Date: 20110218
Docket: IMM-3342-10
Citation: 2011 FC 193
Ottawa, Ontario, February 18, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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NATALYA ZOLOTOVA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Justice
Bertha Wilson explained in R v Lavallee, [1990] 1 S.C.R. 852, [1990] 4 WWR
1, the battered woman syndrome may, sometimes, prevent women from taking action,
even when they live in a situation of perpetual violence that may seem
impossible to endure for a person living in a normal environment:
… The
obvious question is if the violence was so intolerable, why did the appellant
not leave her abuser long ago? This question does not really go to whether she
had an alternative to killing the deceased at the critical moment.
Rather, it plays on the popular myth already referred to that a woman who says
she was battered yet stayed with her batterer was either not as badly beaten as
she claimed or else she liked it. Nevertheless, to the extent that her failure
to leave the abusive relationship earlier may be used in support of the
proposition that she was free to leave at the final moment, expert testimony
can provide useful insights. Dr. Shane attempted to explain in his testimony
how and why, in the case at bar, the appellant remained with Rust:
She had stayed in
this relationship, I think, because of the strange, almost unbelievable, but
yet it happens, relationship that sometimes develops between people who develop
this very disturbed, I think, very disturbed quality of a relationship. Trying
to understand it, I think, isn't always easy and there's been a lot written
about it recently, in the recent years, in psychiatric literature. But
basically it involves two people who are involved in what appears to be an
attachment which may have sexual or romantic or affectionate overtones.
And the one
individual, and it's usually the women in our society, but there have been
occasions where it's been reversed, but what happens is the spouse who becomes
battered, if you will, stays in the relationship probably because of a number
of reasons.
One is that the
spouse gets beaten so badly -- so badly -- that he or she loses the motivation
to react and becomes helpless and becomes powerless. And it's also been shown
sometimes, you know, in -- not that you can compare animals to human beings,
but in laboratories, what you do if you shock an animal, after a while it can't
respond to a threat of its life. It becomes just helpless and lies there in an
amotivational state, if you will, where it feels there's no power and there's
no energy to do anything.
…
Apparently,
another manifestation of this victimization is a reluctance to disclose to
others the fact or extent of the beatings. For example, the hospital records
indicate that on each occasion the appellant attended the emergency department
to be treated for various injuries she explained the cause of those injuries as
accidental…
[2]
In an immigration case which focuses on gender, the reasons of the
Refugee Protection Division of the Immigration and Refugee Board’s (Board)
decision must reflect the specific situation of an applicant, with particular
attention to the Gender-Related Guidelines.
[3]
The Women Refugee
Claimants Fearing Gender-Related Persecution, Guidelines Issued by the
Chairperson Pursuant to subsection 65(3) of the former Immigration Act, RSC
1985, c I-2, November 13, 1996 (Gender-Related Guidelines) state: “… Where a woman
claims to have a gender-related fear of persecution, the central issue is thus
the need to determine the linkage between gender, the feared persecution and
one or more of the definition grounds.”
[4]
The Gender-Related Guidelines were issued in order to assure a
certain coherence in tribunal decisions: “… when the panel is faced with a case
where the applicant has made a claim of persecution based on her membership in
a particular social group, i.e. women victims of violence, in all fairness, the
claim cannot be examined without reference to the Guidelines” (Khon v
Canada (Minister
of Citizenship and Immigration), 2004 FC 143, 130 ACWS (3d) 583, at para 20).
[5]
In regard to state protection, contradictory evidence must be assessed
by the Board:
[39] Having laws on the books does not equate with actual,
experienced state protection for citizens. It has been held that when examining
whether a state is making serious efforts to protect its citizens, it is at the
operational level that protection must be evaluated particularly in instances
of violence against women (see Garcia v. Canada (Minister of Citizenship and
Immigration),
[2007] F.C.J. No. 118, at paragraph 15).
(Gilvaja v Canada (Minister of
Citizenship and Immigration), 2009 FC 598, 178 ACWS (3d) 201).
[6]
The Board must analyse an applicant’s personal situation in light
of contradictory evidence. It is by the analysis of the evidence of the Board
that its reasonableness or the lack thereof is determined.
II. Introduction
[7]
This
case is one of domestic abuse. The Applicant is a female who alleges she had
been abused by a male who occupies an influential position in Kazakhstan.
[8]
The Board’s Decision does not reflect consideration of the Gender-Related
Guidelines, nor does it reflect significant evidence submitted by the
Applicant.
[9]
In
regard to state protection, the Board’s Decision does not address
documentary evidence which contradicts its conclusion. The documentary evidence
appears to support the Applicant’s testimony.
III. Judicial Procedure
[10]
This
is an application, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), for judicial review of a
decision of the Board, dated May 13, 2010, wherein the Applicant was
determined to be neither a Convention refugee within the meaning of section 96
of the IRPA nor a person in need of protection, as defined in subsection 97(1)
of the IRPA.
IV. Background
[11]
The
Applicant, Ms. Natalya Zolotova, was born in Almaty, Kazakhstan.
She is of Russian extraction.
[12]
Ms.
Zolotova was married for 41 years; her husband died in March 2006. She has two
children, both of whom are Canadian citizens; her daughter, Svetlana, resides
in Canada and her son,
Mr. Igor Tyulpa, in the United States.
[13]
Ms.
Zolotova worked as a controller for various government agencies in Kazakhstan.
[14]
In
2006, following the loss of her husband, Ms. Zolotova entered into a
relationship with Mr. Boris Mejebitski, who was her supervisor at the Ministry
of Energy. The latter, allegedly, had a certain influence as he was responsible
for a sector of the Ministry and had important influential contacts.
[15]
Mr.
Mejebitski and Ms. Zolotova began to live together in June of 2006. Ms.
Zolotova alleges that Mr. Mejebitski subsequently became extremely violent.
[16]
Ms.
Zolotova allegedly called the local police on at least six occasions; however,
on no occasion did the police provide assistance. On July 16, 2006, Ms.
Zolotova alleges that Mr. Mejebitski threw a bottle at her. A neighbour,
Irina, assisted her, called for medical emergency assistance in addition to the
police having been called by the medical personnel. Ms. Zolotova did not press
criminal charges.
[17]
Ms.
Zolotova alleges that she had also been hospitalized from March 7 to March 20
2007 after having been beaten by Mr. Mejebitski. The same neighbour, allegedly,
also assisted and had taken her to the hospital. The hospital staff called the
police. A police officer visited her at the hospital and allegedly had told her
that the police authorities do not involve themselves in family matters.
[18]
After
having received an invitation from her daughter in Canada, Ms.
Zolotova successfully obtained a Canadian visitor’s visa in early 2007. On
April 20, 2007, during her son’s visit from the United States, she
allegedly asked Mr. Mejebitski to leave the apartment subsequent to his again
having beaten her. At the time, she was examined by a doctor who treated her
for bruises and contusions.
[19]
Ms.
Zolotova and her son further allege that they presented themselves at the
public prosecutor’s office, and later consulted a lawyer, neither of which
offered any substantial assistance.
[20]
Ms.
Zolotova then, with assistance from abroad, left for Canada and arrived in
the first part of May 2007. Shortly, subsequent to her arrival, she applied for
refugee status.
[21]
On
May 13, 2010, the Board found Ms. Zolotova not to be a Convention refugee.
V. Decision under Review
[22]
The
Board determined that Ms. Zolotova is not a “Convention refugee”, within the
meaning of section 96 of the IRPA, nor a “person in need of protection” due to risk
to life or a risk of cruel and unusual treatment or punishment or danger of
torture, as defined in subsection 97(1) of the IRPA.
[23]
The
Board accepted Ms. Zolotova’s identity and Kazak nationality. The Board also
explicitly specified having taken the Gender-Related Guidelines into
consideration.
[24]
The
Board concluded that Ms. Zolotova has not provided credible or plausible
evidence to support her claim, particularly in light of available documentary
evidence. Thus, the Board determined that the case was for the most part about
the issue of state protection. The Board concluded that Ms. Zolotova had not
made serious attempts to seek protection, and, had not rebutted the presumption
of state protection with clear and convincing evidence.
VI. Position of the Parties
[25]
The
Applicant submits the Board erred in law and in fact:
a)
Ignoring
important evidence from the most recent U.S. Department of State (DOS) Report
that directly contradicts the Board’s findings on state protection;
b)
Ignoring
the medical, psychological expertise, the affidavit of the Applicant’s son and
other specific corroborating evidence;
c)
Failing
to take into account the significance of the Applicant’s six failed attempts to
obtain police protection;
d)
Ignoring
the Applicant’s explanation as to why she did not make a criminal complaint
after she had been hospitalised on July 16, 2006, and why she did not rid
herself of Mr. Mejebitski;
e)
Failing
to consider whether the Prosecutor’s reasons for refusing to act were nothing
but a pretext, especially since the Applicant did have a corroborative witness
and she did have medical evidence to the effect that she had been beaten;
f)
Wrongly
relying on the existence of nongovernmental “crisis centers” as an indication
that protection was available which documentation material, if scrutinized,
would have determined that was not the case.
[26]
The
Respondent submits that there is no ground for judicial review in the present
case. The battered woman syndrome, according to the Respondent, is not applicable
in the Applicant’s case. According to the Respondent, the Applicant did not
make serious enough attempts to claim protection which appears to have been
available to her in Kazakhstan.
VII. Issues
[27]
(1)
Did the Board err in its assessment of the specific subjective and objective
evidence duly submitted for consideration?
(2)
Did the Board err in finding that state protection was available to the
Applicant?
VIII. Pertinent Legislative Provisions
[28]
The
following provisions of the IRPA are pertinent:
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of
protection is a person in Canada whose removal to their country
or countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
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96. A qualité de réfugié au sens de
la Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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[29]
The
Gender-Related Guidelines address the evidentiary matters:
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2. Decision-makers should
consider evidence indicating a failure of state protection if the state or
its agents in the claimant's country of origin are unwilling or unable to
provide adequate protection from gender-related persecution. If the claimant can
demonstrate that it was objectively unreasonable for her to seek the
protection of her state, then her failure to approach the state for
protection will not defeat her claim. Also, the fact that the claimant did or
did not seek protection from non-government groups is irrelevant to the
assessment of the availability of state protection.
When considering whether it
is objectively unreasonable for the claimant not to have sought the protection of the
state, the decision-maker should consider, among other relevant factors, the
social, cultural, religious, and economic context in which the claimant finds
herself. If, for example, a woman has suffered gender-related persecution
in the form of rape, she may be ostracized from her community for seeking
protection from the state. Decision-makers should consider this type of
information when determining if the claimant should reasonably have sought
state protection.
In determining whether the
state is willing or able to provide protection to a woman fearing gender-related persecution,
decision-makers should consider the fact that the forms of evidence which
the claimant might normally provide as "clear and convincing proof"
of state inability to protect, will not always be either available or useful
in cases of gender-related persecution.
For example,
where a gender-related claim involves threats of or actual sexual violence at
the hands of government authorities (or at the hands of non-state agents of
persecution, where the state is either unwilling or unable to protect), the
claimant may have difficulty in substantiating her claim with any
"statistical data" on the incidence of sexual violence in her
country.
In cases where the claimant cannot rely on the more standard or
typical forms of evidence as "clear and convincing proof" of
failure of state protection, reference may need to be made to alternative
forms of evidence to meet the "clear and convincing" test. Such
alternative forms of evidence might include the testimony of women in similar
situations where there was a failure of state protection, or the testimony of
the claimant herself regarding past personal incidents where state protection
did not materialize.
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2. Les décideurs doivent
examiner la preuve démontrant l'absence de protection de l'État si l'État et
ses mandataires dans le pays d'origine de la revendicatrice ne voulaient pas
ou ne pouvaient pas assurer une protection appropriée contre la persécution
fondée sur le sexe.
Si la revendicatrice peut montrer clairement qu'il était objectivement
déraisonnable pour elle de demander la protection de l'État, son omission de
le faire ne fera pas échouer sa revendication. En outre, que la
revendicatrice ait ou non cherché à obtenir la protection de groupes non
gouvernementaux ne doit avoir aucune incidence sur l'évaluation de la
protection qu'offre l'État.
Au moment d'évaluer s'il est
objectivement déraisonnable
pour la revendicatrice de ne pas avoir sollicité la protection de l'État, le
décideur doit tenir compte, parmi d'autres facteurs pertinents, du contexte
social, culturel, religieux et économique dans lequel se trouve la
revendicatrice. Par exemple, si une femme a été victime de persécution
fondée sur le sexe parce qu'elle a été violée, elle pouvait ne pas demander
la protection de l'État de peur d'être ostracisée dans sa collectivité. Les
décideurs doivent tenir compte de ce type d'information au moment de
déterminer si la revendicatrice aurait dû raisonnablement demander la
protection de l'État.
Pour déterminer si l'État veut
ou peut assurer la protection à une femme qui craint d'être persécutée en raison de son
sexe, les décideurs doivent tenir compte du fait que les éléments de
preuve pouvant normalement être fournis par la revendicatrice comme une «
preuve claire et convaincante » de l'incapacité de l'État d'assurer la
protection ne seront pas toujours disponibles ou utiles dans les cas de
persécution fondée sur le sexe.
Par exemple, lorsqu'une revendication
fondée sur le sexe repose sur des menaces ou des actes réels de violence
sexuelle de la part des autorités gouvernementales (ou d'agents de
persécution non gouvernementaux dans le cas où l'État ne peut ou ne veut
offrir une protection), il pourrait être difficile pour la revendicatrice de
justifier sa revendication à l'aide de « données statistiques » concernant
les incidents de violence sexuelle dans son pays d'origine.
Dans les cas où la revendicatrice ne
peut compter sur les éléments de preuve plus courants ou typiques comme «
preuve claire et convaincante » de l'incapacité de l'État d'assurer la protection,
il pourrait être nécessaire de s'en remettre à d'autres éléments de preuve
pour satisfaire au critère de la « preuve claire et convaincante ».
Il pourrait s'agir de témoignages de femmes se trouvant dans des situations
similaires et pour lesquelles l'État a omis d'assurer la protection ou du
témoignage de la revendicatrice elle-même concernant des incidents personnels
précédents lors desquels l'État n'a pas assuré sa protection.
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IX. Standard of Review
[30]
[9] It
is also well settled that questions relating to the adequacy of state
protection are questions of mixed fact and law and that the applicable standard
is that of reasonableness (Hinzman v. Minister of Citizenship and
Immigration, 2007 FCA 171).
(Gaymes v Canada (Minister
of Citizenship and Immigration), 2010 FC
801, [2010] FCJ No 982 (QL/Lexis)).
[31]
Therefore,
the appropriate standard to apply to the Board’s Decision is one of
reasonableness.
X. Analysis
(1) Did the Board err in
its assessment of the specific subjective and objective evidence duly submitted
for consideration?
[32]
The
Board determined that the Ms. Zolotova had not provided credible and trustworthy
evidence to support her claim. It is in the analysis of the evidence by the
Board that reasonableness or the lack thereof is determined.
Attempts
to obtain police protection
[33]
In
regard to police
protection, the Board found Ms. Zolotova not credible:
[10] Chief among the panel’s
concerns is the claimant’s seemingly contradictory assertions and behaviour.
For example, the claimant alleges that she would have made six telephone calls
to the local police, who refused to help her. Yet, the claimant’s only actual
police report indicates that the claimant herself refused to make a complaint
...
(Board’s Decision at p 3).
[34]
Ms.
Zolotova claims
that she attempted on six separate occasions to obtain police protection, and
that all six attempts had failed. She also provided evidence of an official
police report of aggression directed against her, dated July 16, 2006, which clearly
specified:
[...] elle s’est adressée le 16.07.2006
au Département d’enquête de l’arrondissement Almalinski de la ville d’Almaty à
cause du fait de l’agression (coup à la tête) sur elle entrepris par un objet
solide par une personne non établie.
La citoyenne Zolotova a refusé de déposer
une pl[ai]nte officielle suite a cette agression en le motivant par ce qu’elle
n’a pas eu de pertes financières […]
(Respondent’s Memorandum
of Argument, Affidavit de Sheila Markland, pièce “A”).
[35]
In her Affidavit,
dated June 29, 2010, Ms. Zolotova provided an explanation as to why she had failed
to file a complaint to the police after she had been hospitalized on July 16,
2006:
At the hearing the Board Member asked me
why I did not make a criminal complaint on July 16th 2006, on that
day my neighbour called an ambulance after Boris assaulted me. The ambulance
staff called the police. I explained that I was very frightened. The police
officer was a native Kazak and I am Russian. I was shaking with fear, and I was
afraid to accompany the police at night. I did not identify Boris. I was also
afraid that Boris would give money to the police. I also explained that
Boris had a great deal of influence as the Chief dispatcher for all of Kazakhstan. He had a lot of connections
and the police are corrupt.
(Applicant’s Written Representations at
para 11: English translation of para 35 of Applicant’s Affidavit as provided by
her counsel).
[36]
The Board did
not explain why it chose to reject this explanation or why it did not consider
the evidence that might have supported it. Certain facts appear to corroborate
the explanations as to the background in regard to ethnicity and the
significance of the workplace. Moreover, Ms. Zolotova’s son submitted an
affidavit in which he confirms that his mother tried to ask for police
protection:
6. She had filed multiple complaints to
police, but the answer was always the same: the police do not solve family
problems.
(Affidavit of
Igor Tyulpa, Applicant’s Record (AR) at p 61).
[37]
Again,
the Board did not explain why it chose to discard or ignore the evidence
without regard to the specific proof, provided by Ms. Zolotova, which
necessitated consideration of the Gender-Related Guidelines.
Attempts to
obtain help from Prosecutor and lawyer
[38]
Ms.
Zolotova alleged that she also tried to obtain assistance from the state
prosecutor. In his affidavit, Ms. Zolotova’s son, Mr. Igor Tyulpa, explains
their visits to the Prosecutor and to the lawyer:
7. Together we visited the prosecutor on
April 23rd, 2007 to lodge a complaint. We were told that without
witnesses they could not help and that neither they, nor the police could
prevent this man from coming to my mom’s apartment.
8. The same day we went to see a lawyer,
Attorney Alexander Malchenko, and he told us that there are many similar cases
that remain unsolved. He told us that Boris Mejebitski is a powerful man and
that it would be very difficult to prove anything against him. The lawyer also
told us that since my mother is Russian and a woman, nobody would consider this
case very seriously.
(Affidavit of
Igor Tyulpa, AR at p 61).
[39]
Again,
the Board did not give credence to Ms. Zolotova’s testimony, nor to her son:
[10] ... The claimant alleges that
she would have sought out counsel and gone to the prosecutor’s office in April
of 2007. This was just prior to her departure. Yet the claimant said that the
prosecutor refused to do anything. According to the claimant, she would have
been told that she required “witnesses”. This does not seem consistent with the
available documentary evidence ... Finally, the claimant alleges that she
sought out legal counsel only after she was at the point of deciding to leave
her country in April of 2006. According to the claimant, said counsel provided
absolutely no information on any options available to her. The panel does not
believe this is credible or plausible, especially in light of the available
documentary evidence which speaks to legal resources. The panel does not
believe that this claimant is either credible or plausible.
(Board’s Decision at pp 3-4).
[40]
The
Board did not refer to the documentary evidence to conclude that Ms. Zolotova’s
testimony was not consistent with existent “legal resources” in Kazakhstan. In regard
to Kazakhstan’s legal
system, the Court points out an extract from the 2009 Human Rights Report which
was before the Board, itself:
e. Denial of Fair Public Trial
The law does not provide adequately for
an independent judiciary. The executive branch limited judicial independence.
Prosecutors enjoyed a quasijudicial role and had authority to suspend court
decisions.
Corruption was evident at every stage of
the judicial process. Although judges were among the most highly paid
government employees, lawyers and human rights monitors alleged that judges,
prosecutors, and other officials solicited bribes in exchange for favorable
rulings in the majority of criminal cases.
(2009
Human Rights Report: Kazakhstan, March 11, 2010, Tribunal
Record at p 54).
Medical and
psychological expert reports
[41]
The
Board’s Decision mentions other corroborating evidence, but completely fails to
explain why no weight was given to certain reports in evidence which had been
duly provided:
[10] ... Further the claimant had
corroborative evidence in medical reports that she produced for her hearing, as
well as the neighbour who would have seen her after the incident of July 2006 …
(Board’s Decision at p 4).
[42]
To
corroborate her version of the facts, Ms. Zolotova had submitted to the Board numerous
reports, none of which were specifically discussed in the decision:
·
Medical
report (August 14, 2006);
·
Medical
report (March 20, 2007);
·
Medical
certificate (April 20, 2007);
·
Psychological
evaluation by Anna Insky (April 15, 2009);
·
Letter
from psychotherapist, Karine Peel (January 17, 2010);
·
Medical
certificate from the CLSC de la Montagne (May 5, 2009);
·
Descriptions
of medications prescribed to Applicant;
·
Affidavit
sworn by claimant’s son, Igor Tyulpa (December 17, 2009).
(AR and
following at p 37).
[43]
In
Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration) (1998), 157
FTR 35, 83 ACWS (3d) 264, the Court established that the more relevant
the evidence, the higher the burden on the decision maker to cite and analyse
the evidence which contradicts its findings:
[17] However,
the 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. Moreover, when the agency refers in some detail to
evidence supporting its finding, but is silent on evidence pointing to the
opposite conclusion, it may be easier to infer that the agency overlooked the
contradictory evidence when making its finding of fact.
[44]
Medical
evidence can be singularly important in the particular case of an abused woman.
The Gender-Related Guidelines provide:
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For
a discussion of the battered woman syndrome see R. v. Lavallee,
[1990] 1 S.C.R. 852. In Lavallee,
Madame Justice Wilson addressed the mythology about domestic violence and
phrased the myth as "[e]ither she was not as badly beaten as she claims,
or she would have left the man long ago. Or, if she was battered that
severely, she must have stayed out of some masochistic enjoyment of it."
The Court further indicated that a manifestation of the victimization of
battered women is a "reluctance to disclose to others the fact or extent
of the beatings". In Lavallee, the Court indicated that
expert evidence can assist in dispelling these myths and be used to explain
why a woman would remain in a battering relationship.
[Emphasis
added].
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Une discussion sur le syndrome de la femme battue figure dans R.
c. Lavallee, [1990] 1 R.C.S. 852. Dans Lavallee,
le juge Wilson traite du mythe concernant la violence familiale : « Elle
était certainement moins gravement battue qu'elle le prétend, sinon elle aurait
quitté cet homme depuis longtemps. Ou, si elle était si sévèrement battue,
elle devait rester par plaisir masochiste ». La Cour ajoute qu'une autre
manifestation de cette forme d'oppression est « apparemment la réticence de
la victime à révéler l'existence ou la gravité des mauvais traitements ». Dans
Lavallee, la Cour a indiqué que la preuve d'expert peut aider en
détruisant ces mythes et servir à expliquer pourquoi une femme reste dans sa
situation de femme battue.
|
(Gender-Related Guidelines at para 31).
[45]
In
addition, the
Board ignored the medical evidence although it appears central to the
assessment of Ms. Zolotova’s credibility. The medical evidence shows that Ms.
Zolotova suffered from physical symptoms, which could well have been caused at
the hands of Mr. Mejebitski (see for instance Applicant’s Record at p 42:
“traumatisme crânien, commotion cérébrale, fractures des côtes IV-V à gauche,
fracture interne des os du nez. Contusions multiples, ecchymoses. État de
choc. Contusion au niveau des reins). Moreover, the psychological reports specify
that she suffers from “Post Traumatic Stress Disorder”, emanating from the
violence to which she was subjected by Mr. Mejebitski in Kazakhstan” (Report
from Ms. Karine Peel, Psychotherapist, January 17, 2010, AR, at p 55). Ms. Anna
Insky, Psychologist, came to a similar conclusion (Report from Anna Insky,
April 15, 2009, AR at p 46).
[46]
Due
to a lack of adequate consideration of the Gender-Related Guidelines, the Board
appears to ignore, and, thus, fails to understand, acknowledge and recognize
the battered woman syndrome by its omission to assess core evidence:
[10] ... The claimant alleges that
she is unable to get rid of her “boyfriend” from her own apartment. Yet the
claimant, by her own admission, did nothing in order to have him removed during
their relationship or subsequent to its ending in April of 2006 …
(Board’s Decision
at p 4).
[47]
The Board also
stated: “… The claimant did not make any formal reports regarding any criminal
activity against her live-in “boyfriend”, nor did she take any affirmative
action to have him removed from her apartment. The claimant’s only assertion
was to the effect that said individual Boris had ‘influence’” (Board’s Decision,
at para 11).
[48]
As
Justice Wilson explained in Lavallee, above, the battered woman syndrome
may, sometimes, prevent women from taking action, even when they live in a
situation of perpetual violence that may seem impossible to endure for a person
living in a normal environment:
… The
obvious question is if the violence was so intolerable, why did the appellant
not leave her abuser long ago? This question does not really go to whether she
had an alternative to killing the deceased at the critical moment.
Rather, it plays on the popular myth already referred to that a woman who says
she was battered yet stayed with her batterer was either not as badly beaten as
she claimed or else she liked it. Nevertheless, to the extent that her failure
to leave the abusive relationship earlier may be used in support of the proposition
that she was free to leave at the final moment, expert testimony can provide
useful insights. Dr. Shane attempted to explain in his testimony how and why,
in the case at bar, the appellant remained with Rust:
She had stayed in
this relationship, I think, because of the strange, almost unbelievable, but
yet it happens, relationship that sometimes develops between people who develop
this very disturbed, I think, very disturbed quality of a relationship. Trying
to understand it, I think, isn't always easy and there's been a lot written
about it recently, in the recent years, in psychiatric literature. But
basically it involves two people who are involved in what appears to be an
attachment which may have sexual or romantic or affectionate overtones.
And the one
individual, and it's usually the women in our society, but there have been
occasions where it's been reversed, but what happens is the spouse who becomes
battered, if you will, stays in the relationship probably because of a number
of reasons.
One is that the
spouse gets beaten so badly -- so badly -- that he or she loses the motivation
to react and becomes helpless and becomes powerless. And it's also been shown
sometimes, you know, in -- not that you can compare animals to human beings, but
in laboratories, what you do if you shock an animal, after a while it can't
respond to a threat of its life. It becomes just helpless and lies there in an
amotivational state, if you will, where it feels there's no power and there's
no energy to do anything.
…
Apparently, another manifestation of this
victimization is a reluctance to disclose to others the fact or extent of the
beatings. For example, the hospital records indicate that on each occasion the
appellant attended the emergency department to be treated for various injuries
she explained the cause of those injuries as accidental…
[49]
If
the Board had adequately taken into consideration that Ms. Zolotova might have
been suffering from the battered woman syndrome, it would not have held against
her the fact that she did not remove her aggressor from her apartment. In Griffith
v Canada (Minister of
Citizenship and Immigration) (1999), 171 FTR 240, 90 ACWS (3d) 118, the
Court stated:
[27] In my opinion, these statements of the CRDD do not
disclose the degree of knowledge, understanding, and sensitivity required to
avoid a finding that a reviewable error has been made in judging the applicant’s
statements and conduct.
[28] The pitfall exposed in the statements is that the panel
members" interpretation of an "objective" standard is being used
as the standard against which the actions of the applicant are being judged;
that is, the objective standard of the "reasonable man" so commonly
used in criminal and civil law. The issue is not whether men or women are
decision makers, but rather whether a male norm is being unfairly applied.
About this, Wilson J. in Lavallee at 874 says this:
If
it strains credulity to imagine what the "ordinary man" would do in
the position of a battered spouse, it is probably because men do not typically
find themselves in that situation. Some women do, however. The definition of
what is reasonable must be adapted to circumstances which are, by and large,
foreign to the world inhabited by the hypothetical "reasonable man".
[50]
In another case regarding an abused woman, also in Kazakhstan, the
Court clearly explained the importance of applying the Gender-Related
Guidelines when considering the specific situation of an applicant (Khon,
above ):
[18] Although the panel is
not obliged to apply the Guidelines because they do not have the force of law,
they must be examined by the members of the panel in appropriate cases.
[19] In Fouchong v. Canada
(Secretary of State), [1994] F.C.J. No. 1727, MacKay J. addresses the
application of the Guidelines, in paragraphs 10 and 11:
[10] I am
further persuaded that in the circumstances of this case the tribunal erred in
its failure to explicitly assess the applicant's claim in relation to the
Guidelines, because here submissions of counsel made specific reference to
those in relation to the applicant's claim. The Guidelines are not law, but
they are authorized under s. 65(3)
of the Act. They are not binding but they are intended to be considered by
members of the tribunal in appropriate cases. In a memorandum accompanying
their circulation, the Chairperson of the I.R.B. advised, inter alia,
that while they are not to be considered binding
Refugee . . .
Division Members are expected to follow the Guidelines unless there are
compelling or exceptional reasons for adopting a different analysis.
Individuals have a
right to expect the Guidelines will be followed unless compelling or
exceptional reasons exist for departure from them.
[11] Neither
the terms of the Guidelines nor of the Chairperson's memorandum of advice
create the basis for the court to determine that in this case the tribunal
erred by not explicitly referring to the Guidelines. The basis of my conclusion
is the nature of the applicant's
claim and the reference by counsel at the hearing to the use of the Guidelines
in assessing the claim. In fairness the claim could not be assessed without
reference to the Guidelines. I do not suggest what the outcome of that
assessment might be but in the circumstances in which this claim was made and
presented, it was not sufficient for the tribunal to simply set out in its
conclusion, "This is not a
situation of spousal abuse. This is a situation where the claimant fears
criminal attacks by a former spouse". [Emphasis added].
[20] The Guidelines are
issued in order to assure a certain coherence in the tribunal's decisions. As
MacKay J. indicated, when the panel is faced with a case where the applicant
has made a claim of persecution based on her membership in a particular social
group, i.e. women victims of violence, in all fairness, the claim cannot be
examined without reference to the Guidelines.
[51]
The
Board did not give proper consideration to significant evidence submitted by
the Applicant. It was not open to the Board to reach a decision without
examining the corroborating evidence. While the Board may claim to have taken
the Gender-Related Guidelines into consideration, it is the view of the Court
that the reasons of the decision do not reflect the singularly specific situation
of an abused woman, one, who, appears to have been caught in a situation of “the
abused woman syndrome” according to the evidence.
(2)
Did the Board err in finding that state protection was available to the
Applicant?
[52]
The
Board determined that Ms. Zolotova did not rebut the presumption of state
protection of Kazakhstan. In its
decision, the panel found:
[11] … that this case is for the
most part, about the issue of State Protection. States are presumed to be able
to protect their citizens. The protection must be adequate but need not be
perfect. In the current context, the claimant alleges that no one in authority
would assist her with her problems with her now next-boyfriend. … Yet the panel does not believe that the
claimant’s assertions are supported by documentary evidence. Firstly, while the
panel acknowledges that the documentation does say about problems of domestic
abuse in Kazakhstan, it is quite clear that the authorities
have taken the issue seriously. Not only at the time the claimant was there,
but even more so should she return to her country today …
(Board’s
Decision at p 4).
State
Protection of Kazakhstan - documentary evidence
[53]
The
Board determined that “ ... it is quite clear that the authorities have taken
the issue seriously.” Nevertheless, the U.S. DOS Report for 2009, which was
submitted before the Board, in its findings, clearly contradicts the Board’s
characterization of the protection available in the case of domestic abuse in Kazakhstan:
According to NGOs domestic violence
increased. Although official statistics were scarce, activists assessed that
one in four families experienced domestic violence. The government reported 761
domestic violence crimes during the year. NGOs reported that 40 percent of such
crimes went unreported.
Police intervened in family disputes only
when they believed the abuse was life-threatening. According to NGO estimates,
police investigated approximately 10 percent of such cases. NGOs conducted training for
police officers on how to handle victims of domestic violence.
NGOs reported that women often withdrew
their complaints as a result of economic insecurity. When victims pressed
charges for domestic violence or spousal rape, police sometimes tried to
persuade them not to pursue a case. When domestic violence cases came to
trial, the charge was most often light battery, for which judges sentenced
domestic abusers to incarceration at a minimum security labor colony and 120 to
180 hours of work. Sentences for more serious cases of battery, including
spousal battery, range from three months to three years' imprisonment; the
maximum sentence for aggravated battery is 10 years' imprisonment.
According to the government, there were
25 crisis centers in the country providing assistance to women and two centers
that provided assistance to men. All the crisis centers received funding
through government and international grants to NGOs. A number of smaller NGOs
provided assistance to victims. Six of the crisis centers also provided shelter
for victims of violence. [Emphasis added].
(2009 Human Rights Report, Tribunal Record
at pp 70-71).
[54]
The
Board did not explain why it did not take into consideration this contradictory
documentary evidence. Moreover, the only document mentioned in the Board’s Decision
regarding State protection is the “United States (US). 11 March 2010.
Department of State. “Kazakhstan.” Country Reports on
Human Rights Practices for 2009.” as appears at footnote 4 of the decision. The
Board did not mention any other documentation describing Kazakhstan at the time
of the events in 2006-2007.
[55]
In
addition,
the Board omitted to evaluate whether Kazakhstan’s framework of
protection is effectively implemented in the country. In Elcock
v Canada (Minister of
Citizenship and Immigration) (1999), 175 FTR 116, 91 ACWS
(3d) 820, the Court explained that the willingness to effectively implement the
framework of protection in the country must be taken into consideration:
[15] …Ability of a state to protect
must be seen to comprehend not only the existence of an effective legislative
and procedural framework but the capacity and the will to effectively implement
that framework.
[56]
Thus,
in the situation of battered women, “real capacity to protect women” must be considered
and “good intentions to improve the situation” on the part of the state is not
sufficient
(Simpson
v Canada (Minister of
Citizenship and Immigration), 2006 CF 970, 150 ACWS (3d) 457, at para
38).
[57]
In Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, 103
DLR (4th) 1, (at para 48), the Supreme Court stated: “Moreover, it would
seem to defeat the purpose of international protection if a claimant would be
required to risk his or her life seeking ineffective protection of a state,
merely to demonstrate that ineffectiveness.”
[58]
In Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 FTR 35, Justice
Luc Martineau reiterates:
[27] … The Board must consider not only whether the state is
actually capable of providing protection but also whether it is willing to
act. In this regard, the legislation and procedures which the applicant
may use to obtain state protection may reflect the will of the state. However,
they do not suffice in themselves to establish the reality of protection unless
they are given effect in practice: see Molnar v. Canada (Minister of Citizenship
and Immigration), 2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi
v. Canada (Minister of Citizenship and
Immigration),
2003 FCTD 429, [2003] 4 F.C. 771 (F.C.T.D.).
[59]
Justice Martineau also mentions that “… the degree to which a
state tolerates corruption in the political or judicial apparatus correspondingly
diminishes its degree of democracy” (at para 31).
Regarding Ms. Zolotova, the Board concluded, that regardless of the
corruption in Kazakhstan, she should have made
other attempts to claim the protection of the state:
[11] …
Even if the panel were to accept the statement that corruption can be a
problem in countries like Kazakhstan. The fact that the claimant did not make
serious attempts to claim the protection that appears to be available indicates, in the panel’s mind, that she has
not rebutted with “clear and convincing evidence” an absence of State
Protection. The panel believes that the claimant is not a person requiring
protection. [Emphasis added].
(Board’s
Decision at p 5).
[60]
Corruption
does not, understandably, appear to lend itself to protection in this case.
The Applicant did not
claim protection
[61]
The Board
did not accept that Ms. Zolotova took “all avenues in seeking out assistance.”
When asked if she had consulted with any one of the 25 crisis centers that
apparently exist in Kazakhstan, Ms. Zolotova answered,
due to circumstances, external and internal, that she had not attempted to do
so. Ms. Zolotova testified of previous occasions where she has been denied state
protection and had also submitted substantial documentary evidence which would appear
to support her contention; however, the Board failed to analyze the said
evidence. Due to error, this Court allows a judicial review, wherein, the state’s
inability to protect might appear in the form of “past personal incidents where
state protection did not materialize” because it could not:
[47] And finally, while the Board claimed to have taken the
Gender Guidelines into consideration “WOMEN REFUGEE CLAIMANTS FEARING
GENDER-RELATED PERSECUTION” Guidelines Issued by the Chairperson Pursuant
to Section 65(3) of the Act (Guidelines), in my view, the reasons
for the decision in this case do not reflect the special situation of an abused
woman and particularly one that encountered gender related violence at such a
young age. The Gender Guidelines state that the claimant needs to demonstrate
that it was objectively unreasonable for the applicant to seek the protection
of her state and that this analysis should consider the “social, cultural,
religious and economic context in which the claimant finds herself”. In this
case, this young woman was up against an influential family that was sabotaging
efforts to protect herself.
[48] While the applicant had the onus to provide “clear and
convincing evidence” of the state’s inability to protect because of the
influence of this family, the Guidelines state that this evidence might have to
be in the form of “past personal incidents where state protection did not
materialize”, which is the extent of what the applicant could have been
expected to provide given her circumstances. (Emphasis added).
(Gilvaja, above).
[62]
Moreover,
section C.2 of the Gender-Related Guidelines stipulates:
2. …
Also, the fact that the claimant did or did not seek protection from
non-government groups is irrelevant to the assessment of the availability of
state protection. [Emphasis added].
[63]
The
Board also refers to new legislation regarding penalties for domestic
violence, and it adds: “[d]espite this, that penalties were certainly in
existence at the time the claimant was there.” (Board’s Decision, at para 11).
In the 2009 Human Rights Report, it is stated:
Violence
against women, including domestic violence, was a problem. On December 7,
President Nazarbayev signed a new law on domestic violence. The law defines for
the first time "domestic violence" and "victim"; identifies
various types of violence, such as physical, psychological, sexual, and
economic; and outlines the responsibilities of the local and national
governments and NGOs in providing support to domestic violence victims. The law
also outlines mechanisms for issuance of restraining orders and provides for
24-hour administrative detention of abusers. The criminal procedure code sets
the maximum sentence for spousal assault and battery at 10 years in prison,
which is the same as for any beating.
(Tribunal Record at p 70).
[64]
In
fact, the said legislation, specified, did not exist at the time when the
alleged events of violence occurred, in 2006-2007. The Board should have
based its decision on a change of circumstances in Kazakhstan, if that was
effectively the basis of its decision; however, the Board cannot conclude that
Ms. Zolotova did not make serious attempts to claim state protection, based on
the new legislation. The Board did not mention on what grounds it sustained the
contention of: “Despite this [the new legislation], that penalties were
certainly in existence at the time the claimant was there.” It was not
reasonable to conclude that Ms. Zolotova did not sufficiently seek state
protection, based on a non-documented opinion in regard to Kazakhstan’s state
protection at the time of the events, in 2006, when the above documentation
refers to 2009, and, even then, the legislation is not proven to have been
applied.
[65]
Ms.
Zolotova, did, in fact, seek state protection, as she testified, she had sought
assistance from the police, the state prosecutor, and a lawyer, without
success.
XI. Conclusion
[66]
The
Board erred, in fact and law, by applying an unfair burden of proof, and in
doing so, confused, mischaracterized the evidence and engaged in speculation
that was wholly unsupported by the evidence. The Board failed to adequately
motivate significant portions of its decision, without regard to the
documentary evidence.
[67]
Therefore,
for all of the above-reasons, the application for judicial review is granted
and the matter is remitted for redetermination by a differently constituted
panel.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be granted and
the matter be remitted for redetermination by a differently constituted panel.
No question for certification.
“Michel M.J. Shore”
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