Date: 20040318
Docket: IMM-5078-02
BETWEEN:
ASEL VADIMOVNA KARAKEEVA
Applicant,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent,
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 4, 2002 wherein the Board found that there is insufficient credible and trustworthy evidence to establish that the Applicant has a well-founded fear of persecution for any reason enumerated in the Convention refugee definition. In addition, the panel determined that the Applicant is not in need of protection.
[2] The Applicant's principal argument is that the Board erred in making adverse findings of credibility based on perverse and capricious plausibility findings.
[3] The Applicant is a national of Kyrgyzstan who claims refugee protection based on her gender, mixed ethnicity (Russian and Kyrgyzstan), and religion (Christianity) because she fears a man named Alic will assault her and kidnap her in order to force her to marry him and to convert her to the Muslim faith. She fears she would not be able to obtain adequate state protection because government agents are corrupt, discriminate against Russians, and do not respect women's rights.
A. Credibility issues
[4] The Board did accept that the Applicant met a man who expressed interest in her, and the man's sister called her to inquire about her as a possible mate for the brother. However, that is all the Board was willing to accept; the Board rejected the balance of the Applicant's evidence about the conduct of the man and his sister. In effect, through a set of implausibility findings, the Board found that the Applicant was lying in the story that she told.
[5] Nevertheless, the Board went on in its decision to make a number of findings respecting the general grounds of persecution cited by the Applicant. I find that this is a fruitless exercise if the credibility findings were made in error, since the basis for the Applicant's claim for refugee protection is specifically her story of the prospective fear of the man Alic in the context of the situation prevalent in Kyrgyzstan. That is, the story and the situation are inextricably linked, so if the credibility findings fail, the decision on the situation has no importance.
[6] In addition to disbelieving the factual content of the Applicant's story, the Board also made a negative finding on subjective fear based on the timing of the making of the Applicant's claim for refugee protection. The Board noted that the Applicant's Canadian visitor's visa was issued on September 1, 2000, the day she was attacked, but that she did not leave Kyrgyzstan until September 17, 2000. The Board found that if the Applicant seriously feared for her safety, she would not have delayed leaving Kyrgyzstan for 16 days. The Board did not accept the Applicant's explanation that, in the delay, she hoped her problems would stop. In addition, the Board did not accept the Applicant's evidence that the seven month delay in making a refugee claim upon her arrival in Canada was based in the same hope. The Board found that this delay did not support a subjective fear of persecution.
[7] In my opinion, if the negative credibility findings fail, the negative finding on subjective fear is insufficient to support a decision to reject the Applicant's refugee claim.
1. The Board's negative credibility findings
[8] Thus, necessarily, the focus of this judicial review is on the following negative credibility findings:
a) the Board did not accept that Alic's sister continued to harass and threaten the Applicant from May 2000 until September 2002. The Board found it implausible that Alic's sister continued to call the Applicant over a two-year period, after the Applicant told her she was not Muslim, that her nationality was mixed, and she was not interested.
b) the Applicant testified that she tried to find out from the telephone operator where Alic's sister was calling from, and the operator stated that she was calling from a payphone. The Board found it implausible that Alic's sister would use a pay phone to call the Applicant as Alic was apparently wealthy enough to afford a phone;
c) the Board determined that there is insufficient credible and trustworthy evidence to establish that Alic and his friends physically assaulted the Applicant or attempted to kidnap her in September 2000. The board determined that the Applicant was attacked by unknown assailants in an isolated incident. A medical certificate corroborated her claim that she sustained injuries;
d) the Applicant testified that she attempted to locate Alic in Bishkek, as his sister said that he owned a bakery and was wealthy, however, no one knew him. The Board found it implausible that no one had heard of Alic or his bakery in Bishkek;
e) The Board found that if Alic was planning on abducting the Applicant to be his bride, his sister would not need to continuously phone her and her parents and threaten them with harm for more than two years;
f) the Applicant testified that the possible reason why Alic would continue to pursue her over such a long period of time was possibly that he is a member of a religious extremist organization who wants to convert citizens to Muslim faith. The Board rejected the Applicant's explanation and found her evidence in this regard not to be credible;
g) the Board did not accept the Applicant's testimony that Alic and his two friends tried to kidnap her in September 2000, and that they left after her mother heard screams and came to assist her. The board did not believe that the assailants would become fearful of the Applicant's mother and drive away after they had for some time engaged the Applicant to try and kidnap her;
h) the Board found it implausible that Alic would wait from May 2000 until September 2000 to attempt to kidnap the Applicant;
i) the Applicant testified that she received an e-mail from a friend at work since she has been in Canada, which stated that two men went to her office inquiring about her in April 2001. She further testified that, based on a description of the men, she believed that one of the men was Alic. The Board did not accept that Alic and his friends inquired about the Applicant at her workplace in April 2001. The Board pointed out that the Applicant did not present a copy of the e-mail, and rejected her explanation that she had not printed a copy of it;
j) The Applicant testified that in July 2001 her parents moved to another apartment in Bishtek where they had a new phone number. She stated that her parents were shocked when Alic's sister called them at their new apartment. The Board did not accept the Applicant's explanation that Bishtek is a small city and perhaps friends told Alic's sister her parent's new phone number. The Board noted that the Applicant had testified that the population of Bishtek is about 800,000 people and that no one she contacted knew Alic. The Board did not accept that Alic, nor his sister, continued to harass the Applicant or her parents.
2. The Applicant's argument on the negative credibility findings
[9] The Applicant argues that the following crucial findings of the Board were made in a perverse and capricious manner:
a) the finding that it is implausible that someone (Alic's sister) who has a relative wealthy enough to afford a phone (Alic) would use a payphone to call the Applicant. The Applicant points out that the Board seemed to hold the incredible view that use of a pay phone is a sign of poverty. The Applicant submits this is not a sound basis for disbelieving the Applicant's submission that Alic's sister harassed and threatened her by calling from a pay phone. The Applicant states that it is plausible that a caller who did not want the call to be traced would use a pay phone;
b) the Board's finding that it is implausible that Alic's sister continued to call the Applicant on Alic's behalf for a period of more than two years, even after the Applicant told her she was not Muslim, that her nationality was mixed, and she was not interested. The Applicant submits that for a suitor such as Alic to be persistent even after the object of his attention states her lack of interest is not beyond the realm of what reasonably could be expected. Moreover, the documentary evidence showed that bride kidnapping is a problem in Kyrgyzstan, that suitors do not necessarily stop their pursuit if a woman lacks interest, and that women are kidnapped against their will, through deception or physical force;
c) the Board's finding that it is implausible that no one had heard of Alic or his bakery in Bishtek. The Applicant points to para. 4 of her narrative in the personal information form (Tribunal Record, p.30) where she stated that she received a phone call from a woman who said she was Alic's sister, and that the woman stated that Alic is a "rich guy who has his own bakery in Bishtek." The Applicant states that she did not testify that Alic had a bakery in Bishtek, but rather that Alic's sister had told the Applicant that Alic had a bakery in Bishtek. The Applicant argues that the Board's finding was not a sound basis for doubting the Applicant's credibility, and that the Board member confused the credibility of the Applicant with the credibility of Alic's sister;
d) the Board's finding that the Applicant's explanation for the way in which Alic's sister obtained her parents' new phone number was not credible. The Applicant states that the Board asked the Applicant how Alic's sister obtained the new phone number of the Applicant's parents. Although the Applicant did not know, the Board insisted the Applicant give a speculative answer, then rejected that answer as well as the testimony about the phone calls as the Board did not find the speculation reasonable. The Applicant argues that this is not a valid reason for rejecting her testimony that Alic and his sister continued to harass the Applicant or her parents.
B. Conclusions
[10] I agree with the Applicant on each of the arguments made.
[11] With respect to plausibility findings generally, the law is clear as stated by Justice Muldoon in Valtchev v. Canada (M.C.I.) [2001] F.C.J. No. 1131, at paragraphs 6 to 7 as follows:
Presumption of Truth and Plausibility
The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.
A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22. [Emphasis added]
[12] In my opinion, it is simply not good enough to make an unsupported implausibility finding. The only way that a fact scenario can be said to be unbelievable is for it to be compared to a body of evidence which is believable. That is, I do not think that a decision maker can simply say that a certain story does not fit with what might be expected unless what might be expected is specifically stated, either from independent reliable sources, or by detail given from the decision maker's own experience. To establish grounds to say that a story is implausible requires work to be done; often specific grounds for non-acceptance are hard to articulate, but this is no reason for not being required to do it. As Justice Muldoon has said, it is only in the clearest of cases that implausibility findings can withstand scrutiny.
[13] In my opinion, the implausibility findings referred to in (a) and (b) just quoted do not meet the standard set in Valtchev. In the case of the finding with respect to the Applicant's evidence that the sister called from a pay phone, the reason given for saying this could not occur is so disconnected from the evidence that it is trivial. Indeed, during the course of oral argument, Counsel for the Respondent agreed that this finding is erroneous. In the case of the finding with respect to the harassment going on for two years, there is absolutely no basis provided for saying that this could not happen.
[14] I find that the implausibility finding in ( c) is based on a misunderstanding of the evidence, and the credibility finding in (d) is groundless.
[15] In my opinion, the erroneous credibility findings render the decision patently unreasonable.
ORDER
Accordingly, I set aside the Board's decision and refer the matter to a differently constituted panel for re-determination.
"Douglas Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5078-02
STYLE OF CAUSE: Asel Vadimovna Karakeeva v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March 17, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Campbell
DATED: March 18, 2004
APPEARANCES:
David Matas FOR APPLICANT
Sharlene Telles-Langdon FOR RESPONDENT
Department of Justice
Winnipeg, Manitoba
SOLICITORS OF RECORD:
David Matas FOR APPLICANT
Barrister & Solicitor
Winnipeg, Manitoba
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada