Date: 20050509
Docket: IMM-3460-04
Citation: 2005 FC 651
Ottawa, Ontario, this 9th day of May, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Iryna tahiyeva
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Ms. Iryna Tahiyeva, is a citizen of the Ukraine who claims to be a person in need of protection based on her well-founded fear of abuse at the hands of her common law husband. She further claims that, because her common-law spouse was a long-standing member of the Ukrainian police force, state protection was unavailable to her. The Applicant arrived in Canada in November 2001 and made her claim to Convention refugee status on January 20, 2003. In a decision dated March 23, 2004, a panel of the Immigration and Refugee Board (Refugee Protection Division) ("the Board") determined that she was not a Convention refugee and not a person in need of protection.
[2] The Applicant seeks judicial review of this decision.
Issues
[3] Although the Applicant raised a number of issues, the determinative issues are, in my view, the following:
Did the Board make its decision without regard to the evidence?
Was the Board's error (conceded by the Respondent) on an alleged inconsistency in the Applicant's testimony material in the sense that it should form the basis upon which the decision is overturned?
Analysis
[4] The standard of review for a decision of the Board is one of patent unreasonableness. That is, the decision can only be overturned if there is no evidentiary support for the decision.
[5] The Applicant's claim was based on her alleged 13-year abusive relationship with a man who had been a police officer and with whom she claimed to have lived. In spite of this lengthy relationship, the Applicant was unable to provide even the most basic documents to support this claim. No photographs were proffered, she provided no proof that she had ever moved from her parents' home, no independent evidence that he was an officer with the police was provided. The Board concluded that:
In the panel's view, these unresolved concerns provide valid reason to doubt and to reject her allegations that she and Vladimir Galazov had been common-law spouses. . . . For theses reasons, I concluded that the claimant has failed to establish her profile as an abused spouse who is unable to obtain state protection, which is the crux of her claim. Accordingly, her claim fails.
[6] The Board then, however, carried on to consider other individual aspects of the Applicant's claim and concluded that "there was valid reason to doubt and reject the whole of the claimant's allegations of abuse at the hands of Vladimir Galazov". The Board set out a number of reasons for dismissing her testimony.
[7] Briefly stated, the Board did not believe that that Applicant ever had a common-law spouse who had been a police officer and, even Mr. Galazov existed, her story of abuse at his hands was not credible.
[8] Having reviewed the decision as a whole, I am satisfied that these conclusions were not unreasonable. Nevertheless, there are two possible errors within the decision that merit further review. The first is a failure by the Board to refer to certain evidence that could have corroborated her story of abuse and the second is the materiality of an error conceded by the Respondent.
1. Failure to have regard to the evidence
[9] The Applicant argues that the Board's failure to refer to certain "documentary evidence" that directly contradicts the conclusion of the Board is a fatal error. She relies on the decision of this Court in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425] and, specifically, on the words of Justice Evans where he states, at para. 17:
[T]he more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact.
[10] The first type of evidence argued by the Applicant to fall into this category consists of four letters received from the Applicant's mother and a friend alleging that the spouse is still interested in pursuing the Applicant if she were to return to Ukraine. Within the context of this case, and applying the analysis of Justice Evans to this issue, the first question is whether this evidence is so important that failure to refer to it raises an inference that it has been ignored.
[11] None of these letters is clearly dated, although all of them appear to have been written after the Applicant made her claim for refugee status. These letters are very different from the documentary evidence dealt with in Cepeda-Gutierrez, where the evidence in question was a psychologist's report. In another case referred to by the Applicant, the Board erred by failing to refer to an independently-produced video (Iordanov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 367). Each of these cases highlighted independent evidence that corroborated the claim in question. That was "important" evidence.
[12] Here, we have no such evidence. The four letters, from the Applicant's mother and friend, are self-serving to say the least. It is evident, when the decision is read as a whole, that the Board was looking for independent, reliable evidence to corroborate the Applicant's story. The letters refer to a male by first name only and contain only one reference to him as the ex-husband of the Applicant. These letters do not, in my view, constitute evidence that squarely contradict the Board's finding of fact. While it would have been preferable for the Board to refer to these letters, in the particular circumstances of this application, there is no reviewable error.
[13] The other information that the Applicant claims was ignored was a visitor's visa application which referred to a common-law spouse. This evidence does not, in my view, directly address the existence of the abusive spouse. The application does not refer to Mr. Galazov by name. Further, the record also shows that the visa officer examining the application doubted the existence of a common-law spouse. The Board' failure to refer to this minor and ambivalent evidence was not an error.
2. Materiality of error
[14] In assessing the Applicant's story of one particular incident of alleged abuse, the Board determined that the testimony "was not only internally inconsistent, it was also inconsistent with her narrative". As one example of the inconsistency, the Board referred to testimony on how the alleged incident occurred. As conceded by the Respondent, the Board erred; the transcript clearly shows that there was no inconsistency in her testimony. The question is whether this error warrants overturning this decision.
[15] Had the Board relied on this inconsistency alone to conclude that the claimant's testimony was not credible, I would be more likely to find that the error was fatal to the decision. However, contrary to the submissions of the Applicant, this finding made in error was not determinative or central to the conclusion. The Board explains carefully a number of other concerns, inconsistencies and omissions that support the conclusion that the testimony was inconsistent. She relies on all of these problems to conclude that there was no attack as alleged and that the Applicant "concocted this story to lend credence to her tale of spousal abuse". In these circumstances, I am not persuaded that this error was material to the decision as a whole. Even excluding this finding, there was more that adequate support for the Board's conclusion.
Conclusion
[16] The Board's decision, when read as a whole, is supported by the evidence. The Applicant's story was not believed. Any error was immaterial in the context of the long list of problems with the testimony and lack of any solid evidence to support the basis of her claim. I find no reason to overturn the Board.
[17] The application will be dismissed. Neither party proposed a question for certification. This is a very fact-driven application and does not raise a question of general importance. No question will be certified.
ORDER
This Court orders that:
The application is dismissed; and,
No question of general importance is certified.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3460-04
STYLE OF CAUSE: IRYNA TAHIYEVA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 4, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: May 9, 2005
APPEARANCES:
Inna Kogan For Applicant
Tamrat Gebeheyu For Respondent
SOLICITORS OF RECORD:
Inna Kogan FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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