Date: 20071221
Docket: IMM-727-07
Citation: 2007 FC 1357
Ottawa, Ontario, December 21,
2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SOFYA DOSMAKOVA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Sofya Dosmakova
is a citizen of Kazakhstan who claimed refugee protection on the basis of her
sexual orientation and her religious beliefs as a Muslim who became a member of
the Russian Orthodox Christian Church. Her claim was dismissed because the
Refugee Protection Division of the Immigration and Refugee Board (Board) found
her to be lacking in credibility and to have tendered false documents to the
Board.
[2] This
application for judicial review of that decision is allowed because, in
reaching its conclusion as to Ms. Dosmakova's credibility, the Board breached
the duty of fairness owed to Ms. Dosmakova and made a number of findings that
were patently unreasonable.
[3] The
breach of procedural fairness arises out of difficulties encountered during a
portion of the hearing with respect to the quality of interpretation provided
to Ms. Dosmakova.
[4] At
the start of the hearing, the presiding member began questioning Ms. Dosmakova.
The first area of questioning concerned the claim to protection advanced on the
ground of religious conversion. Early on in the questioning, it became
apparent that the interpreter struggled with religious terms such as
"Lent". The interpreter also confused the distinction between a
church and a mosque.
[5] Then,
the following transpired:
CLAIMANT: Yes,
in mosques. Yes, it’s only masses read only in Arabic language.
PRESIDING MEMBER: One
would not call an Islamic service a mass.
INTERPRETER: Again
this is my mistake, but I don’t really know what would be the word for it.
PRESIDING MEMBER: Okay.
Counsel?
COUNSEL: Yes?
PRESIDING MEMBER: Do
you want to have a little meeting?
COUNSEL: We can have a
quick talk.
INTERPRETER: If you
need to change some – get somebody else, please. I’m not good enough.
COUNSEL: Give us a
couple of minutes, if you don’t mind?
PRESIDING MEMBER: Yes,
would you?
COUNSEL: Just the two
of you step out for a minute.
PRESIDING MEMBER: Both
of you would you please?
COUNSEL: You can take
your water.
PRESIDING MEMBER: Since
half of her claim is based on religion, if the interpreter – my concern is the
interpreter doesn’t know ---
COUNSEL: The
interpreter has problems with the religious concepts and obviously – I’ve had
many hearings with this interpreter and she’s a very good interpreter.
PRESIDING MEMBER: Yes,
she is.
COUNSEL: But
obviously, and she knows it, the religious terms are foreign to her and the
distinctions and the importance of what is a church, what is a mosque, what is
a sermon, it’s not something that she understands.
PRESIDING MEMBER: Yes.
COUNSEL: But there are
two ways to think about this. In my opinion, at the end of the day when you
decide this claim, the religious aspect is an also; it’s not a main variant, I
wouldn’t even call it half.
PRESIDING MEMBER: Okay.
COUNSEL: It’s a real,
real sideline. I don’t think one could argue that a convert in Kazakhstan
would be persecuted or would have life endangerment based on her conversation
from Islam. It’s not Iran we’re talking about here.
PRESIDING MEMBER: No.
COUNSEL: So, here, if
indeed there is a basis for persecution, it has to be from the sexual
orientation, it’s not from the religious side.
PRESIDING MEMBER: Okay.
COUNSEL: So, I’m
wondering whether we should maybe put this part aside for the time being ---
PRESIDING MEMBER: All
right.
COUNSEL: --- and let’s
get into, what to me, is the main part of the claim for which this interpreter
will be fine, I suspect.
PRESIDING MEMBER: Yes.
She’s an excellent interpreter and ---
COUNSEL: I would hate
to get another person. It’s also not fair to the interpreter. I like her and
I know that she’s trying. She understands that she’s inadequate to this and
she’s the first one to say to us, “If you need somebody else, I will not be
offended.”
PRESIDING MEMBER: Yes.
Yes.
COUNSEL: But I wonder
whether we really do need to switch.
PRESIDING MEMBER: Well,
let’s take a look at the sexual orientation, then, and ---
COUNSEL: Yeah, that’s
the heart of the claim and that’s where the real credibility is.
PRESIDING MEMBER: Okay.
COUNSEL: It is what it
is. I mean, out of curiosity, though, I know nothing about this religious part
either. What is this prayer that you’re relating to?
PRESIDING MEMBER: The
Creed.
COUNSEL: What’s the
Creed?
PRESIDING MEMBER: It’s
a prayer that says I believe in God, the Father Almighty, that type of thing.
It’s slightly different in each of the Christian religions, but it’s said at
almost every service, and in his son, Jesus Christ ---
COUNSEL: And we
have a problem right now, because it appears to us that this claimant doesn’t
know it, but we have to ask ourselves does she not know it? Well, perhaps she
doesn’t understand because the interpreter is not ---
PRESIDING MEMBER: Exactly,
yes.
COUNSEL: --- sufficient
here. So, why don’t we just leave this area, and if we need to come back to
it, then we can decide about getting another interpreter, because we may not
need to. [emphasis added]
[6] When
Ms. Dosmakova was asked to return to the hearing, the presiding member gave her
the following explanation:
PRESIDING MEMBER: […]
While you were out of the
room, your counsel and I discussed the fact that the interpreter is not really
cognizant of religions and what may be involved in a religious service.
However, your counsel believes that the heart of the claim is your sexual
orientation and that your conversation to the Orthodox Church is quite a bit
less important.
CLAIMANT: Yes,
Mrs. [N] helped me to come to that.
PRESIDING MEMBER: Yes.
So, we’re going to continue with this interpreter, who will have no problem
with that, and we’ll leave the religious aspect of it alone for now.1 [emphasis
added]
[7] Thus,
it can be seen that the presiding member agreed that the religious aspect of
Ms. Dosmakova’s claim would be left "alone for now", and
acknowledged to Ms. Dosmakova’s then counsel that Ms. Dosmakova’s inability to
explain the elements of her new faith could be the result of faulty
interpretation.
[8] In
that circumstance, the duty of fairness the Board owed to Ms. Dosmakova was
breached when the Board relied upon Ms. Dosmakova’s inability to explain her
faith to conclude in its reasons that Ms. Dosmakova knew almost nothing about
her new faith and that she was not to be a practicing member of the Russian
Orthodox Church.
[9] The
Board then relied upon that finding and the "rampant corruption endemic in
Kazakhstan" to give no weight to Ms. Dosmakova's baptismal certificate.
However, the documentary evidence cited by the Board in support of this finding
was silent with respect to the existence of forged or fraudulent documents in Kazakhstan.
The evidence spoke instead of top-level government corruption, kickbacks, and
election fraud.
[10] It
was patently unreasonable for the Board to dismiss the baptismal certificate on
this basis.
[11] The
Board also made two implausibility findings with respect to Ms. Dosmakova's
evidence about her sexual orientation. Those findings were as follows:
The claimant was
asked questions with respect to her sexual orientation. The claimant
acknowledged that in Kazakhstan there is a negative attitude towards
homosexuality, that it was a reason for jail at the time of the Soviet Union,
that now, while there is a law against it, it is considered the most horrible
sin and that gay people hide and lesbians are not talked about. The claimant
was asked when she realized about her sexual orientation. She replied that it
was only when her sexual relationship with N began. While this is unusual, it
is possible. But things must be probably so, not just possibly so. On a
balance of probabilities, I find that most homosexual people have some
realization with respect to their sexual orientation when they begin to explore
their sexuality in their teens or early twenties, even if they suppress it, hide
it or fail to acknowledge it. On reflection in later life, they are cognizant
of this perhaps latent sexual orientation. This was not the case with the
claimant. She found out about her lesbian sexual orientation only when she
began such a relationship. The claimant stated in her PIF that she was happy
with her husband, although she was surrounded by women. While this is not
determinative, it adds to the claimant’s lack of credibility.
The claimant
testified that she and N were friends from 1994 and that in 2000 she and N
became lovers and N. moved in with her to facilitate her trip to work. The
claimant was asked how she felt about her discovery. She replied that she felt
happiness and sexually satisfied, that she was happy about it and had no regrets.
I do not accept this as credible. The claimant was a fifty-six-year-old woman,
living in a society which she stated was homophobic. This departure from her
previous life style was drastic. On a balance of probabilities, I find that
the claimant, if she suddenly discovered that she was a lesbian in such
circumstances, her emotional reaction is not in harmony with the preponderance
of probabilities which a reasonable and informed person would expect. On a
balance of probabilities, even if the claimant does not regret her relationship
with N, it is reasonable to expect that she would express some misgivings with
respect to her initial feelings. Therefore, on a balance of probabilities, I
find the claimant not to be a credible or a trustworthy witness.
[12] This
Court has repeatedly warned that implausibility findings cannot be made on the
basis of stereotypical attitudes or projected behavior that is unsupported by
the evidence. See, for example, Boteanu v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 424; Slim v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 879; Herrera
v. Canada (Minister of Citizenship and Immigration, [2005]
F.C.J. No. 1499; and Kamau v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 1505.
[13] In
the present case, I conclude that there is no evidence in the record to
establish the probability of the attitudes and the behavior that the Board
expected of Ms. Dosmakova. The Board’s two implausibility findings set out
above are thus unsupported by the evidence and are patently unreasonable.
[14] The
Board went on to find Ms. Dosmakova not to be a credible or trustworthy witness
because she failed to explain how her "alleged lesbian relationship became
known to others" and because she speculated that the police learned she
was a lesbian by questioning her neighbors. These findings are problematic
because the Board does not explain how it is that Ms. Dosmakova was supposed to
know how others acquired their knowledge or suspicions.
[15] Additionally,
Ms. Dosmakova testified that:
- she and her partner lived
together;
- they went everywhere together,
including visiting relatives together;
- they spent all their spare time
together, including going to church and spending holidays together; and
- they were at a party where they
sat, ate, and talked together and, once they started living together,
people started questioning their relationship.
[16] Given
this evidence and the difficulty usually inherent in learning how others acquired
certain knowledge, it was patently unreasonable for the Board to conclude that
Ms. Dosmakova was incredible because she failed to explain how her relationship
became known to others.
[17] The
Board gave no weight to two medical reports tendered by Ms. Dosmakova to
corroborate her evidence as to a beating that she received. The Board
concluded that they were false documents because of the endemic corruption in
Kazakhstan2 and because the
reports did not use "the language that a reasonable and informed person
would expect in a medical report allegedly from doctors, even allowing for
cultural differences." Examples cited by the Board included that one
report referred to a "closed fracture of the right shoulder bone"
(the panel expected the doctor to use the medical term for the shoulder bone)
while the other stated that "[s]he has been sick since March 2005 after
she received bodily injuries".
[18] The
Board also gave no weight to, and found to be false, a police report about the
beating that Ms. Dosmakova said she received. The report was again discounted
because it lacked "professional language to the point that it lacks all
credibility." The Board cited the following example from the report:
“Yes, really a fact of attack on you and beating by unidentified persons of
Asian origin in the daytime in the above area took place.”
[19] These
reports were all tendered in the Kazakh language, with attached translations.
Unfortunately, the Board did not raise its concerns about these documents
during the hearing, which would have allowed Ms. Dosmakova to submit, as she
did on this application, that the language used was that of the translator and
not the actual authors of the documents. Had the Board raised its concerns
during the hearing, it would also have allowed the Board to ask the interpreter
at the hearing to provide her translation of the documents to see, for example,
whether the medical term for shoulder bone was in fact used in the medical
report.
[20] In
my view, it was unfair and patently unreasonable for the Board to reject these
documents without allowing Ms. Dosmakova to address its concerns.
[21] These
errors go to the heart of the Board's decision with respect to credibility, and
I am not satisfied that the Board would have come to the same conclusion had it
not made such errors. For that reason, the application for judicial review is
allowed.
[22] Ms.
Dosmakova submits that special reasons exist in this case that justify an award
of costs in her favor. She says that the Minister unnecessarily prolonged the
proceeding by failing to consent to her claim for relief, and that such consent
ought to have been forthcoming in light of the clear breaches of procedural
fairness.
[23] In
my view, the Minister's submissions were not so devoid of merit that I can
conclude that she improperly prolonged this proceeding. Particularly, the
Minister argued that Ms. Dosmakova, through the actions of her then
counsel, had waived any right to complain about the quality of interpretation
as that impacted upon the fairness of the entire hearing. However, that is not
an issue that I had to decide given my view of this case. In the result, no
costs are awarded.
[24] Counsel
posed no question for certification on the issues that I have decided, and I
agree that no question arises on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division of the Immigration and Refugee
Board dated January 23, 2007, is hereby set aside.
2. This matter is remitted for redetermination by a differently
constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
________________________________
1. For
completeness, I observe that Ms. Dosmakova’s testimony at the hearing before
the Board did not support her then counsel's view that the religious aspect of
her claim was not significant. This is evidenced by the following exchange,
which occurred immediately following the presiding member’s advice that the
religious aspect of the claim would be left "alone for now":
COUNSEL: If you will allow me to ask one question, just
to wrap up that area, it may help.
PRESIDING
MEMBER: Okay.
COUNSEL: Ms. Dosmakova, hypothetically speaking – listen
to my question and tell me what your opinion is – let’s say that you were not
lesbian, hypothetically, you and [N] are simply good friends, not lovers, and
you and your friend go to the church and you become baptized. Do you think
that you would suffer persecution and beatings and have – do you think your
life would be in danger simply from having practiced the Christian religion in Kazakhstan?
CLAIMANT: You know what? I have to say that I
have, I received phone calls that were – they were saying to take off the crucif
(sic).
COUNSEL: The cross.
INTERPRETER: Cross.
COUNSEL: Ms. Dosmakova, please listen to the question.
It requires a yes or no answer. Do you think your conversion and attendance at
the church would be enough in itself to cause you to be persecuted in your
country, to fear for you life?
CLAIMANT: I think it wouldn’t be enough ---
COUNSEL: Thank you. That’s all I asked. So, you will
agree with me that without the element of the non-traditional sexual
orientation, you may have problems, but they wouldn’t be life threatening?
CLAIMANT: It wouldn’t be as bad as it was what
happened to me. They would hate me ---
COUNSEL: Excuse me. Madam, listen to my questions and
answer them only. Do you understand? I asked you a question. It’s a simple
question. Do you think that your life would be in danger, your life ---
CLAIMANT: Yes.
COUNSEL: No, no, no. For your religious practices?
CLAIMANT: Yes.
COUNSEL: I don’t think she understands. I think I will
leave it for the time being.
2. The
Board referred to the same documentary evidence to support this conclusion as
is discussed at paragraph 9 above.
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