Date: 20100218
Docket: IMM-2764-09
Citation: 2010 FC 168
Ottawa, Ontario, February 18,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
LAURA
SOKOLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated May 1, 2009, wherein the Board determined that the Applicant is neither a
convention refugee nor a person in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, R.S. 2001, c. 27.
[2]
For
the reasons set out below, the application is dismissed.
I. Background
[3]
The
Applicant is a single 28 year-old ethnic Hungarian who is a Serbian citizen. She
has one child who remains in Serbia and is not a party to this application. Her
father has been a resident in Canada for twenty years. The Applicant entered Canada on a
visitor’s visa in June 2006 and claimed protection that September.
[4]
The
Applicant claims that she faces persecution in Serbia because she
is ethnic Hungarian. The Applicant stated that this persecution has been in the
form of harassment and rape. She also claims that her son’s father is abusive
towards them and has made threats. The Applicant went to the police after one
incident of harassment, being pushed off her bicycle, but not after she was
raped. The Applicant stated that she did not go to the police as they do not
provide protection for Hungarian women and that she had a negative experience
with them.
[5]
The
Board found that the determinative issues in this matter were credibility and
state protection. The Board determined that the Applicant was not credible based
on the number of errors, omissions and inconsistencies between her Personal
Information Form (PIF), testimony, and the documentary evidence. The Board also
found that the Applicant had failed to rebut the presumption of state
protection.
II. Standard
of Review
[6]
The
issues raised by the Applicant will be assessed on a standard of reasonableness
(see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190; Canada (Minister of Citizenship and Immigration) v. Khosa,
2009 SCC 12; [2009] 1 S.C.R. 339; Sanchez v. Canada (Minister of
Citizenship and Immigration) [2008] F.C.J. No. 886; 2008 FC 696). As
set out in Dunsmuir, above, and Khosa, above, reasonableness
requires the existence of justification, transparency, and intelligibility in
the decision-making process. It is also concerned with whether the decision
falls within a range of acceptable outcomes that are defensible in respect of
the facts and law.
[7]
I
note that the Court is to demonstrate significant deference to Board decisions
with regard to issues of credibility and the assessment of evidence (see Camara
v. Canada (Minister of Citizenship and Immigration), 2008 FC 362; [2008]
F.C.J. No. 442, at paragraph 12).
III. Issues
[8]
The
Applicant set out the following issues to be determined:
(a) Did the Board render a negative
credibility finding that was unreasonable and not in accordance with the
evidence before it?
(b) Did
the Board render a finding of state protection that was unreasonable and not in
accordance with the evidence before it?
[9]
For
the reasons below, the Board’s decisions with regard to credibility and state
protection were reasonable.
[10]
Prior
to reviewing these issues, I must consider a piece of evidence provided by the
Applicant that was before the Board. The evidence in question is in the form of
a three page letter from the Executive Director of the Sexual Assault/Rape
Crisis Centre of Peel. The letter opens with the line “I am writing this letter
in support of the Refugee claim of Ms. Laura Sokola…” It sets out how the
Executive Director came to know the Applicant, the facts related by Ms. Sokola,
and the Executive Director’s assessment. In conclusion, the Executive Director
stated that the letter was based on “my brief assessment”. At paragraph 12, she
also wrote that:
I strongly believe that were
Ms. Sokola returned to Serbia that she would not only suffer cruel and unusual
treatment, but continue to experience a life of indignity, persecutorial human
rights violations as a Hungarian woman.
[11]
The
Applicant argues that this evidence is a psychological report that sets out
challenges the Applicant has with answering questions and providing details.
The Applicant argues that the report outlines various types of avoidance behaviours,
which included the types of behaviours which the Board member relied on in
determining that the Applicant lacked credibility. The Applicant argues that
the Board failed to take the report into account and/or evaluate the evidence
before it in light of the report.
[12]
The
Respondent argues that the letter is not a psychological report as the
Executive Director did not identify herself as a certified professional, it is
based on the Applicant’s allegations, and the introductory sentence states that
the writer is sending a letter of support.
[13]
If
the letter is a psychological report that addresses issues that may affect the
Board’s credibility determination, then the Board would need to evaluate it specifically
(see C.A. v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 1082; 73 A.C.W.S. (3d) 654).
[14]
In
this case, the letter is not a psychological report. I come to this conclusion
for the following reasons: it was written as a “letter of support”; was based
on a “brief assessment”; it does not indicate any tools, methods or tests used,
and the fact that it goes beyond the psychological expertise of the writer as
she opined on non-psychological issues. The combination of these factors, in
this case, does not support the position that the letter was a psychological
opinion.
[15]
Therefore,
it was not unreasonable for the Board to have not specifically referred to the
letter and how it related to the credibility findings. In this case, the Board
did mention the letter and gave it little weight. This was reasonable.
A. Did
the Board Render a Negative Credibility Finding That Was Unreasonable and Not In
Accordance With the Evidence Before It?
[16]
The
Applicant argues that the Board’s credibility assessment is flawed as the
Member ignored country information, found inconsistencies in the Applicant’s
testimony where none existed, and found some of the Applicant’s evidence to be
implausible.
[17]
The
Respondent argues that the Board did not err in drawing an adverse credibility
finding given the omissions, contradictions and inconsistencies in her
evidence.
[18]
The
Board found numerous inconsistencies between the Applicant’s PIF, oral
testimony and the documentary evidence. For example, the Board found
inconsistencies in her explanation as to why she went to the police after she
was knocked off her bicycle but not after any of the three alleged rapes. Another
example is with regard to inconsistencies in her explanation as to why she did
not apply for protection in Hungary during her numerous
trips to that country or immediately after she arrived in Canada. As stated
in Castroman v. Canada (Secretary of State) (1994), 27
Imm. L.R. (2d) 129; 81 F.T.R. 227 (F.C.T.D.), one of the primary ways that the
Board tests a claimant's credibility is by comparing the PIF with the
claimant's oral testimony.
[19]
The
Board also found some of the Applicant’s evidence to be implausible. The Board
has the jurisdiction to determine the plausibility of testimony and their
decision is to be shown deference (Aguebor v. (Canada) Minister of
Employment and Immigration), [1993] F.C.J. No. 732; 160 N.R. 315 (F.C.A.)).
[20]
The
Board member made some unfortunate choices with regard to the words used in the
decision, such as his statements with regard to “the good doctor” and
references to a “minor” assault on the Applicant’s son. The Applicant also
claims that the Board accepted a poor translation of a term. However, these
matters do not affect the heart of the decision. I note that in Ogiriki v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 420; 2006 FC 342,
Justice Simon Noël held that Board decisions maybe reasonable even if a few
"weaknesses" are identified (see paragraph 13).
[21]
I
also note that the Board did consider the nature of the allegations. Based on
this consideration, the Board asked counsel to be the first to question the
Applicant and considered the Chairperson’s Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution.
B. Did
the Board Render a Finding of State Protection That Was Unreasonable and Not In
Accordance With the Evidence Before It?
[22]
The
Applicant argues that the Board ignored contradictory evidence of the state’s
failure to protect Hungarians and other minorities and erred when it concluded
that grassroots organizations could provide protection for her.
[23]
The
Respondent argues that the Board reasonably concluded that the Applicant’s
actions do not rebut the presumption of state protection and that the panel
reasonably found that the Applicant’s reason that she was “disappointed” in the
police was not sufficient to explain her inability to seek help from the authorities.
[24]
A
claimant seeking to rebut the presumption of state protection must adduce
relevant, reliable and convincing evidence which satisfies the trier of fact,
on a balance of probabilities, that the state protection is inadequate (Carillo
v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94; 69 Imm. L.R.
(3d) 309 at paragraph 30).
[25]
In
this case, the Board held that the Applicant had not made efforts to seek out
state protection, that the documentary evidence did not support the position
that state protection was unavailable, and that the Applicant’s reasons for not
contacting the police were not credible or plausible.
[26]
Refugee
protection is meant to be a form of surrogate protection to be invoked only in
those situations where the refugee claimant has unsuccessfully sought the
protection of their home state (see Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689; [1993] S.C.J. No. 74; Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 584; 2007 FCA 171). In Szucs v.
Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1614; 100 A.C.W.S. (3d)
650 (T.D.), the Applicant claimed he did not report the two incidents of
persecution to the police because he did not think it would help his situation.
In his reasons, Justice Pierre Blais held the Board may examine all reasonable
steps that the Applicant has taken to seek state protection.
[27]
In
this case, the Board held that the Applicant should have sought state
protection for the serious assaults on her. This was reasonable.
[28]
The
Applicant argues that the Board ignored contradictory evidence of the state’s
failure to protect Hungarians and other minorities. However, the Board is not
required to make reference to each item of documentary evidence or summarize all
the documentary evidence introduced (see Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)) and the
reasons of administrative agencies are not to be read hypercritically (see Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35; 1998
CanLII 8667 (F.C.T.D.)).
[29]
In
this case, the Board referenced the Applicant’s evidence in page 1 of its
reasons and stated on page 6 that “on the evidence” the Applicant had not
rebutted the presumption of state protection. This was reasonable.
[30]
The
Applicant further argues that the Board erred in determining the risk to the
Applicant, as state availability of state protection is an individualized
determination. The Applicant relies on Nadarajah v. Canada (Solicitor
General),
2005 FC 713, [2005] F.C.J. No. 895, for this position.
[31]
In
Nadarajah, above, Justice Carolyn Layden-Stevenson held that the Board
had failed to properly assess the states ability to protect the Applicant, a
high profile member of a particular political group, based on the evidence that
high profile members, as opposed to low profile members, were wanted by the
authorities. There are no similar links in this case.
[32]
The
Applicant also argues that the Board erred when it concluded that grassroots
organizations could provide protection for her. This was not the conclusion of
the Board. The Board stated at page 8 of its reasons that “…in addition to
direct state protection provided by the government of Serbia, there are
effective grassroots organizations working to assist victims of domestic abuse,
most of these are women and sometimes children.” Therefore, the grassroots
organizations were identified to play an assistive role and not that of state
protection.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is dismissed; and
2.
there
is no order as to costs.
“ D.
G. Near ”
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