Date: 20030305
Docket: IMM-5910-01
Neutral citation: 2003 FCT 274
Toronto, Ontario, Wednesday, the 5th day of March, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
VALIDA MURADOVA
TAHIR AHMADOV (aka Tair Ahmadov)
ELBAY AHMADOV
TAIRA MURADOVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated December 7, 2001, wherein the CRDD determined that the Applicants are not Convention Refugees.
[2] The Applicants, who are citizens of Azerbaijan, are Valida Mouradova (the principal Applicant), her two sons (Elbay Ahmadov and Tahir Ahmadov) and her mother, Taira Mouradova. The principal Applicant was appointed the designated representative for her son, Elbay. The claims of the children and the principal Applicant's mother rely on the principal Applicant's claim. The principal Applicant claims a well-founded fear of persecution based on her fear of domestic abuse from her former spouse.
[3] The principal Applicant gave substantial and detailed evidence of serious physical, emotional and sexual abuse at the hands of her former spouse. She also gave evidence that, if she required to return to Azerbaijan, she fears that the abuse will continue.
[4] In effect, with the following findings, the CRDD dismissed the Applicant's evidence of abuse in its entirety:
- The panel is not satisfied that the principal claimant has established, on a balance of probabilities, that her former spouse continues to pose a threat to her.
- ...
- In the panel's opinion, the actions of her former spouse do not indicate an abusive relationship. (Decision, p.2)
[5] The conclusions reached by the CRDD are based on what I consider to be unsupported, and, therefore, erroneous plausibility findings. For example, the CRDD found that it would be expected that the Applicant would remember her husband's mistress's name, which she could not do in a course of giving her testimony. In addition, the CRDD expected that the Applicant would have left the relationship with her abusive husband before she did if her evidence about the nature of the relationship is true.
[6] Counsel for the Applicant confirmed that, in the hearing before the CRDD, the Immigration and Refugee Boards Gender Guidelines were argued in favour of the Applicants' claim (see: Chapter 18, Guidelines, Instructions and Practice Notices, dated March 31, 1999, paragraph 18.2.3 of the CRDD Handbook). The Gender Guidelines create an expectation that members of the CRDD should understand that the circumstances which give rise to women's fear of persecution are often unique to women. Therefore, the reasonable expectation arises that CRDD decision-makers should judge a woman's credibility in a claim of gender related persecution from a position of specialised knowledge.
[7] In the present case, there is no evidence that the CRDD considered the Gender Guidelines, let alone applied them. In addition, regardless of the application of the Gender Guidelines, the CRDD did not specifically state the evidence on which it relied in reaching the plausibility findings made.
[8] With respect to plausibility findings generally, the law is clear as stated by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration) [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]
[9] In my opinion, the unsubstantiated, and, therefore, erroneous plausibility findings in the present case render the CRDD's decision as patently unreasonable.
ORDER
Accordingly, I set aside the CRDD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-5910-01
STYLE OF CAUSE: VALIDA MURADOVA, TAHIR AHMADOV
(aka Tair Ahmadov), ELBAY AHMADOV, TAIRA MURADOVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MARCH 4, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: WEDNESDAY, MARCH 5, 2003
APPEARANCES BY: Mr. David P. Yerzy
For the Applicants
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: David P. Yerzy
Barrister and Solicitor
Suite 108 - 14 Prince Arthur Avenue
Toronto, Ontario
M5R 1A9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030305
Docket: IMM-5910-01
BETWEEN:
VALIDA MURADOVA, TAHIR AHMADOV (aka Tair Ahmadov), ELBAY AHMADOV, TAIRA MURADOVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER