Date: 19990714
Docket: IMM-4543-98
BETWEEN:
MARION GRIFFITH
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] For more than twenty years, while living in the Caribbean, Ms. Griffith suffered violence from her husband. As a consequence, she made a claim of Convention refugee status in Canada, and on 18 August 1998 her application was denied by the Convention Refugee Determination Division (the "CRDD"). 1 In the course of the hearing leading to this conclusion, the CRDD represented to the applicant that her credibility was not in issue, and, as a consequence, her counsel presented her case accordingly. For the reasons which follow, the CRDD"s decision must be set aside because, contrary to the representation made, the CRDD seriously impugned the applicant"s credibility, and, thus, a manifest breach of natural justice has occurred.
[2] In addition to dealing with this obvious reviewable error requiring a redetermination of Ms. Griffith"s application, to ensure a full and fair rehearing of her application, and, indeed, that of other women in her situation, I find it necessary to make an observation about the failure of the CRDD to adequately take into consideration the Immigration and Refugee Board"s own Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution 2 (the "Gender Guidelines").
A. The applicant"s story
[3] In quoting the applicant"s story as follows, I am not directing the CRDD on the redetermination to accept the applicant"s evidence; it is for members of the panel to make their own findings of fact. Instead, my purpose is to simply stress the point that, in considering a story such as the one the applicant tells and in making a finding of credibility, a decision maker must consider the evidence from the perspective of the teller, and, in particular, give careful consideration to what conduct might be expected of a woman living under the violent conditions described. Indeed, as pointed out below, this is the purpose of the Gender Guidelines , which I find to be a positive, enlightened, and necessary effort by the Immigration and Refugee Board to ensure knowledgeable and sensitive consideration of the evidence of women claiming refugee status because of violence within a relationship. A problem in the present case is that, quite apart from the manifest breach of natural justice found, there is no evidence that the Gender Guidelines were followed.
[4] The applicant, Marion Clotilda Griffith, is a 46 year old citizen of St. Vincent, a small Caribbean island. She came to Canada on 6 June 1992 on a visitor"s visa that was valid for three months. The applicant stayed beyond the expiration of the visa and did not make a refugee claim until 25 November 1997. Her claim is based on the state"s unwillingness or inability to protect her from spousal abuse. Her husband, the source of the abuse, remains in St. Vincent, and, indeed, has been actively seeking his wife"s return.3
[5] The applicant"s story of extreme abuse by her husband is fully described in the narrative portion of her complete Personal Information Form ("PIF") in support of her refugee claim. 4 An abridged account is quoted as follows in order to gain a full appreciation of the depth and severity of what the applicant says she experienced:
| I was married at the early age of eighteen (18) years. This was in 1971. My husband, Owen Griffith, was twenty-six (26) years old at that time. I had three (3) children by him before the marriage. Owen was about 6 feet three inches tall and over 185 pounds at the time. |
| About two (2) months after the marriage, everything went wrong. My husband had a job ...and took care of the home and children in terms of financial support. He met another woman ... After meeting her, he stopped supporting me and my children. My husband would come home asking for his lunch/dinner and I would have to explain to him that I did not have any money to buy groceries. My husband would become angry and would hit me in the face - sometimes it was a slap and other times it would be a punch. At times, it would be more than one blow and other times it would be multiple blows. |
| During this period, we were living with my father and one night, he complained to my father that I did not give him any dinner. My father called me and he asked me why I did not prepare dinner for Owen and I explained to him that I went into Owen's envelope to get money to buy groceries to make dinner - I did not get any further in my explanation. Owen punched me in my eye and then started to beat me. To this day, I still have a scar over my eye. After Owen beat me, he attacked my father....The attack by Owen on my father caused him a head injury which caused my father had [sic] to spend a week in the Georgetown Hospital.... |
| I left my father's house and went to live with Owen and for a while things were good between us. When I became pregnant with my fourth child, Owen began beating me again. I went to stay with my father. About three (3) to four (4) weeks later, my husband came to my father's house and asked me to come home. He promised me things would be different. Owen convinced me and I returned home with him. |
| On December 24, 1975, my father gave me some money to pay his taxes for him. My husband took the money and bought rum with it. I explained to Owen that the money was not mine - it belonged to my father. Owen replied, "What ever is in my house is mine". We began to argue. At that time I had a broken arm (this was not caused by my husband [as] I had fallen off a donkey and had broken my arm). Owen grabbed my broken arm and twisted it until I fell to the ground and then he started to beat me....My husband hit me in the head with a 4x4. I staggered out of the yard and went to my neighbour's house...My head was bleeding heavily. I left ...Owen caught up with me a very short [sic] way...He pulled me into a neighbour"s yard ...and poured a bucket of water over my head. The bucket of water was sitting in her yard at the time. Next, he picked up a big stone and raised the stone with both his hands to drop the stone on me....Before he could complete the action, I grabbed this uncle"s girlfriend...who was close by, and used her as a human shield....We then ran into [the] kitchen and we locked the door from the inside. Owen got an axe which he probably found in the yard where the neighbour was cutting wood for the oven, and began to hit the door with it....He split the door in two...By this time, the road was full of spectators....I could hear the people in the crowd saying, "If he wants to kill her, that's his business". |
| The most serious threat to my life happened on a Sunday, in the fields while I was attending to some goats. This was exactly one (1) week after I had left home following an argument with Owen. Since that time, I had been staying at my father"s house. Apparently that day, Owen hid close to the area where I had the goats because when I passed the area where he was hidden, he jumped out of the bush and began to strangle me. While he was strangling me, he said that a "hungry man is an angry man." I believed that because I was not cooking for him, he was upset. |
| I resisted Owen as much as I could but I could not get his hands from my throat. My knees began to buckle and I fell to the ground fraughting [sic] at the corners of my mouth. My eyes were closed and I believe Owen thought that I was dead because he released the hold on my throat and I laid very still. The truth is I do not know whether I was semi-conscious or fully conscious. All I remember was that I could again breath air into my lungs but I laid still until Owen walked away from me. After he was at a distance walking up the hill, I got up and he saw me. He then turned around and started to come back towards me. I began to run and I screamed "Murder"! Murder". Some boys were playing cricket on the other side of the river and they heard my screams and they start running towards my direction. At that time, Owen apparently saw them because he stopped chasing after me. |
| Another day, after the children had gone to school and my father had left, Owen came into the house and started to beat me and he ripped off my clothes. I ran out of the house wearing only my under wear (panty and bra) and ran into the neighbour's... house. The neighbour tried to stop my husband. Owen pushed her out of his way and attempted to enter the house.... |
| Over the years, Owen continued to beat me and I continued to report him to the police but no charges were ever laid. My husband had threatened to kill me several times. He said he would kill me, then hide my body so no one could find it. |
| I recall two beatings which occurred in 1979 when the La Soufriere (a volcano on the Island) erupted and we had to relocate to another part of the Island (a place call [sic] Biabou). It was a Saturday, and we had been at the camp for a while, and Owen wanted to go back to Overland (our home) because he claimed there was no privacy at the camp. ...He then began to beat me...The following day (Sunday), I was sitting in the Church yard with some other people. I saw Owen coming towards me but I did not run. I had not done him anything since the incident the last evening so I thought nothing of it. He had a machete (we call it a cutlass) and he came up to me and without a single word to me, he attacked me. He struck me across my shoulder with the machete several times. At the time Owen attacked me with the machete (cutlass), the other people fled. I asked one of the women... who had witnessed the beating to come with me to the Police station so I could make another report. She accompanied me but refused to make a statement fearing that Owen would come after her. |
| In 1981, around Holy Thursday, I recall that I was waiting for Owen to come home because he normally gets paid then and so I wanted some money to do grocery. Not seeing him, I sent our oldest son to find him at the rum shop and to ask him for money to buy groceries. He sent back a message that he had no money and that "I was too fresh". My oldest son advised me that I should leave the home because he feared that when Owen came home, he was going to beat me. I did not leave because at that time, I was preparing the pig"s food and simply put, at that time, I really did not feel like going to beg another person for lodging. |
| When Owen came in, I was sitting outside on the steps to the house and the house was in darkness because we did not even have matches to light the lamp in the house. He asked me for the matches and I did not answer. He then repeated and said "Woman, it"s you I'm speaking to". He then said to me that I should get away from there (meaning the house) and I did not move. I recall that three (3) of the children were also in the yard and the youngest child was inside the house sleeping. Owen then came out of the house and began to punch me. I ran into his Aunt's ...house and her son ... was at home at that time, and he let me in. He told Owen that he was not welcome to come into the house but that did not stop him at all. He came into the house with a belt in his hand and he struck me in the face with the head of the buckle. I recall that the belt had a large iron head and this is what he used to injure me. I suffered a cut over my eye where I still do have the scar. |
| After Owen hit me, I ran through the back door and into [a neighbour"s] house where I was allowed to stay for one (l) week. The three (3) children accompanied me that evening and a friend of mine went to pick up the last child and kept her for me until the next day. |
| Between 1982 to 1984, Owen was awayAfrom St. Vincent in Trinidad so there was a calm period for me. When he returned, he got a job...as a security guard. I must state that prior to getting the job, for about six months, we lived in peace. He was not working for this period. Once he got the job, it was as if his power returned and the beatings began again. |
| In April of 1992, (at that time all my children were grown) two of my daughters and I were home alone. Owen came into the house carrying a saw and grabbed me. One of my daughters jumped between us. She told him that I did not do anything and she was not going stand there and allow him to beat me. Owen cut our daughter on her forehead with the saw. By this time, our son had come home. My husband turned to our son and asked him if he wanted to fight with him too. The two of them went outside and fought. I believe that the reason why Owen attacked us was because he might have been upset at the jokes his dominoes playing friends gave him while they were playing dominoes. I believe he felt frustrated and just wanted to take out his frustration on us. As usual, I also suspected that he was drinking alcohol. |
| My husband continued to beat me but I stopped reporting the incidents to the police. What was the use. Over the years they never came to my rescue. The authorities in St. Vincent do not take spousal assault seriously. The man is the head of the household and how he runs his house is his business. |
| Many of the beatings are embedded in my memory but some of the dates, I cannot recall. |
| The day that I left St. Vincent, my husband was not at home. I had earlier sent my bags to another part of the Island, close to the Airport at my friend"s house... That day, I took a bus and went to pick up my bags and then went on to the Airport which was a short distance away. The time of the flight was 1:30 p.m. on June 6, 1992. I arrived in Canada the same day. |
| In 1996, I applied for landing under Humanitarian and Compassionate grounds. In 1997, I was turned down. I raised the issue of the domestic abuse before the Immigration officer but she wanted to know why I did not go to a shelter or leave the home. She never took me seriously. After my rejection, I called my Uncle...here in Canada who knew about my problems and he told me to call the Vincentian Consulate....[T]he Consulate General referred me to [my counsel] Mr. Barnwell, who told me that I could claim Convention Refugee Status. I did not know about making a Refugee Claim before. |
| I continue to fear my husband. After all, I left him without his permission and I know for a fact that if I go back to St. Vincent, there would not be any protection from the police. My understanding is that despite the fact that a piece of legislation was brought in after I left, all indications are, that the police attitudes have not change [sic] towards domestic abuse. After all, we are considered to be the property of our husbands or boyfriends. |
B. Breach of natural justice
[6] The applicant CRDD hearing, the presiding member said this:
| Prior to the hearing, a number of issues were identified as particularly relevant to this claim. I"ll deal with those at this time. |
| The first issue that was identified was the issue of nexus, whether there"s a link between the claim and the Convention refugee definition. |
| As in all claims, there"s the well-foundedness of the claimant"s fear of persecution, which is understood to include whether there"s an objective basis to this claim; the agent of persecution; and most significantly, whether state protection is available to the claimant in St. Vincent and the Grenadines. Well-foundedness also includes whether there"s an internal flight alternative. That is, somewhere in the Island of St. Vincent and the Grenadines where the claimant can go without fear of persecution, and it would be reasonable under circumstances to go there. |
| As in all claims before the Board, there"s the issue of credibility. That"s understood to include delay in claiming and possibly delay in leaving. 5 |
[7] However, the following statements were also made by the presiding member of the panel during the course of the hearing, and during submissions respectively:
| I think my colleague and I are prepared to accept that the claimant has suffered domestic abuse at the hands of her husband while she was in St. Vincent and the Grenadines. 6 |
| ... |
| Counsel, if it will assist you in submissions, I think the panel has made the ruling that we accept that the claimant has been a victim of domestic abuse in St. Vincent at the hands of her husband. I don"t think my colleague or I heard anything with respect to the abuse itself that would fatefully [sic?] impugn her credibility. In my opinion, and I think my colleague shares it, the issue of credibility with respect to the abuse suffered at the hands of her husband, will not be determinative of the claim....We won"t determine the claim on the basis of any credibility finding with respect to alleged abuse suffered at the hands of her husband. 7 |
[8] As it turns out, in its reasons for decision, the CRDD certainly impugned the applicant"s credibility. This is most evident from the following opening passages from the decision:
| [The applicant"s] testimony was not clear and consistent; in spite of various amendments to her narrative, the sequence of the events and their dates remained uncertain. To explain why she had provided different versions of the narrative in her Personal Information Form (PIF), she said that she had been trying to recall her story and that new details came to her memory as time went by. |
| The panel is of the opinion that she tried to embellish her story. She completed the first version of her story with the assistance of counsel. In spite of that, one of the main incidents, that she was allegedly attacked with a machete by her husband while she was at her church, was not mentioned in her PIF. The panel does not find it credible that the claimant could forget about such an incident, considering that she continues to have a scar allegedly caused by the attack and that she had consulted a doctor in Canada with regard to the scars she has on her body. The main credibility concern in the panel's mind is the delay in removing herself from the place where she allegedly was exposed to persecution and later the delay in claiming refugee status in Canada. 8 [Emphasis added] |
[9] Perhaps it can be argued that a fine line can be drawn between accepting factual statements respecting incidents of abuse as true, but rejecting explanations respecting actions taken as a result of the incidents. For the reasons explained below, in my opinion, without an analysis as to why these actions can be so interpreted, having regard to what might be expected from a person in the applicant"s position, and, indeed, the applicant herself, no such fine line can be drawn.
[10] In any event, I find that the statements of the presiding member are certainly capable of creating the impression that no fine line would be drawn. Regardless of any fine distinctions that can be made, clearly to the contrary of the presiding member"s words, the following statement in the CRDD"s reasons displays outright disbelief of the applicant"s testimony:
| The panel does not believe the claimant's testimony that a police corporal was able to take the case out of the court agenda one week after the other and to call it on a day when the claimant was not present. 9 |
[11] Therefore, contrary to the representation made by the CRDD during the hearing that credibility was not in issue, it is quite obvious that what the applicant"s said throughout was very much doubted. By not accepting the applicant"s statements respecting her actions, the CRDD was not accepting her as a credible witness.
[12] I accept the written and oral statements of the applicant"s counsel, Mr. Osborne G. Barnwell, that the representations just quoted significantly affected the presentation of evidence and argument during the hearing of the applicant"s case.
[13] Because during the course of the hearing the CRDD made representations which it did not adhere to in reaching its decision, and because the applicant"s counsel relied on the representations in good faith to the applicant"s probable detriment, I find that a breach of natural justice has occurred warranting a rehearing of the applicant"s claim. 10
[14] During the course of the oral hearing before me, counsel for the respondent submitted that the questions respecting the applicant"s credibility did not affect the outcome of the CRDD hearing since the ultimate decision reached was that the applicant had an available internal flight alternative ("IFA") which she did not use. I rejected this argument from the bench because a finding that an IFA is viable, attainable, and accessible 11 depends on a full understanding of the applicant"s condition, which requires a proper assessment of the applicant"s credibility.
[15] The story the applicant has to tell about her abuse and the action she took, or did not take as a result, is only part of what is required to substantiate her refugee claim; the other part is the knowledge, understanding, and sensitivity that the CRDD must possess in order to properly assess the applicant"s story. That is, the answer to the question of whether a potential option is an IFA for the applicant must include a very careful and informed analysis of whether it is reasonable from the applicant"s perspective, given the state of her mind and the condition of her existence resulting from the abuse. The claimant is the only one who can tell the story; knowing how to decide whether to believe her is critical.
[16] In the present case, during the course of the CRDD proceeding, the presiding member said this:
| For the record, counsel, if I can assist you. Both my colleague and I would be applying the gender guidelines in determining this claim. We will certainly take full notice of the gender guidelines. 12 |
[17] Indeed, the Gender Guidelines were not mentioned in the CRDD"s reasons for decision. Given this, and the fact that the analysis required to make a proper finding of credibility in a case such as this was clearly not done, I feel I must make the following observations regarding the failure of the CRDD to observe the Gender Guidelines .
C. The knowledge, understanding, and sensitivity required to assess credibility in the present case
[18] As stated, knowing how to decide whether to believe a refugee claimant who has suffered domestic violence is critical. Under the heading "D. Special Problems at Determination Hearings", the Gender Guidelines clearly point out that:
| Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome, and may require extremely sensitive handling. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify. 13 |
[19] The "pattern of symptoms" to be expected of women who have been battered is described in the footnote to the quote just cited as follows:
| For a discussion of the battered woman syndrome see R. v. Lavallee, [1990] 1 S.C.R. 852. [S.C.C.] In Lavallee, Madame Justice Wilson addressed the mythology about domestic violence and phrased the myth as [e]ither she was not as badly beaten as she claims, or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it." The Court further indicated that a manifestation of the victimization of battered women is a "reluctance to disclose to others the fact or extent of the beatings". In Lavallee , the Court indicated that expert evidence can assist in dispelling these myths and be used to explain why a woman would remain in a battering relationship. [Emphasis added] 14 |
[20] Therefore, the Gender Guidelines suggest that to assess the actions of a women subjected to domestic violence, special knowledge is an essential tool to use in reaching a fair and correct judgment.
[21] While the issue in R. v. Lavallee 15 was whether Mrs. Lavallee killed her husband in self-defense, the rationale for applying extreme care in judging the actions of women suffering violence within relationships applies to the present and other cases in both a criminal and civil context.
[22] To know how to acquire the kind of special knowledge needed to properly judge a case involving domestic violence, Wilson J. in Lavallee at 873 gives the following guidance to decision makers:
| Expert testimony on the psychological effects of battering have been admitted in American courts in recent years. In State v. Kelly, 478 A.2d 364 (1984), at p. 378, the New Jersey Supreme Court commended the value of expert testimony in these terms: |
| It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors" logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge. |
| The Court concludes at p.379 that the battering relationship is "subject to a large group of myths and stereotypes." As such, it is "beyond the ken of the average juror and thus is suitable for explanation through expert testimony." I share that view. |
[23] In Lavallee, the knowledge required to reach a just decision was introduced by expert testimony. As alluded to in the passage above quoted from the Gender Guidelines, such testimony might very well be required in some hearings conducted by the CRDD.
[24] While expert testimony might not be considered practicable or necessary in some cases, in my opinion it is, nevertheless, incumbent on panel members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding domestic violence issues in order to provide a fair result and avoid the risk of reviewable error in reaching findings of fact, the most important being the finding respecting the claimant"s credibility.
[25] If a claimant is not believed, reasons must be given. 16 In the case of credibility findings with respect to women suffering domestic violence, in my opinion, the requirement for reasons becomes specific: the reasons must be responsive to what is known about women in this condition. The Gender Guidelines are, in fact, an effort to implement the professional education needed to accomplish this objective. 17
[26] In the present case, with respect to the CRDD"s main credibility concern quoted above at paragraph 8, the CRDD made the following finding:
| The claimant did not provide a satisfactory explanation for the fact that she did not try to leave Saint Vincent at an earlier date, considering that the alleged abuse went on from 1971 to 1992, a period of twenty-one years. She had obtained a passport in 1987. The reasons she gave for not leaving the country at an earlier date were that her children were small and later that she was waiting for an opportunity to come to Canada. She came when she received a letter inviting her to visit a friend in Canada. The panel is not persuaded that she could not have left at an earlier date, with the help of her parents who continued to assist her and who looked after her children. She could have sought refuge in other Caribbean countries, which were easier to reach and did not require visas [Footnote omitted]. 18 |
The CRDD then goes on to state:
| A major delay occurred in Canada, where she waited more than five years to make her claim. Furthermore, she made a claim only after her application to stay on humanitarian and compassionate grounds was rejected. She testified that she remained illegally in Canada and that she did not inquire about regularising her position for a long time. Information about the possibility to claim refugee status is easily available to an English speaking person in Toronto and can be obtained from many sources. The panel finds that her behaviour contradicts the well-founded fear of persecution she claims. Her testimony that she did not move from the address where she resided even after she was informed that her husband was making attempts to have her deported from Canada as an illegal immigrant confirms the above finding of the panel. 19 |
[27] In my opinion, these statements of the CRDD do not disclose the degree of knowledge, understanding, and sensitivity required to avoid a finding that a reviewable error has been made in judging the applicant"s statements and conduct.
[28] The pitfall exposed in the statements is that the panel members" interpretation of an "objective" standard is being used as the standard against which the actions of the applicant are being judged; that is, the objective standard of the "reasonable man" so commonly used in criminal and civil law. The issue is not whether men or women are decision makers, but rather whether a male norm is being unfairly applied. About this, Wilson J. in Lavallee at 874 says this:
| If it strains credulity to imagine what the "ordinary man" would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical "reasonable man". |
D. Conclusion
[29] Accordingly, for the reasons provided concerning the reviewable error arising from the CRDD"s representation respecting credibility, I hereby set aside the CRDD"s decision, and refer the applicant"s claim back to a differently constituted panel for redetermination in accordance with the following direction: As I am satisfied that it would be an ordeal to require the applicant to give her evidence again, on the redetermination the transcript of the applicant"s evidence taken in the first hearing be accepted as evidence without the need for the applicant to again testify orally, except for questions or further evidence that might be required to be presented by the applicant, the Hearing Officer, or members of the panel.
[30] I find that, since a redetermination is required as a direct result of the CRDD"s failure to meet its own representation, special reasons exist to award costs of this application to the applicant, and I so order.
| Judge |
OTTAWA, Ontario
__________________1 The decision rendered was that the applicant was not a Convention refugee within the meaning of s.2(1) of the Immigration Act , R.S.C. 1985, c. I-2 (the "Act").
2 For an excerpt see: Applicant"s Application Record, pp. 139-146. Issued in 1993, and updated in 1996, the Gender Guidelines issued by the Chairperson of the Immigration and Refugee Board pursuant to s.65(3) of the Immigration Act stipulate that gender-related persecution is a form of persecution which can and should be assessed by the CRDD hearing a claim. Topics addressed in the Gender Guidelines are: A. Determining the Nature and the Grounds of the Persecution; B. Assessing the Feared Harm; C. Evidentiary Matters; and D. Special Problems at Determination Hearings. In the last topic the issue of determining credibility is considered, which, as will be discussed below, is of vital importance in the present case.
3 Applicant"s Application Record, Applicant"s Affidavit, Exhibit D, letter from Owen Griffith to Canadian Immigration, p. 50. The letter indicates that it is the fourth time that Mr. Griffith has sought to bring his wife"s illegal status to the Canadian authorities" attention.
4 Ibid, pp. 38 - 42. See footnote 8 for a description of the process leading to the generation of this PIF. The PIF includes the names of individuals who witnessed the violence. These have been deleted.
6 Applicant"s Application Record, p.172.
8 Ibid, p.7. The finding with respect to the machete is a result of a significant misunderstanding on the part of the CRDD which itself amounts to reviewable error. The applicant submitted three versions of the narrative portion of her PIF. The versions differ mainly in that each subsequent version enlarges on the details of her story; as well, the first draft (not the original handwritten version) does not include mention of a machete attack. (See: Applicant"s Application Record, Applicant"s Affidavit, Exhibits A and B, pp. 31-33, and 35-42. See also Exhibit C, original handwritten version, pp. 44-47.) In her affidavit, the applicant explains that she first handwrote her story in her own words and then her counsel had this typewritten into "proper English", and in doing so, omitted statements which were later included. During the hearing, the applicant"s counsel explained this situation, specifically indicated that the machete was mentioned in the handwrittten version as a "cutlass". In response to this explanation, the presiding member said: " Counsel, we make no negative inference with respect to the fact that ... you"ve tried to give us as detailed a narrative as possible." (Ibid , p. 208.)
10 In Butt v. Canada (MCI) (1998), 145 F.T.R. 122 (T.D.), Mr. Justice MacKay set aside a CRDD decision on the basis that the panel failed to indicate to counsel that credibility was an issue when it asked for written submissions. The panel"s decision was based on a finding that the claimants" evidence was not credible. The Court held that the panel denied the applicants the opportunity to address a matter on which the panel"s decision turned, and this resulted in a denial of natural justice.
11 See: Thirunavukkarasu v. Canada (MEI), [1994] 1 F.C. 589 (C.A.)
12 Applicant"s Application Record, p. 208.
15 R. v. Lavallee, [1990] 1 S.C.R. 852 [S.C.C.]
16 See: Maldonado v. M.E.I., [1980] 2 F.C. 302 (F.C.A.); and Hilo v. M.E.I. (1991), Imm.L.R. (2nd) 199 (F.C.A.)
17 Given the obvious complexity of the subject, in my opinion, continuing in-depth, credible, and comprehensive education is needed by CRDD members who deal with claims such as the one in the present case.
19 Ibid, pp. 8-9. With respect to this very issue, the CRDD could have benefited by considering the following passage from Madame Justice Reed"s decision in Williams v. Canada (MCI) (IMM-4244-94, 30 June 1995): "With respect to the applicant"s delay in making a claim for refugee status, she gave an entirely credible explanation for that delay. She did not know she was entitled to claim refugee status on the ground of spousal abuse. It was only after she had contacted a lawyer, on another matter, and told him her story that she was advised she might do so. The fact that until a few years ago most of the legal profession in Canada would have thought that claiming refugee status in a situation of spousal abuse was not possible, surely demonstrates the reasonableness of her explanation. I think it was a serious error for the Board to apply the presumption respecting delay, which developed in the cases of those seeking refugee status on, what might be called, traditional grounds to the applicant"s situation."