Tocjeva v. Canada (Minister of Citizenship and Immigration), docket IMM-4808-96

     IMM-4808-96

BETWEEN:

     TATIANA TOCJEVA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

     This is an application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division [hereinafter, "CRDD" or the "Tribunal"], dated December 2, 1996, in which it was determined that the applicant is not a Convention refugee.

     The applicant requests that the Tribunal's decision be set aside and the matter be referred back for determination before a differently constituted Board of the CRDD.

THE FACTS

     The applicant is a citizen of Bulgaria. She came to Canada on March 3, 1993, and made a claim to Convention refugee status shortly thereafter. The applicant's refugee claim was heard jointly with that of her husband, Valeri Yordanov Tochev, on June 24, 1996. At the hearing, neither claimant was represented by counsel. The applicant and her husband are presently separated, and have been so since October, 1993.

     The Tribunal rejected the applicant's claim to Convention refugee status for the following reasons.

     First, the Tribunal did not accept the applicant's evidence of mistreatment by Bulgarian military authorities before she came to Canada, as well as the applicant's allegation that she would be persecuted by military authorities in Bulgaria should she be returned there. The Tribunal did accept that the applicant may have been questioned about her husband's whereabouts (because the husband left his civilian job in the military without permission), but concluded that this would have been perfectly normal under the circumstances. The Tribunal further concluded that, even if the applicant had broken the rules attached to have employment in the military and would face prosecution for this reason, such prosecution did not amount to persecution.

     Second, on the basis of documentary evidence and common sense, the Tribunal found that the husband's fear of vengeance on the part of Turks in Bulgaria lacked credibility. Therefore, any part of the applicant's claim that rested on the husband's claim on this point was also rejected.

     The Tribunal questioned the applicant as to whether she had any indication that the military was looking for her. The Tribunal's written reasons indicate that the applicant testified that several months after she had left Bulgaria, two people with Turkish accents and wearing plain clothes went to her parents' home and asked for her.

     Third, the Tribunal did not believe that the applicant had been raped by one of the above two men who had asked for her at her parents' home. The Tribunal believed that the account of the alleged rape incident was meant to relate to the vengeance of Turks against the applicant's husband. Because the Tribunal disbelieved the husband's story about the vengeance of the Turks, the Tribunal, in turn, found that the applicant's story about the rape could have no basis. The Tribunal concluded that even if the applicant had, in fact, been raped, such a rape would not in any way have been related to her husband's situation, but rather would have been an isolated, violent incident.

     An additional reason why the Tribunal disbelieved the rape incident is because it was not included in the applicant's original Personal Information Form [hereinafter, "PIF"], included with her refugee claim. The applicant testified that it was not included because the narrative had been prepared in the presence of her husband and her first lawyer, and she did not know how her husband would react to this information and was afraid of what her husband might tell her children about her. The Tribunal then asked the applicant why this incident was not included in her second narrative, which was not prepared in the presence of her husband. The Tribunal's written reasons indicate that the applicant replied that she had told her lawyer about being raped.

     The second narrative referred to above was entered as Exhibit "C-6" at the hearing. At page 14 of this narrative, the applicant's narrative reads as follows:

     The transcript of the hearing indicates that the applicant stated that two people in plain clothes had come to her parents' home in search of her after she had left Bulgaria. The applicant is also recorded as stating that other people in the region, with Turkish accents, were also asking for the whereabouts of herself and her husband.

DISCUSSION

     The Tribunal's first conclusion about the applicant's experiences with the military authorities rests on an assessment of the applicant's credibility. Normally, this Court is loathe to interfere in the CRDD's findings with respect to credibility.

     Regarding the Tribunal's conclusions that the penalties that would be faced by the applicant in Bulgaria for leaving her civilian post in the military without permission amount to prosecution, and not persecution, again, I find no reason to interfere.

     However, I believe that there are serious problems with the Tribunal's assessment of the alleged rape incident. Although it appears that the Tribunal accepted that the alleged rape was perpetrated by members of the military, it is also evident that the Tribunal understood the rape to have been perpetrated by Turks and was in relation to ethnic violence, and persecution arising from such violence.

     A second serious problem with the Tribunal's assessment of the alleged rape incident is the fact that the Tribunal's disbelief of the incident in partially grounded in the notion that it was not included in the second narrative attached to the applicant's PIF. Therefore, the Tribunal made a negative assessment of the applicant's credibility, and believed that she was concocting the story "on the spot," so to speak. However, the record clearly indicates that the rape incident was included in the second narrative. The Tribunal's assessment of the incident is, therefore, based on an erroneous finding of fact made without regard to the material before the Tribunal. This error is significant in this instance, because it also adversely impacted on the applicant's credibility.

     It is to be remembered that, according to the transcript of the hearing, the Tribunal accepted the applicant's PIF, and attached narrative, as sworn testimony from the very beginning of the hearing. The Tribunal cannot accept something as sworn testimony, and then make a decision as if portions of that sworn testimony do not exist.

CONCLUSION

     The applicant was unrepresented at her refugee hearing. Perhaps, if she had been represented by counsel at the hearing, it would have been easier for the Tribunal to keep track of the relevant evidence. The Tribunal's haphazard treatment of some of the evidence going to the heart of the issue of persecution, which resulted in relevant evidence being ignored, constitutes an error in fact made without regard to the material before the Tribunal.

     It is evident, from the record and the Tribunal's written reasons, that the Tribunal made errors in fact that led to a misunderstanding of the alleged rape incident. Because of the erroneous findings of fact, the Tribunal did not make an assessment of whether there is a reasonable risk of persecution to the applicant in light of the alleged rape incident. The applicant did not allege that she had been raped by a Turk, as the Tribunal believed that she had alleged. The applicant did not allege that she was raped by just anybody. She alleged that she was raped by a member of the military police, and that the military police were the authority that she was to turn to for protection.

     If it should turn out that the applicant's story in this regard is credible, then surely it would not be reasonable to conclude that rape is an acceptable form of prosecution in relation to laws of general application.

     In my view, the issue of the risk of persecution by the military authorities was not addressed by the Tribunal. The Tribunal's assessment of the applicant's credibility with respect to the alleged rape cannot stand, as it is based in erroneous findings of fact and ignores relevant evidence.

     The respondent made no written submissions in this case save and except a letter from counsel for the respondent to counsel for the applicant, which letter is dated September 5, 1997. Part of the letter reads as follows:

     This letter was not and did not qualify as respondent's submissions but the arguments advanced can be dealt with by a differently constituted Tribunal of the CRDD. The applicant's counsel was aware of the arguments advanced in the letter.

     This matter is referred back to a differently constituted Tribunal of the CRDD for redetermination on the issue of the alleged rape and the risk of persecution by the military. Credibility of the incident is to be assessed by the Tribunal. Accordingly, this application is allowed.

OTTAWA, ONTARIO      B. Cullen

September 11, 1997.      J.F.C.C.