Date: 20030722
Docket: IMM-2753-02
Citation: 2003 FC 904
Ottawa, Ontario, this 22nd day of July 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
SILVIA MARINOVA SCHOPOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Silvia Schopova claims that she endured numerous discriminatory, menacing and violent acts because of her Roma ethnicity during the 37 years she lived in Bulgaria. She feared skinheads in particular, and blamed them for the most serious forms of mistreatment, including a sexual assault just before she fled to Canada in 2000. She made a claim for refugee status in Canada, but a panel of the Immigration and Refugee Board dismissed it. She argues that the Board made serious errors when it found that her evidence was not credible in important areas and that her allegations did not amount to persecution. She asks, by way of this application for judicial review, for a new hearing before a different panel.
[2] There are two issues in this case:
(1) Did the Board err when it found that Ms. Schopova's evidence lacked credibility?
(2) Was the Board mistaken when it concluded that Ms. Schopova was not persecuted?
A. Did the Board err when it found that Mr. Schopova's evidence lacked credibility?
[3] The Board referred to several areas where it doubted Ms. Schopova's evidence. Most importantly, it found that a group of skinheads did not sexually assault her in May 2000. The Board gave a number of reasons for that conclusion:
. Ms. Schopova agreed with the Board that her neighbours would probably have heard the commotion when the skinheads broke into her home, as well as her subsequent screams. She could not explain why they did not investigate, call the police or ask her about the incident later. Nor could she describe the reaction of her sons who returned to the apartment the next day and must have seen the damage.
. Ms. Schopova failed to mention in her Personal Information Form (PIF) that her husband had been tied to a chair and forced to watch the assault. Nor did she mention this to a psychologist who prepared a report supporting her claim.
. The psychologist found that Ms. Schopova is afraid of the dark, "as her rape occurred in the evening". The Board deduced that, if her husband had witnessed the assault, the lights in the apartment must have been turned on at the time. It wondered why this would cause her to be afraid of the dark.
[4] In my view, the Board erred when it relied on these grounds to find that Ms. Schopova had not been raped.
[5] There is no way of knowing whether the neighbours were at home at the time of the incident. Nor do we know whether anyone called the police. The Board had no evidence before it on these matters. All we know, based on Ms. Schopova's evidence, is that no one - neither neighbours nor the police - came to her aid.
[6] As for the reaction of her sons, Ms. Shopova said that she spent ensuing days and weeks in her bedroom. She did not discuss the matter with her sons or anyone else. They may well have asked her husband about it, but she did not know what questions they may have asked or what he might have told them.
[7] Ms. Schopova's narrative, as set out in her PIF, describes numerous incidents and forms of mistreatment she experienced over the course of her life in Bulgaria. On the subject of the sexual assault, she said that the skinheads "beat my husband brutally and then they raped me". True, she did not mention that her husband was tied to a chair. Similarly, the psychologist's report states simply that "she was raped and her husband was beaten". Again, the psychologist does not refer to his being tied to a chair. The Board asked Ms. Schopova about these omissions. She said that she was embarrassed about the fact that her husband was forced to witness the attack on her.
[8] In her oral testimony, Ms. Schopova gave a vivid, detailed account of the rape. It contains many facts not set out in her PIF or the psychologist's report. The Board could have seized on any one of these facts and drawn a negative inference from Ms. Schopova's failure to mention it elsewhere. But it is natural for a claimant to mention some facts at a hearing that she did not include in written materials. Here the Board specifically asked Ms. Schopova where her husband was when she was being attacked. She responded clearly and forthrightly, and explained her failure to mention the matter earlier. I see no basis on which to question her credibility in this area.
[9] Regarding Ms. Schopova's fear of the dark, the Board had no evidence about the level of illumination in the apartment at the time of the rape. Its conclusion that the circumstances would not cause a person to fear the dark is purely speculative.
[10] Accordingly, the Board's finding that the sexual assault did not happen was not based on a fair assessment of the evidence before it. This, in itself, might justify a new hearing, but there are two other credibility findings that I must also discuss.
[11] Ms. Schopova testified that she had been asked by skinheads to work for them as a prostitute. The Board asked her when that happened. She said that it was after a physical attack on her in 1998 and before the rape incident in 2000. When the Board asked her to be more specific, she said that it happened in late 1999 or early 2000. The Board also asked her if the demand was made once or more often. She said that it was made on several occasions. The Board thought her answers were hesitant and vague. I cannot see any basis for that conclusion in the record.
[12] Finally, the Board felt that Ms. Schopova should have mentioned in her PIF that she had asked for a transfer from her work location after skinheads harassed her on the job. Again, the Board specifically questioned her about this at the hearing and elicited more information than was contained in her written narrative. This is neither surprising nor indicative of a lack of credibility. If this had been a central issue, the Board's concern might have been justified; but it was not.
B. Was the Board mistaken when it concluded that Ms. Schopova was not persecuted?
[13] After it concluded that the sexual assault did not occur, the Board went on to find that Ms. Schopova's remaining allegations amounted merely to discrimination and harassment; it was not persecution. However, in doing so, the Board failed to refer to any of her evidence. It did not mention that skinheads attacked Ms. Schopova and caused her a miscarriage. It did not mention that Ms. Schopova's son was pushed down the stairs at school and broke his leg. It did not mention the repeated attacks and threats that she and her husband endured over the years because of their ethnicity. Without any reference to this evidence, the Board's reasons for concluding that Ms. Schopova was not persecuted are inadequate.
CONCLUSION:
[14] The Board unfairly assessed Ms. Schopova's testimony, including her account of the sexual assault. It also failed to consider relevant evidence when it concluded that Ms. Schopova was not persecuted. Accordingly, she is entitled to a new hearing before a different panel of the Board.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is allowed;
2. The applicant is entitled to a new hearing before different panel of the Board.
3. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2753-02
STYLE OF CAUSE: SILVIA MARINOVA SCHOPOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JULY 8, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HON. MR. JUSTICE O'REILLY
APPEARANCES BY: Ms. Helen Turner
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Ms. Helen Turner
Barrister and Solicitor
80 Richmond St.
Suite 1505
Toronto, Ontario
M5H 2A4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent