Date: 20080204
Docket: IMM-709-07
Citation: 2008
FC 149
Toronto, Ontario, February 4, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ISAKOVA INGA ISAKOVA a.k.a.
INGA
BORISOVNA ISAKOVA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant bases
her claim for protection on evidence that she was abducted and held prisoner
for the purpose of forced prostitution in her native Armenia.
[2]
In
rejecting her claim, the Refugee Protection Division of the Immigration and
Refugee Protection Board (RPD) made a number of individual implausibility
findings with each stated to be conclusive that the “the claimant is not a
credible or trustworthy witness”. The Applicant argues that these findings are
made in reviewable error. I agree.
[3]
In my
opinion, the RPD used an inappropriately rigid and highly subjective standard
to conclude that the Applicant’s evidence is implausible and, therefore, that she
is lying about the existence of the grounds of her claim for protection. This
result is achieved through several critical decision-making errors: failure to
apply the Gender Guidelines to the Applicant’s claim of gender
persecution; claiming “specialized knowledge” without providing a verifiable
source; and providing no reasons for the findings that certain elements of the
claim are unbelievable.
I. The Applicant’s Evidence
[4]
The
Applicant is a citizen of Armenia. She claims refugee status on
the basis of her gender, and, more particularly, her status as a woman who has
been abducted for the purposes of forced prostitution. The Applicant’s evidence,
given in her personal information form (PIF), is that in June of 2005 she went
to a restaurant to celebrate the birthday of Ashot, a man that she had recently
met. At the restaurant she drank coffee and, soon afterwards, began to feel
strange and lost consciousness. When she awoke she did not know where she was,
was very upset and began screaming. Ashot entered the room, began to beat her,
and raped her. The Applicant was then held prisoner in this room for three
weeks. During this time she was repeatedly raped by a number of different men. In
her testimony before the RPD, the Applicant described the room that she was
held in as a simple white room with a bed, a table, a narrow window high above
the floor, and with a bathroom attached. She testified that she did not recall
the building in much detail because the only time she saw it was when she was
escaping, but that it was a three-storied house in the middle of the city.
[5]
The
Applicant explained at her hearing that, one day, one of her captors forgot to
lock the door when he was called away while bringing her food. The Applicant
ran out of the house, found a traffic officer and asked him how to find the
nearest police station. She was directed to the police station and told her story;
however, after she told the police officer the name of the restaurant where she
had been drugged the police officer made a phone call. Shortly thereafter, a
silver haired man in a nice suit came and paid the policeman some money. The
silver haired man then threatened her and said that if her life was dear she
would forget about everything.
[6]
As the
Applicant had been away from home for some time, her father had already
reported her missing. The Applicant testified that, at first, it was too
difficult for her to tell her parents what happened. After some prodding she
was able to tell her mother, who then related the tale to her father. When her
father found out, he went to the police station to make a report. However, he
only received empty reassurances from the police. Nevertheless, he persisted
and went to several different police stations. One night in July, four men burst
into the Applicant’s house, put a knife to her and told her father that he
should stop pursuing his complaints or else they would kill the Applicant. The
next day the Applicant and her father reported this event to the police. On
July 21, 2005 the Applicant’s father went out of the house and never returned.
He was found that evening by the Applicant and her mother, beaten unconscious.
He had significant injuries and required hospitalization.
[7]
The
Applicant’s PIF also describes repeated telephone threats from the “mafia” who
abducted her. Due to these threats, she contacted her sisters, who lived in Rustov, Russia for help. The Applicant’s sisters
arranged for a man named Yukov to help the Applicant and her parents leave Armenia and cross the border into Russia.
[8]
Only 24
hours after arriving in Rustov, the Applicant says she received a phone called
from Ashot who said, “You think we will not find you in Rostov?” Due to these threats, the
Applicant, with help from her sisters, arranged to come to Canada. After transiting through Colombia,
the Applicant arrived in Canada on February 16, 2006 and
claimed refugee status.
II. The Issue for Determination
[9]
The
primary aspects of the RPD’s Decision challenged by the Applicant are the
numerous implausibility findings, each of which is said by the RPD to be
determinative the Applicant’s credibility and, as a result, the credibility of
her claim. Therefore, the issue for determination is: Are the RPD’s
implausibility findings made according to law?
III. The
Law on Implausibility Findings
A.
Presumption of truth and need for reasons
[10]
There
is a presumption that the evidence provided by an applicant, who has sworn to
tell the truth, is true
(Maldonado v. M.E.I., [1980] 2
F.C. 302, 31 N.R. 34 (C.A.). The result of this presumption is that, before the RPD
can impeach a claimant’s credibility, it must have clear reasons for doing so. In Hilo v. Canada, (1991), 130 N.R. 236, the Federal Court of Appeal stated at para. 6:
In my view, the board was under a duty to
give its reasons for casting doubt upon the appellant's credibility in clear
and unmistakable terms. The board's credibility assessment, quoted supra, is
defective because it is couched in vague and general terms.
[11]
The need for reasons is particularly pronounced when the
RPD makes findings based on the perceived implausibility of an applicant’s
story; when making a negative credibility finding based on an implausibility
the RPD must clearly articulate why the evidence is outside the realm of what
could reasonably be expected in the specific circumstances of an applicant’s
case. Justice Muldoon in Valtchev
v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 1131 at para. 7 (Valtchev), discussed
the rigors necessary before an implausibility finding can be made:
[7] A tribunal may make adverse findings
of credibility based on the implausibility of an applicant's story provided
the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if the
facts as presented are outside the realm of what could reasonably be expected,
or where the documentary evidence demonstrates that the events could not have
happened in the manner asserted by the claimant. A tribunal must be careful
when rendering a decision based on a lack of plausibility because refugee
claimants come from diverse cultures, and actions which appear implausible when
judged from Canadian standards might be plausible when considered from within
the claimant's milieu. [see L. Waldman, Immigration Law and Practice
(Markham, ON: Butterworths, 1992) at 8.22]
[Emphasis added]
Justice Muldoon in Valtchev goes
on to quote from Leung v. M.E.I.
(1994), 81 F.T.R. 303 (T.D.) to emphasize the need for reasons in light of the
subjective nature of implausibility findings:
[14] ...Nevertheless, the Board is under a very clear duty
to justify its credibility findings with specific and clear reference to the
evidence.
[15] This duty becomes particularly important in cases such
as this one where the Board has based its non-credibility finding on perceived
"implausibilities" in the claimants' stories rather than on internal
inconsistencies and contradictions in their narratives or their demeanour while
testifying. Findings of implausibility are inherently subjective assessments
which are largely dependant on the individual Board member's perceptions of
what constitutes rational behaviour. The appropriateness of a particular
finding can therefore only be assessed if the Board's decision clearly
identifies all of the facts which form the basis for their conclusions.
[16] … The Board will therefore err when it fails to
refer to relevant evidence which could potentially refute their conclusions of
implausibility...
[Emphasis
in original]
[12]
It is only in the clearest of
cases that an applicant’s testimony should be rejected because his or her story
is “unreasonable” or “implausible”; plausibility
findings are inherently subjective assessments as to what is reasonable in the
circumstances. In
order to make such findings, the RPD must state what is expected of an applicant’s behaviour, given the applicant’s
specific circumstances and clearly give reasons as to why the applicant’s
behaviour is outside of what could reasonably be expected in the situation.
B. The Gender Guidelines
[13]
The
Applicant’s claim is a story of abduction and forced prostitution and, as such,
is based on a fear of persecution on the ground of her gender. In recognition that
claims based on gender persecution require special consideration, guidelines
have been promulgated as to how to appropriately deal with such cases: Guidelines Issued by the Chairperson
Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants
Fearing Gender-Related Persecution
(Gender Guidelines).
The Gender Guidelines recognize the profound effect that gender-related
persecution can have on an individual, and directs the RPD to be mindful of
this during the decision-making process. The portion of the Gender
Guidelines most relevant to the Applicant’s claim is the section dealing
with determination hearings:
D. SPECIAL PROBLEMS AT
DETERMINATION HEARINGS
Women refugee claimants face
special problems in demonstrating that their claims are credible and
trustworthy. Some of the difficulties may arise because of cross-cultural
misunderstandings. For example:
…
(3) Women refugee
claimants who have suffered sexual violence may exhibit a pattern of symptoms
referred to as Rape Trauma Syndrome. [30] and may require extremely
sensitive handling. Similarly, women who have been subjected to domestic
violence may exhibit a pattern of symptoms referred to as Battered Woman
Syndrome and may also be reluctant to testify.
[31] In some cases it will be appropriate to consider whether claimants should
be allowed to have the option of providing their testimony outside the hearing
room by affidavit or by videotape, or in front of members and refugee claims
officers specifically trained in dealing with violence against women. Members
should be familiar with the UNHCR Executive Committee Guidelines on the
Protection of Refugee Women. [32]
Footnotes:
30:
The UNHCR Executive Committee Guidelines on the Protection of Refugee Women,
supra, footnote 10, at p. 27, discuss the symptoms of Rape Trauma Syndrome as
including "persistent fear, a loss of self-confidence and self-esteem,
difficulty in concentration, an attitude of self-blame, a pervasive feeling of
loss of control, and memory loss of distortion."
31:
F. Stairs & L. Pope, supra, footnote 5, at p. 202, stress that
decision-makers should be, …sensitive to the fact that women whose children are
attached to their claim may also be reticent to describe the details of their
persecution in front of their children. Further, if the claimant's culture
dictates that she should suffer battering silently, the use of an interpreter
from her community may also intimidate her.
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.
32:
It should be noted that Amnesty International, in Women in the Front
Line: Human Rights Violations Against Women, supra, footnote 1, at p. 54,
recommends that:
In
procedures for the determination of refugee status governments should provide
interviewers trained to recognize the specific protection needs of women
refugee and asylum-seekers.
[Emphasis added]
[14]
Of particular importance to this application is the mention in
footnote 31 of the Supreme Court of Canada’s decision in Lavallee which, at para. 38, speaks to the
caution that must be taken when judging actions of an abused woman as reasonable
or unreasonable:
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".
The point being made in this quote
is that an applicant’s evidence must be viewed from that applicant’s position
in her real life context, not from a removed and uninformed position. The
conduct that is to be expected in an applicant’s circumstances is a matter of
evidence that is to be placed on the record.
C. The use of specialized knowledge
[15]
The use of
specialized knowledge on the part of the RPD is also a feature of the Decision
under review. In cases where the RPD seeks to use “specialized knowledge”,
notice must be given in accordance with Rule 18 of the Refugee Protection Division Rules, Can. Reg. 2002-228, (Rule 18):
|
18.
Before using any information or opinion that is within its specialized
knowledge, the Division must notify the claimant or protected person, and the
Minister if the Minister is present at the hearing, and give them a chance to
(a)
make representations on the reliability and use of the information or
opinion; and
(b)
give evidence in support of their representations.
|
18.
Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa
spécialisation, la Section en avise le demandeur d'asile ou la personne
protégée et le ministre — si celui-ci est présent à l'audience — et leur
donne la possibilité de :
a)
faire des observations sur la fiabilité et l'utilisation du renseignement ou
de l'opinion;
b)
fournir des éléments de preuve à l'appui de leurs observations.
|
[16]
The purpose of Rule
18 is to enable a claimant to have notice of the specialized knowledge and to give
him or her the opportunity to challenge its content and use in reaching a
decision. Therefore, in order for Rule 18 to be effective, the RPD member who
declares specialized knowledge must place on the record sufficient detail of
the knowledge so as to allow it to be tested. That is, the knowledge must be
quantifiable and verifiable.
As
stated by Justice Teitelbaum in Mama v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 1515, unverifiable personal
knowledge does not qualify as specialized knowledge:
The applicant submits (and I
agree), that the personal and/or professional experiences of the Board members,
the full extent of which was unclear, hardly justified their claim to "specialized knowledge". The Board
did not purport to take judicial notice of any facts with respect to European
border controls and there was no evidence whatsoever before it as to the
efficacy of these.
Once the RPD has
disclosed its knowledge, Rule 18 then mandates that the RPD allow a claimant to
make submissions and present contradictory evidence.
D. Making global
credibility findings
[17]
If the RPD properly makes a credibility or implausibility finding
with respect to one aspect of an applicant’s evidence, this will not necessarily
provide a basis for rejecting the entirety of the applicant’s claim. Justice
Martineau makes this point in R.K.L. v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 116 at para. 11-14:
However, not every kind of inconsistency or implausibility
in the applicant's evidence will reasonably support the Board's negative
findings on overall credibility. It would not be proper for the Board to base
its findings on extensive "microscopic" examination of issues
irrelevant or peripheral to the applicant's claim: see Attakora v. Canada (Minister of Employment and
Immigration),
(1989), 99 N.R. 168 at para. 9 (F.C.A.) ("Attakora"); and Owusu-Ansah
v. Canada (Minister of Employment and
Immigration),
[1989] F.C.J. No. 442 (QL) (C.A.) ("Owusu-Ansah").
…
Finally,
the applicant's credibility and the plausibility of testimony should be
assessed in the context of her country's conditions and other documentary
evidence available to the Board. Minor or peripheral inconsistencies in the
applicant's evidence should not lead to a finding of general lack of
credibility where documentary evidence supports the plausibility of the
applicant's story: see Attakora, supra; and Frimpong v. Canada
(Minister of Employment and Immigration), [1989] F.C.J. No. 441 (QL) (C.A.).
[18]
The decision in R.E.R.
v. Canada (Minister of Citizenship and
Immigration), [2005]
F.C.J. No. 1634, 2005 FC 1339 at para. 9 confirms that all evidence with
respect to an applicant's claim must be considered before a global credibility
finding is made:
First, it is only fair and reasonable for
parties to litigation to expect that the decision-maker will consider the
evidence in its entirety, with an open mind, before making findings about the
value to be placed on critical elements of the evidence. For the general
proposition that the evidence must be considered in its entirety see Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). In the
present case, I find that the RPD was in error in not considering the whole of
the evidence, including the wife's rape evidence and the cogent independent
evidence about the apparent effects of the torture and rape in the form of
photographs and reports, before making the critical finding of negative
credibility against the principal Applicant (also see Gonzalez v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 422, and Herabadi
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.
1729).
[19]
However, this
is not to say that the RPD must refer to every single piece of evidence before
it in reaching a decision, but, when
evidence which supports an applicant’s claim is not mentioned and other evidence
is selectively relied upon, the RPD errs by ignoring relevant evidence (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(QL), at para.15).
IV. Application
of the Law to the RPD’s Credibility Findings
A. Failure to seek medical treatment not
plausible
[20]
The first
implausibility finding made by the RPD relates to the Applicant’s conduct
following her abduction and forced prostitution:
The claimant had medical training. She
was asked if she sought medical treatment after she had escaped. The claimant
stated that she had not. The claimant was asked if she did not fear sexually
transmitted diseased. She replied that although she did, she was too
embarrassed to go to the doctor. I do not accept this as credible. The claimant
told a male…police officer what had happened to her immediately after her
alleged escape and her father repeatedly went to the police and told different
departments and offices about what had allegedly happened to his daughter. On a
balance of probabilities, I find the claimant not to be a credible or a
trustworthy witness.
[21]
In my opinion, this finding does not comply with the Gender
Guidelines. Although,
the RPD’s Decision states that the Gender Guidelines were taken into
consideration, this statement is has no impact if the reasons fail to
show that the RPD actually applied them. Indeed, this implausibility finding
demonstrates that the
RPD failed to properly apply the Gender Guidelines, because the RPD
remained completely indifferent to the explanation provided by the Applicant as
to why she did not seek medical treatment. The testimony of the Applicant in
this respect is as follows:
Presiding Member: Okay. When you went home did
you go to a doctor?
Claimant: No.
Presiding Member: You didn’t go to a doctor?
Claimant: No.
Presiding Member: Why not?
Claimant: It was just so embarrassing you know,
it’s very different in my country. It was so embarrassing for me, I was so
ashamed to talk about it.
Presiding Member: Why wouldn’t you go to a
female doctor?
Claimant: I just didn’t want it, you know, I just
didn’t want anybody to touch me.
Presiding Member: You were a medical person
yourself, were you not afraid of sexually transmitted diseases?
Claimant: Of course I was afraid of it, yes.
Presiding Member: So why didn’t you get
yourself tested?
Claimant: It’s very hard to explain, you know, I
just didn’t
want to because I was feeling so lost and
I was feeling that you know, a part of me was taken, taken away from me and I
was feeling so lost.
(Tribunal Record,
pp. 164-165)
[22]
The
Applicant also provided testimony with respect to her feelings after she had
escaped from the kidnappers, witnessed the corruption of the police, and
returned home to her parents. It is evident from the transcript that talking
about these experiences in the hearing caused some agitation on the part of
the Applicant:
Claimant:… I went home. And when my parents saw me
they were so shocked and they started to say that you know, what happened to
you and where were you at this time, all this time. Why you were absent these
days and why didn’t hear anything from you. We were so much worried. [sic] But
I couldn’t talk, I couldn’t say anything, I just went to my room.
Then I went to the bathroom and I was
trying to get this dirt out of me. It was too hard to forget all this,
everything was just there. It was not only one person, there were other people
there.
Presiding Member: Would you like to take a
break?
Claimant: No.
Interpreter: She says no.
Presiding Member: Are you sure, we can stop for
just a few minutes if you like?
Claimant: No, I’ll try to calm down, it’s okay.
(Tribunal Record, p.147)
[23]
In
concluding that the Applicant’s conduct is not believable, the RPD set up an un-supported
subjective standard that a woman who had been raped would logically want to
find out if she had acquired a sexually transmitted disease; therefore, she
would be expected to seek medical treatment. In my opinion, the inflexibility
of this assumption is clearly at odds with the approach required by the Gender
Guidelines, namely, a contextual approach which takes into account the
trauma of a sexual assault.
[24]
Although
the Gender Guidelines are not highly detailed with respect to what might
be expected of someone who has been sexually assaulted, what they do say is
directly applicable to the evidence presented by the Applicant. As quoted
above, the Gender Guidelines state that a person in this situation might
feel “persistent fear, a loss of self-confidence and self-esteem,
difficulty in concentration, an attitude of self-blame, a pervasive feeling of
loss of control, and memory loss of distortion”. This is directly in accordance
with the evidence presented by the Applicant.
[25]
There is
also ample evidence on the public record as to what might be expected of a
sexual assault victim. For example, the United Nations High Commission for Refugees
Executive Committee Guidelines on the Protection of Refugee Women, EC/SCP/67 (UNHCR Guidelines),
which are referred to in footnote 30 of the Gender Guidelines, provides
several statements that are relevant to the Applicant’s testimony. For example,
As a
result of the fear of social stigma, most victims/survivors never report the
incident. Indeed, most incidents of sexual and gender-based violence go
unreported.
(UNHCR
Guidelines, p.24)
After an
incident of sexual and gender-based violence, the victim/survivor may
experience many different emotional and psychological responses, including
fear, shame, guilt, depression and anger. She may adopt strong defence
mechanisms, such as forgetting, denial and deep repression of the traumatic
event she survived. Family members may also experience a variety of emotions
and need to receive support during this traumatic period.
(UNHCR Guidelines, p.60)
The type
and level of emotion displayed during the recounting of her experiences should
not affect a woman’s credibility. Interviewers and decision-makers should
understand that cultural differences and trauma play an important and complex
role in determining behaviour. For some cases, it may be appropriate to seek
objective psychological or medical evidence.
(UNHCR Guidelines, p.120)
[26]
In my opinion, the failure of the RPD to apply the Gender
Guidelines in any meaningful way constitutes a reviewable error.
B. Conditions while being
held prisoner not plausible
[27]
The RPD
also made implausibility findings with respect to the Applicant’s abduction and
imprisonment:
It is not credible that the abductors who
placed her in a room with high windows, would then supply her with clothes
(oral testimony) and allow her to wear shoes (oral testimony) in which she
allegedly escaped. On a balance of probabilities, I find the claimant not to be
a credible or a trustworthy witness…on a balance of probabilities, I find it
implausible that the claimant would be provided with a room and bathroom. Had
the claimant really experienced being kept for the purpose of prostitution or
rape or being trafficked, she would have known that it is not reasonable that
such amenities are provided in such circumstances.
(RPD Decision, p. 4)
The only evidence with respect to the conditions under which
the Applicant was held is her testimony as follows:
Presiding Member: Okay. Tell me a little bit
about where you were when you woke up?
Claimant: It was a room and also the bathroom.
That’s it.
Presiding Member: What did the room look like?
Claimant: Just a simple white room.
Presiding Member: mm-hmm.
Claimant: That’s it. When I left this room, you
know, I don’t remember anything because I was just running in order to find a
way out so I don’t remember.
Presiding Member: How long were you in the
room?
Claimant: Three weeks
Presiding Member: Okay. So you were in a room
for three weeks and you don’t remember what it looks like?
Claimant: It was, as I said it was just a simple
white big room and there was a bed and a small table and the window was very
high.
Presiding Member: Okay.
Interpreter: I’m sorry, yeah, the windows were kind of
on the top I would say by the room itself was light because the colours were
very light, the painting.
Presiding Member: And was it in an apartment
or a house?
Claimant: House.
Presiding Member: And how big was the house?
Claimant: Yes.
Presiding Member: How big was the house?
Claimant: I just know that it was a three floors
house. There were stairs because I remember that there were stairs and it got
many rooms in it (sic).
Presiding Member: Okay. Now
without going into details that will upset you, tell me about a typical day.
Claimant: Should I say it?
Presiding Member: Yes.
Claimant: Every day I had six, let’s say, men
visitors, every evening they were coming to me.
Presiding Member: What would you do during the
day time?
Claimant: Nothing, the door was locked and I was
locked inside.
Presiding Member: And when would you eat, what
time of the day would you eat?
Claimant: At twelve noon, it was just one time a
day.
Presiding Member: Okay. Now during the time
that you were in the room what would you wear?
Claimant: I was in my clothes, sometimes they
were bringing me clothes and they gave me underwear twice and then I was
washing the clothes by myself, by hand and then once they dry I would wear them
and then washing other one.
(Tribunal Record, pp.159-161)
[28]
I find that there is absolutely no evidentiary
basis upon which the RPD
could conclude that the Applicant’s evidence respecting the conditions under
which she was held is implausible.
C. Actions of the Armenian
police not plausible
[29]
The RPD’s
Decision goes on to discuss the Applicant’s claim that she went to the police
but obtained no help. The RPD explicitly accepted that the police in Armenia are corrupt and that they
accept bribes at traffic stops; however, it found that the testimony of the
Applicant with respect to a man paying money to the police in her presence was
implausible:
[O]n a balance of probabilities, I find
that it is not credible that:
·
The
officer would immediately call someone for a bribe without any investigation
into the claimant’s allegations, but would immediately accept the word of the
claimant;
·
That a man
would immediately respond to the officer’s call;
·
That the
man would give money to the officer in the presence of the claimant, thus
confirming her allegations with respect to the restaurant and abductor”
(RPD Decision pp.4-5).
[30]
The question
which arises from this passage is: Where is the evidence to support the RPD’s implausibility
opinion? Indeed, there is none. In giving this opinion, the RPD failed to reference
substantial documentary evidence that details other circumstances of police
corruption, including cases where the police have been in direct collusion with
human traffickers.
[31]
As part of
the information package available to the RPD, and quoted in the Applicant’s
factum, the U.S. Department of State Report of Human Rights in Armenia released on March 8, 2006
notes in several places that police and other public bodies have been found
complicit in prostitution and human trafficking:
Corruption was perceived to be
widespread. According to a September 2004 opinion survey by a local research
institute, a large majority of citizens believed that corruption exists
"in all spheres and at all levels" in the country. A similar survey
in 2003 indicated that citizens believed that corrupt authorities were not
truly committed to fighting corruption.
(Tribunal Record, p.55)
Prostitution and sex tourism are
not illegal, but operating brothels is prohibited. Operating a brothel and
other forms of pimping are punishable by one to ten years' imprisonment.
According to the NGO Hope and Help, there were between 5 and 6 thousand
prostitutes, approximately 1,500 of them in the capital. Police and other
security forces participated in or tolerated prostitution.
(Tribunal record, p. 56)
Victims reported that Russian and
Armenian border guards were easily bribed or commonly worked with traffickers.
Some prosecutors were also reportedly complicit in trafficking. There were
persistent allegations that senior members of the prosecutor general's office
were susceptible to outside influence. Some observers asserted agreements between
corrupt court officials and traffickers were also common. There were persistent
reports that police employees and employees of the country's international
airport assisted traffickers with transportation of victims to and through the
country. Unlike in previous years, there were no arrests in these types of
cases.
(Tribunal Record, p.58)
[32]
The RPD did
not mention this information, which is significant because the RPD appears to
have decided that it is implausible that the Armenian police are corrupt beyond
accepting bribes at traffic stops. Although the RPD is not obliged to mention
all the evidence, given that this documentary evidence specifically contradicts
the RPD’s conclusions, I find that the RPD was obliged to explain how, in light
of such evidence, the Applicant’s scenario was outside of what could reasonably
be expected in the circumstances.
D. Specialized knowledge regarding Applicant’s
failure to provide police reports
[33]
The RPD
held that it was unreasonable that the Applicant did not produce a police report
either from her visit to the police or from the subsequent visits made by her
father. The RPD declared specialized knowledge that such reports would be
available:
Counsel submitted that it was not likely
that police would issue reports when they did nothing to help the claimant. The
panel declared specialized knowledge that police reports are available to those
who request them, even if they took no action to assist the complainant.
Counsel stated that this should be available in writing. However, specialized
knowledge is that knowledge gained in the hearing room from hearing claims in
countries; this member have [sic] heard many claims from countries of the former
Soviet Union, including Armenia, where police keep records even when they
refuse to or are unable to provide assistance…[I]t is not enough for the
claimant to state that she did not attempt to obtain such documents because she
thought that they would not be forthcoming, nor for counsel to submit that it
is unlikely that a corrupt police force would issue such a document. On a
balance of probabilities, I find that the claimant made no attempt to obtain
such documents because there were no such complaints made. On a balance of
probabilities, I find the claimant not be a credible or a trustworthy witness
(RPD Decision,
p.8)
[34]
At the
hearing, the Applicant’s former counsel asked to know the source of this
specialized knowledge:
Now, moving to the police report, as I
indicated to the panel in the middle of the hearing if the panel wishes to rely
upon specialized knowledge, the panel inferred that such reports are readily
made available to Armenian citizens [sic]. Such a document has to be available,
that’s really the most basic form of procedural fairness. That has to be made
available to a claimant or a claimant’s counsel and then submissions could be
made with respect to the document.
Specialized knowledge doesn’t just fall
out of the sky and land on the member’s head. Specialized knowledge come by way
of documents with respect to the particular issues that the member is asserting
that she has specialized knowledge over.
(Tribunal Record. p. 175)
[35]
In my
opinion, the RPD’s statement that its knowledge came after hearing a number of
other claimants from former Soviet countries is an insufficient basis on which
to declare specialized knowledge; the basis for specialized knowledge must be quantifiable
and verifiable. The RPD’s reliance on past experience, without providing any
specific details, does not allow the Applicant to test the reliability of such
knowledge.
[36]
Indeed,
the RPD did not respond to Counsel for the Applicant’s request, and since a
finding was made against the Applicant’s claim without providing a response, I
find that this failure constitutes a breach of due process
E. Applicant not taken by
her attackers not plausible
[37]
The RPD
found that it was unreasonable that the Applicant was not abducted when the
masked men entered her home:
Therefore, if, as the claimant alleged,
the criminals were after her in Russia,
as well as in Armenia, on a balance of
probabilities, I find that they would have taken her at knife point when they
invaded her home. On a balance of probabilities, I find the claimant not to be
a credible or a trustworthy witness. The panel finds the entire scenario
described by the claimant not to be either credible or plausible.
(RPD Decision, p.6-7)
[38]
Although
the Applicant suggests many possible reasons as to why she was not taken, the
RPD does not explain why taking the Applicant was the only plausible conduct of
the intruders in that situation. As the RPD did not provide reasons, I find it
was not open for the RPD to conclude that the intruders’ action was outside of
what could reasonably be expected. Indeed, what basis is there to judge the
reasonableness of the actions of masked intruders who invade a house and
threaten people at knife point?
F. Applicant not tendering
her passport
[39]
The
Applicant did not submit her passport at the hearing and was not questioned on
this issue during the hearing. However, the RPD made a credibility finding on
this issue:
The panel notes that the claimant did not
tender her passport, which she would have had to produce when she left Armenia, in order to show her exit
visa. On a balance of probabilities, I find the claimant would have had to have
her Armenian passport if she left Armenia.
While the claimant stated that a person named Yukov took care of all their
leaving problems, exit visas are a source if [sic] income for border
authorities. While the issue of her passport was not put to the claimant, she
knew or should have known that she required an exit visa to leave Armenia and
stamps would have been evident as to the time of departure for Russia. On a balance of
probabilities, I find the claimant did not produce her Armenian passport
because she did not want the board to see its contents.
(Decision, p.7)
This finding is made in error for two reasons.
[40]
First, the
RPD states that Armenian border agents make revenue from exit stamps in
passports and, therefore, the Applicant would necessarily have had her passport
when she exited the country. This information is provided without any source
being cited. Perhaps the RPD was relying again on “specialized knowledge”;
however, it did not make this clear, gave no notice, and provided no verifiable
basis for such knowledge.
[41]
Second,
this information was never put to the Applicant. The RPD uses the passport
issue to conclude that the Applicant has deliberately withheld information in
order to build a fabricated refugee claim. This is a serious allegation, as it
labels the Applicant as a liar and a cheat. If the RPD wanted to use the lack
of passport in this way, procedural fairness mandates that the RPD put this to
the Applicant.
G. The contents of the medical
report are implausible
[42]
At the
hearing, the RPD criticised the fact that the Applicant had not submitted a
medical report to substantiate the occurrence of an attack on her father. The
Applicant, therefore, obtained a report and submitted it post- hearing. The RPD
finding relating to the medical report is as follows:
On a balance of probabilities, I find
that even taking into account cultural differences, doctors in Armenia know the names of bones and
would, on a balance of probabilities, refer to them in a medical report. Under
treatment, the report states, in part, cardiac medications, but does not name
of same [sic]. On diagnosis on discharge, the report states, in part, ‘healed
fractures of left forearm bone and two fingers of the left hand.’ The report
states nothing with respect to the permanent damage to the claimant’s father’s
fingers, evidenced by the photograph in Exhibit C-3. In this photograph, the
damage appear to be to the last two fingers of the left hand, but with cultural
differences, this could be the manner in which Armenians refer to those digits.
On a balance of probabilities, that is why it is crucial to have medical terms
in medical reports. On a balance of probabilities, given the lack of medical
terms and the reference to the healing of the fingers which to the lay person’s
eyes appear to be damaged, I give the report no weight and find that the
claimant has tendered a false document in a deliberate attempt to mislead the
board. Therefore, on a balance of probabilities I find the claimant not to be a
credible or a trustworthy witness.
(RPD Decision, p.9)
[43]
The
medical report, translated from Russian, submitted by the Applicant reads:
This is to certify that the
patient ISAKOV Boris Nikolaevish…was taken by ambulance to the Department of
Surgery on July 19, 2005 at 9 p.m. with domestic multiple injuries. He
complained on [sic] headaches, nausea, memory loss of the incident,
impossibility to open the mouth [sic], pains and deformation of the left
forearm and pains in the first and second fingers of the left hand.
Examination: X-ray radiography of
the lower jaw, left hand and left forearm, ECG, blood and urine tests,
neurosurgeon’s, traumatic surgeon’s and oral surgeon’s consultations; the
patient has been diagnosed.
Diagnosis: Concussion of the brain,
fraction [sic] of the low left side of the jaw, fration [sic] of the first and
second fingers of the left hand and both of the left forearm bones.
After anti-shock procedures
fractures were reduced and immobilized by a plaster splint; splinting of the
low jaw was done.
Treatment: analgesics,
antibiotics, fluid and dexintoxications therapies, antiaggregants, hyotensive
angiprotectors, cardiac medications.
After check [sic] X-ray
radiography the plaster splint was removed. The patient was discharged on
September 20, 2005; recommendation were given [sic].
Diagnosis on discharge: residuals
after the closed concussion of the brain, concussion of the brain with left
herniparesis. Healed fractions [sic] of the left forearm bones and two fingers
of the left hand. Healed fraction [sic] of the low jaw.
(Tribunal Record. p. 134)
[44]
In my
opinion, the RPD’s finding that the report lacks medical terms is erroneous. On
the face of it, the report contains medical terms. In addition, there was no evidence
before the RPD as to how medical reports are written in Armenia and what types of terms are
normally present. Therefore, I find that the RPD had no basis for concluding that
the report is a false document.
V. Conclusion
[45]
On the
basis of the above analysis, which concludes that each of the RPD’s implausibility
findings are not made in accordance to law, I find that the decision under
review is patently unreasonable.
ORDER
Accordingly, the RPD's decision is
set aside and the matter is referred back to a differently constituted panel
for re-determination.
“Douglas
R. Campbell”
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