Docket: IMM-3552-15
Citation:
2016 FC 282
Ottawa, Ontario, March 4, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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VESELIN PEEV PAVLOV
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division of the Immigration and Refugee Board of
Canada (“RAD”), dated July 13, 2015, in which the RAD confirmed the finding of
the Refugee Protection Division (“RPD”) that the Applicant is neither a
Convention refugee nor a person in need of protection pursuant to s 96 or s 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (“IRPA”).
Background
[2]
The Applicant is a citizen of Bulgaria and of
ethnic Roma heritage. He claims to fear persecution by Roumen Boyoukliev
(“Roumen”) and his associates in Bulgaria. In 2005 the Applicant’s father
accepted Roumen’s offer of protection from ultranationalists in exchange for a
monthly fee. Ultimately, when he stopped making those payments, the
Applicant’s father was attacked by Roumen’s men. When he reported this to the
police he was told to make the payments. He reported this to the Prosecutor’s
Office and was then summoned to the police station where he was assaulted and told
that the police knew of his complaint against them. His father then withdrew
his report to the Prosecutor’s Office. When the attacks against them continued
in 2013 and 2014, the Applicant’s parents and brother fled to Canada. Their
refugee claims were granted in 2014.
[3]
Roumen then turned his attention to the
Applicant who received a subpoena to attend at the police station. There the
police asked of the whereabouts of his family who had fled and demanded 15,000 Euros
to avoid the laying of fabricated charges against them. The Applicant was
later attacked by three men who told him that if they did not receive the money
they would force his wife into prostitution and kidnap his children. The
Applicant claims that he did not report this to the police as he feared them.
When he received a second subpoena to attend at the police station, he fled to
Canada. His wife and two young children fled the town they lived in and remain
in hiding.
[4]
The RPD found that there was no nexus to a Convention
ground and, therefore, the Applicant’s claim failed under s 96 of the IRPA. The
RPD then determined that the Applicant had an internal flight alternative (“IFA”)
in Sofia as the Applicant had failed to provide any persuasive evidence in
support of his argument that Roumen and his associates in the Plovdiv police
could find him and his family anywhere in Bulgaria and there was no evidence
that the police in Sofia would not protect him. The RPD also found that the
Applicant had failed to rebut the presumption of state protection, particularly
since articles he submitted demonstrated that the police had been successful in
prosecuting Roumen. Further, that the Applicant had made no efforts to seek
police protection. For these reasons, the RPD determined that the Applicant
was not a person in need of protection under s 97 of the IRPA.
Decision Under Review
[5]
On appeal to the RAD, the Applicant submitted six
documents post-dating the RPD’s decision which were accepted by the RAD
pursuant to s 110(4) of the IRPA. The RAD also determined that an oral hearing
was necessary, pursuant to s 110(6), because the evidence raised issues of
credibility and issues that were material to the RPD’s decision, including the
IFA finding. All of the Applicant’s new evidence related to an event alleged
to have occurred on January 30, 2015, two days after the RPD rendered its
decision, specifically, the alleged rape of the Applicant’s wife by Roumen’s
associates. The RAD questioned the Applicant about the new evidence during the
oral hearing.
[6]
In its decision the RAD discussed what it viewed
as contradictions or implausibilities in the Applicant’s testimony and
generally found the new evidence not to be credible on that basis. It also found
the medical reports pertaining to the Applicant’s wife to lack credibility. Further,
that the Applicant’s lack of knowledge of the details of, or his “indifference” to, his wife’s attack was implausible
as was his testimony regarding why his children were not attending school and
were at home on the day of the rape. The RAD also found the medical report
concerning the Applicant’s son’s stuttering, alleged to have developed after
having witnessed the rape, to lack credibility.
[7]
For these reasons, the RAD determined the new
evidence was not credible and found that the Applicant’s wife had not been a
victim of rape. The RAD went on to discuss and agree with the RPD’s
determinations on the IFA to Sofia and state protection issues.
Issues
[8]
The Applicant submits that the issues are as
follows:
1) Did the RAD make unreasonable credibility findings?
2) In the alternative, did the RAD err by upholding the RPD’s finding
that the Applicant has an IFA in Sofia?
3) Did the RAD err by upholding the RPD’s finding that the Applicant
failed to rebut the presumption of state protection?
Standard of Review
[9]
While neither party specifically addresses
standard of review, both apply the reasonableness standard. A standard of
review analysis need not be conducted in every instance. Where the standard of
review applicable to a particular issue before the Court is well-settled by
past jurisprudence the reviewing Court may accept that standard of review (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 62 [Dunsmuir]). While prior
jurisprudence determining the standard of review for the RAD’s credibility
determinations on oral testimony has not been identified, in my view, the
circumstance is analogous to RPD decisions which make credibility findings
based on oral testimony. It is well established that such decisions are
reviewable on the reasonableness standard (Behary v Canada (Citizenship and
Immigration), 2015 FC 794 at para 7; Zhou v Canada (Citizenship and
Immigration), 2013 FC 619 at para 26; Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (Fed CA)). Accordingly, I
find that the reasonableness standard also applies in this matter.
[10]
Because I have determined below that the RAD’s
credibility findings are determinative of this application, the standard of
review for the Applicant’s alternate arguments need not be addressed.
[11]
In applying the standard of reasonableness, the
Court will be concerned with the justification, transparency and
intelligibility of the decision-making process and also with whether the
decision falls within a range of possible, acceptable outcomes in respect of
the facts and the law (Dunsmuir at para 47; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 59; Mrda v Canada (Citizenship
and Immigration), 2016 FC 49 at para 25).
Submissions of the Parties
[12]
The Applicant submits that the RAD’s credibility
assessment of the new documentary evidence was unreasonable because it was
wholly speculative. The RAD speculated about what the Applicant should have
done, felt and asked following the attack on his wife. The RAD also failed to
consider the “claimant’s milieu” (Valtchev v
Canada (Minister of Citizenship and Immigration), [2001] FCJ No 1131 [Valtchev])
as it disregarded the fact that the Applicant was not in Bulgaria at the time
and, without an evidentiary basis, found that the Applicant and his wife should
have spoken in greater detail about the rape. The Applicant’s alleged
indifference to the rape is mentioned several times in the RAD’s reasons,
however, it is unclear how the Applicant could have shown sufficient concern
about his wife’s ordeal. The Applicant also submits that, in considering the
medical evidence, the RAD engaged in conjecture by finding it to be
implausible. And, because its unreasonable credibility findings also informed
the RAD’s IFA and state protection analysis, the application should be allowed
on the basis of its unreasonable credibility findings alone. The Applicant
also raised two arguments in the alternative regarding the RAD’s IFA and state
protection analysis.
[13]
As to the Respondent, its submissions summarized
the RAD’s decision and stated that there were reasonable grounds upon which the
RAD could conclude that the evidence was not credible based on contradictions,
lack of detail and implausibilities. Because Roumen’s actions were central to
the Applicant’s claim, the Respondent submits that it was reasonable to expect
that the Applicant would seek out details of the rape and recall them at the
hearing and that any discrepancy in the documentary evidence would be
explained. Because the Applicant did not do so, the RAD’s decision to reject
the evidence was open to it. The Respondent also addressed the RAD’s IFA and
state protection analysis.
Analysis
[14]
While the Court owes deference to the
credibility findings of a tribunal tasked with fact-finding (Aguilar
Zacarias v Canada (Citizenship and Immigration), 2012 FC 1155 at para 9 [Aguilar]),
“[D]eference is not a blank cheque. There must be
reasoned reasons leading to a justifiable finding” (Njeri v Canada
(Citizenship and Immigration), 2009 FC 291 at para 12). And, where
credibility findings rest on plausibility determinations, the implausibility
must be clear and the RPD should provide a reliable and verifiable evidentiary
base against which the plausibility of the Applicant’s evidence may be judged (Aguilar
at para 11; Cao v Canada (Citizenship and Immigration), 2012 FC 694 at
para 20; Valtchev at para 9). In my view, for the reasons set out
below, the credibility findings and plausibility determinations made by the RAD
in this case do not accord with these principles.
[15]
The new evidence comprised six documents. The
first is a letter is from the Applicant’s wife in Bulgaria stating that
Roumen’s men had found her and that they had raped her in front of the children
and threatened to have the children kidnapped and forced into prostitution. It
is of note that the Applicant testified that, on the advice of the local Roma
Council in Plovdiv, the Applicant’s wife and children were hiding in a house
located in Kalevishte, in the district of Smolyan, at the time of the alleged
rape.
[16]
As to the medical evidence, this was comprised
of a medical certificate dated February 6, 2015 stating that the
Applicant’s wife attended for an examination on that date accompanied by
relatives. She had reported that on January 30, 2015 she had been attacked,
beaten and raped by two men. Immediately after this she developed severe
anxiety. Medication was prescribed and it was recommended that she attend a
sanitarium for an extended period of time. A second medical report is dated
March 25, 2015. It describes the Applicant’s wife’s attendance for a secondary
examination and that she described continuing acute anxiety from the January
30, 2015 incident and physical and psychological suffering due to secondary tension
related to being sought by the same individuals. The third medical report is
also dated March 25, 2015 and it concerns the Applicant’s youngest son.
It states that the Applicant’s wife described her son’s development of a
stutter after an incident involving her. The doctor described the Applicant’s
son as tense and unstable emotionally and advised that the son seek help from a
speech pathologist. The next document is an undated certificate issued by a
school which states that the Applicant’s son would attend speech therapy
sessions during the 2014/2015 school year for psychotraumatic stuttering
treatment. The final document is a certificate from a doctor at a wellness spa
noting a diagnosis of post-traumatic stress disorder and prescribing a medical examination
and several relaxation treatments for the Applicant’s wife.
[17]
The RAD found that if the Applicant’s wife had
been raped and treated at a hospital, it would have been incumbent on the
hospital to conduct a medical investigation to assess physical injury and also
to explore the possibility of sexually transmitted diseases, but that this was
not referenced in the medical report. The RAD also found it implausible that a
hospital would not conduct a gynaecological examination following a reported
rape. However, in reaching this conclusion the RAD did not refer to any
national documentation describing the sexual assault protocol of Bulgarian
hospitals, nor did it refer to any other evidentiary basis for this finding.
[18]
It is also of note that the March 25, 2015 medical
certificate appears to have been issued by Dr. Lubka Ilieva “Dispensary for
individual practice for psychiatric aid”. The February 6, 2015
certificate was issued by the same doctor but the interpretation reads “for individual…”, perhaps due to a legibility issue
with the original. The point being that if the Applicant’s wife was seen by a
psychiatrist, as he testified, it is unlikely that a gynecological examination
or assessment for sexually transmitted diseases would have been conducted by
that attending physician. Thus, the facts as presented are not outside the
realm of what could reasonably be expected (Valtchev at para 9).
[19]
When questioned by the RAD as to the conduct of
a medical examination of his wife, the Applicant’s testimony was that, he only
knew that she had seen a psychiatrist. Asked why she did not have a
gynecological examination, the Applicant stated that he did not know. When
asked if he did not think this was unusual, he stated that he did not know. The
RAD then pressed on saying that, regarding the description of the rape, the RAD
assumed that the “perpetrator penetrated”. The
Applicant confirmed this at which point the RAD asked if it were therefore not
logical to be concerned that “something might have
happened”. The Applicant stated this was probably true but he didn’t
know. When asked what he did know about the rape he stated only what was
described in his wife’s letter and that he would not know any further details.
The RAD then stated that it did not see “a big description
of the rape”. When asked if he had spoken to his wife, the Applicant
responded that when he had spoken with her she was incoherent, which was why
she sent the letter. The RAD stated that the letter suggested that two men
raped her, but sought clarification from the Applicant on this point. The
Applicant confirmed that it was two men. The RAD then asked him to clarify if
this was two separate rapes, he confirmed this. The RAD then noted that he was
hesitating and instructed him not to guess. The Applicant then stated that he did
not know.
[20]
The RAD later returned to this line of
questioning:
MEMBER: I just want to…I just want to come
back…I’m almost finished, and then I guess we’ll take a break…to the actual
incidents of rape. I asked you this already, but I’m going to ask again. Did
your wife not describe anything that happened?
APPELLANT: She said that she was found, and
they starting to slap her around, to beat her. And afterwards, she was raped in
front of the children?
MEMBER: How many times?
APPELLANT: Twice.
MEMBER: Twice by…by how many people?
APPELLANT: Two people.
MEMBER: So once each person?
APPELLANT: Yes.
MEMBER: And at no time did your wife even
discuss any possible physical - medical side effects?
APPELLANT: As far as I know, she said that
she feels ok as far as her physicality.
MEMBER: So she did not feel the need to be
physically examined after the rapes?
APPELLANT: Yes.
MEMBER: I don’t understand. Did she…did she
even express to you any concern about the physical damage to her?
APPELLANT: No, she didn’t say, and I simply
didn’t ask her.
[21]
The RAD found the Applicant’s lack of knowledge
or “indifference” to his wife’s attack
implausible. The RAD was of the view that if the alleged rapes had taken
place, the Applicant ought to have shown more concern and have been able to
provide more detail of what had allegedly transpired. However, the RAD does
not explain the basis for its expectation that the Applicant would or should
know further details of his wife’s rape and expressed his concern differently.
This is troubling because individuals likely respond in different ways to
traumatic events. Further, it is unclear exactly what further details the RAD
thought the Applicant’s wife should have disclosed given that the date, time
and place of the rape, the number of attackers, who sent them, and the
witnesses were all specified. In my view, the RAD became unreasonably fixated
on the failure to share further details of the rape and failed to consider that,
for cultural or other reasons, this may not have been a reasonable expectation
for the Applicant and his wife. It was unreasonable for the RAD not to have considered
the Applicant’s circumstances or “milieu” (Valtchev at paras 7-11), and
the physical distance between them.
[22]
On this point I would note in passing that the
RAD made no mention of the Chairperson Guideline 8: Procedures With Respect to
Vulnerable Persons Appearing Before the IRB. These state that the definition
of vulnerable persons may apply to close family members of the vulnerable
person because of the way in which they have been affected by their loved one’s
condition. An identification of vulnerability does not result in acceptance of
the alleged underlying facts, nor does it predispose a member to make a
particular determination of the case on its merits. It is made for the purpose
of procedural accommodation only. Whether or not the Applicant would qualify
as a vulnerable person, in my view, the RAD’s approach in this case lacked
sensitivity to the Applicant’s situation.
[23]
The RAD also found the medical certificate
describing the Applicant’s son’s stutter not credible as it did not contain the
son’s birthdate. Further, that the certificate stated that the stuttering was
caused by the son’s stress from incidents related to his mother, but does not
specify the incidents. I would note, however, that the Applicant’s wife’s medical
reports, issued by the same physician, also do not contain her date of birth
and that this was not commented on by the RAD. Further, that the certificate
does contain an identification number and the child’s name and address. The
RAD discounts the report for what it does not say, specifically that the child
witnessed his mother’s rape, rather than considering what it does say, being
that the stuttering arose from stress caused by incidents related to his
mother. Further, the certificate was issued by the same physician who issued
the medical reports concerning the rape of the Applicant’s wife. It is unclear
why the RAD would expect the physician to repeat this level of detail in the
report concerning the son’s stuttering. I would also note that the certificate
from the school schedules special therapy for “psychotraumatic
stuttering”. This would appear to corroborate the medical certificate, but
the RAD does not address that document in its reasons.
[24]
The RAD also found the Applicant’s testimony
regarding his children’s presence during the rape to be implausible, given that
the rape occurred on a Friday and school was, by the Applicant’s own admission,
mandatory for children in Bulgaria. The RAD stated that the Applicant first
testified that there was no school in Kalevishte where his family was hiding,
but, after further questioning, indicated there was no transportation to the
school.
[25]
However, upon review of the transcript of the
hearing before the RAD, it is not clear that the Applicant’s statements are
contradictory or implausible. When originally questioned about why the
children were not in school on Friday, January 30, 2015, the date that the
Applicant’s wife was allegedly raped, the Applicant explained that the children
did not attend school because where his wife was situated there was no
possibility for them to do so. The RAD then asked why his wife would go to a
place where the children could not attend school. The Applicant explained, as
he had previously, that his wife was in hiding in a place that had been
suggested to them by the Roma Council. When asked if there were schools there,
the Applicant responded that “Yeah, there is school,
but they are further”.
[26]
The RAD retuned to the issue, but each time the
Applicant explained that there was no school where the family was hiding, no
transportation to a school further away and that, given the family’s
circumstances, it would be unsafe to attend school. In my view, the exchanges
simply demonstrate that while in hiding the children did not have safe access
to a nearby school, they do not represent a contradiction or a reasonable basis
for the RAD’s implausibility finding.
[27]
Finally, as to the wellness spa document, this
was not addressed in the RAD’s reasons. When the RAD asked the Applicant about
it during the hearing, he stated that after the attack his wife went there for
treatment, which her parents paid for, to which the RAD responded “Well, interesting treatment, counsel, right? Spa?”.
[28]
In my view, for the reasons stated above, the
RAD’s credibility and implausibility findings were unreasonable. That issue is
determinative because the content of the new evidence found not to be credible
by the RAD speaks to issues relevant to the RAD’s IFA and state protection
determinations. Therefore, it is unnecessary to address the Applicant’s
alternative arguments.
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