant was wearing it;
4. to expect the applicant should remember whether his alleged relationship with a gay person from the U.S. three years ago was in the beginning, middle or end of July 2000; and
5. to reject the medical evidence as corroborative evidence because the claimant could have been beaten by his step-father for any number of reasons.
[11] The panel does not refer to, or explain, why it discredits a letter from the applicant's brother which corroborates that the applicant was beaten by his step-father because he was gay and the brother took the applicant to see the doctor, cared for the applicant after the last beating and arranged for the applicant to travel to Canada to "get away from the stress here".
[12] At the outset of the hearing, counsel brought to the attention of the Court that the Board had lost the recording of the hearing. Consequently there was no transcript. My findings that this decision is patently unreasonable is based on the record before the Court without the transcript. Accordingly, I need not decide whether the absence of the transcript constitutes a breach of the rules of natural justice for which the applicant would be entitled, by itself, to a new hearing. See Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793.
[13] Neither counsel proposed a question for certification. The Court agrees that there is no question raised by this application which should be certified for an appeal.
ORDER
THE COURT ORDERS THAT:
This application for judicial review is allowed, and the matter referred back to a newly constituted panel of the Board for a new hearing and redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-9915-03
STYLE OF CAUSE: DERICK T. CHARLES
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: DECEMBER 9, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: DECEMBER 16, 2004
APPEARANCES BY: Kingsley Jesuorobo
Toronto, Ontario
For the Applicant
Tamrat Gebeyehu
DEPARTMENT OF JUSTICE
For the Respondent
SOLICITORS OF RECORD: Kingsley Jesuorobo
Barrister and Solictor
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20041216
Docket: IMM-9915-03
BETWEEN:
DERICK T. CHARLES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER