Date: 20101231
Docket: IMM-1985-10
Citation: 2010 FC 1338
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 31, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
|
|
SOKSOURSDEY CHED
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
Ms. Ched is a citizen of Cambodia. In her
Personal Information Form (PIF), she states that while visiting her daughter in
Canada, she was informed that her husband, head of the Ministry of the Interior’s
central office in Kandal Province, and their two sons, aged 16 and 12, had been
arrested by the Cambodian National Police. She alleges that her husband, a
long-time activist in the main opposition party led by Sam Rainsy, has been
falsely accused of espionage and conspiracy, having been [translation] “framed” by his assistant
at the Ministry. This assistant is allegedly the nephew of Cambodia’s chief of
police, Prime Minister Hun Seng’s right-hand man. She testified that her family
has disappeared; she does not know where they are.
[2]
On March 16, 2010, a member of the
Refugee Protection Division (the panel) determined that Ms. Ched was neither
a Convention refugee nor a person in need of protection. The panel did
not believe the claimant’s story, being of the view that [translation] “this story was fabricated
for the purposes of this claim”.
II. The
panel’s decision
[3]
The panel found the applicant not to be credible
because her testimony was [translation]
“inconsistent, laborious, implausible, unlikely and weak”. Ms. Ched had
failed to answer the panel’s questions and had been unable to provide simple
details that were essential to her narrative.
[4]
The panel relied on the following to support its
non-credibility finding.
[5]
She had no documents, such as an indictment, to
show that there had been a “serious accusation”. “No more is known”, the panel
declared. The panel was surprised at Ms. Ched’s testimony that the entire
family was arrested in similar situations. The panel reasoned as follows:
[10] If he
is arrested for espionage, the panel is of the opinion that it is
implausible that all the family, including the claimant and her children, would
be arrested at once, if they are not involved in his activities. The panel
explained to the claimant that the whole family is not usually arrested when
someone is accused of a crime, and that, based on the documentary evidence, it
appears that the situation is similar in Cambodia. The claimant had no response.
Her lawyer made reference to documents from Amnesty International that discuss
the assassination of an opponent and his son and of the expulsion of another
opponent and his entire family; however, she could not establish that
arresting the entire family when someone is accused of espionage or of any
other charge, would be a common practice in Cambodia. The panel is therefore of
the opinion that this is not plausible.
[Emphasis
added.]
[6]
The panel asked her how she learned that her
children had been arrested and found her testimony to be “laborious”, adding:
. . .
She finally explained that the police officers allegedly allowed them to call
her sister, who then alerted her. This is a new fact that was omitted in her
narrative. That part of the testimony was weak and led the panel to have
serious questions about the credibility of this allegation.
[Emphasis
added.]
[7]
The panel added that Ms. Ched testified
that her family had disappeared three years ago “but she hardly expended any
effort to try and find them”. The panel drew two conclusions: first, that “[t]his
[was] not the behaviour of an individual whose close relatives [had] been
arrested by the State and then disappear[ed]”; and (2) her testimony lacked consistency
since she had “[f]irst of all, . . . maintained that she did nothing
to try and find out what really happened to her family”, but then changed her
testimony “and alleged that she had asked her sister to do something”. The
panel went on to write:
Her sister
allegedly contacted two NGOs in Phnom Penh who told her not to do anything
because filing an official complaint with the authorities could bring her
problems. This simple visit by her sister in June 2007 allegedly brought about
her arrest. The panel was therefore informed, halfway through the hearing that
the claimant’s sister was allegedly arrested on June 12, 2007, and was never
seen again. Why was this fact omitted from her Personal Information Form (PIF)?
The claimant stated she had already completed her PIF at that point. Could she
not have amended her narrative three years ago by telling her lawyer about it,
or telling the panel at the start of the hearing? She allegedly did not
think of it. The panel rejects this explanation. The fact that her sister
disappeared is very important. Had it really taken place, the panel is of the
opinion that the claimant would have mentioned it before the start of the
hearing. Furthermore, the change in her testimony undermines her credibility.
In summary, the panel concludes that the claimant's sister was never arrested
and the panel does not believe that she approached any NGO whatsoever. This
part of the testimony is not credible.
[Emphasis
added.]
[8]
The panel criticizes the claimant for never
having initiated any enquiries in Canada to find out what happened to
her family. The panel noted that Ms. Ched had testified that she had asked
for advice on November 30, 2009, from a Cambodian association. The
panel protested, “Why did she wait three years? The claimant had no answer.”,
and found as follows:
[14] The
panel is aware that the claimant does not have extensive education, but if she
is resourceful enough to claim refugee status, the panel is of the opinion
that she would also have been able to approach Cambodian authorities through
lawyers or human rights organizations by writing a letter or filing a complaint
in order to find her family. The claimant did not demonstrate that she made any
effort whatsoever. This is not the behaviour of someone who suddenly lost
everything that was dearest to her in the world. In similar circumstances,
people fight back; they try to contact the authorities, human rights
organizations, lawyers. It appears that the claimant did absolutely nothing.
[Emphasis
added.]
III. Analysis
A. Standard of
review
[9]
According to case law, a decision based on a
lack of credibility is a question of fact. Since the Supreme Court of Canada’s
reform of standards of review in Dunsmuir v. New Brunswick, 2008 SCC 9,
a question of fact is reviewable on the standard of reasonableness through
paragraph 18.1(4)(d) of the Federal Courts Act, which
authorizes this Court to set aside a decision of a federal board, commission or
other tribunal if the decision is based on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it. The Supreme Court made this qualification in Canada (Citizenship and Immigration)
v. Khosa, 2009 SCC 12, since
paragraph 18.1(4)(d) is a legislative indication from Parliament on
how to deal with a finding of fact. Notably, the Court must afford the federal
board, commission or other tribunal a high degree of deference.
B. The
applicant’s argument
[10]
The applicant submits that the panel
§
erred in law by requiring evidence corroborating
her testimony;
§
found to be implausible some parts of her
testimony, for example, that her entire family was arrested, including her
children, who had nothing to do with their father’s activities. In her view,
this conclusion is capricious since it is based on speculation or a hypothesis
not supported by the evidence;
§
based its decision on Canadian paradigms or
North American experience and logic when it found that Ms. Ched had done
absolutely nothing to find her family; and
§
ignored the documentary evidence from Cambodia
on the treatment of people involved in opposition parties.
C. Conclusion
[11]
I find that this application for judicial review
must be dismissed. The panel’s decision was based on the lack of credibility of
the applicant’s testimony. She had to satisfy the Court, which owes the panel’s
findings of fact considerable deference, that the panel had made its
non-credibility finding in a perverse or capricious manner or without regard
for the evidence before it. The assessment of the evidence is within the
Refugee Protection Division’s discretion and expertise.
[12]
The respondent correctly submits that a plain reading
of the transcript shows that the applicant is not credible. The panel’s
decision is reasonable. First, the applicant repeatedly adjusted her testimony
on important elements of her story, for example, the fact that she had asked
her sister to file a complaint with the authorities and that police officers
had allowed her children to call her sister, evidence she had failed to mention
in her Personal Information Form. Second, she contradicted herself regarding
who had told her that her children had been arrested, her sister or her husband’s
work friend, and third, she failed to show that it is common practice in
Cambodia to arrest the entire family of an accused.
[13]
Moreover, the panel was aware that there are
problems with the law in Cambodia (panel’s file, page 171). The panel did
not ignore this evidence. I am also of the view that there was nothing
unreasonable in the way the panel assessed the summons Ms. Ched received
from Cambodian police in October 2007.
[14]
For these reasons, this application for judicial
review cannot be allowed.
JUDGMENT
THIS COURT ORDERS that this application
for judicial review is dismissed. No question of general importance was
proposed.
“François Lemieux”
Certified true
translation
Johanna Kratz
Email this Content