Date: 20100518
Docket: IMM-5800-09
Citation: 2010 FC 545
Ottawa, Ontario, May 18, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JAMILA SMITH ALLINAGOGO
HARRY SMITH
Applicants
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 Act), of a decision
rendered on October 13, 2009 by the Refugee Protection Division of the
Immigration and Refugee Board (the Board) which found that the Applicants are
not Convention refugees or persons in need of protection.
[2]
Jamila
Smith Allinagogo (the female Applicant) and her husband, Harry Smith (the male
Applicant) are both citizens of Nigeria. The male Applicant’s
claim is based on that of the female Applicant. The Applicants claim refugee
protection on the basis that they fear reprisals from the Applicant's female
uncle and a Chief to whom she was sold to by the uncle.
[3]
The
Board rejected the claim on the basis of lack of credibility of both Applicants.
[4]
The
application for judicial review will be dismissed for the reasons that follow.
[5]
Both
parties submit, and I agree, that the standard of review to be applied in this
case is that of reasonableness. The jurisprudence has satisfactorily established
that the Board’s conclusions regarding credibility are reviewable on that standard
(Huerta v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586, [2008] F.C.J. No. 737 (QL) at paragraph
14; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190). The issue of
the evaluation of the evidence is also held to the same standard (Zavalat v.
Canada (Minister of
Citizenship and Immigration), 2009 FC 1279, [2009] F.C.J. No. 1639 (QL)).
[6]
In
evaluating the reasonableness of a decision, the Court must look “into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. (…) 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” (Dunsmuir, at paragraph
47).
[7]
The
Applicants allege that the Board erred in its assessment of credibility and that
the reasons show that it is overzealous in its search for contradictions. They
also argue that the credibility findings are over-vigilant and microscopic and
contrary to the principles set out by the Federal Court of Appeal in Attakora
v. Canada (Minister of Employment and Immigration) (1999), 99 N.R. 168
(F.C.A.). This argument cannot succeed in my view. The female Applicant
advances that the Board should have accepted her explanations with regard to
her birthday and the day she went to the village to hide. However, the Board is
entitled to reject an explanation if it does not find it to be reasonable (Mulliqi
v. Canada (Minister of Citizenship and Immigration), 2006 FC 563, 291
F.T.R. 313; Hilo v. Canada (Minister of Employment and Immigration)
(1991), 130 N.R. 236 (F.C.A.); Huang v. Canada (Minister of Citizenship and
Immigration) (2001), 213 F.T.R. 14, 2001 FCT 1239). In the case at bar, the
Board provides convincing reasons as to why the explanations are rejected and I
am satisfied that the decisions fall within the range of outcomes defensible in
light of the facts and the law.
[8]
Credibility
findings are within the heartland of the Board's discretion and the Board is in
the best position to gauge credibility and draw the necessary inferences (Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.)). The Applicants focus on two credibility findings despite the fact
that numerous others were made and the Board identified many implausibilities
and contradictions with regard to important facts in the claims which are not
disputed by the Applicants. I am satisfied, overall, that the remaining
findings justify a negative disposition on the basis of credibility.
[9]
The
Applicants contend that the Board disregarded key pieces of evidence supporting
their claim. The Board ignored a letter from a doctor which confirms the female
Applicant’s statement that she was subject to female genital mutilation. They
also hold that the Board failed to highlight a letter from a social worker that
“acknowledges the fact that [the male Applicant] needed medical attention for
the trauma and stress he experienced as he feared of being hurt or killed by
his wife’s uncle and the Chief” (Applicants’ Memorandum at paragraph 34).
[10]
In
Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)
(1998), 157 F.T.R. 35 (F.C.T.D.), it is established that a tribunal is presumed
to have considered all of the evidence presented to it and there it is no
obligation to mention each piece that it has taken into account in rendering
its decision (see for example Shahid v. Canada (Minister of Citizenship and
Immigration), 2004 FC 390, [2004] F.C.J. No. 484 (QL)
at paragraph 5).
[11]
With
respect to the pieces of evidence mentioned by the Applicants, although the
letter establishes that the female applicant was subject to the practice of
female genital mutilation, it does not substantiate her claim that she fears
for her life at the hands of her uncle or the Chief. As for the letter from the
social worker, it is of a very general nature and simply states that “Mr. Smith
is presenting with psycho-social difficulties resulting from an accumulation of
stress related to the experiences he had in his home country” (Certified
Tribunal Record at page 238).
[12]
This
is not the same interpretation of the letter presented by the Applicants in
their written arguments before this Court and I cannot infer that the Board
made a decision without regard to the evidence on the sole basis that this
letter is not mentioned. The Board’s assessment of both the documentary
evidence and the testimony in this case is detailed in cogent reasons and I am
satisfied that all of the evidence was considered.
[13]
The
Applicants point to the Guideline 4: Women Refugee Claimants Fearing
Gender-Related Persecution (the Gender Guidelines) and allege that the
Board should have looked to it for guidance on how to assess the testimony of
the female Applicant.
[14]
This
argument cannot succeed as there is no obligation for the Board to mention the
guidelines in its decision and the reasons show that the Board properly
considered the female Applicant’s claim (S.I. v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1662, [2004] F.C.J. No. 2015 (QL)
at paragraph 7).
[15]
After
a review of the transcript, I am of the opinion that there is no evidence that
the Board lacked sensitivity in the conduct of the hearing or the assessment of
the claims. In my view, the reasons disclose the degree of knowledge,
understanding, and sensitivity warranted by the Gender Guidelines (S.I. at
paragraph 7; Griffith v. Canada (Minister of Citizenship and
Immigration) (1999), 171 F.T.R. 240 (F.C.T.D.) at paragraph 27).
[16]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-5800-09
STYLE
OF CAUSE: JAMILA SMITH ALLINAGOGO
HARRY SMITH
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: May 12,
2010
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: May
18, 2010
APPEARANCES:
Andrea Hwang FOR
APPLICANTS
Sylviane Roy FOR
RESPONDENT
SOLICITORS OF RECORD:
Waice Ferdoussi, Attorneys FOR
APPLICANTS
Montreal, Quebec
Myles J. Kirvan, Q.C. FOR
RESPONDENT
Deputy Attorney General of Canada
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