Date: 20050825
Docket: IMM-215-05
Citation: 2005 FC 1168
Ottawa, Ontario, August 25, 2005
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
CHUN JA KIM
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 December 17, 2004 in which the applicant was found not to be a "Convention refugee" or a "person in need of protection" pursuant to section 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act).
[2] The applicant is a 38-years-old female citizen of Korea. She has been in Canada for substantive periods of time between 2000 and the present. It appears that she had made four visits to Canada prior to returning in June 2003. The applicant came to the attention of the immigration authorities on December 14, 2003 following her arrest in a body massage parlour. She had overstayed her visa and it appears that she was working in said massage parlour without a work permit. She made her claim for refugee protection on December 22, 2003 after this arrest. She bases her claim on the assertion that in Korea she had been the victim of gender-related violence at the hands of an acquaintance, Mr. Jung, who stalked her and abducted her. The Board refused the application on credibility grounds.
[3] The applicant's main submission is that the Board did not address the claim in a manner consistent with the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (the Guidelines). The applicant also submits that the Board ignored the documentary evidence with respect to stalking which may be defined as an act of tailing or harassing someone the stalker is interested in. It is stated in this regard that stalking is a form of unilateral violence that is devoid of common sense. Finally, the applicant submits that the Board erred because it gave no weight to the psychologist's report which confirms that she suffers from chronic post-traumatic stress disorder.
[4] According to the Guidelines, women who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome. It appears that victims of sexual violence are often reluctant to disclose what has happened to them. On this matter, the Board did mention on the first page of its decision that it was mindful of the Guidelines. That being said, after a thorough reading of the impugned decision and of the transcript of the hearing, I am satisfied that the Board was sensitive to the factors which may influence the testimony of women refugee claimants fearing gender-related persecution. However, the Rape Trauma Syndrome does not excuse contradictions or omissions of serious incidents in a claimant's previous statements. It is clear that the Guidelines cannot be treated as corroborating any evidence of gender-based persecution so that the giving of the evidence becomes proof of its truth (Newton v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 738 (F.C.T.D.) (QL), at para. 18). In the case at bar, it appears that the number and nature of the several inconsistencies flowing from the applicant's previous statements go far beyond the applicant's alleged difficulty of remembering certain details of the alleged traumatic incident of March 2003 during her testimony. It is clear that the previous statements given by the applicant are inconsistent or contradictory and that the applicant adjusted or varied her testimony on key elements of her story. Consequently, as a whole, the Board's ultimate finding of non-credibility is not patently unreasonable.
[5] In its written reasons, the Board indicated in clear and unmistakable terms why it did not believe the applicant. Moreover, the Board's decision is not simply based on the fact that the Board found it implausible that Mr. Jung would abduct the applicant two years after their last contact. The negative inferences drawn by the Board are based on numerous inconsistencies between the applicant's Personal Information Form (PIF), the applicant's testimony and a letter from her former friend/roommate (the Letter). For instance, the first factual version contained in the applicant's PIF only mentioned a fear of her former boyfriend and her current husband. In my view, the Board was entitled to consider it implausible that the applicant would forget or simply not mention the alleged kidnapping and rape incident. The Board could also consider the discrepancy between the applicant's story and the Letter regarding the two police interventions following the applicant's telephone calls in September 2000. In addition, the Board rightly took into account the fact that, regarding the alleged report to the police of the kidnapping/rape incident in March 2003, the applicant, once confronted with the factual version contained in her PIF, clearly changed her testimony without providing the Board with a valid reason for doing so. Furthermore, the Letter also contradicted the applicant's first testimonial version of the alleged report to the police in March 2003. The Board also had the right to use common sense to dismiss the applicant's story with respect to the alleged registration of a marriage and divorce by Mr. Jung without the applicant's knowledge. As for the applicant's stories in connection with her escape and her former husband, the Board could reasonably conclude that they were not credible based on the numerous implausibilities.
[6] In the end, the Board noted too many inconsistencies and implausibilities contained within the applicant's story to list them all. It is trite law that a finding of general lack of credibility can affect all other relevant evidence submitted by the applicant. Accordingly, the Board did not err in not discussing the documentary evidence related to stalking in its decision since it did not believe the applicant's story in the first place.
[7] Finally, the Board did not err by not giving any weight to the psychologist's report. The Board member indeed noted that the report was a "sympathetic report" and that she herself "perceived this sympathy and the psychologist's assessment of the credibility of the claimant upon reading it. However, this impression was not sustained by me after hearing the claimant's testimony." The fact that the psychologist was not aware of all aspects of the applicant's life (it appears that the psychologist was not aware that a certain Mr. Cho sexually exploited her and that she had been working in a massage parlour) and that the Board had found the applicant not credible, constituted valid reasons to discard this latter evidence.
[8] Consequently, the present application for judicial review must fail. Counsel agree that this case does not raise a question of general importance.
ORDER
THIS COURT ORDERS that the present application for judicial review be dismissed. No question of general importance shall be certified.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-215-05
STYLE OF CAUSE: CHUN JA KIM v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: August 16, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Martineau
DATED: August 25, 2005
APPEARANCES:
Ms. Nora Ng FOR THE APPLICANT
Ms. Helen Park FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR THE APPLICANT
Vancouver, BC
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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