Date: 20100914
Docket: IMM-801-10
Citation:
2010 FC 914
Ottawa, Ontario, September 14, 2010
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
KARLA
YANIRA HIDALGO CARRANZA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
[3] . . .
where the Board
makes a general finding that the claimant lacks credibility, that determination
is sufficient to dispose of the claim unless there is independent and credible
documentary evidence in the record capable of supporting a positive disposition
of the claim. The claimant bears the onus of demonstrating there was such
evidence.
(As stated in Canada (Minister of
Citizenship and Immigration) v. Sellan, 2008 FCA 381, 384
N.R. 163, by Mr. Justice Marc Nadon, his colleagues, Madam
Justice Alice Desjardins and Chief Justice Pierre Blais
concurring).
II. Legal proceeding
[2]
This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), for judicial review of a decision by the Refugee Protection Division of
the Immigration and Refugee Board of Canada (RPD), dated
January 25, 2010, determining that the applicant was neither a
“Convention refugee” nor a “person in need of protection” as defined in
sections 96 and 97 of the IRPA.
III. Facts
[3]
The
applicant, Ms. Karla Yanira Hidalgo Carranza, is a citizen
of El Salvador, aged 27, who
states that she fears persecution by reason of her political opinions.
[4]
She
alleges that she has been a member of the Centro Social Comunitario
Zacatecoluca (Centre) since January 2004. In March 2007, she
became its director. The purpose of the Centre was to develop socio-cultural
activities and to denounce human rights violations committed by the army and
members of the military.
[5]
On
March 5, 2008, as director of the Centre, Hidalgo Carranza made
an appearance on television in which she accused the Salvadorian government of
protecting the criminals who were persecuting and extorting citizens. Following
this appearance, she received four anonymous death threats by telephone.
[6]
On
March 20, 2008, the office at the Centre was destroyed by the Salvadorian
army.
[7]
Following
these events, Hidalgo Carranza lived in the city of San Vincente. On
June 20, 2008, she left El Salvador for Canada.
[8]
Hidalgo Carranza
fears mistreatment at the hands of the army, the police and the Salvadorian government.
IV. Impugned decision
[9]
After reviewing the documentary and testimonial evidence, the RPD determined,
based on the lack of credibility, that Hidalgo Carranza was neither a Convention
refugee nor a person in need of protection as defined in the IRPA.
[10]
Hidalgo Carranza
failed to discharge her burden of establishing that she was persecuted because
of her political opinions or that she would be subjected to a risk to her life
or to a risk of cruel and unusual treatment or punishment if she returned to El Salvador. The RPD did
not believe Hidalgo Carranza’s story and was of the view that she
fabricated the entire story in order to obtain status in Canada.
V. Issue
[11]
Was
the RPD’s decision based on erroneous findings of fact and/or law that it made
in a perverse or capricious manner or without regard for the material before
it, pursuant to subparagraph 18.1(4)(d) of the Federal Courts Act,
R.S. 1985, c. F-7 (Act)?
VI. Relevant statutory provisions
[12]
The
onus was on Hidalgo Carranza to present the most complete record possible
so that her version of the facts could be corroborated. Rule 7 of the Refugee
Protection Division Rules, SOR/2002‑228 (Rules) states as follows:
|
Documents
establishing identity and other elements of the claim
7. The claimant must
provide acceptable documents establishing identity and other elements of the
claim. A claimant who does not provide acceptable documents must explain why
they were not provided and what steps were taken to obtain them.
|
Documents
d’identité et autres éléments de la demande d’asile
7. Le demandeur d’asile
transmet à la Section des documents acceptables pour établir son identité et
les autres éléments de sa demande. S’il ne peut le faire, il en donne la
raison et indique quelles mesures il a prises pour s’en procurer.
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[13]
Rule
7 derives from subsection 100(4) of the IRPA, which reads as follows:
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Duty of claimant
100. (4)
The burden of proving that a claim is eligible to be referred to the Refugee
Protection Division rests on the claimant, who must answer truthfully all
questions put to them. If the claim is referred, the claimant must produce
all documents and information as required by the rules of the Board.
|
Obligation
100. (4) La preuve de la recevabilité incombe au demandeur, qui
doit répondre véridiquement aux questions qui lui sont posées et fournir à la
section, si le cas lui est déféré, les renseignements et documents prévus par
les règles de la Commission.
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VII. Submissions of the parties
[14]
The
applicant submits that the RPD failed to consider all the evidence and that it
should have given her the benefit of the doubt on the issue of credibility.
[15]
The
respondent argues that the RPD’s decision was completely justified in light of
some contradictions and inconsistency in the testimony and the documentary
evidence.
VIII. Standard of review
[16]
The
question of assessing Hidalgo Carranza’s credibility is a question of fact
within the meaning of the Federal Court’s consistent jurisprudence (Aguebor
v. Canada (Minister of Employment and Immigration)
(1993), 16 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.) at para. 4; Zheng v.
Canada (Minister of Citizenship and Immigration), 2007 FC 673, 158 A.C.W.S.
(3d) 799). The standard of review that applies to findings of fact made by the RPD, including
credibility issues, is reasonableness (Wa Kabongo v.
Canada (Minister of
Citizenship and Immigration), 2008 FC
348, 166 A.C.W.S. (3d) 327).
[17]
Judicial
review does not permit the Court to reassess the evidence (Dunsmuir v.
New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190). The Court must not review the facts or weigh the
evidence. It can only act where the RPD’s decision is found to be unreasonable.
Administrative fact finding commands a high degree of deference (Canada (Minister
of Citizenship and Immigration) v.
Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12 at para. 46).
IX. Analysis
[18]
The
RPD’s decision was based on Hidalgo Carranza’s lack of credibility. In making
this finding, the RPD relied on the contradictions and improbabilities in the
documentary and testimonial evidence that it analyzed. As a specialized
tribunal responsible for assessing the facts, the RPD may properly weigh whatever
evidence it considers appropriate. The RPD listed a
series of contradictions and improbabilities in Hidalgo Carranza’s
evidence that supported its negative credibility
finding.
Applicant’s subjective lack of
credibility
[19]
There
is no evidence to support the existence of the Centre that Hidalgo Carranza
worked for. She also failed to mention the destruction of the Centre in her Personal
Information Form (PIF) and only disclosed this information at the hearing. Hidalgo Carranza
did not denounce the destruction of the Centre to any human rights
organizations. No newspaper or human rights organization can attest that the
Centre existed or was destroyed. At the hearing, the RPD noted that
Hidalgo Carranza did not know the names of human rights organizations.
[20]
This
Court reiterated the principles of assessing the credibility of testimony in Quintero
Cienfuegos v. Canada (Minister
of Citizenship and Immigration), 2009 FC 1262:
[1] This Court has repeatedly
confirmed that the accumulation of contradictions between a claimant’s
testimony, port of entry statements and Personal Information Form (PIF) or that
of another claimant, as well as the omission of elements in the PIF that are
crucial to his or her claim may legitimately serve as a basis for a negative credibility
finding . . .
[21]
On
this issue, Hidalgo Carranza asks that the principle of the benefit of the
doubt be applied, as stated in the Handbook on Procedures and Criteria for
Determining Refugee Status:
204. The
benefit of the doubt should, however, only be given when all available evidence
has been obtained and checked and when the examiner is satisfied as to the
applicant's general credibility. The applicant's statements must be coherent
and plausible, and must not run counter to generally known facts.
[22]
Where
an applicant’s allegations run counter to the available evidence and generally
known facts, it is not appropriate to apply the benefit of the doubt (Chan
v. Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R. 593, [1995] S.C.J. No. 78 (QL)). Thus, the principle
does not apply where the RPD determines that a story is improbable. It was
reasonable for the RPD to consider the omissions and contradictions in Hidalgo Carranza’s
testimony and in the documentary evidence.
Objective situation
in El Salvador
[23]
The
documentary evidence does not corroborate Hidalgo Carranza’s testimony about
the current situation in El Salvador. The country is
emerging from a difficult period marked by conflict. The traces of the scars of
the past have not disappeared. The population has not yet been able to forget
the country’s recent past, but the evolution of the society is nonetheless in a
state of healing following the democratization of the government apparatus.
With the end of the civil war and the arrival of the leftist party FMLN (Farabundo
Martí para la Liberación Nacional) in power, El Salvador is experiencing
an era of significant change.
[24]
The
RPD’s decision paints a portrait of the political and social climate in El Salvador, relying on
a more comprehensive description provided by the Country Report on Human
Rights Practices (National Documentation Package on El Salvador, July 31, 2009,
tab 2.1, United
States.
February 25, 2009. State Department. “El Salvador”. Country
Reports on Human Rights Practices for 2009):
. . . there is no persecution
on political grounds. The army and the police are under the control of the
civilian authorities. It is now the leftist party, the former guerrilla
organization during the civil war from 1980 to 1992, that is in power. This is
a first for El
Salvador. There
is no mention of systematic human rights violations against peasants and women
by the army. The problem the authorities face is that of crime and the
proliferation of gangs.
(RPD Decision, p. 5)
[25]
Moreover,
this Court, through Madam Justice Judith A. Snider, already
agreed with similar statements by the RPD that El Salvador is
[7] . . . a constitutional democracy that respects human rights, with a
government that is willing and able to protect its citizens, has effective
control of its territory, and has military and civil authorities
. . .
(Gomez v. Canada (Minister of
Citizenship and Immigration) 2006 FC 406, 148 A.C.W.S. (3d) 122).
[26]
There
is no documentary evidence in the record that the army is the primary power in El Salvador or that the systematic
violation of human rights is a problem in this country. It was within the RPD’S
jurisdiction to assess the documentary evidence based on Hidalgo Carranza’s
lack of credibility. The fact that the RPD did not agree with Hidalgo Carranza’s
opinion or that it relied on her lack of credibility does not mean that the
analysis of the evidence was selective. At this stage, Hidalgo Carranza
cannot suggest a reassessment of the evidence:
[17] When the applicant argues that
the panel’s decision passed over evidence which he considered important or that
the decision looked only at part of the evidence rather than some other part
which he considered more important, he is quite simply asking this Court to
reassess the evidence submitted in support of the refugee status claim and
substitute its opinion for that of the panel. Such an approach is prohibited in
a judicial review proceeding . . .
(Singh v. Canada (Minister
of Citizenship and Immigration), 2008 FC 408, 169
A.C.W.S. (3d) 1115).
[27]
Given that the RPD did not lend any credibility to the subjective
fear described by Hidalgo Carranza, it also chose to not believe what she
said about the objective situation in El Salvador.
X. Conclusion
[28]
Consequently,
given that Hidalgo Carranza failed to demonstrate that the RPD rendered a
decision based on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before the RPD (paragraph
18.1(4)(d) of the Act), the application for judicial review is
dismissed.
JUDGMENT
THE COURT ORDERS that
1. the application for judicial
review is dismissed;
2. no
question of general importance is certified.
“Michel M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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