Date: 20080118
Docket: IMM-2564-07
Citation: 2008
FC 64
Ottawa, Ontario, January 18, 2008
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
SEDA AMIRAGOVA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) for judicial review of a decision, dated May 3, 2007,
of a three-member panel of the Refugee Protection Division (RPD) following a de
novo hearing. Although it granted refugee status to the applicant’s
daughter, Goar Manvelyan, a Russian citizen, the RPD denied refugee protection
to the applicant in the same decision, ruling that she could return to her home
country of Armenia.
I.
Issue
[2]
The single decisive
issue worthy of the Court’s attention is the following:
Did
the RPD err in fact or in law when it found that the applicant was not
credible?
[3]
The Court finds that
the RPD’s decision was based on an erroneous finding of fact made in a
capricious manner and without regard to the material before it. The RPD
determined that the applicant was not credible, despite having acknowledged the
applicant’s credibility earlier in the same decision. That is a fatal contradiction
for the purposes of this case.
II.
Judicial History
[4]
On November 29, 2005,
the first RPD panel rejected the applicant’s and her daughter’s refugee
protection claim on the basis that they could easily return to live in Armenia.
[5]
On July 17, 2006, in Amiragova
v. Canada (Minister of Citizenship and Immigration), 2006 FC 882, [2006]
F.C.J. No. 1116 (QL), Mr. Justice Max Teitelbaum allowed the application for
judicial review, noting that the RPD’s reasons were inadequate. The decision
dated November 29, 2005 was set aside and the applicants’ claim was referred
back to the RPD for rehearing and redetermination before a differently
constituted panel.
[6]
The de novo
hearing was held on February 20, 2007. The decision for which judicial review
is now sought was rendered on May 3, 2007 by a three-member panel.
III. Factual
Background
[7]
The applicant was
born in Georgia in 1950 to a very wealthy family. After the rise of the
“fanatical Georgian nationalist” movement, she left her country of birth in early
1980 and went to Armenia. That same year, she married the well-known composer,
Gaik Manvelyan, and became an Armenian citizen. In 1983, their daughter was
born.
[8]
The applicant submits
that since the collapse of the Soviet Union in 1991, the mafia has taken
control throughout the former Soviet bloc countries. On June 23, 1991, the
applicant’s father was killed by the mafia, and Gaik Manvelyan’s family fell
victim to mafia extortion. For that reason, the family left Armenia in 1993 and
settled in Russia. Only the father and daughter obtained Russian citizenship.
[9]
The era of attacks by
fanatical Russian nationalists and skinheads against people of Caucasian origin
reached its peak in the early 2000s, and the applicant and her family were not
spared. First, on August 8, 2004, Miss Goar and her friend were attacked by a
group of Russian youths who called them filthy Armenians. Their attackers
nearly raped them and threatened to kill them. The police did not take any
action, even though the attackers were identified. Next, on October 5,
2004, the applicant’s husband was also violently assaulted on the street and
died at the scene from a heart attack brought on by the brutal assault.
Finally, just a few weeks after her husband’s death, the applicant was severely
beaten by three fanatical Russian nationalists, leaving her with permanent
physical and psychological scars.
[10]
No action whatsoever
was taken in respect of their complaints to the Russian authorities. Mother and
daughter then decided, in October 2004, to leave Russia. On April 26,
2005, they obtained a Canadian visa and arrived in Canada on June 28, 2005.
They immediately claimed refugee protection.
[11]
The applicant also
stated in her testimony that her brother was a victim of the mafia in Armenia.
He also fled to Russia, where he was treated in the same way as all other
people of Caucasian origin. He returned to Armenia in October 2004 and was
killed by the mafia two months later. Fearing for her own life, the applicant
did not attend his funeral.
[12]
In support of her
refugee claim, the applicant submitted a report to the RPD from Municipal
Hospital #36 in Moscow, dated June 2, 2005, noting the applicant’s diagnosis
after the October 2004 attack as follows: “Osteochondrosis of the spine and
dislocation of the L1 spinal vertebra.”
[13]
Furthermore, a
psychological report prepared on January 22, 2006 by psychologist David L.N.
Woodbury, following two treatment sessions with the applicant, concluded as
follows on page 12:
Conclusion:
The
trauma
Ms
Amiragova’s suffering can be directly ascribed to the cumulative stress she
experienced because of the following reported traumatic incidents:
§
xenophobic tensions
leading to escape from Georgia to Armenia
§
murder of father by
“mafia”
§
extortion by mafia
§
escape to Moscow
§
anti-caucasian
xenophobia in Moscow, incidents of harassment of self, husband and daughter
§
husband’s death
§
attack, resulting in
spinal fracture, and eight month’s hospitalization
§
chronic anxiety and
agoraphobia
§
flight to Canada
§
refusal of first
refugee claim
§
prospect of second
Hearing
Recommendations:
While
the determination of Ms. Amiragova’s status as a refugee is, of course, the
responsibility of Immigration officials, I make the following, purely therapeutic
recommendations, taking into account the clinical literature on PTSD,
especially when complicated by the presence of agoraphobia:
§
A two-pronged
treatment strategy including medication and psychotherapy is most effective.
§
A prerequisite of
effective therapeutic intervention is that the victim must perceive her
environment as SAFE. This perceived safety could only be found far from her
aggressor.
It
is therefore my professional clinical opinion that Ms. Amiragova’s
psychological state would greatly improve if she were allowed to remain in
Canada where she can establish a new life, she can get the help she needs, and
she can begin the recovery process.
IV. Decision Under
Review
[14]
Rejecting the
applicant’s refugee claim, the three-member panel of the RPD concluded as
follows:
[translation]
Secondly,
since the panel has rejected Ms. Seda Amirogova’s claim on the basis that she
is not credible and, above all, that she can return to Armenia, the same
determination must apply to the grounds of the threat to life and the risk of
cruel and unusual treatment.
[…]
[15]
Yet the RPD had
previously made the following comment about the applicants’ credibility:
[translation]
“In
closing, the panel wishes to emphasize that the applicants testified about
their story directly and without any exaggeration. No contradictions were found in the
applicants’ testimony.
[…]”
[16]
This glaring
contradiction is inexplicable. The Court cannot share the respondent’s opinion
that the RPD [translation]
“committed a clerical error in the wording of its reasons.” If this is in fact
a clerical error, it is an extraordinary one and cannot be explained away in
this manner. The RPD’s main finding is that the applicant is not credible.
[17]
Credibility is the
most important thing any of us has. It is earned and maintained through our
life history, our actions and our words. Losing our credibility affects the
very core of our reputation. For persons seeking refugee protection,
credibility lies at the very heart of their claim. To declare this claimant not
to be credible despite the fact that the evidence indicates she is credible
does serious damage to her claim. She deserves better. Such a contradiction is
patently unreasonable.
[18]
The basic principles
necessary for determining credibility, as jurist Lorne Waldman states in Immigration
Law and Practice, Looseleaf, 2nd ed. vol. 1 (Toronto:
Butterworths, 2007) at pages 8-58, were set out in the decision Rosta v.
Thiel, [1986] N.S.J. No. 555 in paragraphs 18, 19 and 20 :
18
In considering the evidence presented along with the documentation, the matter
of credibility comes to the forefront. Credibility in matters such as this
usually concerns the assessment or weighing of the evidence of witnesses. The
issue of credibility is one of fact. It cannot in reality be determined by
following a set of rules that it is suggested, have the force of law. In fact,
a person or witness could be one of good credit or character but nonetheless be
mistaken. Their memory could be faulty. I have assessed the credibility in the
light of observing the witnesses, the manner in which they answered the
questions put to them, both by their own counsel and counsel on
cross-examination. I have watched their demeanour on the witness stand. I have
taken into consideration the tones of their voice and the method in which they
answered questions. I have also considered their actions and reactions on the
stand while being questioned. I have also taken into consideration their
ability to recall the evidence.
19
The matter of credibility and a method I accept as practical is set forth by Mr.
Justice O'Halloran in a decision of the British Columbia Court of Appeal in the
case of Faryna v. Choray, [1952] 2 D.L.R. 354, where he says at page 357:
"The
credibility of interested witnesses, particularly in the cases of conflict of
evidence, cannot be gauged solely by the test of whether the personal demeanor
of the particular witness carried conviction of the truth. The test must
reasonably subject his story to an examination of its consistency with the
probabilities that surround the currently existing conditions. In short, the
real test of the truth of the story of a witness in such a case must be its
harmony with the preponderance of the probabilities which a practical and
informed person would readily recognize as reasonable in that place and in
those conditions. Only thus can a court satisfactorily appraise the testimony
of quick minded, experienced and confident witnesses, and of those shrewd
persons adept in the half-lie and of long and successful experience in
combining skillful exaggeration with partial suppression of the truth."
20
I also agree with the views put forth by Justice Haynes in R. v. Hawke (1975),
3 O.R. (2d) 210, particularly at page 224 where he said as follows:
"The
most satisfactory judicial test of truth lies in its harmony or its lack of
harmony with the preponderance of probabilities disclosed by the facts and
circumstances in the conditions of the particular case ..."
[19]
It is difficult to
apply these principles in this case because the RPD says merely, [translation] “Secondly, since the
panel has rejected Ms. Seda Amirogova’s claim on the basis that she is not
credible and, above all, that she can return to Armenia, the same determination
must apply to the grounds of the threat to life and the risk of cruel and unusual
treatment.” Upon reading the preceding paragraphs, it is impossible to
understand how such a finding was made. On the contrary, two paragraphs before,
the RPD’s statements flatly contradict their negative credibility finding
concerning the applicant:
[translation]
In
closing, the panel would like emphasize that the applicants testified about
their story directly and without any exaggeration. No contradictions were found in the
applicants’ testimony.
[20]
Either the applicant
is credible or she is not. There is simply no room for contradiction in this
regard in an RPD decision: the claimant’s reputation hangs in the balance. If
the contradiction was a clerical error, it cannot, in all fairness, be
explained away as a mere clerical error. It is imperative that a differently
constituted RPD panel rehear the case in its entirety.
[21]
The parties were
invited to submit a certified question; they did not.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES THAT:
-
the application for
judicial review be allowed;
-
the decision from May
3, 2007 be set aside and the claim be referred back for rehearing and
redetermination by a differently constituted panel;
- there is no question to be certified.
“Simon Noël”
Certified true
translation
Stefan Winfield,
Translation
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2564-07
STYLE OF CAUSE: SEDA
AMIRAGOVA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: January 15, 2008
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr.
Justice Simon Noël
DATED: January 18, 2008
APPEARANCES:
Michel
Le Brun FOR THE
APPLICANT
Simone
Truong FOR THE
RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR
THE APPLICANT
LaSalle, Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
Montréal, Quebec
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