Date: 20080529
Docket: IMM-4907-07
Citation: 2008 FC 691
Ottawa, Ontario, May 29,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
NATALIYA MATSKO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Nataliya
Matsko is a thirty-two years old citizen of the Ukraine who claims Canada’s protection
on the ground she was persecuted in her country of nationality because of her
religion. She indicates she is a member of the Pentecostal Church and asserts
no state protection is available to her. By decision dated October 15, 2007,
the Refugee Protection Division (the tribunal) denied her claim for two
reasons: she was not credible and the country reports for the Ukraine do not
indicate members of that church there are “subject to such persecution or that
they are even subject to persecution at all. Discrimination is mentioned but
not murder or assault.”
The tribunal’s decision
[2]
The
tribunal opened its analysis by stating the following:
When a claimant swears that certain facts
are true, there is a presumption that they are true unless there is a valid
reason to doubt their truthfulness. An important indicator of a witness’s
credibility is the consistency of the witness’s story. The quality of the
evidence presented is also an indicator of credibility.
[3]
The
tribunal found Miss Matsko not to be credible for the following reasons:
1.
She
lacked corroboration for her testimony she was hospitalized several times and the
tribunal found not credible her reason for not having them, namely, hospitals
in the Ukraine only release
such reports to the patient and nobody else, not even to her parents who may
have sought to obtain the reports. Moreover, she never wrote to the hospitals
directly to try to obtain copies of the reports, nor did she communicate
directly with them and the documentary evidence does not mention unavailability
on the ground asserted by the applicant.
2.
She
also “has no corroborating letters from her father or mother, nor has she given
any reason for that. She even went so far as to say her father was sixty years
old and has problems writing. Nevertheless, she confirmed to the panel her
mother has no problems writing. In addition, she told the panel her parents do
not communicate with her in writing but by telephone or e-mail. That does not
explain why the panel did not obtain the information either, or why she was
unable to obtain corroborating letters from either of her parents.”
3.
She
testified being detained twice: at the end of the summer of 2000 and in the
winter of that same year but failed to mention in her PIF the summer detention.
4.
Moreover,
when filling out her Schedule I questionnaire for interview purposes with
immigration officials, she wrote she had not been detained “which contradicts
her PIF”. The tribunal did not accept her explanation she did not understand
the word “detained” but only the word “prison”.
5.
She
testified she was the only member of her family to have experienced serious
problems on account of her religion which was inconsistent with what she had written
in her PIF “my parents and I were constantly offended and threatened with
physical punishment.”
6.
She
was unable to explain satisfactorily why her parents still live in the Ukraine if they are
also being persecuted. The tribunal did not accept her explanation they were
old (age 60) and “don’t want to go anywhere”.
7.
She
was inconsistent in her testimony saying at one time her parents were not being
persecuted as severely as she yet later told the tribunal they were being
persecuted in the same way as she was yet they are still living in the Ukraine.
[4]
The
tribunal advanced an alternative ground for rejecting her claim stating “the
credibility and probative value of testimony must be assessed in terms of what
is generally known about the conditions and laws in the claimant’s country of
origin as well as in terms of the experiences of persons in a similar situation
in that country”.
[5]
The
tribunal then found:
Thus, nowhere in the
independent documentary evidence available to the panel does it see that the
members of that church in Ukraine are subject to such
persecution or that they are even subject to persecution at all. Discrimination
is mentioned but not murder or assault. However, the claimant told the panel
that the priest or pastor concerned died as a result of ill treatment that he
had suffered during an attack.
The panel has no document
before it to substantiate that and, as noted, the documentary evidence does not
indicate anything of the kind and I am referring, for example, to “Country
Reports 2005,” submitted as Exhibit A-2, which states the following about
freedom of religion:
“The law provides for freedom
of religion and the government generally respected this right in practice.
Nonetheless, they were isolated problems at the local level. Some local
officers at times impeded attempts by minority and non traditional religions to
register and buy or lease property.”
[6]
The
tribunal concluded by stating it could not give probative value to Exhibit P-6
a letter from S. Yurkin, senior elder of the Grace Slavic congregation in Toronto and P-7 from
Sister Tetyana telling of the death of her pastor in the Ukraine.
The applicant’s issues
[7]
Counsel
for the applicant raises three issues: (1) the tribunal erred in law in requiring
the applicant’s evidence to be corroborated; (2) the tribunal’s credibility
findings were arrived at in some cases by misreading or ignoring the evidence
and, in the other cases, in an arbitrary or capricious manner, which in the
pre-Dunsmuir era where classified as patently unreasonable errors. This
reference is, of course, to the recent decision of the Supreme Court of Canada
in Dunsmuir v. New Brunswick, 2008 SCC 9 where the patently unreasonable
standard was integrated into the reasonableness standard; (3) the tribunal
failed to consider her corroborating evidence in terms of Exhibits P-6 and P-7.
Analysis
(a) The standard of review
[8]
It
is well accepted in the jurisprudence of this Court that credibility findings
are findings of fact and if a decision turns on an applicant’s credibility,
such decision calls into play section 18.1(4)(d) of the Federal Courts Act
which provides this Court may grant relief if it is satisfied a tribunal “based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard to the material before it”
which the case law equated to the common law standard of the now defunct standard
of patent unreasonableness. In my view, Dunsmuir, above, does not impact
on the previous jurisprudence under section 18.1(4)(d) because a breach of that
provision is necessarily unreasonable as redefined by that case since such a
decision would be based on an erroneous finding of fact which was
material and central to the decision. [Emphasis mine.] It is to be recalled
findings of fact command the most deference from the Courts and such findings
will not lightly be interfered with because it is not entitled to reweigh the
evidence.
[9]
Requiring
corroboration when a tribunal should not is a question of mixed fact and law
which is to be reviewed on the standard of reasonableness.
(b) Discussion and conclusions
[10]
After
reading the transcript of the applicant’s testimony and considering the
documentary evidence in the certified tribunal record as well as in the
applicant’s application record, I cannot conclude the tribunal’s credibility
findings are flawed and the tribunal’s consideration of the documentary
evidence irrational, perverse or capricious to the point of warranting the
Court’s intervention.
[11]
In
substance, what counsel for the applicant is asking me to do is to reweigh the
evidence which was before the tribunal which is something this Court is not
permitted on judicial review.
[12]
The
tribunal cited several reasons in support of its credibility findings:
inconsistent internal testimony, contradictions between her POE and her
testimony and PIF, omissions in her PIF and implausibilities in her story. A
review of these findings in the transcript shows that these findings were
supported by the evidence and the applicant’s explanations not unreasonably
rejected.
[13]
A
consideration of the documentary evidence supports the tribunal’s overall
conclusion that religious freedom exists in the Ukraine and that
“non-orthodox religions” are flourishing and expanding despite some local irritants.
Counsel for the applicant could only refer to one instance of persecution in
the documentary evidence but as pointed out by counsel for the respondent, the
example did not fit the applicant’s profile.
[14]
Counsel
for the applicant’s submission the tribunal erred in the view it took into
account the lack of corroborative evidence in terms of hospital reports and her
parents’ letters cannot be accepted by the Court as an error by the tribunal in
the circumstances of this case. The jurisprudence holds that where a claimant’s
story is found to be flawed because of credibility findings, the lack of
documentary corroboration is a valid consideration for the purposes of further
assessing credibility (see Bin v. Canada (Minister of Citizenship and
Immigration), [2001] 213 F.T.R. 47, 2001 FCT 1246 relying on Syed v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 357, at
paragraph 15.) This view is buttressed by Rule 7 of the Refugee Protection
Rules which states that an applicant must provide acceptable documents in
support of a claim.
[15]
Finally,
the tribunal, in the circumstances of this case, was entitled to give no
probative value to Exhibits P-6 and P-7 (see Kalangestani v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1528 relying on Hamid
v. Canada (Minister of
Employment and Immigration), [1995] F.C.J. No. 1293, at paragraph 20).
[16]
In
my view, Exhibit P-6 adds little to the applicant’s story and based on the
applicant’s testimony on Exhibit P-7, the pastor’s death, the tribunal could
fairly come to the conclusion it did on the lack of corroborative impact these
Exhibits had.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed. No certified question arises.
“François
Lemieux”
_____________________________
Judge
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