Date: 20100805
Docket: IMM-6536-09
Unrevised certified
translation Citation: 2010
FC 804
Ottawa, Ontario,
August 5, 2010
PRESENT:
The Honourable Madam Justice Marie-Josée Bédard
BETWEEN:
MARIA
DEL CARMEN ORTIZ
GARCIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision
rendered on June 30, 2009, by the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the Board) and dated November 30,
2009, determining that Ms. Ortiz Garcia is not a person in need of protection
within the meaning of section 97 of the Act.
[2]
The Board
rejected the applicant’s claim for refugee protection on the ground that she
had failed to credibly establish the essential elements in support of her
claim.
Background of the Claim for
Refugee Protection
[3]
Ms. Ortiz Garcia
is a citizen of Mexico. In support of her claim for
refugee protection, she is citing a fear for her life after having received
threats from a former employee of her spouse, Yvan Guillermo Toledo, and after
having been sexually assaulted by two individuals sent by Mr. Toledo.
[4]
The
applicant’s claim for refugee protection relies in part on her spouse’s claim.
The factual context that led to the claims for refugee protection was laid out
as follows: the applicant’s spouse ran a small mini-bus company that employed
two drivers, one of whom was Mr. Toledo. On August 24, 2006, Mr. Toledo was
allegedly involved in an accident with one of the mini-buses, after which he
was imprisoned and indicted at a trial for damages. Unhappy about what had
unfolded as a result of his involvement in the accident, Mr. Toledo allegedly
uttered death threats against the applicant’s spouse, who subsequently decided
to leave Mexico.
[5]
The
applicant maintained that, after her spouse left, she and her children received
threats from individuals who wanted to know the whereabouts of her spouse. She
also claimed to have been threatened and sexually assaulted on June 19, 2007,
by two men who had been sent by Mr. Toledo. She allegedly filed a complaint
with the authorities on June 25, 2007, which was supposedly not acted upon
owing to a lack of evidence. Fearing for her life, she and her children left Mexico for Canada on September 19, 2007, and she claimed
refugee protection that same day.
The Board’s Decision
[6]
The Board
found that the applicant’s narrative at the hearing contained significant
omissions and contradictions and that, in many respects, it was contradicted by
the evidence in the record. The Board did not believe the allegations that were
central to the claim, namely, the threats and the sexual assault in June 2007.
Issue
[7]
The
applicant argues that she proved that she had a well-founded fear for her
safety and for her life and that the Board committed an error in its assessment
of the evidence, and specifically, of her credibility. In her memorandum, the
applicant complained that the Board committed a number of errors in its
assessment of the evidence and of the applicant’s credibility.
[8]
At the
hearing, counsel for the applicant modified her approach and cited two errors
allegedly committed by the Board. First, the applicant complained that the
Board failed to take into account the Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution (the Guidelines) in two respects: by
refusing her request to have the hearing postponed, given her psychological
condition, and by not showing compassion and sensitivity toward her. Second,
the applicant complained that the Board failed to consider her psychological
condition in its assessment of her credibility.
Standard of Review
[9]
It is well
established in the case law that the Court owes deference to the administrative
tribunal’s assessment of the evidence and credibility and that the applicable
standard of review with regard to these findings is unreasonableness. It is not
for the Court to substitute its own assessment of the evidence or credibility
of witnesses for that of the administrative tribunal. The Court will intervene
only where the administrative tribunal’s findings are based on erroneous
findings of fact that it made in a perverse or capricious manner or without
regard for the evidence. (Dunsmuir v. New Brunswick, 2008 SCC 9; Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12; Martinez v. Canada (Citizenship and Immigration), 2009 FC 798; Smith v. Canada (Citizenship and Immigration), 2010 FC 545.
[10]
The
argument cited by the applicant with regard to the Board’s refusal to postpone
the hearing seems to speak to a breach of procedural fairness and natural
justice. The applicable standard of review for questions of this nature is
correctness. Malveda v. Canada (Citizenship and Immigration), 2008 FC
447; Adu v. Canada (Citizenship and Immigration), 2005 FC 565.
Analysis
(1)
Applying the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.
[11]
The
applicant maintains that the Board failed to take the Guidelines into account.
I do not share this view. First, the Board specifically mentioned having
considered the Guidelines in its decision. Moreover, upon reading both the
transcript of the hearing and the decision, it is clear that the Board member
committed no error in her decision to proceed with the hearing, and that the
way she conducted the hearing and her attitude toward the applicant were
completely consistent with the Guidelines.
[12]
I will
first address the request for postponement.
[13]
Counsel
for the applicant argued that the Board should have allowed the hearing to be
postponed because the applicant clearly indicated that she did not feel that
she could proceed, specifically because her social worker, whose presence would
have reassured her, was unable to attend. Counsel for the applicant emphasized
the latter’s medical condition, which was diagnosed as major depression and
post-traumatic shock stemming from the assault she had been victim of, and
argued that this affected her ability to testify.
[14]
After
having read the transcript of the hearing and reviewed all of the medical
evidence in the record and the Board’s decision, I am of the opinion that the
Board neither erred nor breached the rules of procedural fairness when it
refused the request to postpone the hearing.
[15]
First of
all, both the Board’s decision and the transcript of the hearing show that the
Board duly noted the nature of the applicant’s medical condition and its possible
impact on her testimony. The Board took the applicant’s medical condition into
consideration but also noted that a postponement of the hearing had been
granted in February 2008. The Board found that the applicant’s medical
condition did not prevent her from testifying and this finding is completely
reasonable in light of the evidence in the record.
[16]
The
medical evidence filed in the record dates back to February 2008 and had been
filed in support of the request to postpone the hearing originally scheduled
for February 2008. No medical evidence dating from the time of the hearing in
October 2009 was adduced. The medical evidence dating from February 2008
mentions the need to make the appropriate adjustments during the hearing so as
to avoid causing the applicant’s condition to worsen as a result of her
appearance at the hearing. According to the medical evidence, there was a
possibility that the applicant’s condition could raise her anxiety level during
her testimony, that she might have memory gaps and trouble concentrating, and
that she might become emotional and have difficulty providing coherent
testimony. However, there is nothing in the medical evidence to suggest that
the applicant was not able to testify or that her perception of reality was
altered by her condition.
[17]
A reading
of the decision and hearing transcript shows that the Board member did make the
appropriate adjustments to assist the applicant in her testimony. While the
Board member did refuse to postpone the hearing after determining that the
absence of the social worker would not compromise the applicant’s ability to
testify, she did allow the applicant to be accompanied by her psychologist.
[18]
The Board
member also told the applicant that she would not be questioned about her
sexual assault, that she would limit the number of questions she would ask and
that she would give her breaks if needed.
[19]
The
Board’s attitude shows that it was appropriately sensitive with regard to the
applicant’s state. In fact, a reading of the hearing transcript shows that the
applicant testified with aplomb and in a completely coherent manner, that she
fully understood the questions she was asked and that she was given the
opportunity to provide all of the answers and explanations she wished. It is of
interest to note that, at the hearing before the Board, counsel for the
applicant stated that her client’s testimony had gone very well.
[translation]
The first thing I would like
to say, and it is rare to say this, but I must say that, frankly, everything
went really well at that hearing for her, compared to the times I met her at my
office. I am really happy because that was probably one of her best days since,
yes. And I think, we talked about it with Ms. Giraldo and she agreed with me.
We were honestly impressed, the two (2) of us …
A. Well, when things are calm,
then that helps the situation.
That’s it but…well, that’s it,
but at the same time it goes to show you that it’s not always like that, but
that hearing went very, very well.
[20]
I am
therefore satisfied that the Board’s decision to proceed with the hearing was
completely reasonable under the circumstances and that this decision in no way
breached the applicant’s rights or her ability to provide a full account in her
testimony.
[21]
I am
equally satisfied that the Board member did not lack sensitivity and compassion
toward the applicant, and that both her attitude toward the applicant and the
way she conducted the hearing were consistent with the Guidelines.
(2) The
impact of the applicant’s medical condition on her credibility
[22]
The
applicant’s second argument is that the Board failed to consider her
psychological state when it assessed her credibility and that her credibility
should have been examined through the prism of her medical condition, which
would have influenced the Board’s credibility findings.
[23]
With
respect, I find that there is nothing in the medical evidence that would raise
doubts as to the applicant’s perception of reality or her ability to testify.
Moreover, a reading of the hearing transcript shows that the applicant’s
testimony was articulate and coherent, that she was calm and that she had not
suffered memory loss.
[24]
Therefore,
I find the applicant’s complaint is unjustified and the Board’s findings with
regard to her credibility are reasonable, well articulated and supported by the
evidence.
[25]
The
present application for judicial review must therefore be dismissed.
[26]
Counsel
proposed no questions of general importance for certification.
JUDGMENT
THE COURT dismisses
the
application for judicial review. No question is certified.
‘‘Marie-Josée
Bédard’’
Certified true
translation
Sebastian Desbarats,
Translator
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