Date: 20101214
Docket: IMM-1683-10
Citation: 2010 FC 1283
Ottawa, Ontario, December 14,
2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
SHONTEL
DION JOHN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) rendered on November 12, 2009, where it determined that the
applicant was neither a Convention refugee nor a person in need of protection
for the purposes of sections 96 and 97 of the IRPA.
[2]
The
applicant also filed a request for an extension of time pursuant to paragraph
72(2)(c) of the IRPA. Considering that the applicant’s delay in filing her
application for leave and judicial review was a result of the Board sending its
reasons to an incorrect address, the request for an extension of time is
granted.
Background
[3]
The
applicant is a 22 year-old citizen of St.Vincent and the Grenadines. She alleges
the following facts in support of her claim.
[4]
In
October 2000, when she was 12 years old, Nicodimus Ross approached her as she
was on her way home from school and offered her money if she would agree to
deliver marijuana for him. She agreed. This arrangement continued for some
time. At one point, Mr. Ross invited her into his house and tried to rape her,
but she managed to escape. On a subsequent occasion, in April of 2001, he did
rape her.
[5]
Initially,
the applicant did not tell anyone about the rape because Mr. Ross had warned
her that if she did, he would kill members of her family. However, soon
thereafter, a neighbour told her mother that she had seen the applicant over at
Mr. Ross’ house on several occasions. The applicant’s mother questioned the
applicant, who then told her mother everything.
[6]
The
applicant’s mother took the applicant to the police station to file a complaint
against Mr. Ross. However, afraid to tell the truth, the applicant lied to
the police and told them that she had not been raped. Nevertheless, the police
arrested Mr. Ross and “kept him in custody,” but released him shortly
thereafter. A few days later, Mr. Ross approached the applicant at school and
told her that he would “get rid of” her if she said anything to anyone again. She
told her mother about this. After the school year had finished, her mother
made arrangements to have the applicant sent to Canada to live with
her grandfather.
[7]
The
applicant arrived in Canada on June 24, 2001. She initially lived with
her grandfather until he passed away, and then with her aunt. She never
integrated into the school system in Canada and was not sponsored
by a member of her family. She indicated that she did not find out about the
possibility of claiming refugee protection until she was 19 years old. At the
age of 19, she had become pregnant. She met a social worker at the CLSC (local
community service centre) to discuss her pregnancy and the social worker
informed her about the potential for seeking refugee protection. Shortly
thereafter, on November 21, 2007, the applicant filed for refugee protection;
her cousin assisted her with the administrative process of filing the necessary
forms.
The decision under
review
[8]
The
Board rejected the applicant’s claim after coming to the conclusion that she
lacked credibility. It also concluded that she had not established that she
would face a serious possibility of persecution, or that she would be
personally subjected to a risk to her life, or to a risk of cruel and unusual
treatment or punishment, should she return to St.Vincent.
Issues
[9]
This
application raises the issue of whether the Board’s determinations with respect
to the applicant’s credibility and lack of well-founded fear were unreasonable.
[10]
For
the following reasons, the application for judicial review cannot succeed.
Standard of review
[11]
For
matters involving the assessment of evidence or the assessment of credibility,
which are questions of fact, the applicable standard of review is that of
reasonableness (Dunsmuir v New‑Brunswick), 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]). Credibility
determinations, which lie within the “heartland of the discretion of triers of
fact”, are entitled to considerable deference upon judicial review and cannot
be overturned unless they are perverse, capricious or made without regard to the
evidence (Siad v Canada (Secretary of State) (1996), [1997] 1 FC 608,
206 NR 127 (CA) at para 24). The Court is not in as good a position as the
Board to assess credibility and must not substitute its own view, even if an
alternative determination appears preferable. It is also not the Court’s
function to reweigh the evidence. The Court’s role when reviewing a decision against
the reasonableness standard was described in Dunsmuir, above, at para 47
as follows:
. . . A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
Analysis
Did the Board
err in its assessment of the applicant’s credibility?
[12]
The
Board’s adverse credibility determination consisted of three main findings: 1)
that the applicant’s testimony was neither straightforward nor spontaneous; 2)
that the applicant’s testimony contained major contradictions; and 3) that the
applicant waited over 6 years before claiming refugee status.
[13]
I
have concerns with the latter two of these findings.
[14]
First,
the contradictions. The Board indicated that in December of 2007, the applicant
made a number of statements to a Citizenship and Immigration Canada immigration
officer that were inconsistent with statements she later made in her Personal
Information Form (PIF) and in her testimony before the Board. The first
inconsistency pointed to by the Board was that, in talking to the immigration
officer, the applicant only mentioned an attempted rape, while in her PIF and
at the hearing the applicant spoke of two incidents: a first incident where Mr.
Ross attempted to rape her and a second incident where he actually did rape her.
While I agree that these statements may appear to contain a contradiction, when
put into context, I am not sure that this alone provides a reasonable basis for
an adverse credibility finding.
[15]
When
interviewed by the immigration officer, the question asked to the applicant was
very general and did not invite a lengthy response: “In a few words, why are
you claiming refugee status in Canada?” The note reporting the applicant’s
answer is succinct and reads as follows:
. . .
Well he had threathened to kill me when I
was 12 years old. And told me that if I went to the police he would kill any
member of my family.
Why would he threathened to me?
He tried to rape me, and I told my mother
about this, that is when he started to threathened me.
How many times did it happen?
Twice.
[Sic throughout]
. . .
[16]
The
applicant’s answer is general, superficial and lacks specificity. Yet, the
immigration officer did not ask for further elaboration. Perhaps it was not the
officer’s role to do so. In any event, in the context of this case, I think
that one should be cautious before basing an adverse credibility finding on too
close a reading of these preliminary interview notes.
[17]
The
applicant’s PIF, which was completed less than a month after she was
interviewed by the immigration officer, provides a much more detailed version
of the events and is consistent with the testimony that she provided a year
later at the hearing before the Board. On both occasions, the applicant
reported two incidents: a first incident where Mr. Ross attempted to rape her,
followed by a second incident where he actually did rape her.
[18]
Equally
troubling, if not more so, is the Board’s determination that the applicant
contradicted herself on the question of how and when her mother found out about
Mr. Ross.
[19]
In
her interview with the immigration officer, the applicant stated, “He tried to
rape me, and I told my mother about this”. Meanwhile, in her PIF and during her
testimony at the hearing, she indicated that it was a neighbour who drew her
mother’s attention to the fact that she had been visiting Mr. Ross’ home. The
Board saw a contradiction between these two accounts: according to one account,
the applicant told her mother about Mr. Ross, according to the other, it was
the neighbour who told the applicant’s mother about Mr. Ross. Upon closer
inspection, however, it is quite apparent that the applicant’s statements in
this regard were not inconsistent.
[20]
In
her PIF and at the hearing, the applicant actually indicated that her mother had
questioned her, after being informed by the neighbour that she had been
visiting Mr. Ross. Upon being questioned by her mother, the applicant indicated
that she then told her mother everything. The applicant’s statements in her PIF
and at the hearing were certainly more detailed and contextualized, but they
were not inconsistent with the statement she made to the immigration officer:
she had been consistent in saying that she told her mother about the incidents.
[21]
I
will now turn to consider the applicant’s delay in claiming refugee status. The
Board found that the long delay between her arrival in Canada and the time
when she claimed refugee protection (a period of over six years) was
incompatible with the attitude of a person who feared for her life. The Board’s
finding in this regard reads as follows:
[18] The panel acknowledges the fact
that the young girl, who was only 13 years of age when she arrived in Canada,
was not able to take it upon herself to approach a lawyer or a community
organization in order to obtain the necessary information. However, the panel
considers that the fact of having waited all those years is incompatible with
the attitude of a person who fears for her life.
[19] The claimant has many family
members in Canada, including a cousin who
obtained refugee protection. She could have found out well before the time she
did about the procedures to follow.
[20] The panel considers that, on
its own, this long delay in claiming does not undermine the claimant’s
credibility. However, examined in the context of all her evidence, it does
undermine her credibility.
[22]
The
Board acknowledged that the applicant was very young when she came to Canada and that she
was not in a position to seek advice and undertake proceedings to claim refugee
protection. On the other hand, it found that the delay between her arrival and
the time of claiming was too long. The Board based its finding on the fact that
the applicant had several family members in Canada, including a
cousin who had claimed, and who was granted, refugee status. The Board’s
adverse credibility determination in this regard was unreasonable.
[23]
I
agree that a delay in seeking refugee protection, although not determinative,
is generally relevant to assessing the overall credibility of a refugee claim (Huerta
v Canada (Minister of Employment and Immigration) (1993), 157 NR 225, 40
ACWS (3d) 487 (FCA)). There is a presumption that a person having a
well-founded fear of persecution will claim refugee protection at the earliest
opportunity. If they do not, the legitimacy of the subjective fear that they
allege is called into question (Singh v Canada (Minister of
Citizenship and Immigration), 2007 FC 62, 159 ACWS (3d) 568, at para
24). This presumption makes sense in the context of an adult refugee who, upon
entering Canada, is expected to be aware that in order to stay in Canada
indefinitely, he or she will need to regularize their status. However, the mere
existence of delay in claiming cannot always be construed as indicating an
absence of subjective fear. The delay, and even more importantly, the reasons
for the delay, must be assessed in the context of the specific circumstances of
each case.
[24]
In
Espinosa v Canada (Minister of
Citizenship and Immigration), 2003 FC 1324, 127 ACWS
(3d) 329, at para 17, Justice Rouleau stressed that :
The Board states correctly that while the
delay is generally not a determinative factor in a refugee claim, there are
circumstances where the delay can be such that it assumes a decisive role; what
is fatal to the applicant’s claim is his inability to provide any satisfactory
explanation for the delay.
[Emphasis added].
[25]
The
same principle was enunciated by Justice Pinard in Gamassi v Canada (Minister of
Citizenship and Immigration) (2000), 194 FTR 178, 103
ACWS (3d) 815 (TD). I agree with my colleagues’ assertions.
[26]
I
also consider that the comments of Justice Mactavish in Basak v Canada (Minister of
Citizenship and Immigration), 2005 FC 1496, 143 ACWS (3d) 1084, where
she considered a delay in claiming refugee protection in the context of a minor,
are equally applicable to the present case. Justice Mactavish, at paras 11-12,
indicated the following:
Ms. Basak was 14 years old
when she came to Canada. She spoke little or no English, had a grade eight education, and
was clearly entirely dependent on those around her for protection. She could
thus hardly have been expected to bring a refugee claim on her own. Indeed, the
Board found that the delay in filing her claim for protection was due to a lack
of diligence on the part of Ms. Basak's sister and her uncle-in-law.
In such circumstances, it
was, in my view, patently unreasonable for the Board to conclude that a delay
on the part of others in advancing Ms. Basak's refugee claim was indicative of
a lack of subjective fear of persecution on her part.
[27]
In
the current case, the applicant was sent to Canada when she was
12 years old and, since that time, she has received only a very minimal level
of education. Initially, she was entirely dependent on her grandfather. After
he passed away (some three years after her arrival) she began living with her
aunt. No one in her family assisted her in regularizing her status. Instead, it
wasn’t until she was informed of the possibility of filing for refugee
protection by a social worker, when she was 19 years old, that she submitted
her application for protection.
[28]
There
is no evidence as to when the applicant became aware that her cousin had been
granted refugee status, nor is there any evidence regarding the circumstances
surrounding the cousin’s claim for protection. The mere fact that several of
the applicant’s family members were living in Canada says nothing
about the applicant’s knowledge of the potential for claiming refugee
protection. What is clear is that no member of the applicant’s family undertook
to help her to regularize her status. It is important, in this case, not to lose
sight of the applicant’s profile.
[29]
Ultimately,
the Board did acknowledge that, “on its own, [the] long delay in claiming does
not undermine the claimant’s credibility.” However, it concluded that when
examined “in the context of all of her evidence, it does undermine her
credibility.” The Board did not point to any evidence that, in my view, renders
it reasonable to conclude that the delay in this case undermines the
applicant’s credibility. This aspect of the Board’s decision was unreasonable.
[30]
Given
the above, I consider that the Board’s negative credibility finding, on the
whole, was unreasonable. However, I do not consider that this is determinative
in light of the Board’s determination that the applicant also failed to
establish the objective component of her fear.
Did the Board
err in finding that the applicant had not established a well-founded fear?
[31]
The
Board’s decision is certainly not a model of clarity. However, after having set
out its reasoning with respect to the applicant’s credibility, it further
outlined other aspects of the applicant’s testimony that point to a lack of
well-founded fear.
[32]
First,
the Board noted that despite the threats received by the applicant, her mother
waited until the end of the school year before sending her to Canada and during
that time, Mr. Ross did not attempt to carry out his threats. It also noted
that the events occurred eight years ago.
[33]
The
Board then indicated that when asked why Mr. Ross wanted to kill her, given
that she had denied to the police that he had sexually abused her, the
applicant stated that he was afraid that she would end up talking. The Board then
indicated that when asked if she thought she was still at risk, given that she had
left eight years ago, the applicant answered that she did. The Board did not
share the applicant’s view and made the following comments:
. . .
[26] However, according to the
claimant’s testimony, in 2001, despite the fact that her mother had reported
Mr. Ross for having raped her, no charge was laid against him, which indicates
police ineffectiveness in this area.
[27] When asked to explain why, in
light of the foregoing, Mr. Ross would fear being reported, since the police
did not do anything, she answered that she did not know.
[34]
The
Board then arrived at the following conclusions:
[28] The claimant did not
establish that, should she return to Saint Vincent, she would face a serious
possibility of persecution as a result of her membership in a particular social
group, namely, women fearing gender-related persecution.
[29] In addition, she failed to show
that she would be personally subjected to a risk to her life, or to a risk of
cruel and unusual treatment or punishment, should she return to Saint Vincent.
[Emphasis added]
. . .
[35]
Section
96 and subsection 97(1) of the IRPA both contain an objective component.
Discussing the test to be applied under section 96, in Pour-Shariati v Canada (Minister of
Employment and Immigration) (1994), [1995] 1 FC 767, 52 ACWS (3d) 621
(TD), the Court held at para 17:
Before turning to the cases themselves, I
would observe that a Convention refugee claimant must demonstrate a
well-founded fear of persecution in the future to support a Convention refugee
claim. In making a claim for Convention refugee status, an individual will often
advance evidence of past persecution. This evidence may demonstrate that he/she
has been subjected to a pattern of persecution in his/her country of origin in
the past. But this is insufficient of itself. The test for Convention refugee
status is prospective, not retrospective: for example, see Minister of
Employment and Immigration v. Mark (1993), 151 N.R. 213 (F.C.A.), at page 215.
The relevance of evidence of past persecution is that it may support a
well-founded fear of persecution in the future. However, it is a finding that
there is a well-founded fear of persecution in the future that is critical.
[36]
In
Sanchez v Canada (Minister of Citizenship and Immigration), 2007 FCA
99, 155 ACWS (3d) 937, the Federal Court of Appeal emphasized the prospective aspect
of the risk in the application of subsection 97(1), at para 15 it indicated:
As such, a determination of
whether a claimant is in need of protection requires an objective assessment of
risk, rather than a subjective evaluation of the claimant's concerns. Evidence
of past persecution may be a relevant factor in assessing whether or not a
claimant would be a risk of harm if returned to his or her country, but it is
not determinative of the matter. Subsection 97(1) is an objective test to be
administered in the context of a present or prospective risk for the claimant.
[37]
Nothing
leads me to conclude that, in this case, the Board’s assessment on that matter
was unreasonable. Its conclusion is based on the evidence and its inference
about prospective fear falls within the range of “possible, acceptable outcomes
which are defensible in respect of the facts and law.”
[38]
For
all of the above reasons, and despite the sympathy that I have for the
applicant, this application for judicial review cannot succeed.
[39]
No
questions were proposed for certification and none arise.
JUDGMENT
THIS COURT ORDERS that the request
for an extension of time to file a time-limited application for
leave and judicial review is granted and that it was therefore filed in a
timely manner, and that the application for judicial review be dismissed.
“Marie-Josée
Bédard”
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