Date: 20040831
Citation: 2004 FC 1191
Ottawa, Ontario, the 31st day of August 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MARIYA SHULHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] The heart of a matter is found by the trier of fact, it is not for judicial review to attempt to find a potential blockage or flow in circulation in a peripheral vein, especially when it can only be determined by tests of credibility, available solely to the trier of fact.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act,[1] and section 72 of the Immigration and Refugee Protection Act,[2] of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated July 29, 2003, wherein the Board dismissed the Applicant's claim to be a "Convention refugee" or a person in need of protection.
BACKGROUND
[3] The Applicant, Mariya Shulha, is a 40 year old citizen of Ukraine. She claims to have a well-founded fear of persecution by reason of abuse that she experienced from her former husband.
[4] Ms. Shulha claims that she met her ex-husband in 1981. He began to be abusive to her in 1984. In 1997 he began to drink. Ms. Shulha states that when he was drunk he would humiliate her and force her to have sex with him. He was treated for his alcoholism, but, despite this, he continued to drink.
[5] In January 1999, he hurt Ms. Shulha so severely that she lost consciousness. The police came and Ms. Shulha was taken to hospital. Ms. Shulha's husband was questioned for 3 hours, then released. Ms. Shulha spent weeks in the hospital with a concussion.
[6] Ms. Shulha continued to live with her husband, but she applied for a visitor's visa to Canada.
[7] In September, 1999, Ms. Shulha petitioned for divorce. Ms. Shulha's husband ignored the notice to appear, and the hearing was postponed.
[8] Ms. Shulha's husband threatened to kill her and told her that only death would separate them.
[9] In November, 1999, Ms. Shulha's husband received a second notice to appear for the divorce hearing. In response to this, he told Ms. Shulha that he would not give her a divorce. He hit her face and slammed her head against the wall.
[10] Ms. Shulha arrived in Canada on December 5, 1999. She made her claim for refugee almost two years later.
DECISION OF THE BOARD
[11] The Board found that there were several inconsistencies between the narrative in her Personal Information Form (PIF) and her oral testimony, including her description of the nature of the abuse she suffered.
[12] As well, the Board found that an amendment Ms. Shulha had made to her PIF was significant, and she was unable to explain why she had originally left the additional information out of her PIF. The Board drew a negative inference from this.
[13] The Board also found that Ms. Shulha's testimony regarding the divorce was problematic. In particular, the Board noted that the decision in the divorce proceeding indicates that Ms. Shulha's husband initiated divorce against her in July 26, 2001. This contradicts Ms. Shulha's testimony that she commenced proceedings in September, 1999.
[14] The Board concluded that Ms. Shulha's husband was no longer interested in her. There was a letter from her son indicating that Ms. Shulha's husband was still asking about her. That letter, however, had been written in June, 2001, and was found to be self-serving as it was written by Ms. Shulha's son.
[15] The Board drew a negative inference from the fact that Ms. Shulha had been in Canada for nearly two years before making a claim to refugee status, despite knowing that she could be sent back to Ukraine because her visa had expired.
[16] The Board gave no weight to the psychologist's report because the psychologist had reviewed the impugned PIF.
[17] The Board concluded:
I do not find the claimant to be a credible or trustworthy witness. Even if the claimant had a rocky marriage, the inconsistencies in her testimony and major omission from her narrative lead me to find that there is no evidence that she would continue to be a target of her former husband if she were to return to Ukraine. There is no information about him from July 2001 to the present.[3]
ISSUES
[18] Did the Board commit a reviewable error by ignoring evidence before it?
[19] Did the Board err by drawing a negative inference from Ms. Shulha's amendment to her PIF?
ANALYSIS
Did the Board commit a reviewable error by ignoring evidence before it?
[20] Ms. Shulha submits that the Board erred by ignoring various police and medical reports detailing her abuse, especially a medical and police report corroborating her testimony that she had been assaulted by her husband in January 1999. The Board based much of its finding that Ms. Shulha was not credible on the fact that she had not described this incident in her PIF originally, but had amended it subsequently to include this assault. Ms. Shulha submits that, as the reports are directly relevant to the Board's finding that this incident had not occurred, the Board was in error in not referring to it. Similarly, the Board ignored the medical evidence that Ms. Shulha was assaulted by her husband in January, 1999, even while finding that this assault had not occurred.[4]
[21] The Respondent submits that the Board is not required to mention all the evidence before it in reaching its decision.[5] In the case at bar, it was open to the Board to find that the Applicant was not credible on the basis of the amendment to her PIF.
[22] Moreover, the Board provided several other findings to support its credibility finding. There was an important inconsistency between the PIF and the immigration interview; there was contradictory evidence concerning who initiated the divorce proceedings and when they were initiated; there was a lack of evidence of Ms. Shulha's ex-husband's interest in her; finally, Ms. Shulha waited for almost two years before making the refugee claim. Given all these findings, the decision of the Board was open to it.
[23] The Court deems that the Board erred by ignoring the medical and police records before it. As determined in Cepeda-Gutierrez, the Board is in error when it does not assess evidence that is in direct contradiction to its findings. As the medical and police records were in direct contradiction to the Board's findings that Ms. Shulha had not been assaulted in the manner she stated, the Board committed an error.
[24] The Court does not find, however, that the error was material. As the Respondent states, the Board based its decision on many other findings, none of which are impugned by the Ms. Shulha. Even removing the finding that some of the assaults had not occurred, there was a sufficient basis upon which the Board could determine that Ms. Shulha was not credible. As a result, the Board did not commit a reviewable error.
Did the Board err by drawing a negative inference from Ms. Shulha's amendment to her PIF?
[25] Ms. Shulha argues that because she amended her PIF nine days before the hearing, and not at the hearing itself, the Board should not have drawn an adverse inference from the fact that she amended her PIF.
[26] The Respondent submits that the Board is entitled to test credibility by comparing the PIF with the applicant's oral testimony.[6] The Board did not, therefore, err.
[27] The Court agrees with the Respondent. When Ms. Shulha amended her PIF is not important. What is important is why she did not include the information in her original PIF. As noted by the Respondent, Ms. Shulha failed to explain why she had not described the assault of January, 1999 in her original PIF. Because of this, the Board was not in error in drawing a negative inference as to Ms. Shulha's credibility.
CONCLUSION
[28] The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that:
1. The application for judicial review be dismissed.
2. No question be raised for certification.
"Michel M. J. Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6703-03
STYLE OF CAUSE: MARIYA SHULHA v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 24, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice Shore
DATED: August 31, 2004
APPEARANCES:
Mr. M. Steven Beiles FOR THE APPLICANT
Ms. Deboroah Drukarsh FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. M. Steven Beiles FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
[1]R.S., 1985, c. F-7.
[2] S.C. 2001, c. 27.
[3] Applicant's Record, Decision of the Board, at p. 11.
[4] Applicant cites: Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425 at para. 17 (T.D.) ("Cepeda-Gutierrez").
[5] Respondent cites: Hassan v. Canada (M.E.I.), [1992] F.C.J. No. 946 (F.C.A.).
[6] Basseghi v. Canada (M.C.I.), [1994] F.C.J. No. 1867; Jospeh v. Canada (M.C.I.), [2000] F.C.J. No. 49 at para. 36; Oyebade v. Canada (M.C.I.), [2001] F.C.J. No. 1113, 2001FCT 773 at para13; Grinevich v. Canada (M.C.I.), [1997] F.C.J. No. 444 at para. 4 (T.D.).