Date:
20120119
Docket: IMM-1764-11
Citation: 2012 FC 82
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, January 19, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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QAMILE PETI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Ms.
Qamile Peti (Ms. Peti) is submitting this application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), with respect to a decision of the Immigration and Refugee
Board (IRB) dated February 22, 2011, that she is neither a Convention refugee
nor a person in need of protection pursuant to sections 96 and 97 of the IRPA.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
Ms.
Peti is a retiree from Albania who is seeking Canada’s
protection.
[4]
On
April 13, 2008, she saw two men talking in an alleyway close to her home. She
saw one of the men pull out a firearm and shoot at the other man. Frightened,
she went home, told her neighbours about the incident and spent the night with
them, in order to avoid being found and threatened by the murderer.
[5]
The
next morning, Ms. Peti sought refuge with her sister. After a few days, she
contacted her neighbour, Ms. Nadira Dama, to find out what happened further to the
events of April 13, 2008. The latter informed her that the victim had died and
that a man had gone to Ms. Peti’s home.
[6]
Ms.
Peti therefore decided to stay at her sister’s. Three weeks later, she again
telephoned Ms. Dama. Her neighbour had allegedly found a slug from a firearm in
front of Ms. Peti’s apartment door. She encouraged her to remain hidden. Ms.
Peti’s sister advised her to leave the country immediately.
[7]
She
left Albania for Canada on May 12, 2003, and filed her refugee
protection claim on November 13, 2008.
[8]
On
February 22, 2011, the IRB found that Ms. Peti is not a Convention refugee or a
person in need of protection. The IRB identified several inconsistencies and
contradictions between Ms. Peti’s testimony and her Personal Information Form
(PIF) which significantly undermine her credibility.
III. Legislation
[9]
Sections
96 and 97 of the IRPA read as follows:
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Convention
refugee
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Définition
de « réfugié »
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96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that
fear, unwilling to return to that
country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle,
ne peut ni, du fait de cette crainte,
ne veut y retourner.
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Person
in need of protection
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Personne
à protéger
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97. (1) A person in
need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
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97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
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a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life
or to a risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
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(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person
in need of protection
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Personne
à protéger
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(2) A
person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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IV. Issue and
standard of review
A. Issue
[10]
This
application for judicial review raises one issue:
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Did
the IRB err in finding that Ms. Peti’s credibility was undermined by the contradictions
and inconsistencies that it had identified between her testimony and her PIF?
B. Standard of
review
[11]
In
Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC 354,
[2009] FCJ No 438, at para 26, it was found that the standard of review
applicable to the credibility of testimony is reasonableness (see also Zarza
v Canada (Minister of
Citizenship and Immigration), 2011 FC 139, [2011] FCJ No 196 at
para 16).
[12]
A
decision by the IRB on a refugee protection claim filed under sections 96 and
97 of the IRPA is reviewable on a standard of reasonableness because it is a
question of mixed fact and law (see Gonzalez v Canada (Minister of
Citizenship and Immigration), 2010 FC 1292 at para 10).
[13]
The
Supreme Court of Canada, at paragraph 47 of Dunsmuir v New Brunswick,
2008 SCC 9, [2008] SCJ No 9, specified that reasonableness “is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. 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.”
V. Positions of
the parties
A. Ms. Peti’s
position
[14]
Ms.
Peti contends that the IRB’s decision contains errors that warrant this Court’s
intervention. She states that the IRB’s finding concerning her memory problems
was made without taking all the evidence into account. In that respect, she
relies on Yu v Canada (Minister of
Citizenship and Immigration), 2005 FC 794, [2005] FCJ No 988.
[15]
She
also argues that her son’s testimony corroborates the existence of her memory
problems. She explains her evasive answers at the hearing and the repeated
intervention of the Board member and her counsel by memory losses that occur more
or less spontaneously, contrary to what the IRB seems to believe.
[16]
Moreover,
at the hearing of this application for judicial review, Ms. Peti’s counsel pointed
out to the Court several passages from her testimony that would explain what he
characterized as a shift, that is, passing quickly from one idea to another.
[17]
The
IRB noted the lack of evidence such as an expert report or a medical
certificate to establish that she suffers from diminished cognitive abilities.
Ms. Peti argues that the IRB must take her son’s testimony into account,
because memory loss may be established by testimony alone. She also notes that
the IRB was required to inform her in advance if it wanted her to produce a
medical certificate showing test or X-ray results.
[18]
Ms.
Peti argues that if the IRB claims to have expertise in assessing the cognitive
abilities of elderly persons, it had to take notice of this, pursuant to
paragraph 170(i) of the IRPA, and allow her to be heard on this issue
(see Kirichenko v Canada (Minister of Citizenship and Immigration),
2011 FC 12).
[19]
At
paragraph 21 of its decision, the IRB wrote:
The panel does
not believe the claimant when she states that she did not talk about her
problems because she did not want to cause pain and make her children suffer,
and that she, therefore, allegedly waited six months before confiding in
one of her Canadian sons or their spouses…the panel has difficulty
understanding why the claimant did not talk about her intentions of living in
Canada, because she feared for her life well before six months after her
arrival. The panel finds all of this not credible.
[20]
Ms.
Peti alleges that she believed that she could stay in Canada for the
entire duration of her five-year visitor’s visa. She contends that she decided
not to burden her son with her problems and that this explanation is plausible
and entirely justified in the circumstances. According to her, the reasons
given at paragraph 21 of the IRB decision, reproduced above, are entirely
implausible (Florez v Canada (Minister of
Immigration and Citizenship), 2004 FC 1230 at paras 8 and following).
[21]
Ms.
Peti refers to the documentary evidence filed in the record that shows that she
is in danger because she witnessed a murder by a member of organized crime in Albania. This
documentary evidence also shows that she cannot obtain adequate protection in Albania. She
therefore considers the IRB’s decision is unreasonable and that the Court must
allow her application for judicial review.
B. Respondent’s position
[22]
The
respondent states that Ms. Peti’s credibility is undermined by the fact that
the IRB noted several deficiencies and contradictions concerning elements that
are central to her claim. These deficiencies undermine Ms. Peti’s credibility.
The respondent argues that the IRB’s decision is reasonable considering the
many gaps in the evidence submitted by the applicant.
[23]
The
respondent notes the well-established case law of this Court that a refugee
claimant has the burden of proving the elements on which his or her claim is
based. He cites section 7 of the Refugee Protection Division Rules, SOR/2002-228
(RPDR), which reads as follows:
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Documents establishing identity and other elements of the
claim
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Documents d’identité et autres éléments de la demande
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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.
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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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[24]
In
assessing Ms. Peti’s credibility, the IRB can take into account contradictions
between her testimony and her PIF. The IRB cannot disregard, in a PIF,
omissions of elements central to the refugee claim before it (see Pinon v
Canada (Minister of Citizenship and Immigration), 2010 FC 413 at para 17; Cortes
v Canada (Minister of Citizenship and Immigration), 2009 FC 583 at
para 27; and Tejeda v Canada (Minister of Citizenship and Immigration),
2009 FC 421 at para 15).
[25]
Moreover,
the respondent notes that it is up to Ms. Peti to submit the evidence that
clearly shows that she fears persecution in her country of origin. To do this,
she must establish that there is a subjective fear of persecution and an
objective basis for that fear. Failure to prove these two elements is fatal and
the IRB may legitimately reject a claim on this ground alone (see Chan v
Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at paras
119-120 and 148-151; Rajudeen v Canada (Minister of Employment
and Immigration), [1984] FCJ No 601 (FCA); Herrera v Canada
(Minister of Citizenship and Immigration), 2007 FC 979 at paras 23-25; and Vasanthakumar
v Canada (Minister of Citizenship and Immigration), 2006 FC 959 at
para 11). In the case at bar, Ms. Peti did not discharge this burden and the
IRB was correct to reject her refugee claim.
[26]
Also,
the respondent notes that Ms. Peti arrived in Canada on May 12,
2008, but did not file her refugee claim until November 13, 2008, that is, six
months later. According to the respondent, this behaviour is inconsistent with
her claim that she fears for her life and safety if she were to return to Albania. This Court’s
case law in this regard is well established and teaches that the panel may take
into account the actions of a claimant in analyzing the claimant’s credibility
(Manirakiza v Canada (Minister of Citizenship and Immigration),
2009 FC 1309 at para 18 (Manirakiza); Sainnéus v Canada (Minister
of Citizenship and Immigration), 2007 FC 249 at para 12 (Sainnéus); Huerta
v Canada (Minister of Employment and Immigration), [1993] FCJ No
271 (FCA); Canada (Minister of Citizenship and Immigration) v Hund,
[2009] FCJ No 148 at para 50 (TD); Ngwenya v Canada (Minister
of Citizenship and Immigration), 2008 FC 156 at paras 22-23; Aslam v
Canada (Minister of Citizenship and Immigration), 2006 FC 189 at para
28; Singh v Canada (Minister of Citizenship and Immigration),
2007 FC 62 at para 24 (Singh); Espinosa v Canada (Minister
of Citizenship and Immigration), [2003] FCJ No 1680 (TD) at paras 17 and 20;
Dydyuk v Canada (Minister of Citizenship and Immigration),
2003 FCT 717 at para 10; Kandiah v Canada (Minister of
Citizenship and Immigration), 2005 FC 181 at para 4; and Toora v Canada
(Minister of Citizenship and Immigration), 2006 FC 828 at para 27).
[27]
Consequently,
the IRB may determine that Ms. Peti lacks credibility. Her subjective fear is
based above all on her credibility (see Sainnéus and Manirakiza above;
see also Rocha v Canada (Minister of
Citizenship and Immigration), 2010 FC 195 at para 6).
[28]
The
respondent contends that the IRB may rely on rationality and common sense and
its own perception of human behaviour to determine whether an allegation is
plausible or not (see Shahamati v Canada (Minister of Citizenship and
Immigration), [1994] FCJ No 415 (FCA) at para 2; Yin v Canada
(Minister of Citizenship and Immigration), 2010 FC 544 at para 59; Utrera
v Canada (Minister of Citizenship and Immigration), 2007 FC 1212 at
para 61; Lin v Canada (Minister of Citizenship and Immigration),
[2007] FCJ No 368 (TD) at para 5; Khan v Canada (Minister of
Citizenship and Immigration), 2005 FC 403 at paras 14 and 19; Li v
Canada (Minister of Citizenship and Immigration), [2002] FCJ No 470 (TD)
at para 9; and Saliaj v Canada (Minister of Citizenship and Immigration),
2004 FC 1247). The respondent claims that the IRB correctly found that it is
implausible that Ms. Peti would have waited six months before speaking to her
son about her alleged problems.
[29]
In
addition, the respondent states that a visitor’s visa does not make it possible
to rebut the presumption that a real refugee would claim protection upon
arrival in Canada.
[30]
Given
all of these gaps, the IRB did not attach any probative value to the
documentary evidence submitted by Ms. Peti. According to the respondent, the
Federal Court of Appeal clearly stated, at paragraphs 7 to 9 of Sheikh v
Canada (Minister of Employment and Immigration), [1990] 3 FC 238,
[1990] FCJ No 604 (FCA), that a lack of credibility concerning elements central
to a claim may extend to other elements of it.
[31]
Ms.
Petit contends that the IRB did not take into account her son’s testimony.
However, the IRB dealt with it at paragraph 12 of its decision. The respondent
states that the son’s testimony is from an interested person who has no medical
expertise. The respondent cites Cicek v Canada (Minister of
Citizenship and Immigration), [1997] FCJ No 1425, in which Justice Pinard
wrote the following at paragraph 9:
Absent any medical evidence
on the record, I am of the opinion that this Court ought not to interfere with
the tribunal's finding of credibility in this instance. There was ample
evidence for the tribunal to arrive at its conclusion, given the noted
inconsistencies, contradictions, and implausibilities. As shown by the
tribunal's decision and by the transcript of the hearings, the applicant was
provided with sufficient opportunity to respond to the tribunal's credibility
concerns. Yet she was unable to satisfactorily explain any of the
contradictions which were brought to her attention. Under such circumstances,
the applicant having also failed to point to any specific erroneous finding of
fact by the tribunal, I must conclude that she has not met the burden of proof
to show that the tribunal's conclusions were unreasonable.
[32]
The
IRB wrote, at paragraph 13 of its decision, “…the panel did not notice anything
indicating that the claimant would have memory problems such that she cannot
recount in the same manner at the hearing the significant events that she
alleged having experienced in her PIF”. The respondent contends that the IRB
was able to hear Ms. Peti’s oral testimony for nearly two hours. He notes the
observation by the IRB, which wrote that Ms. Peti was able to give “… informed testimony, with
confidence and poise” (see IRB decision at para 11). It was
reasonable for the IRB to find that this was not a memory problem, but rather a
lack of credibility.
[33]
The
respondent states that Ms. Peti did not show how the IRB’s decision is based on
findings of fact made in a perverse or capricious manner, or that it made its
decision without regard for the evidence before it (see Vargas v Canada (Minister
of Citizenship and Immigration), 2008 FC 1347 at para 19; Serrato
v Canada (Minister of Citizenship and Immigration), 2009 FC 176
at para 16 (Serrato); and Kar v Canada (Minister of
Citizenship and Immigration), 2009 FC 143 at para 30 (Kar)).
[34]
Finally,
the respondent alleges that the IRB was not required to proceed with an
analysis of State protection in Albania. Since it was
reasonable for the IRB to find that Ms. Peti was not credible, this finding is
determinative in itself (see Salim v Canada (Minister of
Citizenship and Immigration), 2005 FC 1592 at para 31; R.G. v Canada
(Minister of Citizenship and Immigration), 2010 FC 801 at para 26; Cienfuegos
v Canada (Minister of Citizenship and Immigration), 2009 FC 1262
at paras 24-25; Gonzalez v Canada (Minister of Citizenship and Immigration),
2009 FC 369 at para 10; and Karanja v Canada (Minister of
Citizenship and Immigration), 2006 FC 574 at para 8).
VI. Analysis
·
Did
the IRB err in finding that Ms. Peti’s credibility was undermined by the
contradictions and inconsistencies that it had identified between her testimony
and her PIF?
[35]
Ms.
Peti alleges that she suffers from diminished cognitive abilities, that is, that
she experiences difficulty in remembering events from her past. Her son
testified and corroborated that his mother has trouble remembering certain
events.
[36]
Ms.
Peti argues that the IRB did not take into account all of the evidence adduced
to establish her memory problems. She alleges that this error vitiates the
IRB’s credibility finding. Consequently, the IRB’s decision is unreasonable.
[37]
The
Court wishes to point out that “…credibility is central to most, if not all, of
the findings that the Board makes when assessing asylum claims” (see Umubyeyi v Canada
(Minister of Citizenship and Immigration), 2011 FC 69,
[2011] FCJ No 76 at para 11). The IRB may make a negative finding concerning
the applicant’s credibility if it identifies contradictions between the applicant’s
testimony and supporting evidence submitted (see Aguebor v
Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (Aguebor)).
[38]
In addition, “[t]he Court should not interfere with the findings
of fact and the conclusions drawn by the Board unless the Court is satisfied
that the Board based its conclusion on irrelevant considerations or that it
ignored evidence” (see Kengkarasa v Canada (Minister of
Citizenship and Immigration), 2007 FC 714, [2007] FCJ No 970 at para 7; see
also Miranda v Canada (Minister of Employment and Immigration),
[1993] FCJ No 437). Our case law also specifies that it is up to the IRB to assess
the evidence and the testimony and to attach probative value to them (see Aguebor;
and Romhaine v Canada
(Minister of Citizenship and Immigration), 2011 FC 534,
[2011] FCJ No 693 at para 21).
[39]
In
the case at bar, the IRB wrote, at paragraph 12 of its decision, that “[h]er son, Mr. Peti, tried
to explain the disparities between the claimant’s testimony and PIF by the fact
that the claimant had changed since the last time that she had come to Canada.
She was forgetting things, such as anniversary dates and to take her
medications. She had a headache, which allegedly required a scan. No expert
evidence was submitted to the panel of the results of the scan or of other
medical, neurological or cognitive problems that the claimant could have.” The IRB
attached little probative value to the testimony of Mr. Peti, Ms. Peti’s son,
because he is an interested person in this case. In addition, no evidence was
submitted in support of Ms. Peti’s position. It was not up to the IRB to require
that relevant documents be filed to establish elements of a claim. Under
section 7 of the RPDR, this onus was on Ms. Peti.
[40]
Ms.
Peti notes that the IRB was required to advise her if it had expertise that
would enable it to make a determination concerning her medical condition. She
cites paragraph 170(i) of the IRPA, which states: “The Refugee
Protection Division, in any proceeding before it…may take notice of any facts
that may be judicially noticed, any other generally recognized facts and any
information or opinion that is within its specialized knowledge.” However,
section 170 of the IRPA cannot apply in this case since the IRB does not have expertise
to enable it to make a determination on a matter requiring medical expertise,
namely, the assessment of a person’s cognitive abilities. The IRB is required
to assess the probative value of the evidence submitted by Ms. Peti, which it
did in a reasonable manner in this case. It does not have the expertise to make
a medical diagnosis. Consequently, the Court cannot concur with Ms. Peti’s
claim.
[41]
Moreover,
Ms. Peti waited six months before filing her refugee protection claim with the
Canadian authorities. In her PIF, she mentioned that she did not wish to frighten
her children with her problems and that she was happy to obtain a visitor’s
visa to Canada. The IRB
found that it was implausible that she did not relate her problems to her
children upon her arrival in Canada. At paragraph 21 of its decision, it wrote
that “[t]he claimant
had already confided in her sister in Albania,
in her sister’s children and in her neighbours.” As Justice Snider
indicated at paragraph 5 of Sun v Canada (Minister of Citizenship and Immigration),
2008 FC 1255, [2008] FCJ No 1570, “[i]n assessing the reasonableness of the
Board’s decision, certain principles are well established in the jurisprudence…[a]
lack of credibility finding can be based on implausibilities, contradictions,
irrationality and common sense”. The IRB’s finding is reasonable in the circumstances.
[42]
The respondent contends that [TRANSLATION] “possession of a visa
does not rebut the presumption that a true refugee would claim protection at
the first opportunity” (see paragraph 27 of the respondent’s memorandum). The
Court recognizes the soundness of that argument. An applicant’s behaviour may
become important in analyzing his or her credibility and determining his or her
subjective fear. At paragraph 23 of Niyonkuru, Justice de Montigny wrote:
“[i]t is true that the applicant had a visa which allowed him to remain in Canada
until January 2003. The fact remains that his actions were not those of someone
truly fearing for his life if he were to return home. Not only are the reasons
he gave for waiting for the end of his training before going to the Immigration
Canada office unconvincing, but it was also apparent from the transcripts that
he had the time to travel on weekends.” The IRB can take this factor into
account when assessing Ms. Peti’s credibility.
[43]
In short, the IRB found Ms. Peti’s account implausible. It did not
attach any probative value to the documentary evidence she submitted or to the
letters from her sister and her neighbour, Ms. Dama. In Sheikh, the
Federal Court of Appeal specified that a lack of credibility respecting the
central elements of a claim may extend to other elements of it (see Sheikh
at paras 7-9). In this case, the Court sees no grounds that warrant
intervention. The IRB properly found that Ms. Peti’s lack of credibility could
undermine the other documentary evidence filed in support of her claim.
VII. Conclusion
[44]
It was reasonable for the IRB to find that Ms. Peti is not a
Convention refugee or a person in need of protection under sections 96 and 97
of the IRPA.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES that
1.
the
applicant’s application for judicial review is dismissed; and
2.
there
is no question of general interest to be certified.
“André F.J. Scott”
Certified
true translation
Susan
Deichert, LLB
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