Date:
20120717
Docket:
IMM-8831-11
Citation:
2012 FC 897
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 17, 2012
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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PALESA HYACINTH
POLASI
KATLEHO POLASI
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Applicants
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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
[1]
This
is an application for judicial review filed in accordance with subsection 72(1)
of the Immigration
and Refugee Protection Act,
SC 2001, c 27 (IRPA)
of a decision by the Refugee Protection Division (RPD) dated November 10, 2011,
that the applicants are not refugees under section 96 of the IRPA or persons in
need of protection under section 97 of the IRPA.
I. Alleged
facts
[2]
Palesa
Hyacinth Polasi (female applicant) and her minor son, Katleho Polasi, who was two
months old at the time, entered Canada on August 22, 2008.
[3]
When
they arrived, the applicants were detained for identity purposes. The female
applicant had a passport from Swaziland that turned out to be a fake. At the
time, the female applicant indicated that she was born in Lesotho and that she
became a citizen of South Africa when her mother married a citizen of that
country. After one month in detention, the female applicant indicated that she
was in fact born in South Africa. After subsequently stating that her son was
born in South Africa, she also admitted that her son was actually born in Ireland.
The female applicant explained that she lied about her identity and that of her
son so that it would be more difficult to remove them.
[4]
The
female applicant was born in South Africa on October 25, 1979, to a mother from
South Africa and a father from Lesotho. She apparently lived in Lesotho from
1983 to 1993 before going back to South Africa to avoid circumcision. Her
parents then purportedly got divorced, but the female applicant was apparently
then raped several times by her mother’s new spouse (Mr. X), starting at 14
years of age. While Mr. X was serving a three-year prison sentence in 1998 for embezzlement
and theft, the female applicant allegedly met a man, who she married in 2001. A
few months later, Mr. X was apparently released and, out of jealousy, tried to
kill her. Her husband was then apparently shot and wounded in the arm during an
altercation.
[5]
The
female applicant testified that there was another assault in 2005 and that she
then divorced her husband and fled to Ireland, where her refugee claim was
rejected in 2007. It was in Ireland that she purportedly had a relationship
with an undocumented Nigerian man, a relationship that led to the birth of her
son. The man apparently then left her and the female applicant then came to
Canada to claim refugee protection.
II. Impugned
decision
[6]
After
two hearings on May 20 and September 28, 2011, the RPD member found that the
applicants are not refugees or persons in need of protection.
[7]
The
member first clarified the issue of the applicants’ identity. After reviewing
the documentation submitted, the panel was satisfied with the female applicant’s
identity and with the fact that she is a citizen of South Africa. The fears
raised with respect to a removal to Lesotho therefore did not apply. Regarding her
son, he does not have Irish citizenship, but the female applicant is in the
process of acquiring South African citizenship for her son and her refugee
claim was therefore also examined with respect to South Africa.
[8]
According
to the RPD, the determinative issues were credibility and state protection. The
member found that the female applicant was not credible and that her testimony
was not trustworthy. The member first noted false statements made to the
Canadian immigration authorities upon her arrival in Canada and found that
those false statements, despite the female applicant’s subsequent admissions, demonstrate
clear intent to mislead authorities, which affects her credibility. The panel
also raised several contradictions between her testimony during the hearing and
a sworn statement bearing the stamp of the South African police dated April 17,
2005, found in the female applicant’s bag upon her arrival in Canada (Tribunal
Record at pages 274-275). The panel identified the following contradictions (RPD
Decision at paragraph 24):
1. Mr. X allegedly
assaulted the claimant and shot and wounded in the arm the person who she
claimed was her husband in June 2001, or one month before her wedding on August
1, 2001, and not in December 2001.
2. The name of the victim
who was allegedly wounded by Mr. X is different from the claimant’s husband’s
name.
3. The claimant had
previously reported in 2001 that Mr. X had raped her, that is, well before
February 2005, which she testified is when she first reported the rapes.
4. The document indicates
that Mr. X was arrested in June 2001 and that he was serving a seven year
sentence. The claimant’s Personal Information Form (PIF) and testimony did not
indicate in any way that such a sentence had been imposed in 2001.
5. Although the document
is dated April 17, 2005, it does not mention the offence committed by Mr. X in
February 2005.
[9]
The
panel noted the female applicant’s explanation that she had obtained the
document for her refugee claim in Ireland, but that the content was apparently
not true and that is why she did not sign it, did not use it in Ireland and
also did not plan to use it to support her claim in Canada. The panel was
unsatisfied with these explanations and did not understand why the female
applicant had therefore brought this document to Canada or why she had not taken
steps to obtain a new truthful report. Because it did not believe her
explanations, the panel was of the opinion that these significant
contradictions undermined the female applicant’s credibility on the essential
elements of her claim.
[10]
The
RPD also called into question the female applicant’s testimony with respect to
the charging and conviction of Mr. X and found that her testimony was hesitant
and not spontaneous. The RPD also noted that a psychological report submitted
as evidence by the female applicant did not contain any mention of the alleged
crimes committed by Mr. X regarding her husband’s gunshot wounds. According to
the member, the lack of any reference to those events reinforced the finding
that those allegations never occurred.
[11]
As
for the state protection issue, the member noted that, even if he had believed
the hardship alleged by the female applicant, she did not demonstrate that it
was objectively unreasonable for her to seek protection from the authorities or
to establish the inability of the South African state to ensure adequate
protection.
III. Issue
1. Did the RPD err in its assessment
of the credibility of the applicants’ account?
2. Did the RPD err in its assessment
of state protection?
IV. Applicable
standard of review
[12]
The
parties agree that the applicable standard for issues of credibility and state
protection is reasonableness (Huerta v Canada (Minister of Citizenship and Immigration),
2008 FC 586 at paragraphs 14-15, [2008] FCJ 737). Consequently, the Court will
intervene only if the decision does not fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190).
V. Analysis
A. Did the
RPD err in its assessment of the credibility of the applicants’ account?
[13]
The
female applicant argues that a determinative error of fact was committed in
this case because she disclosed the information on her true identity starting September
22, 2008, during an interview with an immigration officer, but that the
necessary amendments to the Personal Information Form (PIF) were not made
before the hearing. Indeed, the record of a detention review hearing on
September 26, 2008, confirms that the female applicant disclosed her true
identity in 2008 (Tribunal Record at pages 341-344). However, that admission does
not invalidate the panel’s observation that the female applicant lied to the
Canadian authorities when she arrived in Canada and that this could reasonably
impact her credibility.
[14]
Furthermore,
even though the failure to update the PIF certainly created confusion at the
start of the first hearing before the RPD, the female applicant is, in large
part, responsible for the problems because she was asked a few times before her
testimony whether the content of the PIF was correct and whether there were any
other changes that needed to be made to it. The female applicant did not point
anything out at that time (Tribunal Record at pages 378-380):
BY
COUNSEL (to
claimant)
Q.
Thank you. And can you confirm the content of this personal information form
and… yes, the content of the personal information form are true and correct to
the best of your knowledge?
A.
Yes.
-
Thank you.
BY
MEMBER (to
claimant)
Q.
And is it complete as the date of the hearing today?
A.
Yes.
Q.
Is it complete?
A.
Yes.
[15]
In
any event, when counsel for the female applicant later realized the error, the
member allowed the female applicant and her counsel to go through the PIF and
change it to reflect the new version of the facts.
[16]
The
female applicant also states that the panel marginalized two pieces of sure
proof, that is, the above-mentioned psychological report (Tribunal Record at
pages 255-256) and a medical report from the Johannesburg hospital dated
January 22, 2009, that confirms that the her former spouse was hospitalized in
December 2001 and in February 2005, the first time for a gunshot wound in the
arm and the second time for a gunshot wound in the head (Tribunal Record at
page 254).
[17]
The
panel’s decision addressed those two documents in the following manner (RPD
Decision at paragraphs 30-31):
30 The panel also
considered the psychological report filed in evidence by the claimant. When
asked about the complete lack of reference to the alleged crimes committed by
Mr. X with respect to her husband being shot and wounded, the claimant
testified that she had not told the psychologist because her former husband was
not there and because it was to treat her anxiety.
31 The panel is not
satisfied with those explanations. Although the claimant’s former husband is
not in Canada, if these allegations that her husband was shot and wounded were
true, the panel finds it reasonable to believe that the claimant would have
mentioned them to substantiate the sources of her anxiety. In the
circumstances, the lack of reference to these alleged incidents reinforces the
panel’s finding that these allegations are not credible. Also, since the panel
does not believe that these acts with a weapon occurred in the circumstances
alleged, it attaches no probative value to the medical report submitted by the
claimant to confirm these events.
[18]
The
female applicant states that the finding regarding the psychological report is
unreasonable because the document was not submitted in evidence to establish
the facts in support of her refugee claim, but instead to determine her
psychological state. I cannot share this opinion. The report demonstrates that
the female applicant was asked to describe the events that had apparently
caused her anxiety and fear. It is therefore not unreasonable for the member to
have considered why the female applicant apparently failed to mention, during
twelve sessions, the armed assaults by Mr. X against herself and her husband (Tribunal
Record at page 255):
.
. . Finally, although not fully assessed because of the specific nature of the
referral, Miss Polasi reported a series of traumatic sexual assaults by her
father as well as subsequent symptoms which appeared to be consistent with
Posttraumatic Stress Disorder (PTSD; including a number of somatic and re-experiencing
symptoms). These experiences were reported only after she was asked about
other situations in her life which might make her anxious or frightened,
and she appeared to be quite upset and tearful when describing them.
[Emphasis
added.]
[19]
Regarding
the medical report, given the significant contradictions and concerns raised in
the female applicant’s testimony, it was not unreasonable for the member to
have attached no probative value to the medical report in confirming the
circumstances surrounding the events alleged by the female applicant.
[20]
As
such, regarding the contradictions between her testimony and the police report
found in her bag when she arrived in Canada, the female applicant argued the
following in her memorandum (Female Applicant’s Memorandum of Facts and Law at
paragraph 30):
[translation]
30. Remember that she made
efforts since Ireland to obtain it for the purposes of submitting it as part of
her refugee claim, but that she had received a document containing information
that did not reflect the events that had occurred. Thus, she did not submit it
in support of her refugee claim in Ireland; she also did not even sign it, or endorse
its contents. She, however, did not get rid of it and it was in her bag upon
her arrival in Canada when it was seized by the Canadian authorities;
.
. .
[21]
The
female applicant reiterated the same thing in her affidavit (Affidavit of
Palesa Jessica Polasi at paragraphs 34-37):
34. It is at this
point of my testimony that the Board Member confronted me with contradictions
between the police report that had been seized in my bag upon my arrival in
Canada and my testimony. I explained to the Board Member that I asked a friend
in South Africa to get this statement – that I did on April 17th,
2005 – to support my refugee hearing in Ireland, but that she explained [sic]
me that the authorities said that we had to hire a lawyer for such a request.
We did so and, unfortunately, when I receive [sic] the document, I found
out so much informations [sic] were wrong;
35. The Board Member told
me that it did not explain why there was those contradictions. I answered that
I was trying to explain that I don’t know what happened, that I was not there,
that I did not sign it because the content was false, that I did not get that document
in order to produce it to the Canadian authorities, but to the Irish
authorities, but that unfortunately the Canadian immigration officers seized
this document that was forgot [sic] in my bag;
36. The Board
Member was not satisfied with my explanations and was asking me if I had
anything else to add. I added it is why I did not sigh [sic] because I
did not agree with the content. I reiterate [sic] that I did not want to
produce it in Canada and that even in Ireland I did not submit it because I was
not satisfied;
37. Again, the
Board Member asked me if I had other explanations. I did not have anything else
to add. So I just repeated that I did not agree with the content of that
document;
.
. .
[22]
As
described in her affidavit, when confronted by the contradictions between her
testimony and the content of the police report during the second hearing, the
female applicant immediately questioned the truthfulness of the contents of
that document. Nevertheless, during the first hearing before the RPD, the member
had also brought that same document to the attention of the female applicant to
confirm its authenticity (Tribunal Record at pages 437-438):
BY
MEMBER (to
claimant)
Q.
Is [the baptismal register] the only one document incorrect or false?
A.
Yes.
-
Because there’s another one sworn statement.
BY
MEMBER (to
counsel)
-
Maybe you could show her, Counsel, since we’re in the false documents, I just
want to make sure if it’s true, we’re in the false documents.
BY
CLAIMANT (to
member)
-
No, I went to police station.
BY
MEMBER (to
claimant)
Q.
Is it a false or a true document, madam?
A.
That is…
Q.
The sworn statement?
A.
The truth.
Q.
How can we make sure that’s a true document when the other one is a false one?
Can you tell us why we have to believe you?
A.
Because I went to the police station and I reported.
BY
COUNSEL (to
member)
-
It also has a stamp of Johannesburg central police station.
A.
Well, there’s another stamp on the other document and she said that’s a false
document. So…
-
Yes, and she’s testifying that this is a true document.
BY
MEMBER (to
claimant)
Q.
So, the sworn statement is a true document?
A.
Yes.
[23]
As
we can see, the female applicant confirmed the authenticity of that document
and in no way called its content into question even though she was certainly given
the opportunity to do so. As summarized in the member’s decision, the report put
in doubt the first incident between her husband and Mr. X, states that Mr. X was
imprisoned for seven years and does not mention the incident of February 2005. Under
those circumstances, it was reasonable for the panel to doubt the truthfulness
of the female applicant’s testimony when it was put in doubt by the content of
the police report previously obtained by the female applicant. The Court
therefore does not see reasons to amend the RPD decision regarding the
credibility of the female applicant.
[24]
During
the hearing, counsel for the applicants argued that the confirmation of the
authenticity of the document by the female applicant during the first hearing
had to be assessed considering that the questions asked on that point were
general and did not open the door to a detailed response. That argument is unacceptable.
The issues were to the point, on topic and did not cause confusion. The female
applicant replied and must live with the consequences of her answers.
[25]
Furthermore,
counsel, using the hearing transcript, tried to give a different tone to her
written submissions. She asked the Court to note that it took the member a long
time to realize that the female applicant had, in the month following her
arrival, corrected her original data and that the delay had influenced his mindset
with respect to her credibility. Regarding the psychological report, counsel
argued during the hearing that, by not taking into account its content on the female
applicant’s precarious state, the member did not do justice to the female
applicant. After reviewing the decision and the hearing transcript, I am of the
opinion that the member performed his role by being constantly determined to understand
the female applicant’s ambiguous version. His questions are a clear indication
of this. It seems unfair to want to blame him in such manner now. The female
applicant is responsible for the outcome. Her version, in a number of areas, changed
during the two hearings and the member noted this and made the appropriate
findings. He was therefore entitled to comment on the female applicant’s
precarious credibility using facts in support thereof.
B.
Did the RPD err in its assessment of state protection?
[26]
The
female applicant argues that the finding by the RPD regarding state protection
is unreasonable because it does not rely on the documentary evidence and
because it failed to consider Guideline 4 in its analysis and the female
applicant’s situation. The female applicant’s memorandum cites long excerpts from
the documentary evidence, including the following excerpt that, in fact,
supports the panel’s decision (Female Applicant’s Memorandum of Facts and Law at
paragraph 41, page 250):
3.7.6
Conclusion. Domestic
violence is widespread in South Africa but there is in general sufficient
protection and internal relocation is also an option where in the
particular circumstances of the applicant’s case it is not considered unduly
harsh for them to relocate. 9 USSD 2008: South Africa (Section 5), AI Report
2009: South Africa & AI Report 2008: South Africa 10 USSD 2008: South
Africa (Section 5) & AI Report 2008: South Africa 11 USSD 2008: South
Africa (Section 5), AI Report 2009: South Africa & AI Report 2009: South
Africa 12 USSD 2008: South Africa (Section 2) South Africa OGN v5.0 11 June
2009. The grant of asylum or Humanitarian Protection is unlikely therefore
to be appropriate and unless there are specific reasons why sufficient
protection would not be available to the individual applicant and why it would
be unduly harsh to expect them to relocate internally, such claims may be
certified as clearly unfounded.
.
. .
[Emphasis
added.]
[27]
Thus,
the documentary evidence supports the RPD’s finding regarding the existence of
state protection and furthermore, it is also useful to point out that the
female applicant confirmed during her testimony that Mr. X was sentenced to 20 years
in prison for attempted murder following the incident in 2005. Therefore, if her
testimony is indeed true, it clearly demonstrates the ability of the
authorities to protect the female applicant and her son (Tribunal Record at
page 485).
[28]
For
all of these reasons, this Court is of the opinion that the decision by the RPD
is not unreasonable, that it falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law and that the
Court’s intervention is not warranted.
[29]
The
parties were invited to submit a question or questions for certification. None
was submitted.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed and no question is certified.
“Simon Noël”
__________________________
Judge
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