Date: 20040116
Docket: IMM-5023-02
Citation: 2004 FC 66
Ottawa, Ontario, this 16th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
LYUDMYLA VASYLIVNA VOYTIK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Refugee Protection Division) (the "Board"), dated September 9, 2002, wherein it determined that the applicant was not a Convention refugee or a person in need of protection.
[2] The applicant requests that the Court allow the application, set aside the decision of the Board and refer the matter for rehearing by a differently constituted panel.
Background
Introduction
[3] The applicant is a citizen of the Ukraine, who claims to be a Convention refugee based on her membership in a particular social group, namely, women subject to domestic abuse. The applicant alleges that if she returned to the Ukraine, she would suffer serious harm amounting to persecution at the hands of her former spouse. She further alleges that the authorities will not adequately protect her.
[4] The applicant married her former spouse in 1977. Marital difficulties began early in the marriage and from 1979, her spouse began to beat her. In June 1983, the applicant filed for divorce, which was granted. The couple reconciled for a period of time, but in 1986 she left him permanently.
[5] The applicant alleges that since her final separation in 1986, her former spouse continued to harass, stalk and intimidate her. She alleges that he would blackmail her for money and that on a number of occasions he beat her causing her serious harm amounting to persecution.
[6] The applicant took care of her mother until her death in 1993. The applicant's daughter left the Ukraine in 1997 to come to Canada to study and is currently working in Regina, Saskatchewan.
[7] The applicant came to Canada to visit her daughter in May 1998 and then returned to the Ukraine. In May 1999, the applicant decided to leave the Ukraine. She arrived in Canada on June 1, 1999. She made her Convention refugee claim on December 7, 1999, after her visitor's visa had expired.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[8] A hearing was held on July 2, 2002 and July 9, 2002. By reasons dated September 9, 2002, the Board determined the applicant not to be a Convention refugee.
[9] The Board found the applicant did not provide sufficient credible evidence concerning material aspects of her claim. On a balance of probabilities, the Board found that the applicant's former spouse did not cause the applicant serious harm amounting to persecution after their separation in 1986.
[10] The Board found there to be contradictions in the applicant's testimony as to when she reported incidents of abuse to the police; contradictions between her Personal Information Form ("PIF") and her testimony as to whether her former spouse would stop beating her if witnesses were present; inconsistent testimony about certain documents belonging to the applicant and their safekeeping; omissions from the applicant's PIF about certain beatings referenced in her medical documentation and oral testimony; and behaviour by the applicant that was, in the Board's view, inconsistent with what one might reasonably expect from someone fleeing persecution.
[11] The Board did not give much weight to the affidavit from the applicant's daughter. Further, as the Board did not accept that the applicant provided credible evidence concerning the alleged post-1986 domestic abuse, it gave no weight to the medical and other documents she filed in this regard.
[12] This is the judicial review of the decision of the Board finding the applicant not to be a Convention refugee or a person in need of protection.
Applicant's Submissions
[13] The applicant submits that even if the Board found that the applicant is not a credible witness, it was obliged to consider the documentary evidence and determine whether it provided independent verification of the applicant's story. It is submitted that by failing to consider the medical reports which described a history of treatment for a variety of traumatic injuries between 1996 and 1999 or to evaluate whether they provided independent substantiation of the applicant's testimony, the Board failed to have regard for the totality of the evidence before it and thereby erred in law. The applicant submits that the Board's other reasons for discounting certain supporting documents before it, including a psychological assessment of the applicant, were unreasonable.
[14] The applicant submits the Board could not rationally rely on the applicant's inconsistent attitude towards the safekeeping of her documents as a basis for making a negative credibility finding as this was a matter irrelevant to any issue the Board had to decide. The applicant also submits that incidents of abuse by her ex-husband which were not in her PIF are substantiated by medical reports. It is further submitted that there is no indication that the Board considered the guidelines on Women Refugee Claimants Fearing Gender-Related Persecution ("Gender Guidelines") when determining whether the omission of the incidents from the PIF detracted from the applicant's credibility.
Respondent's Submissions
[15] The respondent submits the standard of review of the Board's decision is patent unreasonableness. It is submitted that the applicant has failed to show that the inferences of the Board could not reasonably have been drawn.
[16] The respondent submits that once the Board concluded that the applicant's story was not credible, it was under no obligation to assess the documentary evidence to determine whether it provided independent corroboration of the applicant's claim. It is submitted that having rejected the credibility of the factual foundation upon which they were based, it was reasonably open to the Board to give no weight to the medical reports. It is submitted that the Court should not interfere with the Board's weighing of the evidence, including the weight to be given to the applicant's daughter's affidavit.
[17] The respondent submits the Board is entitled to make adverse credibility findings on the basis of peripheral issues provided that the Board has assessed the credibility of the substance of the claim, as the Board did in this case. It is further submitted that the Board can rely on omissions from the applicant's PIF of important incidents to make negative credibility findings.
[18] The respondent submits that the Board did not err in finding it unnecessary to review the Gender Guidelines on the applicant's behalf, since they are intended to be considered only in appropriate cases. It is submitted that the application of the Gender Guidelines would not have altered the outcome of the applicant's claim and that a careful examination of them could not lead simply to the conclusion that all of the inconsistencies, implausibilities and omissions noted by the Board occurred due to battered woman syndrome.
Issue
[19] Did the Board err in that it ignored evidence before it, made credibility findings which were based on irrelevant considerations and/or unreasonable, and consequently failed to consider the totality of the evidence before it?
Analysis and Decision
[20] The Board had before it two medical reports from a municipal polyclinic in Kharkov, Ukraine that related to the alleged post-1986 domestic abuse. The Board gave no weight to the medical documents because, in its view, the applicant had not provided credibile or reliable evidence concerning the alleged post-1986 domestic abuse. A perusal of the medical reports indicates that many of the notations refer to injuries consistent with physical abuse (injuries to left part of the thorax, soft facial tissues injury and numerous haematomas in the area of the upper extremities). Dismissing the medical reports outright, without determining whether they enhanced the credibility of the applicant's testimony regarding the alleged beatings or provided independent substantiation of harm amounting to persecution was patently unreasonable. As held in Vijayarajah v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 731 (T.D.) (QL), Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130, and Baranyi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 987 (QL), 2001 FCT 664, even if the Board considers an applicant not to be credible, it must still consider the documentary evidence. Here, the Board erred in using its negative credibility finding as reason to place no weight on potentially crucial documentary evidence, given the nature of the applicant's claim and testimony.
[21] I do not propose to deal with the applicant's other arguments as I am of the view that my disposition of the issue of the Board's treatment of the applicant's medical reports disposes of this application.
[22] The application for judicial review is allowed.
[23] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[24] IT IS ORDERED that the application for judicial review is allowed and the matter shall be referred for rehearing by a differently constituted panel of the Board.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
January 16, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5023-02
STYLE OF CAUSE: LYUDMYLA VASYLIVNA VOYTIK
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, August 7, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, January 16, 2004
APPEARANCES:
M. Steven Beiles
FOR APPLICANT
Robert Bafaro
FOR RESPONDENT
SOLICITORS OF RECORD:
M. Steven Beiles
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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