Date: 20100126
Docket: IMM-1875-09
Citation: 2010 FC 90
Toronto, Ontario, January 26,
2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ODETTE
BYAJE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board of
Canada (the Board) dated March 4, 2009, wherein it was determined that the
applicant was not a Convention refugee and not a person in need of protection.
These are my reasons for dismissing the application.
Background
[2]
The
applicant, Odette Byaje, is a citizen of Rwanda.
[3]
The
applicant’s husband left Rwanda for Canada in October
2002 and was accepted as a Convention Refugee in Montréal, Québec, for reasons
unrelated to this application.
[4]
In
July 2004, when the applicant was working as an assistant to the consul at the
United States (US) Embassy in Kigali, Rwanda, four visa applicants were
arrested by the local authorities for having submitted false documents to the
consulate.
[5]
After
the four individuals were arrested, the applicant says that she began receiving
death threats on her mobile phone at all hours of the day, her home was broken
into and the windows were broken, and her security guard was assaulted.
[6]
According
to the applicant, due to her position at the US Embassy and the popular
misconception that she made decisions regarding visa applications, she was
targeted for revenge by people linked to the arrested individuals.
[7]
The
applicant did not report the threats, break-in and property damage to the
police or to her Embassy employers. She says that she was warned not to by the
callers and had found out that one of the persons who had been arrested had a
relative who worked at the Ministry of Information.
[8]
The
applicant says that she was paralyzed with fear. She left for the United
States
on August 24, 2004 since she was already in possession of a US visa.
[9]
After
being refused refugee protection in the United States in September 2004 and
seeing her appeal of that decision postponed three times, the applicant came to
Canada in December
2007 to make a refugee claim. She did not rejoin her husband, who had not
sponsored her to come to Canada as she had been expecting, but went to
live with friends in Hamilton, Ontario.
Decision Under Review
[10]
The
RPD member determined that “revenge” is not a Convention ground and that
consequently section 96 of the IRPA is not applicable. He assessed the claim
on the basis of paragraph 97(1)(b) of the IRPA: whether the applicant was subject
to a risk to life or to a risk of cruel and unusual treatment or punishment.
[11]
The
member did not believe the story of the applicant for the following reasons:
• Alleging
to have received threats due to her position at the US Embassy, the applicant had
not reported the threats, break-in and property damage to the Embassy
authorities;
• The
applicant had not reported the incidents to the police stating at the hearing, that
it would not have changed anything and that anyway, she had a US visa. By not
reporting to the police, the member found, the applicant is not in a position
to demonstrate that the Rwandan authorities are unable/unwilling to protect
her;
• The
applicant’s claim for refugee protection in the US was not
supported by any correspondence from the US Embassy in Kigali, as would be
expected in the circumstances.
[12]
The
member had difficulty accepting the applicant’s explanations at the hearing.
The applicant did not believe that a letter from the US Embassy attesting that
she was receiving threats due to her position at the consul’s office in Kigali
would have been beneficial to her claim for asylum in the US.
[13]
Choosing
to leave Rwanda because she
possessed a US visa, the member found that the applicant was seeking to reunite
with her husband in Canada rather than to evade the threats in Rwanda.
[14]
The
member found that the applicant was not credible.
Issues
[15]
The
sole issue is whether the Board member’s findings regarding plausibility and
the overall credibility of the applicant’s claim were reasonable?
Analysis
[16]
Findings
of credibility are "quintessentially findings of fact": see Dr. Q.
v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
226, [2003] S.C.J. No. 18, at para. 38. Since Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, it has been held that a Board’s
decision concerning questions of fact and credibility are reviewable upon the
standard of reasonableness: Sukhu v. Canada (Minister of Citizenship and
Immigration), 2008 FC 427, [2008] F.C.J. No. 515; see also Navarro v.
Canada (Minister of Citizenship and Immigration), 2008 FC 358, [2008]
F.C.J. No. 463, at paras. 11-15.
[17]
The
Board’s credibility analysis is central to its role as a trier of fact. As
such, these findings are to be given significant deference by the reviewing
Court. The Board’s credibility findings should stand unless its reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law: Dunsmuir, supra, at para. 47.
[18]
In
a case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the Board and its outcome fits
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339, [2009] S.C.J. No. 12, at para. 59.
[19]
It
is a well established principle that the Board need not mention every piece of
evidence in its decision. However, it must address the evidence that could
have an impact on its decision: Gajic v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 108, [2003] F.C.J. No. 154, at
para. 14. There also exists a presumption that the Board considered all the
evidence before it: Arizaj v. Canada (Minister of
Citizenship and Immigration), 2008 FC 774, [2008]
F.C.J. No. 978, at para. 20, citing: Florea v. Canada (Minister of
Employment and Immigration) (F.C.A.), Appeal No. A-1307-91, [1993] F.C.J.
No. 598.
[20]
While
I agree with the applicant that the Board member can assess the applicant’s
testimony according to the RPD’s policy document/guidelines of January 2004: “Assessment
of Credibility in Claims for Refugee Protection”, it is a well established
principle that these guidelines are not law and accordingly not binding. The
RPD guidelines are of assistance to the Court in reviewing discretionary
decisions: Kisana v. Canada (Minister of
Citizenship and Immigration), 2008 FC 307, [2008]
F.C.J. No. 429, at para. 10, citing: Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457, at para. 20.
[21]
I am
unable to accept the applicant’s argument that since her testimony was
not directly questioned by the Board, it is presumed to be truthful: Maldonado
v. Canada (Min of Employment
& Immigration), [1980] 2 F.C. 302, [1979] F.C.J. No. 248. A
presumption of truthfulness exists only in so far as there are no reasons to doubt
the truthfulness: Maldonado, paragraph 5. In this case, such a
reason is that the member found the applicant’s story not plausible. Members
are entitled to
rely on common sense in assessing credibility: Shahamati v. Canada (Minister of Employment and
Immigration) (F.C.A.), Appeal No. A-388-92, [1994]
F.C.J. No 415.
[22]
I
am also unable to find in the member’s reasons comments disclosing that the
claimant’s testimony was not respected. The testimony was not distorted by the
member, as argued by the applicant relying on Maruthapillai v. Canada (Minister of
Citizenship and Immigration), (2000), 205 F.T.R. 263, [2000] F.C.J. No.
761, at para. 13. The reasons clearly indicate that the member did not believe
the story of Ms. Byaje and had difficulty believing her explanations at the hearing.
[23]
I
do not find that the member’s statement “ça n’aurait rien donné” was a
distortion of the applicant’s testimony when she explained why she did not
complain to the police. Noting that the applicant was fearful of the
authorities because one of the persons who had been arrested was alleged to
have a relative who worked at the Ministry of Information, the applicant
herself answered the tribunal’s question with the expression “ça ne sert à
rien.”
[24]
Contrary
to the applicant’s argument, I do not find that the member’s statement above
reveals that he erred by ignoring the evidence explaining apparent
inconsistencies, such as why the applicant did not report to the police, before
making his adverse credibility finding: Owusu-Ansah v. Canada (Minister of
Employment and Immigration) (F.C.A.), (1989), 8 Imm. L.R. (2d) 106, [1989]
F.C.J. No. 442; cited in Mohammadi v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1028, [2003] F.C.J. No. 1302, at
para. 26.
[25]
This
is also not a case, as was argued, in which the Board erred by requiring
documentary evidence to corroborate the claimant’s uncontradicted testimony as
in: Ahortor v. Canada (Minister of Employment
and Immigration), (1993), 65 F.T.R. 137, [1993] F.C.J. No. 705,
at para. 50; Zheng v. Canada (Minister of
Citizenship and Immigration), 2007 FC 974, [2007]
F.C.J. No. 1267.
[26]
I
agree with the respondent that the member found that the applicant’s actions
were not consistent with the events of her story. Consequently, I would agree
with Justice Blanchard’s reasons in Sinnathamby v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 473, [2001] F.C.J. No. 742, at para.
24, indicating that the Board will not err when it requires corroborating
documents in circumstances in which it had credibility concerns:
24 I accept the contention that this Court has held
that the CRDD may err when it requires corroborating evidence to support the
claimant's uncontradicted testimony. However, in the circumstances of this
case, given the credibility concerns explicitly put to applicants, I am of the
opinion that this principle does not apply. The CRDD noted the abundance of
and supportive documentary evidence made available to it by the applicants for
the earlier years. Given the credibility concerns expressed by the CRDD, it
was open to it to draw a negative inference by reason of the fact that the
applicants failed to provide any such evidence. [My underlining]
[27]
In
Ramirez v. Canada (Minister of
Citizenship and Immigration), 2009 FC 442, [2009] F.C.J. No. 534, at
para. 15, Justice Beaudry states:
15 On numerous occasions, this
Court has confirmed that the panel may draw a negative inference because a
claimant has not produced corroborative evidence to support his or her
testimony when the panel has credibility concerns (Sinnathamby v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 473, 105 A.C.W.S. (3d)
725; Muthiyansa v. Canada (Minister of Citizenship and Immigration),
2001 FCT 17, 103 A.C.W.S. (3d) 809; Dhindsa v. Canada (Minister of
Citizenship and Immigration), 102 A.C.W.S. (3d) 165, [2000] F.C.J. No. 2011
(F.C.T.D.) (QL); Quichindo v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 350, 115 A.C.W.S. (3d) 680). [My underlining]
[28]
I
am also unable to give weight to the applicant’s argument that the member erred
by requiring corroborative documents as in the recent case of McDowell v. Canada (Minister of
Citizenship and Immigration), 2009 FC 601, [2009] F.C.J. No. 786. In McDowell,
it is noted, at paragraph 49, that it was a case wherein the applicant’s
credibility was not questioned.
[29]
It
was reasonable and within the range of possible, acceptable outcomes which are
defensible in respect of the facts and the law, for the Board member not to refer to (1) the
medical certificate and to (2) the letter from the social worker in his decision
as these documents would not have materially altered the negative credibility
findings: Dunsmuir, supra, at para. 47.
[30]
With
regards to the medical certificate, I agree with the respondent that it
pertained to the applicant’s security guard who was injured during the alleged
break-in in July 2004. The document does not directly pertain to the
applicant. Further, the medical certificate indicating that the security guard
needed to rest from July 15 to July 30, 2004 is inconsistent with the
applicant’s PIF stating that the break-in occurred during the last week of
July. As the medical certificate was not directly probative of the applicant's
claim, it was reasonable for the member not to discuss it in his reasons.
[31]
It
was also reasonable for the member to omit a reference to the letter from the
social worker of the Hamilton Health Centre, some four years after she had left
Rwanda. While the letter
states that the applicant has symptoms that would appear to be those of
post-traumatic stress disorder (PTSD) due to a troubled past before her arrival
in Canada, it does not bolster the
applicant’s credibility. This letter does not consist of a diagnosis but is
merely a reflection of the applicant’s claim as reported to the social worker.
It was not necessary for the member to refer to it.
[32]
I
find another inconsistency in the applicant’s PIF when she stated that she was
not threatened prior to 2004. This statement undermines her claim that she had
reported threats to the US Embassy in 2000-2001 and was told they could not
protect her at home. However, I note that the member did not elaborate on this
in his analysis.
[33]
In
considering (a) that the applicant did not speak to her employer (the US Embassy)
about the threats received in July 2004 due to her position at the Embassy; (b)
that the applicant did not complain to the police when her house was broken
into; (c) that the applicant did not think it would have been useful to have a
letter from the Embassy stating her problems to support her application for
refugee protection in the United States before seeking protection in Canada, it
was a reasonable outcome for the Board member to determine that the applicant
was not a person in need of protection.
[34]
Having
found that the decision of the member was a reasonable result in this case, it
is not open to this Court to substitute its own view of a preferable outcome: Khosa,
supra, at para. 59.
[35]
The
Board had the benefit of hearing the applicant’s evidence directly and the
decision overall was within the range of acceptable outcomes. Accordingly, I
must dismiss the application. No questions were proposed for certification.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is dismissed. There are no
questions to certify.
“Richard G. Mosley”
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