Date: 20100916
Docket: IMM-416-10
Citation: 2010 FC 928
Ottawa, Ontario,
September 16, 2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
BETTINA TING TING OOI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Refugee Protection Division of the Immigration and Refugee Board of Canada (the
Board) dismissed the applicant’s asylum claim based on her alleged
homosexuality. The Board found the applicant, a female citizen of Malaysia, not
credible; in any event, the latter failed to provide clear and convincing
evidence to rebut the presumption of state protection.
[2]
The
legality of the impugned decision is challenged by the applicant on the grounds
that the Board acted capriciously and arbitrarily:
(a) in
failing to take account of the fact that the applicant was a minor before 2004
and should not have been asked about the immigration file or the whereabouts of
her mother;
(b)
in ignoring the UNHCR and the IRB Guidelines with respect to gender related
claims; and
(c) in
making a selective reading of the documentary evidence with respect to the
treatment reserved for homosexuals in Malaysia.
Negative Credibility
Finding
[3]
First,
having carefully read the impugned decision in light of the evidence on record,
there is no reason to disturb the negative credibility finding made by the
Board. This, in itself, constituted a sufficient basis to dismiss the
applicant’s asylum claim.
[4]
It
is not challenged that the applicant was 16 years old when she left Malaysia on January
31, 2002, with her mother, brothers and sister (the family). They arrived in Vancouver as visitors
with a certain Eiew Kooi Yeap who falsely identified himself as the applicant’s
father. Indeed, the family had already made a previous permanent residence
application of which the applicant claimed to have no knowledge. The family
lived in Vancouver for
approximately six (6) months before moving to Calgary. According
to her personal information form (PIF), it is during this period that the
applicant discovered she was gay and met a girlfriend in Vancouver who she
continued to date upon her return from Calgary.
[5]
In
April 2003, the applicant’s mother married Mr. Chieu Min Lam who sponsored the
family’s application for permanent residency. However, after the wedding, the
immigration authorities completely lost track of the family. Mr. Lam informed
the authorities that he had not heard of the family since August 22, 3003 and
he thought that his spouse and the children had returned to Malaysia. Mr. Lam
officially withdrew from his application on December 24, 2003. Not only the
whereabouts of the family during the following three (3) year period is
unclear, but the timeline of the personal transformations that the applicant
allegedly underwent during this period, and which constitute the basis for her
claim, is unclear and inconsistent. In September 2006, the applicant applied to
be recognized as a Convention refugee or a person requiring protection.
[6]
It
is arguable whether the applicant’s lack of knowledge of the family immigration
file could provide grounds to dismiss the applicant’s asylum claim. The Board
certainly had an interest to find out where the applicant was living during all
these years, which raises the question of whether she, her mother and the rest
of her family had stayed in Canada or returned to Malaysia after Mr.
Lam cancelled his sponsorship application. It is only in September 2006 that the
applicant alleges that her family rejected her because of her homosexuality,
while in August 2004, her mother apparently paid for the applicant’s trip from Vancouver to Montréal
where she claims to have lived with another girlfriend. It can certainly be
argued that these peripheral facts were relevant in ascertaining whether the
applicant’s story was true and why she had waited so long to make her asylum
claim.
[7]
That
being said, apart from the lack of clarity with respect to the whereabouts of
the family and the applicant, the Board questioned the truthfulness of key
allegations made by the applicant presented as evidence of her sexual
orientation. The clear and unmistakable reasons given by the Board for not
believing the applicant are not capricious or arbitrary.
[8]
The
applicant had previously stated that she first met her girlfriend in June 2003
in Vancouver, claiming to
remember the date as it was close to her birthday. When confronted with her
statement that she had brought this same girlfriend to her mother’s wedding,
which was in April 2003, the applicant corrected herself, stating that the
meeting occurred in 2002, before her mother’s wedding (Trial Transcript, pages
188-189). Furthermore, although apparently the applicant’s family rejected her
following the revelation that the she was a lesbian, she continued to live with
her family. She was unable to provide the exact address at which she lived
during this time with her family. The applicant then reportedly lived in Montreal with a
female friend from August 2004 to September 2006. However, the applicant
provided no proof of residence or of how she supported herself during those two
years.
[9]
The
conclusion of non-credibility is based on the evidence and constitutes a
reasonable option despite the fact that the applicant continues to claim that
she is gay. In
the case at hand, the applicant provided inconsistent, hesitant or
uncorroborated testimony on a number of key points in her case, such as her
allegedly troubled relationship with her family stemming from her homosexuality
and her place of residence and financial activities over a period of two years.
[10]
Additionally,
the Board was allowed to find that the applicant’s behaviour was inconsistent
with someone fearing for her life. This conclusion was based on her long delay
in claiming refugee protection and her failure to produce any written document
from her immigration file. In the case at bar, the applicant spent over four (4)
years in Canada before
claiming refugee status. The sole explanation given by the applicant to not
seek refugee status earlier is because she was not aware of the appropriate
procedures for claiming that protection.
[11]
Perhaps,
an initial delay of one (1) year could be reasonable in the circumstances that
the applicant has described, provided that we believe her: arriving new to a
country and suddenly realizing that your sexual orientation is different from
what your culture expects of you. However, delaying almost three years following
an estrangement with one’s only family in the new country is highly unusual. Given
the circumstances, such a long delay could justify the conclusion that the
applicant did not have a well-founded fear of persecution. The Board was also
allowed to dismiss the applicant’s explanation that she was unaware of the
procedure to claim refugee status.
Guidelines on gender
related claims
[12]
I
will now briefly deal with the second ground of attack made by the applicant, that
the Board ignored both the UNHCR and the IRB Guidelines on gender related
claims. This allegation is simply not supported upon reading the Board’s
assessment of the particular facts alleged by the applicant and its review of
the documentary evidence dealing with homosexuals in Malaysia.
[13]
The
key issue is whether or not the Board’s decision reflects the values that the
Guidelines are intended to impress upon the decision maker. The Court is
satisfied that it does in this case. The Board may not have specifically
mentioned that it was considering the Guidelines, but it is apparent that the
Board had them in mind when conducting its inquiry into the situation of female
homosexuals in Malaysia. The Board simply did not believe the
applicant’s story. Moreover, the documentary evidence with respect to the
treatment of lesbians in Malaysia is sparse, nearly
absent, and in examining the issue, the Board was allowed to dismiss the
applicant’s general allegations of fear of persecution which appear to be based
on pure speculation.
Examination of the
documentary evidence
[14]
I
am also satisfied that the Board has amply fulfilled its obligations of considering
the documentary evidence submitted to it.
[15]
The
Board was not required to explicitly state in its decision which pieces of
evidence it relied upon and what probative value it gave each examined document.
The Board’s analysis is short but it is thorough and hits all of the necessary
points:
·
The Board
mentions the National Documentation Package on Malaysia, submitted as Exhibit A-1;
·
Differences
in the situation of male homosexuals v. female homosexuals are observed (no
women were imprisoned for homosexuality);
·
The
participation of the openly lesbian Malaysian softball team in the 2002 Gay
Games in Sydney, Australia, is noted;
·
The
vibrancy and visibility of the gay community in Kuala Lumpur is discussed. (The applicant had argued
that Kuala Lumpur was violent and that one of
her friends was attacked, but no evidence supporting these allegations was
submitted); and
·
Finally,
it was noted that the National Documentation Package on Malaysia recorded that the Malaysian
government harshly punishes anonymous and criminal violence against women.
[16]
Therefore,
the third ground of attack made by the applicant must be dismissed.
Conclusion
[17]
The
present application must fail. Overall, the impugned decision is reasonable.
Despite the best efforts made by applicant’s counsel to question the Board’s
rationale and findings, the decision to dismiss the claim on the grounds that the
applicant is not credible, or subsidiarily that state protection is available
for lesbians in Malaysia, falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law.
[18]
No question of general importance is raised in this case.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review be dismissed and no question is certified.
“Luc
Martineau”
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