Date: 20071212
Docket: IMM-5982-06
Citation: 2007 FC 1306
Ottawa, Ontario, December 12, 2007
PRESENT: The Honourable Mr. Orville Frenette
BETWEEN:
LYUBOV
TSYMBALYUK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division (the “Board”), of October 17, 2006, in which it determined that Lyobov
Tsymbalyuk (the “Applicant”) is not a Convention refugee or a person in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. Leave to apply for judicial review was
granted by Justice Simpson on August 30, 2007.
[2]
The
Applicant is a citizen of Ukraine, who alleges that she
fears persecution because of membership in a particular social group, that of
domestically abused females.
[3]
The
Applicant came to Canada in April 2005 and immediately claimed refugee
status. According to the Applicant, she had been abused by her ex-husband,
Alexander Tsymbalyuk-Andrushchenko (“Alexander”) in Ukraine, both during
and after their marriage. The Applicant married Alexander in the 1980s. In
2001, she secretly initiated divorce proceedings against him, and obtained a
divorce in April 2002. However, the Applicant continued to live with Alexander
until January 2005.
[4]
Although
the Applicant complained that she had “many conflicts with Alexander,” in her
Personal Information Form (“PIF”), she described four particular incidents. In
1991, after a dispute between Alexander and his parents in which the Applicant
became involved, Alexander started hitting the Applicant with his fists. In
1995, Alexander slashed the Applicant’s right arm with a knife. In December
2003, Alexander pushed the Applicant down the stairs. She was taken to the
hospital by ambulance and was treated for an injured collarbone. A doctor
called the police, who questioned the Applicant, but did nothing to punish
Alexander. In June 2004, Alexander turned a hot jam pot on the Applicant’s
hand.
[5]
Finally,
“after one terrible incident” in January 2005, the Applicant left Alexander and
moved to a nearby village. However, Alexander found the Applicant, confronted
her and threatened to take her life. This repeated several times, as each time
the Applicant moved, Alexander was able to track her down. Eventually, the Applicant
fled to Canada and claimed
refugee protection, in April 2005.
THE BOARD’S DECISION
[6]
After
summarizing the Applicant’s allegations, the Board found that the Applicant did
not have a well-founded fear of persecution in her country, because it
determined that material aspects of the Applicant’s testimony were lacking in
credibility.
[7]
The
Board is persuaded that at least some of the claimant’s evidence has been
fabricated and that the incidents outlined in the PIF did not occur as
described, or in the alternative, did not occur at all. Specifically, the Board
is not persuaded that the claimant was abused as she has alleged that her
husband followed her to various neighbouring [sic] villages, or that she fled Ukraine because of
spousal abuse. Having made a finding that these incidents did not occur or that
they occurred differently than described by the claimant, the Board concludes
that there is a lack of genuine subjective fear if being returned to her
country of origin.
[8]
The
Board went on to highlight eight specific concerns it had with the Applicant’s
credibility, which it described as material inconsistencies and omissions
between the Applicant’s PIF, the Port of Entry (“POE”) notes, and the Applicant’s
testimony at the hearing.
ISSUE
[9]
In
my opinion, the sole issue that arises in this application for judicial review
is whether the Board made a reviewable error in its credibility of assessment
of the Applicant.
ANALYSIS
[10]
According
to the Applicant, the Board erred in its assessment of each “credibility
concern,” by failing to take account of evidence from the PIF and
misinterpreting the POE notes. However, the Respondent submits that the Board’s
findings are clear, that it was in the best position to assess the Applicant’s
credibility, and that therefore its findings should not be interfered with by
this Court.
[11]
The
Federal Court has outlined the principles applicable to judicial review of the Board’s
findings on the issue of credibility on a number of occasions. The
determination of an Applicant’s credibility is the heartland of the Board’s
jurisdiction, and the Court is not to substitute its own opinion for that of
the Board, in the absence of an erroneous finding of fact made in a perverse or
capricious manner or without regard to the material before it. (Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315, [1993] F.C.J. No. 732
(C.A.) (QL); R.K.L. v. Canada (Minister of
Citizenship and Immigration, 2003 FCT 116, [2003] F.C.J. No. 162 (T.D.)
(QL) [R.K.L.]; Mohacsi v. Canada (Minister of
Citizenship and Immigration), [2003] 4 F.C. 771, [2003] F.C.J. No. 586
(T.D.) (QL))
[12]
Nevertheless,
the Court may interfere with the Board’s credibility findings in certain
circumstances. For example, if the Board engages in a microscopic examination
of peripheral or irrelevant issues, then the Court’s intervention is justified.
(Attakora v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168, [1989] F.C.J. No. 444 (C.A.) (QL); R.K.L., supra; Hilo v.
Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236,
[1991] F.C.J. No. 228 (C.A.) (QL))
[13]
In
this case, the credibility concerns highlighted by the Board must be examined
by the Court to determine if the Board was justified in its finding that the Applicant
lacked credibility.
(a) The January 2005
incident and the post-moving out period
[14]
According
to the Board, the January 2005 incident, which caused the Applicant to move to
a neighbouring village, was not mentioned in the POE notes, nor was it
described in the Applicant’s PIF. Furthermore, the Applicant did not mention
ongoing physical violence after she moved away from Alexander.
[15]
For
ease of reference, here is the entirety of the POE notes regarding the Applicant’s
response to the question of why she was seeking refugee status: “It because
[sic] of my ex-husband. He would abuse me physically. He would beat me. After
our divorce, we continued to live in the same apartment. He once attacked me with
a knife and I had a surgery on my collarbone area because of this attack…”
[16]
In
her PIF, the Applicant states “After one terrible incident, in January of 2005,
I took my personal belongings and left Alexander.” The Applicant does not
describe the incident further.
[17]
In
considering the POE notes, the Board does not take account of the fact that the
POE is a refugee claimant’s first contact point with Canadian authorities, and
that refugee claimants may be frightened and hesitant to interact with
authorities (R.K.L., supra). By itself, this omission on the part of the
Applicant may not be sufficient to ground a negative credibility finding.
Nevertheless, as the Respondent points out, in her PIF the Applicant did
describe other incidents in detail, yet failed to describe the incidents which
were apparently key elements which caused her, first, to move away from
Alexander, and second, to leave Ukraine. “[i]t is not enough for an Applicant
to say that what he said in oral testimony was an elaboration. All relevant and
important facts should be included in one's PIF.” (Basseghi v. Canada
(Minister of Citizenship and Immigration) [1994] F.C.J. No. 1867 (T.D.)
(QL)). However, the Board had the opportunity to question the Applicant on this
point and obtain clarification of points it considered important.
(b) The knife
incident
[18]
The
Board also notes that there are inconsistencies with regard to the Applicant’s
claims of being attacked with a knife and of being injured on her collarbone.
In the POE notes, it seems to appear that the knife attack and collarbone
injury all arose from the same incident, apparently after the Applicant's
divorce. However, in her PIF and her testimony, the Applicant states that the
knife incident occurred in 1995, and her collarbone was injured when Alexander
pushed her down the stairs in 2003. When asked about this inconsistency at the
hearing, the Applicant replied that she thought there was a mistake because
there were two separate incidents. (Transcript of Hearing, Certified Tribunal
Record at page 153)
[19]
The
POE notes clearly state that the Applicant had surgery on her collarbone
because of the knife attack, while the Applicant clearly testifies that there
were two separate incidents. It was up to the Board to determine whether it
found the Applicant’s explanation of this inconsistency to be satisfactory. It
determined that it did not. In my opinion, I would have decided this issue differently.
The Board’s finding on this issue is therefore not patently unreasonable but I
believe it must be assessed in the general tread of interpretation of the facts
by the Board, where it engaged in microscopic examination of secondary issues.
(c) The divorce in 2001
[20]
According
to the Board, although the Applicant’s PIF makes no reference to physical
conflicts with Alexander other than the 1995 and 2003 incidents, at the hearing
the Applicant testified that there were a number of smaller incidents in the
intervening years. Furthermore, the Board found that the Applicant failed to
offer a satisfying explanation as to why she sought a divorce in 2001 when
there were only “minor” incidents between the Applicant and Alexander, nor as
to why she took no steps to leave the apartment when she commenced divorce
proceedings. Finally, the Applicant’s claim that Alexander did not react
aggressively or violently when informed of the divorce, “appears inconsistent
with the other information regarding the husband.” Yet in his testimony the Applicant
made reference to her moving from place to place throughout February, March and
April of 2005, and her husband locating her and abusing her in every place
where she might go.
[21]
In
my opinion, these findings are patently unreasonable. Not only has the Board
ignored specific descriptions of particular incidents in the Applicant’s PIF,
but it also ignores the Applicant’s statements in her PIF to the effect that
the incidents she has described are not the only times that Alexander reacted
violently towards her. The Applicant, in her PIF, also describes the events
that finally led to her decision to seek a divorce:
In 2001 Alexander started drinking
heavily. His behaviour became even more unpredictable. Alexander made two
attempts to commit suicide. Meanwhile my emotional health was deteriorating. In
the fall of 2001 I secretly started the divorce procedure. I managed to obtain
a divorce in April of 2002. When my ex-husband learned about the divorce he did
not react. He told me that it was a waste of time. We still were living in the
same apartment building and the divorce did not change his abusive attitude
During the hearing, the Board questioned
the Applicant as to why she continued to live with Alexander even after the
divorce. In response the Applicant explained that, although she tried to find
her own apartment, she could not get a new apartment without Alexander’s
consent. The Board in its decision completely fails to address these
explanations. In my opinion, the Board was under an obligation to assess what
are apparently reasonable explanations for the issues identified by the Board.
(c) Remaining
inconsistencies: “taking care” and husband/ex-husband
[22]
The
Applicant states in her PIF that Alexander took care of her while she was
recovering from surgery following her collarbone injury. During her testimony,
the Applicant stated that Alexander did some shopping and sometimes brought her
tea during this time. The Board “does not find that the activities described by
the claimant being performed by her husband, as consistent with the statement
“…Alexander took care of me”. Furthermore, the Board noted that at different
times during her testimony, the Applicant referred to Alexander as her husband
and as her ex-husband.
[23]
In
my opinion, the Board’s finding with regard to being “taken care of” is
patently unreasonable. It is not implausible that a woman, who is subjected to
ongoing abuse from her partner, or even continuing indifference, would consider
being brought tea to be being taken care of. For the Board to consider this as
an inconsistency amounts, at the very least, to a microscopic examination of
the Applicant’s allegations. Similarly, in my opinion, the Board’s taking issue
with the Applicant’s switching between the term “husband” and “ex-husband”,
particularly when speaking through an interpreter, is a microscopic examination
of the Applicant’s testimony. While inconsistencies that, on their own, seem to
be of little importance can gain importance when considered in the context of
the claim as a whole, in this case, the Board once again ignored the Applicant’s
explanation, that she switched back and forth because she did not “think it
would be something important to say or not to say, to say it this way.” (Nejme
v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1822
(T.D.) (QL); Transcript, Certified Tribunal Record at page 134).
(d) The documentary and
physical evidence
[24]
In
support of her claim, the Applicant provided a medical report documenting her
treatment following the December 2003 incident. The Board gave this document
little weight, based on the fact that documentary evidence demonstrates that
fraudulent documentation could easily be obtained from Ukraine.
Additionally, although the Applicant presented physical scars, the Board
determined that “in light of the credibility concerns the Board has with the claimant’s
testimony and the information contained in her PIF and the POE notes, the Board
is not persuaded that the scars were sustained as a result of spousal abuse.”
[25]
While
it is up to the Board to determine what weight it will give to documents
provided by a claimant, it must base this decision on the evidence. In Papaskiri
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 49, 40 Imm. L.R. (3d) 211, the
Federal Court found that more is required for such a finding than documentary
evidence that the kind of document in question is easy to obtain fraudulently
in the country in which it originated.
(e) False
documentation
[26]
The
case law clearly supports the proposition that a Court must disregard a
document which it proven to be false. It is also acceptable in the assessment
of documents to consider particularly documentary evidence showing the prevalence
of the use of forged documents in Refugee or Immigration cases.
[27]
However,
in order to reject an official document, there must be evidence that supports
the conclusion of invalidity. Without such evidence, a Board or a member’s
decision of forgery cannot be sustained this constitutes a reviewable error.
Ramalingan
v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 10;
Halili v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 999, [2002] F.C.J. No. 1335;
Cheema v. Canada(Minister of Citizenship and Immigration), 2004 FC 224, [2004] F.C.J.
No. 255;
Iqbal v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1219, [2006] F.C.J. No. 1526
[28]
There
was no evidence in this case to support the conclusion that the impugned
documents were not authentic. In particular, the medical reports confirm the
injuries sustained by the Applicant. Injuries which left scars and marks exhibited
to the Board.
[29]
It
is exact to say that the medical report did not mention the cause of those
injuries but the Board did not consider the fact that the medical doctor,
seeing these injuries, called the Police to report them and the latter did not act
upon this report.
[30]
Why
did the Board practically ignore this fact? The Board accorded little
importance to the Applicant’s scars which were easily visible, it concluded
they were not convinced they resulted from spousal abuse.
(f) The timing of the
divorce
[31]
The
Board found it “implausible” that the Applicant continued to live with her
husband after the divorce or why she did not initiate proceedings before 2001. One
wonders why the Board was not more attentive to the chairperson’s guidelines on
this point and did not attempt to understand the socio-economic disadvantages
of abused woman in Ukraine.
[32]
IN
my opinion, considering the totality of the evidence, that the interpretation
of the Board is patently unreasonable by ignoring clear evidence, speculating
on issues and doing a microscopic examination of peripheral and secondary issues
while practically ignoring important physical evidence, including scars,
medical documentation which clearly supported the Applicant’s version of the
facts.
[33]
Therefore,
the Board’s decision being patently unreasonable cannot stand and therefore
this application for judicial review must be granted.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that :
This application for judicial review be
allowed and that the Applicant is granted a new hearing before a different
instituted panel.
"Orville
Frenette"
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