Date: 20030312
Neutral citation: 2003 FCT 299
CALGARY, Alberta, Wednesday, the 12th day of March, 2003.
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
IANCU MARIUS BOTEANU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated January 18, 2002, wherein the CRDD determined that the Applicant is not a Convention Refugee.
[2] The Applicant is a citizen of Romania and claims a well-founded fear of persecution on the basis of his sexual orientation as a homosexual male. He claims to have been harassed and interrogated by the police in relation to his sexual orientation, and subjected to verbal and physical abuse. In addition, the Applicant's property was vandalized, and he was the victim of adverse treatment in his university on the basis of his sexual orientation.
[3] The details of the persecution suffered by the Applicant as recounted before the CRDD are relatively straightforward. There is no doubt that the conduct complained of by the Applicant is consistent with the documentary evidence before the CRDD; homosexuals are seriously mistreated in Romania. However, the CRDD decided not to believe the Applicant's evidence essentially based on implausibility findings. For the reasons which follow, as I find the plausibility findings are unsupported, in my opinion, the decision is patently unreasonable.
[4] The CRDD recounted the Applicant's evidence this way:
The claimant alleges that he is homosexual and, as such, is wanted by the Romanian police and would be charged with homosexual behaviour under Article 200 of the Romanian Criminal (Penal) Code. It is the claimant's evidence that in January of 1999, he was arrested by group of police officers at his home in Brasov, taken to the police station and informed that, through an anonymous tip, he was seen holding hands in a public place with his male friend, Marius Andrei. He was interrogated concerning his homosexual behaviour and subjected to verbal and physical abuse. The claimant later found out that Mr. Andrei was subjected to the similar treatment by the same police officers. A short while later, the claimant received two anonymous letters containing insults and derogatory remarks concerning his sexual orientation. Unknown attackers had previously beaten his male friend and the letters also contained threats and warnings that the same thing would happen to him. A few days later, the claimant received a police summons requiring his attendance at the police station with Mr. Andrei. The police accused the claimant and Mr. Andrei of disturbing the peace and violating Article 200 of the Romanian Penal Code. They were told that the police would continue to watch them and they would eventually be arrested and sent to jail for their homosexual activities.
It is the claimant's evidence that his colleagues at the Law University of Brasov somehow discovered his sexual orientation and his experiences with the police. As a result, his fellow students and professors verbally abused him. The claimant continued to experience problems at the Law University in Brasov, the claimant worked as a taxi driver using his own vehicle. In January of 2000, the claimant's taxi was vandalised and spray painted with remarks about his homosexuality and warning him that he could have an accident. He reported the vandalism to the police, but they considered it a joke and advised the claimant there was nothing they could do. Fearing for his personal safety, the claimant quit working as a taxi driver. Fearing that the police would arrest and charge him because of his sexual orientation, the claimant obtained a job with a cruise line and departed Romania in March of 2000. (Decision, pp. 2 - 3).
[5] With respect to the plausibility findings made by the CRDD analyzed below, the law is clear as stated by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1131, at paragraphs 6 to 7 as follows:
Presumption of Truth and Plausibility
The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.
A tribunal may make adverse findings of credibility based on the implausiblity of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markharm, ON: Butterworths, 1992) at 8.22]
(Decision, pp.2-3)
[6] The first implausibility finding made by the CRDD concerns persecution by the Applicant's fellow law students. In his testimony, the Applicant clearly stated that he and his partner kept their sexual orientation and their relationship very private for fear of mistreatment if they should be found out. The Applicant testified that somehow his fellow law students found out about his homosexuality, and, as a result, he suffered. About this, the CRDD made the following finding:
Given that the claimant did not publicly disclose his sexual orientation and was not aware of other gay students who were harassed or verbally abused by fellow students and professors, the panel finds it implausible that his homosexuality would come to the attention of his fellow students and professors and that they would subject him to verbal abuse and harassment. The panel finds that the claimant's profile and behaviour is not consistent with that of a homosexual person. (Applicant's Application Record, p. 44). (Decision, pp. 3-4).
[7] It is obvious that the Applicant's fellow students did not need a public declaration to label and target him as a homosexual. It appears that the CRDD had trouble believing that the Applicant would be so labelled and targeted because he did not act as the CRDD might expect of a homosexual in Romania.
[8] As there is no evidence on the record to establish the content of the profile and behaviour the CRDD expected, I find that the implausibility finding is unsupported by evidence and cannot stand.
[9] The CRDD's second plausibility finding is as follows:
Given the claimant's testimony that the police did not target or harass him while working as a taxi driver from 1998 until his departure from Romania, the panel finds it implausible that they would request his attendance at the police station and threaten to arrest and imprison him under Article 200 of the Romanian Penal Code because of his homosexual activities. (Decision, p. 4).
[10] Even though the Applicant did not experience police harassment while taxi driving, according to his testimony he did experience it in other parts of his life. In my opinion, the Applicant's taxi driving experience cannot be found to be implausible without some cogent evidence to prove that, in Romania at that time, the persecution of homosexuals was so pervasive that in all aspects of life harassment might be expected. Thus, I find that this implausibility finding is unsupported by evidence and cannot stand.
[11] Regarding the two attendances by "invitation" at the police station, the CRDD made the following finding:
Although both invitations state that the claimant's attendance is "absolutely necessary", they do not state why the claimant was required to attend at the Brasov police station. Therefore, the panel is unable to conclude that the invitations were issued for the purpose of interrogating the claimant about his sexual orientation. The panel also notes that the two police invitations were issued approximately eight months apart. Had the police intended to arrest the accused and charge him under Article 200 of the Romanian Criminal Code, the panel finds they would have persisted and not have waited a further eight months to again interrogate the claimant with respect to his sexual orientation. The panel notes that there is no evidence before it that the claimant has been charged under Article 200 of the Romanian Penal Code. The panel gives no weight to these invitations to attend at the Brasov police station. (Decision, p. 4)
[12] It is true that the "invitations" did not say the Applicant was to attend at the police station so he would be harassed because he is a homosexual. However, there is no other evidence of any reason why the Applicant would be wanted at the police station except, as he has testified, with respect to the potential charges as a homosexual. The Applicant's evidence is that this is exactly what happened. Just because the "invitations" do not state a purpose does not mean that the purpose didn't exist and wasn't carried out. In my opinion, there is no basis for the finding that eight months delay makes a difference to anything.
[13] As later recounted by the CRDD, the mistreatment of homosexuals in Romania is serious and systemic. At one time just "being" homosexual resulted in a criminal charge, but according to the documentary evidence even though the actual mistreatment continues, by 1999, charges were no longer laid. Thus, it is not surprising that the Applicant had never been charged with a criminal offence, even though according to his testimony, he was persecuted by the police.
[14] When the panel member says he gives "no weight" to the invitations, in my assessment, he is really saying he does not believe that the Applicant was "invited" to go to the police station, did go, and was harassed while there. As there is no sound basis for this conclusion on the face of the decision, I find it is erroneous.
[15] After dealing with the Applicant's evidence as described, the CRDD went on to decide that the Applicant had not presented clear and convincing proof to rebut the presumption that the state of Romania can protect him from his persecution as a homosexual. On this issue, the CRDD said this:
Based upon the claimant's evidence and testimony, the panel finds he has not provided clear and convincing proof of the inability of the Romanian government to protect him against discrimination, harassment or persecution by reason of his sexual orientation. (Decision, p. 7).
Thus, the state protection finding is wholly dependent on the credibility finding. As a result, since the credibility finding is fundamentally flawed, the state protection finding fails.
ORDER
Accordingly, the CRDD's decision is set aside and the matter is referred back for redetermination before a differently constituted panel.
"Douglas R. Campbell"
Judge
CALGARY, Alberta
March 12, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1244-02
STYLE OF CAUSE: Iancu Marius Boteanu v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: March 11, 2003
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: March 12, 2003
APPEARANCES:
Mrs. Roxanne Haniff-Darwent FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT