Docket: IMM-5429-15
Citation:
2016 FC 728
Ottawa, Ontario, June 28, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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SVITLANA KIVALO
AND IVAN KIVALO
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants, Svitlana Kivalo and her son,
seek judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act] of the decision of the Refugee
Appeal Division [RAD] dated November 16, 2015, which dismissed their appeal of
the decision of the Refugee Protection Board [RPD] and confirmed that they were
not Convention refugees.
[2]
The applicants claimed refugee status on the
basis of Ms. Kivalo’s fear of abuse from her ex-common law partner, Igor. The
RAD found that Ms. Kivalo’s account of her relationship with Igor was not
credible in light of all the evidence and that her delay in claiming protection
detracted from her credibility. The RAD also agreed with the RPD’s finding that
Ms. Kivalo was generally lacking in credibility, a finding which extended to
all parts of her testimony.
[3]
On judicial review, the applicants submit that
the RAD did not sufficiently assess the evidence and simply deferred to the
RPD’s microscopic analysis, resulting in unreasonable credibility findings, and
that the evidence as a whole supports Ms. Kivalo’s account of abuse by Igor.
[4]
For the reasons that follow, the application is
dismissed. The RAD conducted an independent assessment of the evidence as
required and made reasonable credibility findings. It was reasonable for the
RAD to defer to the RPD’s credibility findings on issues where the RPD had an
advantage in hearing the applicant’s testimony and explanations.
I.
Background
[5]
The applicants are citizens of Ukraine. They
arrived in Canada in June 2014 on valid visas, which were extended and
eventually expired on April 3, 2015. They sought refugee protection in March
2015.
[6]
The applicants’ claim is based on a fear of risk
and harm of domestic violence by Ms. Kivalo’s ex-common law partner, Igor. Ms.
Kivalo recounts that she met Igor soon after her husband died in 2006. She
married Igor in a church wedding within the year following her husband’s death.
She explains that it is not considered appropriate to engage in a new
relationship so quickly and the marriage was never registered with the state.
[7]
Ms. Kivalo claims that Igor became abusive in
2008 and recounts physical and sexual assaults.
[8]
In June 2014, Ms. Kivalo left Ukraine with her
youngest son. Her teenage children remained in Ukraine with her sister. The
applicants arrived in Canada on temporary visas which were later renewed to
facilitate their departure from Canada. They then claimed refugee protection in
March 2015, claiming that Igor had threatened Ms. Kivalo and attacked her
sister in February 2015.
The RPD decision
[9]
The RPD found that Ms. Kivalo was not a credible
witness due to several omissions and inconsistencies in her basis of claim
[BOC] form, which were not reasonably explained; the lack of any persuasive
evidence regarding her relationship with Igor; and, the delay in claiming
protection until her temporary visa was about to expire.
[10]
The RPD concluded that the documents provided by
Ms. Kivalo to corroborate her claim did not overcome the credibility concerns.
The RPD noted that:
- The residence
certificate indicates that Igor is a cohabitant, but does not establish
his relationship to Ms. Kivalo or that he was abusive.
- The medical
booklets were handwritten and their author could not be verified. Ms. Kivalo’s
medical report for her injuries in Ukraine only contained information that
she provided and she was not credible. Her sister’s medical report did not
contain information about Igor.
- The police
responses provided were not accompanied by police reports and lacked details.
The RPD rejected Ms. Kivalo’s explanation that she thought it was only
important to state that Igor beat her, not to provide the details.
[11]
The RPD found that on a balance of probabilities
the documents provided were false or fraudulent and attached no weight to them.
[12]
The RPD noted the hallmarks of a credibility
assessment, including omissions, inconsistency and vagueness, and concluded
that Ms. Kivalo was generally lacking in credibility, a finding which extended
to all relevant parts of her testimony.
II.
The Decision Under Review
[13]
The RAD stated that it would follow the Federal
Court’s decision in Huruglica v Canada (Minister of Citizenship and
Immigration), 2014 FC 799, [2014] 4 FCR 811 [Huruglica FC] and
conduct an independent assessment of the evidence, affording deference to the
RPD’s findings on issues of credibility or to other findings where the RPD had
an advantage in reaching its conclusions.
[14]
The RAD questioned the credibility of the
alleged relationship between Ms. Kivalo and Igor as no documentation was
provided to establish its existence. The RAD found that, although Igor and Ms.
Kivalo were not legally married, their relationship would be reasonably
expected to be noted on the residence certificate.
[15]
The RAD also agreed with the RPD that it was not
credible that Ms. Kivalo would have omitted her common law partner from her
Canadian visa applications, including the extension applications. Ms. Kivalo
had lived with Igor for several years as his common law spouse and, although
the marriage had not been registered, the visa application requires that all
common law relationships be listed.
[16]
The RAD found the lack of documentation
regarding the church marriage and years of cohabitation to be compelling.
[17]
With respect to Ms. Kivalo’s testimony and lack
of awareness about Igor’s use of his patrimonial name, which the RPD had found
to be the basis of a negative credibility inference, the RAD also found this to
be an indication that her description of her relationship and abuse by Igor was
not credible.
[18]
The RAD concluded, on a balance of
probabilities, that Ms. Kivalo did not have the relationship she alleged.
[19]
The RAD did not agree with the RPD’s finding
that the medical documents were fraudulent. However, assuming the medical
documentation was genuine, the RAD found that it did not establish or
corroborate that Igor was the cause of Ms. Kivalo’s injuries, noting that it
was Ms. Kivalo who told the medical personnel that Igor was the cause. With
respect to her sister’s injuries, the RAD noted that there was no mention on
the document of who caused the injuries. It was only Ms. Kivalo who stated that
Igor caused the injuries and she was not credible.
[20]
The RAD agreed with the RPD’s findings regarding
the police responses. The RAD noted that the September 2012 request for police
intervention lacked details and Ms. Kivalo’s explanation was not credible. The
RAD also found that the lack of police reports to substantiate the
investigations and measures taken was compelling. Given the credibility
findings, the RAD gave no weight to the police documents as proof that Igor was
the abuser or that the events occurred as Ms. Kivalo described.
[21]
The RAD also agreed with the RPD’s finding that Ms.
Kivalo’s delay in claiming protection did not demonstrate subjective fear of
her situation in Ukraine. She only made a claim for refugee protection when faced
with expulsion from Canada.
III.
The Issues
[22]
The sole issue is whether the decision of the
RAD is reasonable.
[23]
The applicants argue that the RPD erred in its
assessment of the evidence and in deferring to the findings of the RPD
regarding the applicant’s credibility.
IV.
The Standard of Review
[24]
The RAD is tasked with conducting an appeal of
the RPD’s decision. The Court conducts a judicial review of the RAD’s decision.
[25]
In the recent decision Canada (Minister of
Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 103, [2016]
FCJ No 313 (QL) [Huruglica FCA], Justice Gauthier clarified the
uncertainty regarding the standard of review to be applied by the RAD; the RAD
should fulfill its appellate role and apply the standard of correctness when
reviewing RPD decision.
[26]
With respect to deference owed to the RPD’s
credibility findings, Huruglica FCA does not dictate a single standard
of review. Justice Gauthier described several scenarios at paras 69‑73 to
highlight the situations where the RAD should consider deference to the RPD
and, alternatively, where the RAD should be cautious in substituting its
decision.
[27]
Justice Gauthier noted at para 70, that with
respect to whether deference is owed to the RPD: “In
each case, the RAD ought to determine whether the RPD truly benefited from an
advantageous position, and if so, whether the RAD can nevertheless make a final
decision in respect of the refugee claim.” Justice Gauthier added at
para 74: “The RAD should be given the opportunity to
develop its own jurisprudence in that respect; there is thus no need for me to
pigeon-hole the RAD to the level of deference owed in each case.”
[28]
In the present case, the RAD did not have the
benefit of the Court of Appeal’s decision and was guided by the decision of
this Court in Huruglica FC. However, the requirement for an independent
assessment of the evidence confirmed by the Court of Appeal was established in
the Federal Court’s decision. The RAD indicated that it would conduct an
independent assessment and would defer to the RPD on its credibility findings
where the RPD enjoyed an advantage.
[29]
The RAD’s determinations of factual issues,
including credibility, and issues of mixed fact and law are also reviewed on the
reasonableness standard.
[30]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). The
Court will not re-weigh the evidence or re-make the decision.
V.
The Applicants’ Submissions
[31]
The applicants argue that there was sufficient
credible evidence to support their allegations and that the RAD deferred to the
RPD’s microscopic analysis and did not consider that cumulatively, the evidence
supports Ms. Kivalo’s account of abuse by Igor. In particular, the RAD erred in
discounting the corroborative evidence, including the medical booklet, due to
its credibility findings and erred in finding that Ms. Kivalo’s delay in
claiming refugee protection demonstrated lack of subjective fear.
[32]
The applicants submit that the RAD erred by
finding Ms. Kivalo’s testimony to not be credible without considering the
medical documentation as relevant corroborating evidence. The applicants point
to the notations regarding her injuries that were contemporaneous with her
account of abuse, including several abortions that Igor forced her to undergo.
[33]
The applicants add that the RAD unreasonably
dismissed the police evidence which corroborates that Ms. Kivalo did make a
complaint to the police of abuse by Igor.
[34]
The applicants argue that the corroborating
documents should have been assessed and considered by the RAD before it made
its credibility findings, rather than simply deferring to the RPD.
Corroborating documents cannot be discounted because of the credibility
concerns about an applicant (Kabongo v Canada (Minister of Citizenship and
Immigration), 2012 FC 313, [2012] FCJ No 367 (QL) [Kabongo]).
[35]
The applicants submit that it was unreasonable
to draw negative credibility findings from the fact that Igor is listed as a
cohabitant rather than as a common-law spouse on the residence certificate
given that common-law relationships are not accepted in Ukraine. Moreover, the
residence certificate was not tendered to establish the relationship, only that
Igor lived in her house.
[36]
The applicants also argue that their delay in
claiming refugee protection did not demonstrate lack of subjective fear. They
were legally in Canada on visas which were extended up to March 2015 and they
were not at risk of returning to Ukraine at that time.
VI.
The Respondent’s Submissions
[37]
The respondent submits that the RAD conducted an
independent assessment of the evidence and the subsequent decision of the
Federal Court of Appeal in Huruglica FCA does not change the
reasonableness of its analysis.
[38]
The respondent notes that the RAD deferred to
several of the RPD’s findings, particularly on issues where the RPD had an
advantage, including the omissions and inconsistency in Ms. Kivalo’s
testimony before the RPD and the RPD’s rejection of her explanations. The RAD
also conducted an independent assessment of the documentary evidence and
reached the same conclusions as the RPD, with the exception of the genuineness
of the medical booklet.
[39]
The respondent notes that the RAD acknowledged
that common law relationships are not recognized in Ukraine, yet reasonably
found that Igor would be listed as something other than a cohabitant if Ms.
Kivalo and Igor had a church wedding and resided together for over five years.
The respondent notes that Ms. Kivalo did not refrain from naming her current common
law partner on her more recent application for a visitor’s visa.
[40]
The respondent disputes the applicants’
submission that cumulatively, the evidence supports only the conclusion that
Ms. Kivalo’s injuries were caused by Igor. Although the RAD did not find that
the medical booklet was fraudulent, it was open to the RAD to conclude that the
medical documentation did not verify that Igor was the cause of Ms. Kivalo’s
injuries or those of her sister, given that she reported her injuries to
medical personnel and her sister’s document did not indicate the name of the
person who caused the injury.
[41]
The respondent submits that the RAD did not err
by discounting the medical booklet or the police reports tendered as
corroborating evidence. The respondent distinguishes Kabongo; in that
case the RPD gave no weight to an arrest warrant, which was an independent
corroborative document of the information provided by the applicant. A medical
report does not necessarily corroborate an applicant’s allegations where the
report depends on the credibility and trustworthiness of the information
provided by an applicant to the medical professional.
[42]
The respondent adds that the RAD was entitled to
take into account the applicants’ delay in claiming refugee status, along with
the other factors it considered. The RAD reasonably concluded that Ms. Kivalo
had not demonstrated subjective fear of her situation in Ukraine which impacts
her credibility.
VII.
The Decision is Reasonable
[43]
The RAD conducted an independent assessment of
the evidence on the record and deferred to several of the credibility findings
of the RPD. As noted above, the RPD found Ms. Kivalo’s testimony
inconsistent, some of her accounts to be implausible, several omissions in her
BOC and her explanations to be unreasonable. The RAD reasonably found that the
RPD had not erred in its credibility findings or other findings, with the
exception of its finding that the medical documentation could be fraudulent.
[44]
I do not agree that the RAD simply deferred to
the RPD’s analysis; the RAD conducted an independent assessment of all the
evidence and deferred to the RPD where appropriate, based on the RPD’s
advantage in hearing the applicant’s testimony, responses to questions and
explanations.
[45]
Ms. Kivalo argued that the medical records of
her injuries, combined with the evidence of the police response, which could
only be a response to her reports of violence by Igor, along with her other
evidence leads only to the conclusion that she suffered the domestic abuse she
recounted. However, the RAD reasonably found that there was no sufficient or
credible evidence of Ms. Kivalo’s marriage or common law relationship with
Igor.
[46]
Although it may not have been possible for Ms.
Kivalo to list Igor as a common law partner on her residence certificate, the
residence certificate could still not assist in establishing any relationship
with Igor. As noted by the RPD and RAD, the certificate was issued to and
listed Ms. Kivalo’s teenage daughter as the applicant for the certificate. The
RAD did not err in questioning the residence certificate.
[47]
With respect to the applicants’ argument that
the RAD erred in discounting the medical evidence due to its credibility
concerns, rather than considering the corroborative evidence first and then
determining the credibility of the applicant, I agree with the respondent that Kabongo
can be distinguished.
[48]
In Kabongo, Justice Rennie found that the
RPD erred by failing to consider that the applicant’s testimony was
corroborated by a warrant for his arrest. Justice Rennie found: “[t]he warrant was itself highly relevant to the credibility
of his testimony. The Board cannot find the applicant’s testimony not credible
without consideration of relevant corroborative evidence, and then subsequently
reject the supporting evidence because of the credibility finding.”
[49]
In the present case, the RAD found that Ms.
Kivalo was not credible, and then found that her medical booklet which reported
her injuries and Igor as the abuser to be not credible. The RAD did not fail to
consider the medical booklet. However, the medical booklet’s reference to Igor
as the cause of her injuries (or some of her injuries) is not independent
evidence, as is an arrest warrant. Ms. Kivalo’s statement to medical personnel
that Igor caused her injuries, therefore, cannot corroborate her other
accounts, which the RAD considered and found not credible, that Igor caused her
injuries. The RAD made many credibility findings against Ms. Kivalo and her
credibility cannot be rehabilitated by relying on her own discredited account.
[50]
As noted by the respondent, the jurisprudence
has cautioned that the recounting of events to medical personnel does not make
these events more credible and that the resulting medical report cannot confirm
allegations of abuse For example, in Rokni v Canada (Minister of Citizenship
and Immigration), [1995] FCJ No 182 (QL), 53 ACWS (3d) 371 (FCTD), and Danailov
v Canada (Minister of Employment and Immigration), [1993] FCJ No 1019 (QL),
44 ACWS (3d) 766 (FCTD), the Court noted that opinion evidence is only as valid
as the truth of the facts upon which it is based.
[51]
Similarly, the RAD reasonably gave little weight
to the police responses to Ms. Kivalo’s complaints. The documents, which were
not police reports, were insufficient to establish that Igor was the abuser or
that the events occurred as alleged.
[52]
The RAD did not err in finding that Ms. Kivalo’s
delay in claiming refugee protection demonstrated lack of subjective fear.
[53]
Justice Zinn provided a helpful summary of the
law regarding delay in claiming protection in Gurung v Canada (Minister of
Citizenship and Immigration), 2010 FC 1097, [2010] FCJ No 1368 (QL), noting
at para 21 that delay may be a valid factor to consider, but delay does not
automatically result in a finding of lack of subjective fear. The circumstances
and explanations for the delay must be considered. At paras 22-23, Justice Zinn
noted the jurisprudence that established the principle that having temporary
status in Canada and not being subject to immediate removal was not a sufficient
explanation for a delay in failing to make a refugee claim, but he found that
the circumstances of the temporary status must be considered to determine
whether this shows a lack of subjective fear.
[54]
In the present case, the RAD considered Ms.
Kivalo’s explanation for her delay in claiming protection and found that it was
not reasonable. Ms. Kivalo had come to Canada on a temporary visa which was
extended at least twice, the last time to permit her to return to Ukraine on a
particular date as planned. Ms. Kivalo did not mention Igor in any of her visa
applications or extension applications. She did not make a refugee claim naming
Igor as her common law partner or abuser until faced with the requirement to
leave Canada.
[55]
With respect to the applicants’ submission that,
cumulatively, there was sufficient evidence to support Ms. Kivalo’s account of
abuse by Igor, I do not agree that the RAD failed to properly assess Ms.
Kivalo’s credibility in the context of all the evidence. The RAD made many
credibility findings, including related to Ms. Kivalo’s failure to name Igor on
the visa applications, her lack of awareness of Igor’s patrimonial name, the
absence of any documentation of a relationship with Igor and her delay in
claiming refugee protection. None of these findings related to evidence which
could corroborate that she was in a relationship with Igor or that Igor was the
cause of her injuries.
[56]
While the applicants argue that there was no
other reasonable conclusion, the RAD reasonably found otherwise. The RAD also
deferred to the RPD, based on its assessment of Ms. Kivalo’s testimony and the
documentary evidence, which went so far as to find that she was generally
lacking in credibility, which extended to all aspects of her claim.
[57]
The jurisprudence in the context of judicial
reviews of RPD decisions and those of other tribunals that have heard the
testimony and assessed the credibility of an applicant guides the Court to show
significant deference to such findings (Aguebor v Canada (Minister of
Employment and Immigration) , [1993] FCJ No 732 at para 4, 160 NR 315
(FCA)); Lin v Canada (Minister of Citizenship and Immigration), 2008 FC
1052 at para 13, [2008] FCJ No 1329 (QL); Fatih v Canada (Minister of
Citizenship and Immigration), 2012 FC 857 at para 65, [2012] FCJ No 924
(QL)). I see no reason to take a different approach to credibility findings
confirmed by the RAD following its independent assessment of the evidence on
the record or where the RAD defers to the RPD based on its assessment.
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