[1] This application is for judicial review under subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the CRDD"), dated January 9, 2002, wherein it found the Applicants not to be Convention refugees. The Applicants seek an order for certiorari quashing the decision that they are not Convention refugees within section 2(1) of the Act, and remitting the application to a differently constituted tribunal. Alternatively, they seek a declaration from this Court that they are Convention refugees within the meaning of section 2(1) of the Act.
[2] The facts in this matter have been thoroughly summarized by the CRDD panel in its reasons as follows. The Applicant Eleonora Toth is a citizen of Romania who at the time of her hearing was 35 years old. Nora Ujlaki is the Applicant's 13 year-old daughter and her claim is essentially based on her mother's.
[3] The Applicant alleges a well-founded fear of persecution in Romania at the hands of ethnic Romanians, the Romanian Security Service ("SRI") and Romanian police authorities by reason of her Hungarian ethnicity, her religion as a member of the Reformed Church and her political opinion as a member of the Hungarian Democratic Alliance of Romania ("UDMR"). The minor Applicant alleges for her part a well-founded fear of persecution by reason of her Hungarian ethnicity and membership in a particular social group, i.e. as the daughter of the Applicant.
[4] In support of her refugee claim, the Applicant alleges that while attending a worship service at the Reformed Church in the region of Baia-Mare in March of 1996, five SRI officers interrupted the services and accused the worshipers of provoking anti-Romanian sentiments. She was taken to SRI headquarters, interrogated concerning the activities of the church and threatened with harm to herself and her daughter if she refused to provide information on the church's relations with Hungary.
[5] The Applicant alleges that in May of 1996, she worked as a UDMR scrutineer at a voting station and was accused of attempting to influence an elderly woman to vote for the UDMR. She was ordered to leave the voting station and two days later was questioned by officials at the central election office in Baia-Mare who turned the matter to the police for investigation. In September of 1996, she was summoned to the police station and interrogated concerning her actions at the voting station in May of 1996. She was physically mistreated and detained over night. The Applicant officially joined the UDMR party in December of 1996 at which time she requested the assistance of UDMR concerning the police accusations against her. However, UDMR officials were unable to assure her that the case against her would be discontinued.
[6] The Applicant further alleges that in April of 1997, she was involved in distributing food and books received by the Reformed Church from Hungary and Germany. Two SRI officers and three soldiers came to her apartment, confiscated the donations and verbally and physically abused her. In March of 1998, she and four other individuals were arrested at the Reformed Church and taken to SRI headquarters. The Applicant claims she was physically mistreated by SRI officers and released the next day. In September of 1998, she was threatened and physically mistreated by SRI officers for refusing to provide them with information on the Reformed Church and the UDMR. Furthermore, in May of 1999, the Applicant alleges she was taken by two SRI officers to a cabin approximately forty kilometres from Baia-Mare and was physically assaulted and raped by one of them. Between 1996 and 1999, she allegedly received several threatening phone calls from the SRI.
[7] Finally, the Applicant alleges that following the birth of her male triplets in May of 1990, they were taken by hospital and government authorities and placed for adoption by reason of her Hungarian ethnicity.
[8] The Applicants' refugee claim hearing took place at two sittings, one on May 30, 2001 where she gave her own evidence in English and the second on October 29, 2001 where there was a Hungarian/English translator present. The CRDD panel's analysis of the Applicants' many allegations as well as the voluminous documentary evidence may be summarized as follows.
[9] First, while the Applicant's evidence with respect to her membership in the Reformed Church of Baia-Mare was accepted as credible, the panel found that there was no documentary evidence of harassment of worship by the SRI and Romanian police in connection with the Reformed Church. At page 5 of its decision, it stated :
The panel considered the documentary evidence before it concerning the treatment of members of various religious sects in Romania. This documentary evidence indicates that the 1989 revolution in Romania brought freedom of religion following decades of Communist efforts to control and minimize religion in national life. Pentecostals and other unregistered sects in particular had a difficult time and even the adherents of the majority Orthodox Church found that open worship could preclude upward professional mobility. Since the revolution, the situation has been transformed, marred only by occasional unsanctioned harassment by local officials that impedes worshipping and proselytizing. Other documentary evidence before the panel indicates that on September 9, 1999, the Romanian government adopted a new bill on religious denominations which "guarantees equal treatment of all denominations by the state". There is no documentary evidence before the panel that indicates that the SRI or local police authorities harass followers of the Reform Church or any other religious sect in Romania. The panel prefers the reliability and impartiality of the foregoing documentary evidence before it to the evidence and testimony of the female claimant. The panel finds there is insufficient credible evidence before it to establish, on a balance of probabilities, that the female claimant's fear of persecution at the hands of the SRI or Romanian police authorities by reason of her religion is well-founded. [footnotes omitted]
[10] Second, the Applicant's evidence with respect to her participation with the UDMR was accepted by the panel but her credibility was challenged because the panel drew a negative inference from the difficulties she encountered in her testimony, saying that the UDMR would not have failed to protect her. The panel's finding on this point was based primarily on the weight of the documentary evidence, but also on various implausibilities in the Applicant's evidence and on her low profile in the UDMR. Thus, at page 6 of its reasons, the panel stated :
The panel considered the documentary evidence before it respecting the treatment of ethnic Hungarians and UDMR members by the SRI and Romanian police authorities. The documentary evidence before the panel indicates that the UDMR is well established and accepted as a political force in Romania, having been part of the Romanian government ruling coalition following the 1996 elections. According to representatives of Liga Pro Europa and Minority Rights Group International (MRG), as well as Romania's former Minister for Nationalities (a UDMR Member of Parliament) the UDMR is able to function without impediments. [...] The documentary evidence before the panel is devoid of indications that members of the Hungarian minority in Romania are subjected to systematic arrests, detentions, assaults and mistreatment by the SRI or local police because of their Hungarian ethnicity or membership in the UDMR.
[...]
The panel had serious concerns with the female claimant's allegation that she was targeted by the SRI and police authorities by reason of her UDMR membership and activities. With respect to the female claimant's allegations that she was accused of election fraud by the SRI and police authorities, the panel finds it implausible that UDMR officials would not intervene on her behalf with police authorities when she requested their assistance, given that the UDMR became part of the Romanian government ruling coalition following the 1996 elections. Similarly, the panel finds it implausible that she was unable to obtain assistance from the UDMR or government authorities respecting the alleged threats and mistreatment she experienced at the hands of the SRI and police authorities. The panel prefers the reliability and impartiality of the foregoing documentary evidence to the female claimant's evidence and testimony. [footnotes omitted]
[11] Finally, the panel determined that the Applicant's allegations that a SRI officer had raped her were not credible because she did not obtain a medical report, nor did they jive with the weight of the documentary evidence. At pages 11-12 of its reasons, the panel stated :
Given the claimant's evidence that she was raped by a SRI officer in May of 1990, the panel considered the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. Having found that the female claimant's fear of persecution at the hands of the SRI by reason of her religion, nationality or political opinion is not well-founded, the panel further considered, within the context of Chairperson's Guidelines, whether the claimant's fear of persecution in Romania by reason of her membership in a particular social group is well-founded. Based upon the Ward decision, gender is an innate characteristic, and therefore women may form a particular social group within the Convention refugee definition. It is the female claimant's evidence that she was taken by two SRI officers to a cabin approximately forty kilometres from Baia-Mare and while there was physically assaulted and raped by one of them. During this physical assault, a mole on her stomach was scratched and began bleeding and following the incident she required medical treatment to remove the mole. At the hearing, the claimant was asked why she did not attempt to obtain a medical report or certificate to corroborate the rape and the removal of her mole. She testified that she had obtained many medical reports, but did not think to keep them. The panel finds the claimant's explanation for not obtaining a medical report to corroborate a central element of her refugee claim to be unreasonable and not credible. Given that she was able to obtain other medical reports to corroborate her refugee claim, the panel draws a negative inference from her failure to obtain a medical report respecting this element of her claim.
The panel reviewed the documentary evidence before it respecting sexual violence against women by police or SRI officers in Romania. The documentary evidence before the panel indicates that violence against women, including rape, continues to be a serious problem in Romania and both human and women's rights groups credibly reported that domestic violence is common. Other sources indicate that the major form of abuse facing women in Romania is that of domestic physical abuse and marital rape and the difficulty they experience in obtaining protection from the perpetrators and accessing remedies for such assaults. Other documentary evidence provides information concerning a woman raped by a police officer in 1993 that was subsequently settled in civil court and the victim received payment for moral damages. The victim had been arrested and detained by police in Bucharest under a charge of embezzlement. However, there is no other documentary evidence before the panel referring to instances of women being sexually assaulted by SRI officers or police authorities. The panel prefers the reliability and impartiality of the documentary evidence before it to the evidence and testimony of the female claimant. [footnotes omitted]
[12] Based on the foregoing credibility findings respecting the Applicant's evidence and testimony and the documentary evidence before it, the CRDD panel concluded that there was insufficient credible evidence before it to establish, on a balance of probabilities, that the Applicant's fear of persecution at the hands of the SRI or police authorities is well-founded. There was not more than a mere possibility that she and her daughter would suffer persecution by reason of her Hungarian ethnicity, religion, political opinion or membership in a particular social group if they were to return to Romania today.
[13] The Applicants now seeks judicial review of the decision of the CRDD. By order rendered on June 21, 2002 by the Honourable Madam Justice Layden-Stevenson, leave to commence a judicial review application in respect of that decision was granted.
[14] Counsel for the Applicants framed the issues in this application in the following terms:
1) Whether the CRDD panel erred in law by drawing negative inferences unsupported by the evidence with respect to the actions and rationale of state authorities and other perpetrators;
2) Whether the CRDD panel erred in law by requiring the Applicants to satisfy an unreasonable evidentiary burden and concluding that the Applicants were not credible because they did not meet the evidentiary burden;
3) Whether the CRDD panel based its decision on erroneous findings of fact that it made without regard for the material before it; and
4) Whether the CRDD panel erred in law by ignoring significant evidence with respect to country conditions and failed to consider whether in light of all the evidence, the Applicants' fear of persecution was well-founded.
[15] The Applicants submit that the CRDD panel's decision is primarily based on findings of lack of credibility which were in turn based on inferences unsupported by the evidence, made in the absence of evidence altogether, and based on erroneous findings of fact.
[16] First, it is submitted that the panel ignored documentary evidence with respect to the harassment of religious minorities in Romania. While the panel is correct in stating that there was no direct mention of the harassment of Reformed Church members in the documentary evidence, there was specific reference to the harassment of Protestant church members. This was essentially ignored by the panel. It is submitted that it was unreasonable for the panel to draw the conclusion that Reformed Church members are not harassed because the documentary evidence did not specifically refer to that.
[17] Second, the Applicant submits that the adverse inferences drawn by the panel with respect to the mistreatment suffered in the hands of Romanian police in connection with her activities in the UDMR are totally unsupported by the documentary evidence.
[18] Finally, with respect to the incident of sexual assault, the panel again drew a negative inference because the Applicant did not have a medical certificate attesting to the assault and the removal of her mole. The Applicant submits that she explained it was not possible to get copies of those medical certificates and also explained that, for this reason, she went to a doctor in Canada to support the fact that she had a scar on her abdomen, as indicated in her testimony.
[19] It is well established that credibility is a question of fact that is entirely within the jurisdiction of the CRDD panel as the trier of fact. The panel is free to find that an applicant is untrustworthy on the basis of implausibilities in his or her testimony, provided that its findings are not unreasonable and that its reasons are set out in "clear and unmistakable terms" : Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. (F.C.A.); Hilo v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 201 (F.C.A.). A reviewing court cannot therefore interfere with the panel's findings of fact unless the panel reached its decision in a perverse or capricious manner or without regard for relevant evidence submitted to it. Furthermore, the burden on the applicants to rebut the Board's finding that they lack credibility appears to be very heavy.
[20] However, following my careful review of the Certified Tribunal Record filed with this Court as well as the voluminous documentary evidence, I am satisfied that the panel erred in its assessment of both Applicant's credibility and evidence. I find so for the reasons stated below.
[21] The first difficulty I encounter with the panel's decision is that it appears to be based on a misconstruction of the evidence in connection with the Applicant's claim of persecution by reason of her Hungarian ethnicity, her religion and her political opinion.
[22] With respect to the allegations of harassment of worship by the SRI and Romanian police in connection with the Reformed Church, the panel's primary consideration was the change in the political climate in Romania. Relying on the documentary evidence, the panel found that the 1989 revolution ousting Ceaucescu's dictatorship brought freedom of religion.
[23] I have difficulty discerning whether the panel disbelieved the events which had happened to the Applicant in the past or whether the panel questioned the Applicant's assertions that she would be harmed if she returned to Romania. The panel appears to have found that the Applicant's testimony was not credible as it found there was no direct and specific evidence with respect to harm suffered at the hands of the SRI or Romanian police authorities by members of the Reformed Church in Romania in the past. If this is the case, I submit that the panel erred in assessing change of country conditions. As the Federal Court of Appeal stated in Salibian v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 165, a refugee claimant need not show that he or she or members of his or her group have been persecuted in the past in order to establish the well-foundedness of the fear of persecution. Rather, the panel should consider whether the evidence on the record, together with past events, demonstrate that the claimant would objectively be at risk if he or she returned. This, in the case at bar, the panel seems to have failed to do.
[24] Furthermore, the panel's conclusion on this point is contradicted by portions of the documentary evidence not referred to by the panel in its reasons. While it is true that the country conditions documents do not make any direct and specific reference to problems with the Reformed Church in Romania in the past, the evidence does make reference to serious problems created for Protestant Churches by both local authorities and by the Romanian Orthodox Church. For instance, in a document entitled 1999 Country Reports on Human Rights Practices released by the Bureau of Democracy, Human Rights and Labor, U.S. Department of State on February 25, 2000, it is stated at pages 2, 10 and 15 (pages 174, 182 and 186 of the Applicant's Record ):
Societal harassment of religious minorities still remains a problem and religious groups not officially recognized by the Government sometimes complain that they receive discriminatory treatment from the authorities.
[...]
The Constitution provides for religious freedom, and the Government generally does not impede the observance of religious belief. However, several denominations continued to make credible allegations that low-level government officials and Romanian Orthodox clergy impeded their efforts at proselytizing. The press reported several instances when adherents of minority religions were prevented by others from practising their faith, and local law enforcement authorities did not protect them. Members of religious communities not officially recognized by the Government during the year again accused government officials of harassment - allegations denied by the Government. Proselytizing that involves denigrating recognized churches is perceived as provocative.
[...]
Most mainstream politicians publicly have criticized anti-Semitism, racism, and xenophobia. However, the fringe press continued to publish anti-Semitic harangues. The Romanian Orthodox Church has attacked the "aggressive proselytism" of Protestant and neo-Protestant groups.
[25] It is well settled that if a panel makes a finding of fact having misconstrued or ignored relevant evidence before it and relies on those findings when making an adverse determination as to credibility, the decision is unreasonable and warrants intervention : Lai v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 906 (QL) (F.C.A.); Toro v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 532 (QL) (F.C.T.D.). In the case at bar, the panel did not believe the Applicant's testimony with respect to the harassment of religious minorities by local officials in Romania. By doing so however, it ignored relevant documentary evidence on this aspect of her refugee claim. It was therefore unreasonable for the panel to draw a conclusion that there was simply no evidence that Reformed Church members are harassed in Romania and to dismiss solely on that basis this aspect of the Applicant's refugee claim.
[26] A perusal of the documentary evidence as a whole also clearly demonstrates that despite some measures to ameliorate the overall human rights situation in Romania after 1989, the country's human rights record remained seriously affected by discrimination, ill-treatment and misconduct by law enforcement officials and the SRI against ethnic Hungarians generally, and more specifically against religious minorities and members of the UDMR. It is noteworthy that apart from the Romania Binder as updated and some general information about the treatment of Romanians in Hungary (as opposed to the more relevant information with respect to the treatment of ethnic Hungarians in Romania today), no other country condition documentation was filed by the Refugee Claims Officer ("RCO") before the panel. Although the documentary evidence filed by the Applicant pointed to these serious concerns about the Securitate's successor agency, the SRI, and a resurgence of police abuse in Romania, the CRDD panel failed to recognize that the ill-treatment of UDMR members still occurs even after the change of regime and the 1996 elections. The selective treatment by the panel in respect of various portions of the documentary evidence on country conditions is far from enhancing one's confidence in the panel's assessment of the Applicant's credibility. In my view, while it was entirely open to the panel to base its decision on the documentary evidence rather than the testimony of the Applicant, it erred in reaching its conclusions by ignoring relevant evidence which supported the Applicant's narratives.
[27] Moreover, in reaching its conclusion that the Applicant was not credible, the Board did not identify any internal inconsistencies or contradictions in the Applicant's testimony, but rather inferred that important parts of her testimony were implausible. The panel determined that it was implausible that the UDMR officials would not intervene on her behalf with police authorities when she requested their assistance, given that the UDMR became part of the Romanian government ruling coalition following the 1996 elections. Second, the panel found it implausible that she was unable to obtain assistance from the UDMR or government authorities respecting the alleged threats and mistreatment she experienced at the hands of the SRI and police authorities. However, the documentary evidence does not disclose any information with respect to the UDMR being able to effectively intervene and indeed to the contrary indicates that UDMR members and officials are subject to detention, harassment, interrogation and threats by both police and prosecutors.
[28] Both divisions of this Court have consistently held that the CRDD's decisions must be based on the totality of the evidence contained in the Record.[1] This does not mean, however, that the CRDD must summarize all of the evidence, or that a decision will be quashed simply because the CRDD has failed to refer to some specific piece of documentary evidence in its reasons that tends to negate a finding of fact that the tribunal has made.[2] However, the more important the evidence that is not mentioned specifically and analysed in the tribunal's reasons, the more willing the Court may be to infer from the silence that the tribunal made an erroneous finding of fact "without regard to the evidence".[3] Thus, the CRDD is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence, particularly to those portions which are cogent and relevant to the applicants' allegations.[4]
[29] As Jerome A.C.J. stated in Leung v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 774 (QL) (F.C.T.D.) at para. 15, this duty becomes particulary important in cases such as this one where the panel has based its non-credibility finding on perceived "implausibilities" in the claimants' stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual panel member's perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the panel's decision clearly identifies all of the facts which form the basis for their conclusions.
[30] Given this clear obligation on the panel to base its decision on the totality of the evidence, combined with the duty to justify its credibility findings, it must be assumed that the panel's reasons contain a reasonably complete account of the facts which form the basis of their decision. The CRDD panel will therefore err in law when it fails to refer to relevant evidence which could potentially refute their conclusions of implausibility and to explain why it reduces or eliminates the weight the evidence should be given.[5] As stated, my review of the panel's implausibility findings and conclusions in light of the documentary evidence taken as a whole reveals that such an error has occurred here. The panel either overlooked important portions of the Applicant's evidence or chose simply to disbelieve that evidence. In the latter event, there is no evidence on this Record which could possibly form the basis for that disbelief.
[31] Finally, my examination of the Certified Tribunal Record indicates that the panel erred in law in giving no weight to the psychological evidence of Ms. Frizzell that was properly before it, and by failing to give reasons for rejecting the totality of this expert's evidence. This Court has stated that while a tribunal is not required to refer explicitly to, or to analyse, every item before it in evidence that tends to negate a finding of fact that a tribunal has made, much depends upon the relevance and cogency of the evidence, and upon its importance to the ultimate decision on the fact to which the evidence relates. Thus, the Court will not require the CRDD panel to accept the psychiatric evidence as a whole but only to give it proper consideration.
[32] In the case at bar, I am satisfied that in making its finding to give no weight to the expert report of Ms. Frizzell, the panel did not come to grips in its reasons with the content of that report and did not explain why it dismissed it. A careful review of Ms. Frizzell's report and the transcript of her viva voce evidence at the hearing can only lead me to conclude that the report had such cogency that it was a fatal error for the panel not to have expressly addressed this evidence in its reasons.
[33] In conclusion, while the panel is entitled to make implausibility findings, these must be based on the totality of the evidence and must be clearly supported in the panel's reasons. Neither of these conditions was satisfied in the case at bar as the panel ignored important portions of compelling evidence with respect to certain aspects of the Applicant's refugee claim which corroborated the Applicant's testimony. The same may be said of Ms. Frizzell's expert report which was, surprisingly enough, not even commented. In light of the cogency of the psychological evidence before it, the panel certainly had no good reason to totally ignore its content.
[34] Considering the decision I have reached, I need not determine whether the panel erred in other respects in its decision although I am inclined to think that many other findings of implausibility of the panel are also unreasonable and unsupported by the evidence. Suffice it to say that the abovementioned errors fundamentally affected the panel's analysis of whether there exists a well-founded fear of persecution if the Applicants were to return to Romania.
[35] The foregoing is not to say, of course, that the conclusion reached by the CRDD panel with respect to the well-foundedness of the Applicant's fear of persecution might not have been reasonably open to it. It is simply to say that the analysis of the CRDD in its reasons in this matter was flawed and insufficient to support the conclusion that it reached on certain aspects of the Applicant's claim.
[36] On the basis of the evidence which was ignored or misconstrued, I have no hesitation in coming to the conclusion that the panel's implausibility findings on at least two major findings of the panel's decision were not reasonable and require the Court's intervention. In light of all these errors, I have concluded that the most prudent course of action, therefore, is to err on the side of caution and refer this application back to another CRDD panel for reconsideration.
[37] For all these reasons, I hereby allow this application for judicial review.
JUDGE
OTTAWA, Ontario
November 1st, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-347-02
STYLE OF CAUSE: Eleonor Toth and Nora Ujlaki v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Calgary
DATE OF HEARING: September 16, 2002
REASONS FOR Order : The Honourable Mr. Justice Rouleau
DATED: November 1, 2002
APPEARANCES:
D. Jean Munn FOR APPLICANTS
W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
D. Jean Munn
Barrister and Solicitor FOR APPLICANTS
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
[1] See for example Toro v. Canada (Minister of Citizenship and Immigration), [1981] 1 F.C. 652 (F.C.A.); Olmedo v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 125 (F.C.A.) and Okyere-Akosah v. Canada (Minis ter of Employment and Immigration.), [1992] F.C.J. No. 411 (QL) (F.C.A.).
[2] Noor Hassan v. (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Hassan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1359 (QL) (F.C.T.D.) at para. 18.
[3] Cepada-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL) (F.C.T.D.) at para. 17.
[4] See for example Armson v. (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.) and Rajaratnam v. Canada (Minister of Employment and Immigration)(1991), 135 N.R. 300 (F.C.A.).
[5] Khawaja v. Canada (The Minister of Citizenship and Immigration), [1999] F.C.J. No. 1213 (QL) (F.C.T.D.) at para. 9; Mirahmud v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1541 (QL) (F.C.T.D.) at para. 24, 38.
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