Date: 20100415
Docket: IMM-4428-09
Citation: 2010 FC 410
Ottawa, Ontario, April 15,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
CATHERINE
RESTREPO MEJIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for the judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated August 14, 2009, wherein the Board determined that the Applicant was not
a Convention refugee and not a person in need of protection under sections 96
and 97 of the Immigration and Refugee Protection Act, R.S. 2001, c.
27 (IRPA).
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant is a 23 year old citizen of Columbia. She arrived in Canada on
March 2, 2007, on a visitor’s visa and made a claim for protection on
August 27, 2007. The Applicant’s claim for refugee protection is based upon her
fear of persecution by the Revolutionary Armed Forces of Columbia (FARC).
[4]
In
2007 the Applicant was a communications student in Columbia. The
Applicant was to travel with fellow students to Panama to work on a
school project. According to the Applicant, a member of the group, “Sergio”,
decided not to go as he had received a warning from members of FARC against the
project. While in Panama, the Applicant learned from her mother that
Sergio had disappeared. Upon her return, the Applicant’s mother told her that
she had received a threatening phone call from FARC asking for the Applicant. The
Applicant relocated to live with an Uncle. In February, she was issued a visa
to visit family in Canada. While in Canada, the
Applicant states that her mother received a second threatening phone call from
FARC.
[5]
The
Board was not persuaded that, on a balance of probabilities, there existed an
objective basis for the Applicant’s fear and that if she returned to Columbia she would
not face a reasonable chance of harm or persecution. The Board did not find the
Applicant’s story to be credible as to the well-foundedness of her fear and
held that it was hard to believe that FARC was after her or that they would
still be interested in her if she returned. The Board noted that there was no
documentary proof that the Applicant had been targeted by FARC. The Board
specifically stated that while the lack of documentary evidence was not fatal
by itself, it drew a negative inference from it. The Board combined this
negative inference with the Applicant’s testimony and determined that the Applicant
was not targeted by FARC.
II.
Issues
and Standard of Review
[6]
The
issues raised by the Applicant can be summarized as follows:
a) Did
the Board misunderstand the nature of the test or onus imposed by the definition
of a Convention refugee?
b) Did
the Board base its conclusions on speculation, conjecture and make an adverse
finding that was based on no evidence?
c) Did
the tribunal fail to exercise its jurisdiction to consider the Applicant’s
claim for protection in accordance with subsection 97(1) of IRPA?
[7]
At
the hearing, Counsel for the Applicant submitted a late affidavit, on consent,
that sought to shift the basis for the Applicant’s claim toward the Applicant
being a female university student as opposed to being specifically targeted by
FARC. However, this did not significantly change the dynamic of this case as
the Applicant did not take this focus at her refugee hearing.
[8]
Issues
a) and b) 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). 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).
[9]
Issue
c) is a question of law and will be assessed on a standard of correctness (Plancher v.
Canada (Minister of
Citizenship and Immigration), 2007 FC 1283; [2007] F.C.J. No. 1654).
III. Analysis
A. Did the
Board Misunderstand the Nature of the Test or Onus Imposed by the Definition of
a Convention Refugee?
[10]
The
Applicant argues that the Board imposed too great an onus on the Applicant to
establish her claim as none of the allegations were inherently lacking in
credibility but the Board found that the allegations lacked corroboration,
proof or “definitive proof” (see Adjei v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 680; 57 D.L.R. (4th) 153 (F.C.A.). The
Applicant argues that if she had been asked to provide documentary or
independent evidence then she could have addressed this issue.
[11]
The
Respondent argues that it is the claimant’s responsibility to introduce into
evidence all the material which may be essential to establish their claim as
well-founded, relying on Rahmatizadeh v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 578; 48 A.C.W.S. (3d) 1427.
[12]
In
this case, the Board’s concern with the lack of documentary proof was only one
element of its overall credibility finding. The Board found that the
Applicant’s claim was lacking in credibility, that the Applicant had provided
generalized and embellished testimony, and also noted that there was no
documentary evidence to support the story. As set out in paragraphs 8 to 12 of
the decision, it was reasonable for the Board, based on the evidence provided
by the Applicant, to find that she did not have a well founded fear. It was up
to the Applicant to introduce into evidence all the material to establish that
her claim was well-founded and a lack of relevant documents can be a valid
consideration for the purpose of assessing credibility.
[13]
I
also note that when an applicant swears to the truth of certain allegations,
this creates a presumption that the allegations are true unless there are valid
reasons to doubt their truthfulness (see Permaul v. Canada (Minister of
Employment and Immigration), [1983] F.C.J. No. 1082; 53 N.R. 323 (F.C.A.)).
On this record there were valid reasons raised by the Board, such as the
Applicant’s generalizations and embellishments, to doubt the truthfulness of
her claim.
B. Did
the Board Base its Conclusions on Speculation, Conjecture and Make an Adverse Finding
that was Based on No Evidence?
[14]
The
Applicant argues that the Board speculated unreasonably in drawing its
conclusion that the agents of persecution could have been some group or
individuals other than FARC and that the Board had no good reason to doubt the
Applicant’s evidence. The Applicant also submits that the Board’s statements of
how FARC “usually” acts were not based in the evidence and had a negative
influence over the Board. The Applicant argues that implausibility findings
should be made in only the clearest of cases, relying on Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776; 208 F.T.R. 267.
[15]
The
Respondent argues that the Applicant’s argument should be given no weight.
[16]
Any
weakness that may have been caused by the Board’s statements did not result in
the decision, as a whole, being unreasonable (see Ogiriki v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 420; 2006 FC
342 at paragraph 13; Miranda v. Canada (Minister of
Employment and Immigration), 63 F.T.R. 81; [1993] F.C.J. No. 437). It is
clear that the Board based the decision on the totality of the evidence, and
not this one point.
[17]
In
this case, the Board determined that the facts, as advanced by the Applicant,
were outside the realm of what could reasonably be expected, and that the
Applicant did not provide documentary evidence to support her claim. The Board
is a specialized tribunal and has the ability to determine the weight to be
assigned various pieces of evidence. This Court has noted the
"presumption" that a claimant's sworn testimony is true is always
rebuttable, and, in appropriate circumstances, may be rebutted by the failure
of the documentary evidence to mention what one would normally expect it to
mention (see Adu v. Canada (Minister of Employment and Immigration),
[1995] F.C.J. No. 114; 53 A.C.W.S. (3d) 158 (F.C.A.)). The Court’s role is not
to re-weigh the evidence, but to determine if the decision is reasonable and in
this case the Board’s decision was reasonable.
C. Did the
Tribunal Fail to Exercise its Jurisdiction to Consider the Applicant’s Claim for
Protection in Accordance with Subsection 97(1) of IRPA?
[18]
The
Applicant argues that the Board’s references to subsection 97(1) in the first
and final paragraphs of the reasons did not discharge its responsibility to
conduct a separate analysis for subsection 97(1).
[19]
Under
subsection 97(1) of the IRPA, the Board must assess whether a refugee
claimant is in need of protection for reasons of potential death, torture, or
cruel and unusual treatment or punishment.
[20]
A
negative credibility finding in relation to section 96 will often obviate the
need to consider section 97 (see Emamgongo v. Canada (Minister of
Citizenship and Immigration), 2010 FC 208; [2010] F.C.J. No. 244; Plancher,
above). In Plancher, Justice Michel Beaudry set the principle out as
such:
17 In the present case,
the Board concluded that there was a lack of credibility on the part of the
applicant, and as such, the member did not believe that there was a serious risk
of torture, risk to the applicants' lives or a risk of cruel and unusual
treatment or punishment if they were to return to Haiti. If a claimant has been found not
credible, the Board is not required to perform a separate analysis. This was
confirmed in Kaur v. Canada (Minister of Citizenship and
Immigration),
[2005] F.C.J. No. 2112 (QL), 2005 FC 1710, at para.16:
With respect to the lack of a distinct
analysis regarding subsection 97(1), the Board was entirely justified not to
undertake that exercise from the moment where it determined that the applicant
was not credible. If the Board was correct on that point, it is clear that the
applicant could not have been considered to be a person in need of protection.
Incidentally, that is what this Court has determined on numerous occasions: Bouaouni
v. Canada (Minister of Citizenship and
Immigration),
[2003] F.C.J. No. 1540; 2003 FC 1211 (QL); Soleimanian v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 2013; 2004 FC
1660 (QL); Brovina v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 771, 2004
FC 635 (QL).
[21]
I
am satisfied that the Board's findings regarding the credibility of the
principal Applicant in relation to her experiences and those of her husband in Colombo were reasonably
open to it. In this case, the credibility findings are dispositive of the
question of whether the Board’s assessment of the Applicant’s claim to be a
person in need to protection under subsection 97(1) is sustainable. While the
linkage was not specifically set out in the reasons, I am satisfied that the
linkage is implicit in the reasoning (see Kulendrarajah v. Canada (Minister of
Citizenship and Immigration), 2004 FC 79; 245 F.T.R. 145, at paragraph
12).
[22]
In
this matter, the Applicant advanced her claim based on her fear of FARC, not on
her identity as a female student with journalistic and community interests. The
Board cannot be faulted for not addressing issues not advanced by the Applicant
(Emamgongo, above).
[23]
I
have already found that the decision was reasonable and, in this case, the
credibility findings are dispositive of the question of whether the Board’s
assessment of the Applicant’s claim under subsection 97(1) is sustainable. While
a more extensive explanation for the Board's conclusion regarding "person
in need of protection" in relation to the principal Applicant might well
have been desirable, I am satisfied that its absence does not constitute
reviewable error.
[24]
No
question to be certified was proposed and none arose.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this application is dismissed;
and
2. there is no order as to costs.
“ D.
G. Near ”
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