Date: 20091218
Docket: IMM-2838-09
Citation: 2009
FC 1292
Ottawa, Ontario, December 18, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ANNA UKLEINA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Anna
Ivanovna Ukleina is a citizen of Azerbaijan.
She is a 72 year old widow who happens to have a daughter living in Canada.
[2]
Two events
are at the core of her refugee claim. As a member of the Helsinki Citizens’
Assembly she demonstrated with others against fraudulent parliamentary
elections. The demonstration was dispersed by violent police action. She was
beaten and had to seek medical attention.
[3]
Six months
later, in May 2006, she visited a hospitalized victim of police violence. Upon
leaving the hospital she was accosted by two policemen, beaten, forced inside a
police car and driven to the station where she was held for four hours. She was
only released after being forced to sign a document promising to end her
association with the Helsinki Citizens’ Assembly.
[4]
If she
were to be believed, the Panel of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board of Canada, which heard her claim, would have had to
give serious consideration as to whether she was a United Nations refugee who
had a well-founded fear of persecution in Azerbaijan for reasons of political
opinion, or whether she was otherwise a person in need of international
protection, the whole as contemplated by sections 96 and 97 of the Immigration
and Refugee Protection Act.
[5]
As it was,
the Panel concluded that the whole story was a fabrication and that her desire
to live in Canada was not motivated by fear but
rather by a wish to seek a better life. That is not a ground for refugee
protection.
[6]
This is a
judicial review of that decision. For the reasons that follow, I hold that the
Panel’s decision was unreasonable and that Mrs. Ukleina’s claim must be sent
back to a new RPD Panel for a fresh determination.
[7]
The
standard of review which applies to findings of fact, including credibility, is
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration)
v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339). As per para. 47 of Dunsmuir and para. 59
of Khosa, the reasonableness standard of review requires deference. The
Court is not to impose its own view of the situation but rather is to determine
if the decision under review came within “a range of possible, acceptable
outcomes which are defendable in respect of the facts and law”.
[8]
It has
been long established, however, that findings of fact based on speculation are
inherently unreasonable. The key facts found in this case fall within the realm
of speculation. They were not reasonable inferences drawn from established
facts.
[9]
The first
key element of Mrs. Ukleina’s claim is that she was injured during a protest
rally in November 2005. As noted by the Panel:
The claimant submitted in evidence a
medical note to corroborate her alleged beating by police at the demonstration
in November 2005. The panel notes that the medical note does not allude to the
cause of injury to her head, scratches and wound to the right elbow and
determines, on a balance of probabilities, that this note was manufactured in
an attempt to embellish her claim. The panel places no weight on this evidence.
[10]
On what
basis did the Panel decide that a medical report from Azerbaijan ought to state the cause of the injury?
There is no basis to assume that the injury occurred in the presence of the
medical doctor. There could be any number of reasons why Mrs. Ukleina suffered
the injuries she did. Failure to state a cause, which in any event would have
been hearsay, cannot possibly lead to the inference that the report is a
forgery.
[11]
Turning
now to the visit to the hospital in May 2006, this is what the Panel had to say:
The claimant was asked how the police
would know who she was visiting at the hospital, to which the claimant
responded that she concluded that the police were following her. The claimant
was asked why the police would be following her, to which the claimant had no
reasonable explanation, other than she later came to that conclusion after
being detained and the police had stated that she was against the government.
The panel finds it not credible that, on a balance of probabilities, the
claimant, who, according to testimony, was unknown to the victim and in serious
condition, as well as being a news item and of interest to the government,
would be allowed access to the patient. It would be reasonable to expect that
if the police were following the claimant and were opposed to the victim being
visited, on a balance of probabilities, the claimant would have been prevented
the visit. The panel finds this evidence untrustworthy and not credible.
[12]
A question
along the lines of why do you think someone else knew something is fraught with
danger. It invites speculation. Mrs. Ukleina’s evidence was very clear. She did
not know why the police knew she was at the hospital. She was invited to
speculate and did so. She speculated that she may have been followed. She could
also have speculated that the patient was being monitored by the police. The
Panel then built on this speculation by adding another of its own. If she were
being followed by the police, why would she have been allowed into the hospital
room in the first place?
[13]
There is
absolutely no basis in fact to permit the Panel to come to the conclusion that
the evidence was untrustworthy.
[14]
The
distinction between conjecture and inference is most important. As stated by
Lord Macmillan in Jones v. Great Western Railway Co. (1930), 47 T.L.R.
38 (H.L.) at page 45:
The
dividing line between conjecture and inference is often a very difficult one to
draw. A conjecture may be plausible, but is of no legal value, for its essence
is that it is a mere guess. An inference in the legal sense, on the other hand,
is a deduction from the evidence, and if it is a reasonable deduction it may
have the validity of legal proof.
[15]
A number
of other criticisms could be levied against the Panel which engaged in a
microscopic examination of peripheral points, but in light of the above it is
not necessary to do so.
[16]
A desire
on Mrs. Ukleina’s part to live with her daughter does not exclude the
possibility that she is also a refugee. If she fears persecution in Azerbaijan, would she not prefer to live
with or near a family member, rather than in a country of strangers?
ORDER
FOR REASONS GIVEN, THIS COURT
ORDERS that the
application for judicial review is granted. The matter is referred back to the
Refugee Protection Division of the Immigration and Refugee Protection Board for
a fresh determination by a different panel. There is no serious question to
certify.
“Sean
Harrington”
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