Date: 20100505
Docket: IMM-4851-09
Citation: 2010 FC 493
Ottawa, Ontario, May 5, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SOMPHONE BOUPHAPHANH
WATDEE
BOUPHAPHANH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. FACTS
[1]
The
Applicants, husband and wife, who are citizens of Laos, seek a
judicial review of a decision by the Immigration and Refugee Board (Board)
rejecting their claim for refugee status and protection. The Applicants’ claim
is based upon the circumstances related to the husband and the wife’s claim is
entirely dependent upon it.
While the
Applicants are citizens of Laos, they have seven children, one of whom is
in Canada and is a
permanent resident by virtue of marriage.
[2]
The
principal Applicant claims that he fears the authorities in Laos because he has
expressed praise for Canada and the United States, their
success and their values and that these comments have attracted the suspicion
of the Laotian authorities.
[3]
The
principal Applicant claimed that he was arrested on November 15, 2005, held for
two weeks but not mistreated and that when he was released, he was warned to
cease his criticism of the government or risk severe punishment.
[4]
Upon
his release from incarceration, the principal Applicant was successful in
applying for a three-month exit visa securing a letter of recommendation from
the Ministry of Labour and Social Welfare.
[5]
Within
approximately a month of arriving in Canada, the Applicants applied
for their refugee status. The refugee claim under s. 96 was based upon the fear
expressed regarding support for Canadian and U.S. success
values and it was the basis for the majority of the s. 97 claim. However, added
to the arguments before the Board and before this Court was an allegation that
the principal Applicant feared cruel and unusual punishment under s. 97 on the
basis that they had overstayed their exit visa.
[6]
The
Applicants have raised two legal issues in respect of the Board’s decision as
well as a challenge to the credibility findings in respect of inconsistencies
in the testimony. The issue of credibility was not strongly advanced in this
Court, nor should it have been. Those findings are subject to considerable
deference and would not have been successful in any event.
[7]
The
Applicants’ basis for the allegation of error by the Board rests on the finding
contained in paragraph 24 of the Board’s reasons which reads as follows:
The PC correctly pointed out that I must
examine their claims under section 97(1) of the IRPA. However when I
have found the PC to be not credible, I am not obliged to conduct a thorough
analysis under section 97 of the IRPA. The counsel in a submission
states that because the PC stayed past the time allowed, upon return he is
likely to face cruel and unusual treatment or punishment. First of all, the
burden is on the counsel and the PC to show that, it is more likely than not,
the PC upon return will be arrested and if so, the punishment given to the PC will
be so excessive to outrage the standards of decency. The PC or the counsel has
not provided evidence to support that the PC will be arrested upon return to Laos and that he will be given cruel and
unusual treatment or punishment.
[8]
The
Applicants assert that there are two errors in this paragraph:
(1) The
finding that there was no obligation to perform a s. 97 analysis in the face of
an adverse credibility finding; and
(2) That
to satisfy s. 97, the Applicant was required to show that he would be arrested
upon return and subject to cruel and unusual treatment or punishment.
II. ANALYSIS
[9]
The
issues raised by the Applicants are questions of law and subject to the
correctness standard. Absent a finding of an error of law, the issue of whether
the onus had been met sufficiently to satisfy the Board is a question of mixed
law and fact and subject to the reasonableness standard (Ayilan v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1328).
As indicated
earlier, credibility findings are subject to greater deference and judged on a reasonableness
standard (Aguebor v. (Canada) Minister of Employment and Immigration
(F.C.A.), [1993] F.C.J. No. 732; [1993] 160 N.R. 315).
[10]
The
Applicants placed considerable reliance on Justice Blanchard’s comments in Bouaouni
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1211, and in particular, in
regard to the following comments:
41 … There may well be instances
where a refugee claimant, whose identity is not disputed, is found to be not
credible with respect to his subjective fear of persecution, but the country
conditions are such that the claimant’s particular circumstances, make him/her
a person in need of protection. It follows that a negative credibility
determination, which may be determinative of a refugee claim under s. 96 of the
Act, is not necessarily determinative of a claim under subsection 97(1) of the
Act. …
[Emphasis added]
[11]
The
Applicants argue that the Board Member, even in the face of the adverse
credibility finding, was obliged to engage in a s. 97 analysis. Also, they
further rely on a decision of Grama v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1030 at paragraph 8:
8 In
situations where the Board feels a claim has been exaggerated, it must still
determine whether there is sufficient evidence to justify a well-founded fear
of persecution. …
It seems to us that the Board should have asked
itself whether, even assuming some exaggerations, the applicant had not shown
that he had been undoubtedly the victim of harassment of a variety of forms
amounting to persecution, making thereby his fear to go back [sic] not
only genuine but objectively founded.
[12]
In
my view, the Board did exactly what was referred to both in Bouaouni,
above, and in Grama, above, in that the Board found that given the
nature of the evidence in front of it, there was no reason to do a “thorough
analysis” under s. 97. What the Board did was underscore the obligation that
rests with an applicant to provide evidence to support a s. 97 analysis.
[13]
Justice
Layden-Stevenson in Brovina v. Canada (Minister of
Citizenship and Immigration), 2004 FC 635, summarised the state of the
law which I adopt:
17 These authorities, in my view, do
not demand that a section 97 analysis be performed in every case. Rather, it will
be required in some cases. It is a question that must be reviewed on a case by
case basis. If there is evidence before the board to support a section 97
analysis, the analysis must be conducted.
[14]
The
Applicant put forward no evidence upon which to base the s. 97 analysis with
respect to his fear of persecution arising from his comments. The Applicant did
not raise enough evidence to warrant a s. 97 analysis.
[15]
With
respect to the question of the test under s. 97 and whether the Applicant was
required to show that he would be arrested upon return, this related,
presumably, to the fact that the Applicants had overstayed their exit visas.
The Applicants put in no evidence as to what the consequences might be for
overstaying the exit visa, and there was no other objective evidence on this
point other than the fact that the requirement for an exit visa had recently
been revoked. The only consequence that the Applicant had referred to in
respect of his dealing with Laotian authorities was his arrest in 2005. The
Board’s comments with respect to proving that he would be arrested must be read
in the context that the only consequence ever raised by the Applicant was that
of arrest.
[16]
Therefore,
I find that the comments with respect to this test being “that it is more
likely than not” that the Applicant would be arrested upon return, is not an
error in the circumstances of this case. While it is easy to suggest that it
would be better if the Board had given more fulsome reasons, that type of
comment could be made about virtually every decision maker.
[17]
To
the extent that there were any problems with respect to the Board’s decision, I
would adopt the comments of Justice Blanchard in Bouaouni, above, where
he says at paragraph 42:
… However, in the circumstances of this case
and in the exercise of my discretion, I also find that the error is not
material to the result. I find that the Board’s conclusion, that the applicant
was not a “person in need of protection” under paragraphs 97(1)(a) and (b)
of the Act, was open to it on the evidence.
III. CONCLUSION
[18]
For
all these reasons, this judicial review will be dismissed. There is no question
of general importance for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Michael
L. Phelan”
Email this Content