Date: 20021211
Docket: IMM-5771-01
Neutral citation: 2002 FCT 1287
Ottawa, Ontario, Wednesday this 11th day of December, 2002.
Present: THE HONOURABLE MR. JUSTICE KELEN
Between:
ANNA (GANNA) IGNATOVA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[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, of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated November 20, 2001, wherein the applicant was declared not to be a Convention refugee as defined in the Immigration Act, R.S.C. 1985, c. I-2.
[2] In this case, the applicant, claimed to be a battered woman. She introduced a police certificate and a hospital certificate corroborating her evidence, which the Board dismissed as not probative. The Court is of the view that the Board's dismissal of the police certificate and the hospital certificate is patently unreasonable since these documents are objective, corroborative evidence that the applicant suffered injuries and hospitalization consistent with severe battering, and that the applicant made several complaints about her husband to the police.
FACTS
[3] The applicant is a citizen of the Ukraine who claims a well-founded fear of persecution based on her membership in a particular social group, women who have experienced long-standing abuse at the hands of their husbands. She also claims a fear of persecution based on her Roma ethnicity. She alleges that if she were to return to the Ukraine she would be persecuted and abused by her husband, and who has threatened to kill her partly because of her Roma ethnicity.
[4] The applicant alleged that she sought refuge in Canada because of spousal abuse. She testified that her husband repeatedly beat and raped her. The main issue is whether the Board's finding that the applicant was not credible was based on a patently unreasonable finding; namely that the Board attributed no weight to the collaborative evidence in a hospital certificate and a police certificate.
[5] The Board found that the applicant did not provide credible or trustworthy evidence in support of her claim. The Board drew an adverse inference from the fact that the applicant claimed refugee status two years and four months after her arrival in Canada, and after she was arrested and detained by Citizenship and Immigration Canada in September 1999.
ISSUES
[6] The applicant submits that the Board erred by failing:
- (a) to analyze the risk of persecution faced by the applicant due to her Roma ethnicity; and
- (b) to have regard to the documentary evidence, namely:
(i) a certificate that she had been hospitalized; and,
(ii) a police certificate that the applicant had filed many complaints with the police against her husband.
ANALYSIS
(A) Failure of the Board to analyse the risk of persecution faced by
the Applicant due to her Romany ethnicity
[7] The Court is satisfied that the applicant failed to establish a subjective fear of persecution due to her Romany ethnicity, other than the allegations of persecution by her husband. Accordingly, the Board did not err in finding that there was insufficient credible or trustworthy evidence on which to determine that the claimant had a well-founded fear of persecution in the Ukraine by reason of her Roma ethnicity.
[8] In order to establish a well-founded fear of persecution, a claimant must show both a subjective and an objective fear, see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. In Ithibu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 288, this Court concluded that evidence of an objective fear does not remove a claimant's burden to prove he or she has a subjective fear.
(B) Credibility finding with regard to the Applicant's fear of persecution
as an abused woman and dismissal of documentary evidence
[9] The applicant testified that the abuse by her husband started in 1995 when he became a member of an extremist group called Una-Unso, a group whose main goal was to clear the Ukraine of ethnic minorities including Romas. The applicant alleged that her husband, in the year he joined this racist group, came home drunk and beat and raped her. The applicant complained to the police. The applicant alleged that her husband beat her again for complaining to the police. The police dismissed the complaint as a domestic affair that would have to be resolved between the husband and wife. The next year, at the beginning of 1996, the applicant testified that her husband and his friend raped and beat her. Then in July 1996, her husband beat her and threatened to kill her. She was taken to the hospital by ambulance, and hospitalized from July 11 to July 26, 1996. The applicant produced a certificate from the hospital confirming her hospitalization for this period of 16 days and setting out the injuries as follows:
"Diagnosis: Closed craniocerebral injury, medium grade concussion, bruised injury of the nose bridge and superciliary arch. Multiple contusions on the thorax and left forearm."
[10] The applicant testified that there was another incident on December 21, 1996 when her husband came home drunk with a friend. She testified that her husband hit her, tore her clothes off to check the colour of her skin (as a Roma), and then he raped her. The applicant made two complaints to the police about this but the police did nothing so she decided to come to Canada in July 1997.
[11] The applicant filed a certificate from the police which states that the applicant complained many times with respect to her spouse.
[12] The applicant also introduced a letter from a Canadian doctor, Dr. J.E. Blakeney, who confirmed that the applicant was "missing most of her upper front teeth".
[13] The Board dismissed the police certificate as follows:
The report (police) makes no mention of the types of complaints, specifically the certificate never mentions any incidents of rape or spousal abuse nor does it indicate any dates or time frames of the claimant's alleged complaints [...] The panel finds that this certificate (police) is not indicative of any incidence of spousal abuse.
Similarly, the Board dismissed the hospital certificate as follows:
This certificate only provides a time frame for a hospitalization without mention of a reason for the hospitalization.
[14] I am of the view that the Board's dismissal of the police certificate, and the hospital certificate is patently unreasonable. The Board did not question the authenticity of the police certificate or the hospital certificate. The Court will take these documents to be authentic since the Board did not question their authenticity. These documents are corroborative, objective evidence that the applicant made complaints about spousal abuse to the police, and suffered serious injuries related to a beating by her husband, namely a craniocerbral injury, a concussion, a bruised injury of the nose and the superciliary arch (the front teeth) and multiple contusions on the thorax and left forearm. These injuries required hospitalization for over two weeks, and required that the applicant be taken to the hospital by ambulance. The ambulance was summoned by the neighbours according to the evidence. It is patently unreasonable for the Board to dismiss this evidence because the certificates do specify that these injuries were due to a beating by the applicant's husband. Battered women often hide the cause of their injuries due to shame.
[15] The Supreme Court of Canada in R. v.Lavallee, [1990] 1 S.C.R. 852 considered the plight of a battered woman. The Court stated that it is difficult for the lay person to comprehend the battered wife syndrome. It is commonly thought that battered women are not really beaten as badly as they claim, otherwise they would have left the relationship. In that Supreme Court case, Mrs. Lavallee was battered repeatedly and brutally. Mrs. Lavallee made several trips to the hospital for injuries strikingly similar too Mrs. Ignatova's. Moreover, the Supreme Court stated that battered women often explain the cause of the injuries as accidental. In Mrs. Lavallee's case the hospital records indicated on each occasion that the appellant attended the emergency department to be treated for various injuries which were caused by an accident.
[16] It is patently unreasonable for the Board to dismiss the police and hospital certificate. The police certificate and the hospital certificate constitute credible objective evidence corroborating the applicant's testimony that her husband beat her, that she suffered serious injuries which required hospitalization, and that she made many complaints to the police about her husband.
(C) Delay
[17] The Board also made an adverse finding of credibility due to the delay by the applicant in making her refugee claim. The applicant came to Canada on a visitor's visa to visit her uncle and had the visitor's visa extended. She testified that she did not know that she could claim refugee status based on spousal abuse.
[18] This Court has recognized that refugee claims based on spousal abuse are often delayed due to the nature of spousal abuse, i.e. the embarrassment for the victim which the victim will suppress. In this case, the applicant only made the refugee claim when confronted by the immigration authorities that her status to remain in Canada had lapsed and that she had to leave Canada. At that time, she obtained the advice that she could base a refugee claim on her fear of persecution by her husband if forced to return to the Ukraine. The Court finds that this explanation is reasonable, and the delay in making the refugee claim ought not to be the basis for rejecting the applicant's credibility with respect to spousal abuse.
CONCLUSION
[19] For these reasons, this application for judicial review will be allowed. Neither counsel proposed a question of serious importance for certification.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. This application for judicial review is allowed and the matter is referred to another panel of the Board for redetermination; and,
2. No question is certified.
(Signed) Michael A. Kelen _____________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5771-01
STYLE OF CAUSE: ANNA (GANNA) IGNATOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, NOVEMBER 27, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: WEDNESDAY, DECEMBER 11, 2002
APPEARANCES BY: Mr. Peter Woloshyn
For the Applicant
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD: Mr. Peter Woloshyn
Barrister and Solicitor
Yallen & Associates
204 St. George Street
3rd Floor
Toronto, Ontario
M5R 2A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021211
Docket: IMM-5771-01
BETWEEN:
ANNA (GANNA) IGNATOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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