Date: 20031030
Docket: IMM-5873-02
Citation: 2003 FC 1264
BETWEEN:
YURIY TREMBLIUK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the applicant not to be a Convention refugee or a person in need of protection. The decision of the RPD is dated the 29th of October, 2002.
[2] The applicant is a nineteen (19) year old citizen of Ukraine. He testified that at the age of thirteen (13), he became aware that he was homosexual. At that age, he entered into a relationship with another youth. The relationship endured for some four (4) years and was consummated when the applicant was fifteen (15) years of age. Young persons in his community became aware of his sexual orientation. In the result, the applicant was harassed and beaten. Beatings resulted in broken ribs, a broken arm and a broken nose. The applicant was hospitalized on several occasions. He testified that he endured death threats, a forceable abduction by three youths and rape by two of them and an alleged attempt of his life. He further testified that when, on one occasion, he reported violence against him to the police, he received no protective response.
[3] On the 28th of July, 2001, with the support of his mother and his god-mother who lived in Canada, he left for Canada. Upon arrival here, he claimed Convention refugee status.
[4] The RPD found the applicant not to be credible. More particularly, it determined the applicant not to be of homosexual orientation.
[5] At the close of the hearing before me, I advised counsel that I would allow the application for judicial review on the basis that the RPD applied to the applicant a stereotypical view of the life-style and preoccupations of homosexual persons including a view that a person such as the applicant, if he were homosexual, would dissociate himself from the Roman Catholic church and from Roman Catholic schools, despite the fact that he was born Catholic. The RPD further adopted a stereotypical view of how a Roman Catholic priest would conduct himself in his living arrangement and interaction with a young man such as the applicant in the current climate in North America. In this latter regard, the applicant alleged that he resided with a Roman Catholic priest in a two-room apartment, with the support of his god-mother, in order to be close to the Roman Catholic school that he attended. The RPD wrote:
I find this situation implausible for two reasons. The first is that I do not believe that a priest would put his professional reputation at risk by living in a two-room apartment with an eighteen-year-old student. A reasonable person would expect that, given the current climate in North America and indeed around the world with respect to the sexual abuse of minors and young adults by Roman Catholic clergy, any priest would exercise due diligence with respect to how he relates to young people in his charge. I do not believe that the claimant lives in a two-room apartment with [a particular priest is named] because I do not believe that a priest would engage in behaviour risking his professional reputation.
[6] The RPD's finding that the applicant was not of homosexual orientation was based on what it determined to be implausibilities regarding not seeking out the homosexual community in Toronto, not knowing much about gay pride day in Toronto and attending a Roman Catholic school and occasionally the Roman Catholic church. The applicant testified that his single-minded focus upon arrival in Canada was to improve his education and to ensure regularization of his status in Canada.
[7] Counsel for the respondent urged that the findings of the RPD regarding the lifestyle and conduct of homosexuals and the defensive attitude of Roman Catholic priests were findings of implausibility in the testimony of the applicant and thus were entitled to great deference. Counsel referred me to the often cited decision of the Federal Court of Appeal in Aguebor v. Ministre de l'Emploi et l'Immigration[1], where Justice Décary, for the Court, wrote:
There is no longer any doubt that the Refugee Division [the predecessor of the RPD], which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. [emphasis added]
In the same paragraph, Justice Décary continued:
In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
The reference to "Giron" is to Giron v. Minister of Employment and Immigration.[2]
[8] On the facts of this matter, I am satisfied that the inferences drawn by the RPD are so unreasonable as to warrant the intervention of this Court. Those inferences were based on stereotypical profiles that simply cannot be assumed to be appropriate to all persons of homosexual orientation and to all Roman Catholic priests. They ignore the rational and reasonable testimony provided by the applicant in explanation.
[9] It was for the foregoing reasons that, at the close of the hearing of this application for judicial review, I advised counsel that the application would be allowed.
[10] One further matter is deserving of comment. The RPD had before it a psychological assessment of the applicant prepared by a psychologist after the applicant's arrival in Canada. The psychologist concluded that it was her professional opinion that the applicant was, at the time he was seen by the psychologist, suffering from Post-Traumatic Stress Disorder.
[11] The RPD, in its reasons, wrote:
...I do not accept this diagnosis because I find the witness not to be a credible or a trustworthy witness.
[12] While it was open to the RPD to determine the weight, if any, to be given to the assessment provided by the psychologist, it was not open to the RPD to reject the psychologist's diagnosis. While the RPD is undoubtedly a specialized tribunal as noted by Justice Décary in the quotations from Aquebor appearing earlier in these reasons, it is certainly not an expert tribunal in the area of psychological assessment. Counsel for the respondent urged before me that the words that I have quoted regarding failure to accept a professional diagnosis were likely merely an imprecise use of language, I am satisfied that that form of "imprecise language" is simply not open to the RPD. This particular conclusion is not central to my decision to allow this application for judicial review.
[13] When advised at the close of the hearing of this matter that this application for judicial review would be allowed, neither counsel recommended certification of a question. I am in agreement with counsel that this matter does not raise a serious question of general importance that warrants certification. No question will be certified.
_______________________________
J.F.C.
Ottawa, Ontario
October 30, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-5873-02
STYLE OF CAUSE: YURIY TREMBLIUK v. MCI
PLACE OF HEARING TORONTO, ONTARIO
DATE OF HEARING: October 23, 2003
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE GIBSON
DATED: October 30, 2003
APPEARANCES:
Ms. Krassina Kostadinov FOR THE APPLICANT
Ms. Andrea Hammell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman FOR THE APPLICANT
Barrister and Solicitor
Waldman & Associates
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario