Date: 20030530
Docket: IMM-3986-02
Citation: 2003 FCT 686
Ottawa, Ontario, this 30th day of May, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
VOLODYMYR VOLOSHCHAKEVYCH
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review challenging the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated July 17, 2002 wherein the applicant was found not to be a Convention refugee because he lacked a well-founded fear of persecution and was excluded from the definition of a Convention refugee by reason of Article 1F(b) of the 1951 Convention Relating to the Status of Refugees.
[2] The issues are whether the Board erred:
i. with respect to its finding that there was no evidence that the applicant was a homosexual;
ii. whether the admitted error of the board that the applicant was fleeing prosecution for murder in the Ukraine affected its finding that the applicant was not credible; and,
iii. whether the delay in making the refugee claim was a definitive basis for concluding that the applicant was not a bona fide refugee.
FACTS
Background
The applicant is a citizen of the Ukraine who claims to have a well-founded fear of persecution on the basis of his sexual orientation. He was issued a Canadian visitor's visa on May 5, 1998 and arrived in Canada on May 23, 1998. The applicant was issued a Visitor Record and allowed to remain in Canada until November 22, 1998. He later applied for and received an extension of his visitor status until May 22, 1999. In April 1999 Citizenship and Immigration Canada received information that the applicant was wanted in the Ukraine on charges of
"intentional murder and hooliganism". The charges stem from an incident at a nightclub in the city of Ternopil on the night of May 21 and the early morning hours of May 22, 1998. Precisely what happened on that night is difficult to ascertain from the evidence. One version of the events is contained in documents from the Public Prosecutor's Office of Ukraine and INTERPOL Kiev. Another version can be found in the applicant's PIF and his oral testimony. The evidence of what happened on that night is set out below.
Documents from the Public Prosecutor and INTERPOL
Canadian authorities were first alerted to the charges against the applicant in a letter from INTERPOL Kiev dated April 16, 1999. The letter states that the applicant and another individual, S.A. Osidak, are wanted in Ternopil for committing the crimes of intentional murder and hooliganism. According to the letter, on May 22, 1998 "the subjects injured Petryk M., who died through the injuries." INTERPOL Ottawa sent an email to the Kiev office requesting clarification of the charges against the applicant and received a reply dated May 5, 1999 stating that the applicant "committed assault resulted [sic] in body injuries which caused death of victim."
[5] From these two documents it appears the applicant, along with Osidak, was responsible for the death of Petryk (spelt Petrik in the Board's decision). However, Canadian authorities later received from INTERPOL a report of the Public Prosecutor's Office in Ternopil that indicates otherwise. The report states that on the evening of May 21 and into the early morning hours of May 22, 1998, the applicant was in the nightclub "Night Rondevu" in Ternopil with his friend M.V. Petryk. The applicant became involved in an argument with A.K. Khytryak, during which the applicant, a trained kickboxer, "hit the head of KHYTRYAK A.K., in the result of which he fell and lost consciousness." Two acquaintances of Khytryak, the previously mentioned Osidak and K.S. Pylypenko, intervened and the applicant also hit both of them.
[6] The club's security guards intervened to put an end to the fight and escorted all of the participants outside. Once outside, the fight continued and the applicant's friend Petryk became involved. The club's employees again intervened, after which the applicant and Petryk left the area. The two acquaintances of Khytryak started a search for the applicant and Petryk, eventually coming across Petryk at a nearby intersection. The two men severely beat Petryk and Osidak stabbed him with a knife several times. At some point the knife punctured Petryk's heart causing him to die at the scene of the assault due to blood loss. Pylypenko was captured by police,
charged with hooliganism and received a sentence of 3 years and 6 months. As noted above, Osidak was charged with murder and hooliganism, but escaped capture and it appears that the police were still searching for him in 2002. The applicant left the Ukraine and arrived at a Canadian port of entry on May 23, 1998. He did not mention the incident to the immigration officer and did not make a refugee claim at that time. As he was in possession of a valid visitor's visa, he was permitted entry.
[7] As mentioned above, the applicant's visa was extended until May 22, 1999. His application for an additional extension was refused, but he remained illegally in Canada after its expiry. The applicant was arrested on June 30, 1999 by the Toronto Police and turned over to immigration authorities. At the time of his arrest, the applicant advised the arresting officers that he had engaged the services of a Ukranian company to obtain a visa by fraudulent means since he had intended to remain permanently in Canada. A report issued alleging the applicant had breached the Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act") by: misrepresenting himself as a visitor; committing an act outside Canada that if committed in Canada may have resulted in a conviction by indictment and punishment by imprisonment term of 10 or more years; and overstaying his visitor status. The arresting officer also noted that the applicant appeared to have been working illegally as an independent sign-maker. The applicant was held by immigration authorities until July 16, 1999, when he was released following a detention review and the posting of a $10,000 cash bond.
[8] An inquiry was later held under the Act to determine the applicant's admissibility. An adjudicator found the applicant had violated the Act and issued a conditional Deportation Order on September 15, 2000. The adjudicator found the Canadian equivalent of the Ukrainian offence of hooliganism was aggravated assault, an indictable offence with a penalty of up to 14 years, or assault causing bodily harm, an indictable offence with a penalty of up to 10 years.
The Applicant's Refugee Claim
The deportation order was conditional because during the summer of 1999, the applicant had made a claim to Convention refugee status on the basis of his sexual orientation. The applicant claims to have been involved in a homosexual relationship with the murder victim Petryk since they were in school together. While they were not open about their relationship, other students found their behaviour strange and insulted and bullied them. When Petryk's parents learned of the relationship, they became very hostile. The applicant also claims he experienced problems in his workplace due to his sexual orientation. In 1997, he and Petryk rented an apartment together, but unable to tolerate the harassment and attacks from skinheads, both of them moved back to their respective parents' residences. At this point the applicant decided to leave for Canada with Petryk to follow him later.
[10] In his PIF, the applicant set out an alternative version of the events that occurred during the evening of May 21and the early morning hours of May 22, 1998. The applicant states that he was booked to leave for Canada on May 23 and he and Petryk decided to celebrate his departure with a drink at the "Night Rondevu". The two men danced together, but did so discretely so as to avoid bringing attention to themselves. During the evening the applicant was approached by three skinheads. He did not recognize two of the skinheads, but he was familiar with Khytryak from a previous attack. The applicant, noticing a knife up Khytryak's sleeve, resisted when the three men tried to drag him and Petryk out of the club. Khytryak was about to hit the applicant and he struck back hard at him. Khytryak immediately fell to the floor, following which his two friends proceeded to inflict a serious beating upon the applicant. The club's security guards then intervened and escorted the men outside. As they did so, the security guards physically and verbally abused the applicant. A crowd of skinheads had gathered outside the club and began chanting "kill the gay." The applicant and Petryk managed to escape from the crowd and ran to a bus stop, but Petryk decided to return to the club to get his car. He told the applicant he would come to the bus stop to pick him up.
[11] The applicant waited for 20 to 30 minutes at the bus stop but Petryk did not appear. He later saw Petryk's car travelling away from him and took a taxi home. At the hearing, the applicant amended his PIF by adding that another friend of his, Sergei Zaletsky, had accompanied them to the club and was asleep in the car outside the club at the time of the incident. According to the applicant, it was Zaletsky who he saw driving the car while he was standing at the bus stop. Zaletsky had been alerted to the stabbing of Petryk and was taking him to the hospital, but Petryk died on the way. When asked at the hearing why Zaletsky was not mentioned in the Public Prosecutor's report, the applicant stated he was sleeping at the time of the stabbing and did not witness the murder.
[12] The next morning the police came to the applicant's residence and asked him to come with them to the central police office. At the station the applicant was informed of Petryk's murder and asked if he were a witness. The applicant explained what had happened and told the police that the men had attacked him and Petryk because they were gay. One of the police officers struck the applicant in the back and stated that he was to blame for Petryk's murder. The police released the applicant later that day, telling him they would call him if they needed to speak to him again. Fearing further persecution from skinheads and believing the police would not be willing or able to protect him, the applicant decided to leave the Ukraine as he had planned. He first travelled to the city of Lvov and then left for Canada.
[13] The applicant's claim was heard by the Board on four separate days between May 10, 2001 and April 5, 2002. At the hearing the applicant presented several documents to corroborate his claim, including medical reports detailing injuries he suffered in prior attacks and a newspaper article stating the attack at the "Night Rondevu" was motivated by homophobia. The applicant also testified that he feared returning to the Ukraine because Osidak was now a police officer. When questioned about the arrest warrant for Osidak, he stated that Osidak's father was a high-ranking KGB officer and that Osidak was probably working under a different name.
The Board's Decision
The claim was denied by the Board in a decision rendered on July 17, 2002. Three reasons were given for refusing the claim. The primary reason was a finding that the applicant was not credible in regard to his sexual orientation. It was noted by the panel that there was no personal evidence of the applicant's relationship with Petryk and that he had made no reference to his homosexuality until the immigration inquiry. The applicant had failed to claim when he
first arrived in Canada, did not mention the incident in Ternopil to immigration officials when he arrived, and left key parts of his story out of his PIF. No weight was given by the Board to the medical reports presented by the applicant because they were not dated and lacked the professionalism that one would expect from such institutions. The newspaper that allegedly published the article about the May 21/22 attack was contacted by the Board. The Board was informed that the newspaper, a weekly, had no record of the article and had not published a paper on the relevant date.
[15] The panel also found the applicant's story implausible. The Board stated it was not reasonable to believe that Zaletsky was sleeping in a car parked just outside a loud nightclub. Even if that could be accepted, the Board found it implausible that neither the applicant nor Petryk got into the car when they left the nightclub or that Petryk would return to get his car after fleeing from the crowd. The panel thought it unreasonable that a person who claims the police abuse gay men would volunteer information about his sexual orientation without being asked, and noted that the other two men involved in the incident were also charged by the police although they were not gay.
[16] The second reason the Board gave for denying the claim was that the applicant's fear was based on prosecution, not persecution. As the Board had determined that the applicant was not a homosexual, it dismissed his allegation that the charges were based on his sexual orientation. Because the action to be taken against the applicant is the enforcement of an ordinary law of general application, the government would be engaged in prosecution, not persecution.
[17] The Board's final reason for denying the claim was that the applicant was excluded from the definition of a Convention refugee by reason of Article 1(F)(b). The panel reviewed the documentation and came to the conclusion the applicant was wanted for both hooliganism and murder in the Ukraine. The panel was of the view that the crime of intentional murder fell within the scope of Article 1F(b), which states:
Article 1. Definition of the term "refugee"
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
Article premier. -- Définition du terme "réfugié"
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés;
ANALYSIS
[18] The applicant challenges the Board's finding that he is wanted for intentional murder in the Ukraine and the panel's credibility determination. With respect to the Board's decision on Article 1F(b), the applicant argues the evidence is clear that it is only Osidak who is wanted for intentional murder in the Ukraine. He submits this error was so critical to the panel's decision that not only does it demonstrate a fundamental misunderstanding of the evidence presented at the hearing, but it also served to unduly influence the panel with respect to its findings that the applicant was not credible.
[19] The respondent conceded that the Board erred with respect to its exclusionary decision, and that the applicant is not wanted for murder in the Ukraine. However, the respondent submits that in light of the panel's other findings, its error on Article 1F(b) is not material.
[20] The determinative question in this case is whether the Board erred by finding the applicant to be not credible. The standard of review with respect to credibility findings of the Board is patent unreasonableness: Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1194 at para. 4 and Baran v. Canada (Minister of Citizenship and Immigration), 2003 FCT 227 at para. 5.
[21] Upon reviewing the evidence of the Board's decision, the Court concludes that the Board made two major errors which colours the whole decision, and which cannot be dissected to save the need for a new hearing. The finding by the Board that the applicant is wanted for murder in the Ukraine and that he is fleeing from prosecution not persecution, naturally affects the Board's assessment that the applicant is not credible since he denies being party to the crime of murder.
[22] The second error is the finding of the tribunal that there is no evidence that the applicant was involved in a homosexual relationship. In reviewing the transcript and the documentary evidence, this finding is patently unreasonable. There is ample evidence regarding the applicant's homosexuality. Accordingly, the basis of the panel's conclusion that the testimony by the claimant was not credible in regard to his sexual orientation was based on a patently false conclusion that there was no evidence of this fact.
[23] With respect to the delay by the applicant in making the refugee claim after his arrival in Canada, this is a fact which the Board can properly assess considering the legitimacy of his refugee claim. There appear to be several reasons why there was a delay, and the evidence appears clear that the applicant left the Ukraine for Canada with the intent of making a refugee claim. He approached an immigration consultant within one week of arriving in Canada for the purpose of such a refugee claim, but that immigration consultant is well-known to be incompetent and fraudulent, which partly explains the delay. While delay is a factor, it is not the decisive or conclusive factor and it is not fatal to the decision on the facts whether or not the applicant is or is not a convention refugee.
[24] For these reasons, this application for judicial review is allowed and the matter be referred back to another panel of the Board for redetermination. Neither party proposed and question for certification. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed and the matter is referred back to another panel of the Board for redetermination.
"Michael A. Kelen" _______________________________
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3986-02
STYLE OF CAUSE: VOLODYMYR VOLOSHCHAKEVYCH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 14, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: FRIDAY, MAY 30, 2003
APPEARANCES BY: Mr. Arthur Yallen
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Arthur Yallen
Yallen Associates
Barristers and Solicitors
204 St. George Street, 3rd Floor
Toronto, Ontario M5R 2N5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020530
Docket: IMM-3986-02
BETWEEN:
VOLODYMYR VOLOSHCHAKEVYCH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER