Dykon v. Canada ( Minister of Employment and Immigration )
IMM-38-93
McKeown J.
27/9/94
5 pp.
Application to review CRDD decision applicant not Convention refugee -- Respondent admitting CRDD erred in speculating homosexuality, defection laws probably no longer in effect in Ukraine -- While improper, not reversible error -- Reversible error in Board's statement applicant not suffering persecution because no evidence in fact homosexual, only that perceived as one by some people -- Applicant persecuted because of perception homosexual -- Irrelevant whether in fact homosexual -- Perception arising out of homosexual rape -- Extortion attempt against applicant's mother as result of perception applicant homosexual -- Applicant fearing persecution if returned to Ukraine because perceived to be homosexual, and homosexuality crime in Ukraine -- CRDD failing to consider consequences of perception -- CRDD placing low probative value on document filed by applicant purporting to state law in Ukraine -- Erred in making finding concerning state of law in Ukraine without supporting evidence -- Proper for Board to draw concerns as to validity of document to applicant's attention during hearing to allow him opportunity to respond to concerns -- Once accepting homosexuality crime, by not questioning applicant as to validity of documentary evidence, Board speculating police would not have charged victim were he to approach them with his complaint -- If police perceived applicant to be homosexual, possible would have been charged with engaging in homosexual act even though victim -- Board's decision set aside with direction Board find applicant to be Convention refugee.