Date: 20031107
Docket: IMM-5276-02
Citation: 2003 FC 1302
Ottawa, Ontario, the 7th day of November, 2003
Present : The Honourable Mr. Justice François Lemieux
BETWEEN:
ALLA TCHERNIOUK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Alla Tcherniouk (the applicant) is a Russian citizen, 43 years of age, who was denied refugee status on October 1, 2002, by the Refugee Protection Division (the panel) of the Immigration and Refugee Board, a decision that she is seeking to quash through this application for judicial review.
[2] The applicant cited conjugal violence as the ground of persecution: she fears persecution by a man named Evgeney Ryabi, a client of the bank where she worked in the Financial Controls Branch whom she came to know in October 1997.
[3] Mr. Ryabi moved in with the applicant in June 2000, after she separated from her husband but, following several attacks, she threw him out of the apartment toward the end of August 2000.
[4] The panel did not find the applicant's story credible. It also found that the Russian state could protect her although it acknowledged that the documentary evidence indicated that women who are victims of conjugal violence inflicted by their husbands could not count on the protection of the police. This protection was, however, extended to victims of violence unrelated to domestic life.
[5] Paragraph 18.1(4)(d) of the Federal Court Act authorizes this Court to set aside a decision of a federal board, commission or other tribunal if the decision is based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[6] This Court has long held that "[a]lthough [it] is not generally empowered to intervene in questions that involve weighing the evidence, it is otherwise when that process is itself based on errors of law or findings of fact that are manifestly in error" (see Gracielome v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 463; Omorogbe v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 53; Sandhu v. Minister of Citizenship and Immigration, [2001] FCT 653; Zalzali v. Minister of Employment and Immigration, FCA, docket A-382-90).
[7] After hearing the parties, analysing the panel's decision and studying the transcript, I find that the panel has so misconstrued the evidence that the intervention of this Court is necessary. Several statements of fact are manifestly in error and are connected to the panel's findings on both credibility and state protection.
[8] I list the following errors and add that the respondent's counsel acknowledges the existence of several of these errors.
[9] The panel was mistaken when it wrote at page 4 of its decision that "she waited until 13 days after the rape to make a complaint". The evidence shows that she filed a complaint two days after the rape. This erroneous finding by the panel negatively tainted its analysis and its assessment of the credibility of the applicant's story.
[10] The panel found that there was state protection because, in its opinion, the violence to which the applicant was subjected was not conjugal violence as the product of a common-law union and consequently the attacks were ordinary crimes that the documentary evidence indicated were investigated by the Russian police.
[11] The panel forgot a subsequent finding at page 4, however, where it refers to "the fact that, the first time she went to the police, she gave them the impression that she and Evgeney were a couple rather than telling them that he had his own apartment". In other words, in the panel's opinion, the police were under the impression that they were a couple and therefore, for the police, it was not a case of ordinary violence but of conjugal violence, which explains why, according to the documentary evidence and the personal testimony, the Russian police mishandled the applicant's complaints.
[12] The panel misinterpreted the medical evidence (extract from medical record, medical first aid station No. 7, exhibit P-4). At page 5 of its decision, the panel writes that "the actions described in Exhibit P-4 are not related in any way to one of the Convention grounds". If we read the medical extract it states clearly that "[Translation] she was assaulted and beaten black and blue on August 17, 2000".
[13] The panel criticizes the applicant for having "waited until the next day to make a complaint after the first two attacks" (the attacks of July 22 and August 17, 2000). As for the second attack, the panel disregards the testimony of the applicant that indicated (page 370, certified record) that she had called the police at a special department immediately after the attack. As for the first attack, the panel disregarded the applicant's explanation, an explanation that seems entirely reasonable to me.
[14] The applicant's counsel cited several other errors of fact in the panels' decision:
(1) that the applicant's ex-husband lived with her until January 2001;
(2) the confusion surrounding the events before and after January 3, 2001;
(3) the explanation for the delay in claiming refugee status in Canada;
(4) concerning the time spent during the interview for the psychologist's report;
(5) concerning the role of her sister;
(6) the interpretation of the police investigation and their reports;
(7) the inaccuracy of the applicant's answer about protection.
[15] These errors are of more or less importance and some of them are not central to the panel's decision. However, they do demonstrate the panel's carelessness with the evidence as a whole and, coupled with the material errors listed above, lead me to find that the panel misunderstood the applicant's story and that its decision cannot be upheld.
ORDER
This application for judicial review is allowed, the decision of the panel is set aside and the applicant's claim is returned to the Refugee Protection Division for rehearing before a differently constituted panel. No question need be certified.
"François Lemieux"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-5276-02
STYLE OF CAUSE: Alla Tcherniouk and MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 25, 2003
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Lemieux
DATE OF REASONS: November 7, 2003
APPEARANCES:
Michel Lebrun FOR THE APPLICANT
Claudia Gagnon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Lebrun FOR THE APPLICANT
Montréal, Québec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada