Date: 20040302
Docket: IMM-4461-02
Citation: 2004 FC 306
Ottawa, Ontario, this 2nd day of March, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
BONDARENKO, ANDRIY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated August 22, 2002, wherein it was determined that the applicant was not a Convention refugee and that there is no credible basis for his claim.
[2] The applicant requests that this judicial review be allowed, the Board's decision be set aside and the claim remitted for hearing by a differently constituted panel of the Board.
Background
[3] The applicant, Andriy Bondarenko, is a citizen of the Ukraine who claims Convention refugee status on the basis of his sexual orientation. He alleges a well-founded fear of persecution at the hands of the national organization, UNSO, and also states that he fears collaboration between nationalists and the Ukrainian authorities.
[4] The applicant alleges that although he realized he was homosexual while a teenager, he married a woman in 1991 and started a family due to social pressure.
[5] The applicant alleges that he was involved in two homosexual relationships while in the Ukraine, each of which lasted a few months and ended after he or his partner was physically attacked by Ukrainian ultra-nationalists.
[6] The applicant states that his wife learned of his homosexual relationship that began in May 1999 after hiring a private detective, and demanded that he disappear from her life or she would destroy him. The applicant alleges that he and his wife separated, but he remained in the city, hoping to work out a custody and support arrangement for his daughter.
[7] After his wife allegedly informed his boss of his sexual orientation, the applicant states that his work colleagues became hostile and avoided him, and in September 1999 he was laid off for no reason and replaced with someone who had inferior qualifications.
[8] The applicant alleges that on September 30, 1999 he was attacked by three members of the UNA-UNSO in front of his house, beaten, and told to leave the city within a month. The applicant visited a walk-in medical clinic for his injuries, and went to the police, who refused to offer any help or protection.
[9] The applicant further alleges that he was beaten by UNSO activists on four more occasions, on October 7, October 23, November 7 and December 7, 1999. Each time he was threatened and told to leave the city. The applicant alleges that he was also threatened over the phone.
[10] When the applicant reported the December 7, 1999 beating to the police, he alleges that they refused to help and attributed the incidents to "random hooliganism".
[11] The applicant decided to move to Ivano-Frankivsk, where his parents resided, and alleges that in February 2000 he began another homosexual relationship.
[12] On May 2, 2000, the applicant states that he and his partner were attacked by UNSO members, threatened and beaten. The applicant alleges that he was hospitalized with serious injuries and that the doctors notified the police, who did nothing.
[13] In June 2000, the applicant states that he went to live with his sister in the city of Kremenchug in central Ukraine. After he wrote to the police in Lutsk to de-register his old address and register his new address, the applicant alleges that on August 15, 2000 he was again attacked and beaten by UNSO members, threatened and told to leave the country.
[14] The applicant alleges that after his move to Kremenchug, the police did not protect him and they informed local extremists about his whereabouts, which triggered the June 2000 attack.
[15] The applicant obtained a seaman passport and arrived in Canada on September 27, 2000, where he immediately made a claim for refugee protection.
[16] On June 27, 2002 a hearing was held by the Board with respect to the applicant's claim. In a decision dated August 22, 2002 the Board determined the applicant was not a Convention refugee.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[17] In a decision dated August 22, 2002, the Board determined that the applicant is not a Convention refugee. The Board rejected the applicant's allegation that he is homosexual or a member of a sexual minority, stating that the applicant's relationships with men are "contextually unembedded" and his account did not have the "ring of truth".
[18] The Board held that the applicant had not provided trustworthy or reliable evidence in the area of his claim relating to being fired for his homosexuality. In his PIF narrative, the applicant alleges that his wife told his boss about his sexual orientation, that his co-workers did not want him around, and that his firing was blamed on downsizing, which did not make sense to the applicant because someone less qualified was hired to replace him. The Board found this information inconsistent with the applicant's answer to question 17 on his PIF that he was a merchant in a private business and his testimony at the hearing that he had his own business that was incorporated into a larger business on which he depended for work.
[19] The Board found the applicant's claim to be wholly lacking in credibility. The Board found the applicant's statements that he did not know how Ukrainian ultra-nationalists found out about his homosexuality contradicted with his statement that he supposed his wife told them or that they identified him as homosexual because he held hands with another man in the Ukraine.
[20] The Board did not believe the applicant's account of the May 2000 alleged beating, stating that the applicant's description of the event waivered and was confusing. The Board did not believe that the applicant was found holding hands with another man in the Ukraine, and rejected that he and his partner were beaten as a result.
[21] The Board placed no weight on the corroborating documentation supplied by the applicant to support his allegation that he sustained injuries and received medical treatment in the Ukraine. In doing so, the Board relied on its negative credibility finding, its observation that there is a proliferation of false documentation produced in the former Soviet Union in order to help people emigrate, and the prevalence of documented corruption in the Ukraine.
[22] The Board found that there was sufficient and valid reason to reject the truthfulness of the applicant's allegations and refused to rely on any of the applicant's personal documentary evidence.
[23] Based on the evidence and testimony, the Board rejected the applicant's explanations and allegations, stating that it was "wholly and profoundly inconsistent" with a subjective fear of persecution for the applicant to walk hand-in-hand with another man in any situation in which he could be seen by others or to have highly compromising pictures of himself and romantic partners taken and developed in the Ukraine where his homosexuality could easily be exposed and his safety prejudiced.
[24] Based on its analysis, the Board concluded that the applicant had failed to establish, on credible and trustworthy evidence, that he has a well-founded fear of persecution in the Ukraine for any Convention reason and that there is not a serious possibility that the applicant would suffer serious harm were he to return to the Ukraine.
[25] Furthermore, pursuant to subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2, the Board determined that there was no credible basis for the applicant's claim for refugee protection.
[26] This is the judicial review of the Board's decision.
Applicant's Submissions
[27] The applicant submits that he was denied a fair hearing in accordance with the principles of natural justice because the Board decided an issue against him which the presiding member had indicated he was satisfied about during the hearing.
[28] Relying on Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, the applicant states that it is trite law that a refugee claimant is entitled to a fair hearing in accordance with the principles of fundamental justice and the rules of natural justice.
[29] The applicant argues that the Board erred in making a negative credibility finding on the basis of allegedly contradictory evidence as to how Ukrainian ultra-nationalists found out about his homosexuality. In its reasons, the Board states that the applicant's testimony that he did not know how ultra-nationalists learned of his sexual orientation conflicted with his allegation that he supposed his wife told them. The applicant points to pages 151 to 152 of the Tribunal Record, where the presiding member commented that the applicant's testimony was consistent on this issue.
[30] The applicant submits that if the Board found on a review of its notes that its earlier statement on the record was incorrect, then, knowing that counsel had not addressed the issue in his submissions, the Board was obliged by the duty of fairness it owed the applicant to advise his counsel of its concern and invite further submissions on the issue of how the Ukrainian nationalists might have found out that the applicant was gay.
[31] Relying on Velauthar v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 425 (C.A.) (QL), the applicant argues that the Board denied him a fair hearing by reversing its position on whether the applicant's evidence was contradictory, not inviting further submissions, and then proceeding to base its negative credibility finding on this issue in part.
[32] Given the importance of the Board's finding to its ultimate determination of credibility, the applicant submits that the decision ought to be set aside on this basis alone.
[33] In the alternative, the applicant submits that the Board erred in law by making credibility findings which were arbitrary, capricious, unsupported by the evidence or made without regard for the evidence before it.
[34] The applicant states that the Board based its negative credibility finding on four issues: (1) the alleged contradictory evidence regarding his employment arrangement; (2) the alleged contradictory evidence regarding how ultra-nationalists were aware of his homosexuality; (3) that the applicant's relationships with men were "contextually unembedded" and his account did not have the "ring of truth"; and (4) that the applicant's conduct was "wholly and profoundly" inconsistent with a subjective fear of persecution. The applicant attacks the Board's findings on these issues, as well as arguing that the Board's treatment of his corroborating evidence warrants this Court's intervention.
Contradictory Evidence Re: Applicant's Employment Arrangement
[35] The applicant submits that the Board misstated the evidence relating to his employment arrangement by stating that he had indicated that his business was incorporated into a bigger business and that he was dependant on the larger business. In fact, the applicant submits, he had testified that he had a boss and was completely dependent on him, which explained how he could have had his own business and still be fired by a boss.
[36] The applicant submits that the Board's misstatement and omission on this issue led it to conclude that his evidence made no sense. The applicant argues, therefore, that this aspect of the Board's negative credibility finding was unsupported by the evidence.
Contradictory Evidence Re: Ultra-Nationalists' Knowledge of the Applicant
[37] Apart from the natural justice arguments on this point, the applicant argues that the Board erred in a reviewable manner in finding that his testimony was inconsistent regarding how the ultra-nationalists learned of his homosexuality.
[38] The applicant submits that the hearing transcript patently contradicts the Board's written finding that his evidence was inconsistent on this point, and he submits that this constitutes a reviewable error.
[39] Furthermore, the applicant attacks the Board's finding regarding the ultra-nationalists' knowledge of his homosexuality leading up to the May 2000 alleged beating as arbitrary and erroneous.
[40] The applicant submits that it was patently unreasonable for the Board to expect him to know what was in the minds of homophobic thugs or how they learned of his homosexuality. Whether he could guess the source of the attackers' knowledge was a matter totally irrelevant to his credibility, particularly given the uncontradicted documentary evidence that human rights violations targeting homosexuals occur in the Ukraine. The applicant argues that the Board acted arbitrarily and in a patently unreasonable manner in making a negative credibility finding because he offered a speculative opinion as to how the thugs found out that he was homosexual.
[41] The applicant further submits that the Board's characterization of his testimony regarding the May 2000 incident as wavering and confusing is patently unreasonable and unsupported by the record. The applicant states that in the absence of the Board's inappropriate assumption that he should have known how the ultra-nationalists learned of his homosexuality, there was nothing wavering or confusing about his testimony.
The Applicant's Account Being "contextually unembedded" and Lacking a "ring of truth"
[42] The applicant submits that he gave clear and plausible explanations of how his homosexual relationships in the Ukraine ended. In the face of this testimony, the applicant submits that it was perverse for the Board to conclude that his relationships, especially their endings, were "contextually unembedded" and that his account did not have the "ring of truth".
The Applicant's Conduct Being "wholly and profoundly" Inconsistent with a Subjective Fear of Persecution
[43] Citing Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481 (C.A.) (QL), the applicant argues it was patently unreasonable for the Board to find that holding hands with his boyfriend and having compromising pictures developed in the Ukraine was inconsistent with any subjective fear of persecution. As held in Giron, supra, the applicant argues that the Board requiring him to cowardly hide his homosexuality or be found incredible is a reviewable error.
The Board's Treatment of Corroborative Evidence
[44] The applicant submits that the Board erred in a reviewable manner by ignoring his corroborating documents from Canada. In the applicant's view, the Board's reasoning that Ukrainian documents were often fraudulent would not give any reason to dismiss the Canadian documents, which supported his identity as a homosexual.
[45] The applicant submitted a copy of his membership card to the Out and Out Club, a gay club in Toronto, documents confirming his membership and financial support of the 519 Church Street Community Centre, a gay community centre in Toronto, and a declaration from his relationship partner confirming the applicant's homosexuality, his active role in Toronto's homosexual community and his membership in the Ukrainian Lesbian & Gay Association (Toronto). The applicant also proffered a letter from the president of the Ukrainian Lesbian & Gay Association (Toronto) which stated that the applicant had been an active member since January 2002.
[46] The applicant submits that the Board ignored this corroborating evidence of his identity as a homosexual, since the Board's reasons merely state that he had "alleged" he was a member of these groups without any reference to the supporting documentation. Relying on Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 and Khawaja v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 287, the applicant argues that the Board's finding that he was not a homosexual, an issue central to his claim, was made without regard to the evidence before it and ought not to stand.
[47] For these reasons, the applicant requests that the Board's decision be set aside and his claim remitted for hearing by a differently constituted panel.
Respondent's Submissions
[48] Relying on Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.), the respondent submits that this Court may only intervene if the Board acted in a patently unreasonable manner.
[49] In the respondent's view, it was only after the Board considered and weighed all of the applicant's evidence, including his oral testimony, that it clearly and unequivocally made a negative credibility finding. The respondent submits that the Board provided detailed reasoning for its credibility concerns, which related to central aspects of the applicant's refugee claim.
[50] The Board's finding that the applicant provided conflicting testimony regarding his business arrangement, the respondent submits, is immaterial in light of the other credibility concerns that undermined the applicant's subjective fear of persecution. At the hearing of this matter, the respondent submitted that even if the applicant's explanation of this discrepancy was plausible, so was the Board's interpretation. Based on the high level of deference that should be afforded to the Board's credibility findings, the respondent argues it was open to the Board to conclude as it did on this issue.
[51] The respondent submits that it was open to the Board to find it incredible that the applicant would have developed compromising pictures in the Ukraine, especially since he had allegedly been attacked in various parts of the country. The respondent submits that it was proper for the Board to base its negative credibility finding on this issue in part, since the applicant failed to address its plausibility concerns on this issue.
[52] The respondent submits that since the applicant's refugee claim is based on his fear of persecution at the hands of the nationalist organization UNSO, his failure to credibly establish how UNSO learned of his homosexuality so as to allow them to target him, further undermines the applicant's credibility. The respondent argues it was open to the Board to decide that the applicant had not provided consistent evidence on this issue.
[53] Furthermore, the respondent disputes that the Board breached any principle of natural justice in deciding that the applicant had given contradictory evidence regarding how the ultra-nationalists learned of his homosexuality. The respondent interprets the portion of transcript relied upon by the applicant as the Board recognizing that the applicant had previously made those statements, not that it decided the applicant's evidence was consistent on the issue. The respondent argues that it was open to the Board to decide the applicant's explanations were not plausible, and should not be interfered with by this Court.
[54] With respect to the alleged May 2000 attack, the respondent submits that the applicant's testimony was inconsistent and that he failed to explain the discrepancy in his testimony to the satisfaction of the Board. The respondent argues that the applicant has provided no basis on which this Court should interfere with the credibility determinations of the Board.
[55] Based on judicial notice of the prevalence of false documentation in the Ukraine, the respondent submits that it was open to the Board to place no weight on the applicant's medical documentation.
[56] The respondent states that it is presumed that the Board reviewed all of the documentation presented to it, unless the contrary is shown. In this case, the respondent argues, it was not that the applicant's Canadian letters and receipts supporting his involvement in gay rights organizations were ignored, rather, the Board simply placed no weight on the documentation and there was nothing for the Board to say about it. This documentation, in the respondent's view, was not central to the applicant's claim in the Ukraine.
[57] The respondent further submits that it was open to the Board to attribute no weight to the statutory declaration of the applicant's partner, who is claiming refugee status on the same grounds alleged by the applicant, since the declaration was not signed or dated.
[58] The respondent submits that there are no grounds on which this Court may intervene in this case. The Board's reasons are clear and unequivocal. Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality and is entitled to reject evidence if it is not consistent with the probabilities affecting the case as a whole, which it properly did on the facts of this case.
[59] The respondent requests that this judicial review be dismissed.
Issues
[60] 1. Did the Board breach the duty of fairness owed to the applicant by deciding that his evidence was contradictory?
2. Were the Board's credibility findings arbitrary, capricious, unsupported by the evidence or made without regard to the evidence before it?
Relevant Statutory Provisions
[61] The Immigration Act, R.S.C. 1985, c. I-2, states:
|
2(1) "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and |
2(1) "réfugié au sens de la Convention" Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; |
|
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
Preliminary Issue: Standard of Review
[62] In an attempt to encourage this Court to readily intervene, the applicant argues that the Board's plausibility findings are "less insulated from judicial review"than other aspects of credibility determinations. On the basis of Aguebor, supra, I disagree. As the Federal Court of Appeal clarified in Aguebor, it is not the case that less deference is owed to the Board's plausibility findings. Where plausibility findings are based on rationality and common sense as opposed to inconsistencies in an applicant's testimony or their demeanor in testifying, the Board's errors may simply be more apparent (Aguebor, supra at paragraphs 3 and 4):
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, 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. 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.
[63] The respondent submits that the applicable standard of review to be applied to the Board's credibility findings is patent unreasonableness. Based on Aguebor, supra and Yu v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 932 (QL), 2003 FCT 720, I agree. In Yu, supra, Snider J. stated at paragraphs 4 and 5:
The appropriate standard of review is one of patent unreasonableness, which means that findings of credibility and of fact must be supported by the evidence and must not be made capriciously, be based on erroneous findings of fact or be made without regard to the evidence (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL); Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. NO. 551 (C.A.) (QL).
Where the Board finds a claimant not credible based on implausibility findings which are open to it on the evidence, this Honourable Court should not interfere with the decision even if the evidence could conceivably have led to a different conclusion, unless an overriding error has been made by the Board (Oduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 560 (T.D.) (QL); Tao v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 622 (T.D.) (QL).
[64] As stated in Yu, supra, this Court will intervene where credibility and findings of fact are patently unreasonable. A less deferential standard of review applies to questions of natural justice, as I will discuss infra.
[65] Issue 1
Did the Board breach the duty of fairness owed to the applicant in deciding that his evidence was contradictory?
Standard of Review
No deference is owed to the Board in deciding whether it breached the duty of fairness
owed to the applicant. I agree with Russell J.'s comments in Sivamoorthy v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 591, 2003 FCT 408, at paragraph 36:
With respect to the issue of natural justice and procedural fairness, the standard of review is correctness. If the Court finds that there was a violation of natural justice or procedural fairness the Court must intervene (NAV Canada v. Canadian Air Traffic Control Assn., [1999] F.C.J. NO. 1799 (C.A.)(QL); Lai v. Canada (Attorney General), [2001] F.C.J. No. 1088 (T.D.)(QL); Singh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. NO. 798 (T.D.)(QL); Sharma v. Canada (Customs and Revenue Agency), [2001] F.C.J. No. 867 (T.D.)(QL)).
[66] Breach of Duty of Fairness
In essence, the applicant argues he was denied a fair hearing because the Board acknowledged the consistency of his testimony regarding how the ultra-nationalists learned of his homosexuality, but then in its reasons reversed itself and used that inconsistency as a basis for its negative credibility finding. The applicant cites Velauthar, supra, and argues that the Board, knowing he had not addressed this issue in his submissions, was obliged to invite further submissions before deciding the applicant's evidence was contradictory.
[67] The respondent argues that there was no breach of fairness, and interprets the Board's statements as agreeing that the applicant had stated that his wife may have informed the ultra-nationalists, but not obliging it to find this explanation plausible.
[68] At pages 134 to 135 of the transcript of the Board's hearing, the following exchange took place:
COUNSEL: And who pursued you because of your sexual orientation?
CLAIMANT: An organisation of Ukrainian nationalists.
COUNSEL: And how did they find out about your homosexuality?
CLAIMANT: Because my wife, when she learned about it, she informed that information to my workplace. And said that she was hating me. And I suppose it was her who informed that organisation.
[emphasis added]
[69] After applicant's counsel questioned the applicant regarding a boyfriend he alleged to be involved with in Canada and submitted a declaration from that person to the Board as evidence, the following exchange took place (at pages 150 to 152 of the transcript):
PRESIDING MEMBER: We'll take this declaration and mark it Exhibit C-6.
COUNSEL: I plan now to move onto the other issues.
PRESIDING MEMBER: Thank you. Okay...
COUNSEL: If you want to give me some guidance.
PRESIDING MEMBER: Well, what I was thinking was that we would treat the issue of identity as very much distinct from the balance of the claim. But I would ask you to ask the claimant any questions that you deem appropriate to establish the claimant's sexual orientation and his perception as a homosexual in Ukraine. I think you pretty much have - you've stated that he was perceived by the Ukrainian nationalists as a homosexual because they were probably informed by his wife.
COUNSEL: That's not an accurate - I think the claimant said that his wife informed his workplace.
PRESIDING MEMBER: And they learned from there.
COUNSEL: I don't think - that is to be accurate - I believe the claimant said that after she found out he was involved with a man, she informed his workplace.
PRESIDING MEMBER: That I know.
COUNSEL: Yeah.
PRESIDING MEMBER: So how did the Nationalists find out in your opinion?
CLAIMANT: I don't know that.
...
COUNSEL: Okay, so you were attacked in September in the same city [Simferopol] then?
CLAIMANT: Yes.
COUNSEL: And you're telling the panel that your wife informed your employer but you're not quite sure how the Nationalists find out about your sexual orientation.
CLAIMANT: Yes.
COUNSEL [CLAIMANT]: I don't know. I can only guess that it was her doing.
PRESIDING MEMBER: Yeah, this is consistent with what he said earlier. He said I suppose it was she who informed the organisation.
[emphasis added]
Applicant's counsel then moved on to another area of questioning.
[70] Part of the basis for the Board's negative credibility finding was the Board's conclusion that the applicant gave inconsistent testimony as to how the Ukranian nationalists learned of his homosexuality. The Board stated at page 5 of its reasons:
When the claimant was asked how the ultra-nationalists found out about his homosexuality, he stated that he did not know. I find this to be contradictory to his other allegations that he supposed that his wife told the ultra-nationalists. Indeed, the claimant has alleged, but not established, how the ultra-nationalists came to learn of his identity.
Although I do not read the applicant's testimony as being inconsistent (he did not know for sure how the ultra-nationalists learned he was homosexual but guessed that his wife told them, since she also told people at his workplace), the issue to be resolved at this juncture is not whether I agree with the board's conclusion, but rather the issue of whether the applicant was unfairly surprised by the Board finding his testimony inconsistent.
[71] The respondent's position, in my view, is based on a misinterpretation of the hearing transcript. The Board did not simply agree that the applicant had made certain statements, which it later found to be implausible. Instead, the Board stated that the applicant's testimony was consistent on a certain factual point, and then later based its adverse credibility finding, in part, on its conclusion that the applicant's testimony on that factual point was inconsistent. As discussed infra, I agree with the applicant that the Board breached an aspect of its duty of fairness.
[72] I am of the view that it was a denial of natural justice for the Board to state at the hearing that the applicant's testimony was consistent on a certain point and then in its decision base its adverse credibility finding in part on its finding that the applicant's credibility on this factual point was inconsistent.
[73] Even if the Board's decision could be supported on another basis, the Supreme Court of Canada has held that a decision must be set aside if there is a denial of natural justice. Le Dain J. stated in Cardinal v. Kent Institution, [1985] 2 S.C.R. 463 at page 660:
. . . the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
[74] I would therefore allow the judicial review, set aside the decision of the Board and refer the matter back for redetermination by a differently constituted panel.
[75] Because of my finding on this issue, I need not address the remaining issue.
[76] Neither party wished to propose a serious question of general importance for certification.
ORDER
[77] IT IS ORDERED that the application for judicial review is allowed and the matter is referred back for redetermination by a differently constituted panel.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
March 2, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4461-02
STYLE OF CAUSE: BONDARENKO, ANDRIY
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, September 4, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
M. Steven Beiles
FOR APPLICANT
Pamela Larmondin
FOR RESPONDENT
SOLICITORS OF RECORD:
M. Steven Beiles
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT