Date: 20110427
Docket: IMM-3793-10
Citation: 2011 FC 497
Ottawa, Ontario, April 27, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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DAVAAJAV GORDOO,
MUNKHZUL DAVAAJAV,
TSETSGEE LUVSANTSEND,
BADRAL DAVAAJAV,
ERDENE YURA
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Applicants
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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]
When
this matter came before the Court for hearing there were five applicants, all members
of the same family and citizens of Mongolia. They were the
principal applicant Mr. Davaajav Gordoo, 54 years old at the time of the
refugee hearings; his then 53-year old spouse, Tsetsgee Luvsantsend; Munkhzul
Davaajav, the 20-year old daughter of Mr. Gordoo and the step-daughter of Ms.
Luvsantsend; Badral Davaajav, 19 and Erdene Yura, 32, sons of Ms. Luvsantsend
and stepsons of Mr. Gordoo.
[2]
Following
the hearing, a Notice of Discontinuance was filed on behalf of Ms. Luvantsend,
Mr. Davaajav and Mr. Yura. This decision will, therefore, deal only with the
application of Mr. Gordoo and his daughter Ms. Davaajav. As the Board’s decision
with respect to their claims was based in part on findings concerning the evidence
of Ms. Luvantsend and Mr. Yura, some reference must be made to those findings
and that evidence in these reasons, notwithstanding that they are no longer
part of this application.
[3]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 of a decision by a Member of
the Refugee Protection Division of the Immigration and Refugee Board made on
May 28, 2010.
BACKGROUND:
[4]
The
applicants based their refugee claim on a fear of persecution on the grounds of
political opinion as a result of Mr. Gordoo's membership in the Democratic
Party. Mr. Gordoo says his problems first arose in 1998 when he held the
position of secretary for a committee engaged in the privatization by auction of
state owned companies in the City of Erdenet. He says that at that
time he refused to cooperate with demands from the provincial head of the
committee to include a number of persons and organizations on a list of those
awaiting transfers of the companies to private ownership. He was threatened
with dismissal if he did not cooperate and received calls from people who
offered bribes if he completed the arrangements.
[5]
Mr.
Gordoo testified that he complained to the police about the calls. He says he was
summonsed to the police station and detained for 72 hours during which he was
mistreated. As a result, he resigned his position as secretary to the committee
and later found other employment.
[6]
Mr.
Gordoo says he joined the Democratic Party and in 2002 began to speak out
against the wrongs committed during the privatization program. This led to
threats from persons who wanted him to keep quiet about these events and
harassment by the police. In April 2005, he was attacked by a group who
threatened to kill him if he did not stop criticizing powerful people. He and
his wife obtained visas to come to Canada in 2006 and claimed refugee
protection upon arrival. Two of their children arrived via the United
States
in 2007. Five other children remained in Mongolia.
[7]
Ms.
Luvantsend testified that, after their departure, their home in Mongolia was broken
into and the children who continued to live there were attacked. Mr. Yura said
he was detained and mistreated by the police. Both based their claims on Mr.
Gordoo’s evidence and said they were targeted due to Mr. Gordoo’s past
political and professional activities.
[8]
The
hearing before the Refugee Protection Division was conducted on July 2, 2009,
October 20, 2009 and January 20, 2010. At the time of the hearing on January
20, 2010, Mr. Gordoo had been undergoing chemotherapy for gastric cancer and
was facing major surgery within a few days. A report from his oncologist filed
as an exhibit indicated that he was suffering side effects including feeling
forgetful as a result of the treatment. In addition, reports from a psychiatrist
and a general practitioner who are members of the Canadian Centre for Victims
of Torture (“CCVT”) medical network were filed in evidence before the Board.
DECISION
UNDER REVIEW:
[9]
The
Member’s decision, that the applicants are not Convention refugees and are not
persons in need of protection, turned on the credibility of the evidence of Mr.
Gordoo, Ms. Luvantsend and Mr. Yura. The Member drew negative inferences and
made implausibility findings based on the fact that there were inconsistencies
between Mr. Gordoo’s Personal Information Form (“PIF”) and his oral testimony. His
testimony was found to be “confusing and contradictory”. The evidence of Ms.
Luvantsend and Mr. Yura was found to be untrustworthy and not credible.
[10]
The
Member noted that Mr. Gordoo was undergoing chemotherapy and was to undergo
surgery two days later. Reference was made to the memory loss reported by the
oncologist. The Member discounted the reports from the CCVT Doctors as opinions
“…only as valid as the truth of the underlying facts on which the opinion is
based”.
[11]
In
addition, the Member found that the applicants did not provide clear and
convincing evidence to rebut the presumption as to Mongolia’s inability
to protect its citizens. Mr. Gordoo, it was found, did not report or discuss
the fraudulent privatization scheme with his superiors or the police. The
Member noted that corruption in Mongolia is widespread but held that
it was not endemic or pervasive and that the authorities were attempting to
tackle corruption before it became a major problem.
ISSUES:
[12]
The
issues raised in this case are whether the Board made reasonable credibility
findings and properly considered the totality of the evidence.
ANALYSIS:
Standard of
Review
[13]
Because
a decision maker’s credibility analysis is central to its role as trier of
fact, and due to the particular expertise of the Board, the Board is owed
deference from this Court: Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paras. 55 and 64; Lin v. Canada (Minister of
Citizenship and Immigration), 2008 FC 698 at paras. 11-12. The standard
of review with respect to assessment of the evidence is one of reasonableness: Ndam
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 513 at para. 4.
[14]
In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: Dunsmuir, above, at para. 47, and Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
Were the
credibility findings reasonable?
[15]
The
applicants submitted that the Member performed a microscopic analysis of the
evidence, failing to take into account that the events took place over 12 years
ago and that Mr. Gordoo was suffering from forgetfulness and confusion due to
his medical condition. This, it was submitted, amounted to focusing on
inconsistencies that were insignificant and not central to the claim. The
Member did not discuss the 72-hour long detention or the treatment Mr. Gordoo received
in detention. Furthermore, the applicants contend, the Member erred in
attributing no weight to the medical evidence presented and failed to consider
the documentary evidence regarding the problem of government corruption in Mongolia. Instead,
the Member found corruption not to be endemic or pervasive and that the
authorities are attempting to tackle it. This was contrary to the evidence.
[16]
It
is well established that when an applicant swears to the truth of certain
allegations, there is a presumption that those allegations are true, unless
there is a reason to doubt their truthfulness: Maldonado v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 at para. 5
(F.C.A.) (QL). The presumption is, of course, rebuttable: Qasem v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1182 at para. 46; Orelien v. Canada (Minister of
Employment and Immigration) (1992), 135 N.R. 50, 15 Imm. L.R. (2d) 1
(F.C.A.). In
this case, the Member found that Mr. Gordoo’s evidence was not truthful, a
finding that would rebut the presumption if it can be said to be reasonable.
[17]
On
some elements of Mr. Gordoo’s evidence, it was clearly open to the Member to
draw a negative inference as to credibility. For example, at the hearing, Mr.
Gordoo stated he was fired from his position because he refused to facilitate
fraudulent privatization. In his PIF, he said he resigned from his position and
continued as an ordinary member of the committee. That is an evident
contradiction which the Member could reasonably rely on in support of a finding
that the applicant lacked credibility.
[18]
Other
negative credibility findings were reasonably based on the implausibility of
events described by Ms. Luvantsend and Mr. Yura. The Member found that Ms.
Luvantsend’s claim that individuals came to her house and attacked her
children, demanding to know the whereabouts of their father twelve years after
he had left his position and three years after they had left Mongolia to be
implausible. It was reasonable, based on the time elapsed between these two
events, for the Member to make such a finding. Significant omissions in Mr.
Yura’s evidence from what he had recounted in his narrative similarly support a
negative credibility determination. It was also reasonable for the Member to
make an adverse inference regarding Mr. Gordoo and Ms. Luvantsend’s subjective
fear in that they would not have left their children in Mongolia if they had
perceived them to be in danger.
[19]
However,
the Member also drew an adverse inference from a perceived inconsistency
between Mr. Gordoo’s evidence and his narrative that is not borne out of a close examination of the transcript of the
hearing. In his narrative, Mr. Gordoo said that after the meeting with the
provincial head of the privatization committee he started receiving phone calls
and bribes to “complete the deal”. The Member found this to be inconsistent
with his oral testimony. As the Member put it, “[h]is initial response was that
he could not tell his boss because, right after the meeting, he was detained by
the police”. Contrary to the Member’s understanding, Mr. Gordoo did not give
evidence that he was detained immediately after the meeting. His testimony was
consistent with his narrative that there was a period following the meeting in
which he was subject to pressure to approve the transfers before he was
detained by the police.
Did the Board
fail to take into account the totality of the evidence?
[20]
Mr.
Gordoo’s evidence at the hearing suffered from what the Member described as
“confusing and contradictory responses”. This may have been linked to the
medical conditions from which he was suffering. The Member acknowledged that
Mr. Gordoo had medical problems and faced a major operation within two days of
the last hearing date. It was noted that efforts had been made at the hearing
to “respect the claimant’s particular circumstances and the stress of the
hearing room.”
[21]
It
is reasonable to assume that in addition to the stress which claimants normally
experience in testifying before the Board, Mr. Gordoo was suffering from the
effects of chemotherapy and contemplating the forthcoming operation. His
oncologist had reported a complaint of memory loss. This may have served as at
least a partial explanation for the confusing and contradictory nature of Mr.
Gordoo’s testimony. The Member does not appear to have taken that into account
in assessing his evidence.
[22]
It
was open to the Member to discount the reports of the psychiatrist and general
practitioner to the extent that they were based on information provided to them
by Mr. Gordoo about his experiences in Mongolia. Such
reports cannot be relied upon to bolster an account of persecution that is
otherwise found to be not credible. They have no greater evidentiary value than
that of the source and cannot be characterized as corroborative. That the
authors belong to a network of physicians dedicated to treating the victims of
torture is laudable but does not add probative force to their repetition of the
claim as it was told to them. It was perhaps that type of opinion evidence that
the Member had in mind when she discounted these reports.
[23]
In
this case, however, the report of the general practitioner, Dr. Block, also included
the results of a physical examination of the applicant which disclosed evidence
of injuries and scars. The doctor stated his opinion that these were consistent
with the applicant’s history of torture and assault in Mongolia. While that
opinion was not determinative of the question whether the applicant’s history of
physical abuse was credible or not, which remained within the Board’s
fact-finding mandate, it should have been taken into consideration. The evidence
appears to have been overlooked by the Member, perhaps because of the four
months which had passed between the last hearing and the writing of the decision.
[24]
The
Member noted that Mr. Gordoo had joined the Democratic Party and had begun
exposing the wrong-doing during privatization. It was also noted that the
applicant had testified to having been attacked by a group of people who
threatened to kill him if he did not stop criticizing powerful people. However,
in her analysis, the Member did not include a consideration of the attack, the
death threat or how those incidents may have been a factor in the applicant’s
objective or subjective fear of persecution. Instead, the analysis focused on
the implausibility that Mr. Gordoo would be approached in 2005 when he had not
been involved in the privatization scheme since 1998. This was a cursory
analysis that failed to consider a question that dealt with the heart of the
matter in a meaningful way.
[25]
Finally,
the Member concluded that “[a]lthough corruption is a problem in Mongolia, it is not
endemic or pervasive, and the authorities are attempting to tackle corruption
before it becomes a major problem”. The Board had before it a number of
objective country reports indicating that corruption permeates all levels of
government in Mongolia. As the
Member makes no reference to these reports in her reasons, it is difficult to
understand how she could have concluded that corruption in that country was not
endemic or pervasive. The failure to discuss the contrary evidence supports an
inference that the Member failed to take the reports into account.
[26]
In
the result, I am not satisfied that the Board’s decision in this case was based
on the evidence before it. With all due deference to the Board’s fact-finding
mandate, I am unable to conclude that the decision meets the standard of
reasonableness. This matter must be remitted for reconsideration by a
differently constituted panel.
[27]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that:
1. the
application for judicial review of the decision made by the Refugee Protection
Division on May 28, 2010 with respect to the claims of Davaajav Gordoo, and
Munkhzul Davaajav is granted and the matter is remitted for reconsideration by
a differently constituted panel;
2. the
applications for judicial review with respect to the decision of the Refugee
Protection Division regarding the claims of Tsetsgee Luvsantsend, Badral
Davaajav and Erdene Yura are discontinued; and
3. no questions
are certified.
“Richard
G. Mosley”
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