Docket: IMM-7427-10
Citation: 2011 FC 870
Montéal, Quebec, July 12,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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DANUTA ZHURAVEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
So
much of Ms. Zhuravel’s story is so outlandish it beggars belief. Small wonder
her claim for refugee status was dismissed by a member of the Refugee
Protection Division of the Immigration and Refugee Protection Board. However,
one may be a liar and a refugee both. After stripping away the lies, Ms.
Zhuravel had still made out a strong case that she was the victim of domestic
violence in the Ukraine. The member misconstrued a crucial piece of
evidence, which leads me to grant this judicial review and to refer the matter
back to another member for re-determination.
[2]
According
to Ms. Zhuravel, her husband was indebted to Ukrainian gangsters, and escaped
them by coming to Canada in 1998.
[3]
Once
her husband left, the gangsters turned their attention to her. She received
insulting and threatening telephone calls and visits. In 2006, one of the
gangsters moved into her house and forced her to become his sex slave. She
came to Canada in November
2007 on a visitor’s visa and ultimately claimed refugee protection. There were
two bases for her claim: fear of the gangsters whom she termed “the mafia” and
domestic violence. While here she reconnected with her husband, whose time
ultimately ran out and who was deported back to the Ukraine in 2009.
[4]
Perhaps
she did not wish to admit that she voluntarily entered into a conjugal
relationship with the gangster in Ukraine, but all of the
evidence points that way.
[5]
However
the member also rejected the domestic violence portion of the claim. This is
what she had to say:
The claimant claimed she was beaten by
her co-habitant and required medical attention. She provided statements from
her friends and daughter to corroborate her claims of abuse by the gangster who
moved in. One statement dated 28 September 2010 from Roman Pokorczak referred
to the claimant having bruises and a plaster on her face on 1 April 2006. The
medical certificate dated 29 March 2006 lists her complaints as fatigue,
headache and dizziness. It does not indicate facial bruises. The treatment
included administration of a tablet 3 times a day but does not indicate a
plaster on her face. I think it reasonable to expect the medical evidence to
reflect the observations of the friend if the evidence is to be considered
reliable. As a result of the inconsistency and because I do not believe the
claimant I give little to no weight to the statements from members of her
family or close friends that could corroborate certain aspects of her account.
I find this contradiction in documents further undermines her credibility and
the credibility of her story.
[6]
The
member misread the medical report of 29 March 2006. It specifically said
“objective findings: broken nose, injured eyebrow.”
[7]
Although
she had left the Ukraine after this incident for Poland and then
returned, which might have put the subjective basis of her fear in doubt, there
is a second medical report dated 16 October 2007. At that time she was
diagnosed with a possible concussion. According to the patient “she sustained
beatings from her common-law spouse.” The member makes no reference to this
report. The applicant left for Canada shortly thereafter.
[8]
As
stated by Mr. Justice Evans in Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) 157 FTR 35, 1998 FCJ No 1425, and so often
repeated:
17 However,
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact "without regard
to the evidence": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
Thus, a blanket statement that the agency has considered all the evidence will
not suffice when the evidence omitted from any discussion in the reasons
appears squarely to contradict the agency's finding of fact. Moreover, when the
agency refers in some detail to evidence supporting its finding, but is silent
on evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
[9]
In
this case the medical evidence lends credence to Ms. Zhuravel’s story and thus
it was incumbent upon the member to set out reasons why those reports were not
reliable.
[10]
Had
the member found Ms. Zhuravel credible on this point, or at least entertained
the possibility that she was credible, she should then have considered state
protection and the internal flight alternative.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the judicial review is granted. The matter is
referred back to another member of the Refugee Protection Division of the
Immigration and Refugee Protection Board for re-determination. There is no
serious question of general importance to certify.
“Sean
Harrington”
FEDERAL COURT
SOLICITORS
OF RECORD
DOCKET: IMM-7427-10
STYLE
OF CAUSE: DANUTA
ZHURAVEL v. MCI
PLACE
OF HEARING: Toronto
DATE
OF HEARING: July 6, 2011
REASONS
FOR JUDGMENT: HARRINGTON J.
DATED: July
12, 2011
APPEARANCES:
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Steven Beiles
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FOR
THE APPLICANT
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Neeta
Logsetty
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FOR
THE RESPONDENT
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SOLICITORS
OF RECORD:
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Steven Beiles
Toronto, Ontario
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FOR
THE APPLICANT
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Myles
J. Kirvan
Deputy
Attorney General of Canada
Toronto,
Ontario
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FOR
THE RESPONDENT
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