Docket:
IMM-2622-11
Citation:
2012 FC 863
Ottawa, Ontario, July 9, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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AMANDA BIBIANA HERMAN
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (the Board), dated May 24, 2011, wherein the applicant was
determined to be neither a Convention refugee within the meaning of section 96
of the Act nor a person in need of protection as defined in subsection 97(1) of
the Act. This conclusion was based on the Board’s finding that evidence in
areas crucial to the applicant’s claim lacked credibility.
[2]
The applicant requests that the Board’s decision be set aside and
the claim remitted for redetermination by a differently constituted board of
the RPD.
Background
[3]
The
applicant, Amanda Bibiana Herman, is a citizen of St. Lucia. She has three
daughters, two of which hold Canadian citizenship.
[4]
The
applicant was born in St. Lucia but lived in Canada from 1999 to 2005. In 2005,
immigration officials returned her to St. Lucia for overstaying in Canada. After returning to St. Lucia, the applicant met and began a relationship with
Richard Plummer. The couple subsequently moved in together.
[5]
After
a few peaceful months, Mr. Plummer began drinking heavily and using drugs. His
attitude changed and he became increasingly rude and violent towards both the
applicant and her children. Subsequently, Mr. Plummer attacked and harmed the
applicant. A similar incident happened a few months later at which time Mr.
Plummer threatened to kill the applicant. He also threatened that if she sought
help from the police, he would find out as he had many friends that were police
officers. The applicant did not leave Mr. Plummer as she and her children were
financially dependent on him.
[6]
After
another abusive incident, the applicant decided to report Mr. Plummer to the
police. Initially, the police were very concerned and responsive. However, when
they discovered that the complaint was against Mr. Plummer, they became
dismissive and told the applicant to seek help elsewhere. When the applicant
returned home, Mr. Plummer attacked and assaulted her again. In fear for her
life, the applicant decided to flee the country.
[7]
On
August 3, 2009, the applicant arrived in Canada on a six month visitor visa.
After her arrival, the applicant called home and discovered that Mr. Plummer
was searching for her and had threatened to kill her should she return.
[8]
The
applicant filed a refugee claim on or about October 14, 2010. The hearing of
the applicant’s refugee claim was held on April 4, 2011. On the day of the
hearing, the applicant sought to file three supporting letters from her mother,
friend and neighbour. These letters were respectively dated three, four and
fourteen months prior to the date of the hearing.
Board’s Decision
[9]
The
Board issued its oral decision on April 4, 2011. Written reasons were issued on
May 24, 2011.
[10]
The
Board found that the evidence submitted in areas crucial to the applicant’s
claim lacked credibility despite the following important factors in her favour:
1. Length of stay in
Canada (from 1999 to 2005 and from August 2009 to October 2010) during which
time she gained extraordinary experience and acculturation beyond that of
normal refugee claimants;
2. Representation by
an experienced and licensed immigration consultant; and
3. Absence of any
credible exceptional impediments to advancing her claim and complying with the
rules on disclosure.
[11]
The
Board found that the applicant had not provided any reasonable or credible
explanation for the late disclosure of her supporting letters. Rather, the
applicant’s late disclosure reflected conduct that was inconsistent with
individuals having a serious desire to diligently pursue their case. The Board
found the applicant’s explanations for the breach of the disclosure rules
unsatisfactory. This finding was further supported by the fact that the
applicant had previously been returned to St. Lucia for having overstayed in Canada. As such, the Board found that the applicant was acting in a variety of ways that
were substantially inconsistent with that of a person having had her
experiences and facing her alleged risk and fear.
[12]
In
summary, the Board concluded that there was no serious possibility that the
applicant would sustain serious and persistent harm of persecution should she
return to St. Lucia, nor that she would face a risk to her life, a risk of
cruel and unusual treatment or punishment or a danger of torture. As such, the
Board rejected the applicant’s refugee claim.
Issues
[13]
The
applicant submits the following issues for consideration:
1. Did the Board, in
the totality of its decision, make an unreasonable decision?
2. Did the Board err
in law by both ignoring and misconstruing relevant evidence in its entirety,
properly before it which substantiated the applicant’s claim to be a Convention
refugee or a person in need of protection and accordingly made erroneous
findings of fact or inferences that were patently unreasonable, unsupported by
the evidence, in disregard to the evidence, in its entirety, perverse,
capricious and based on irrelevant considerations?
3. Did the Board err
in law by its failure to properly consider all of the evidence in a fair and
judicious manner?
4. Did the Board
properly take into account the IRB Gender Guidelines where it was required to
do so?
5. Did the Board err
by making adverse findings of credibility in a perverse and capricious manner?
6. Did the Board err
in making findings on the documentary evidence, based on what the documents did
not say rather than on what they did say?
7. Did the Board err
in law in its interpretation of the meaning of persecution, the definition of
Convention refugee and a person in need of protection?
[14]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Were the Board’s
reasons adequate?
3. Did the Board err
in making a negative credibility finding?
4. Did the Board err
in denying the applicant’s refugee claim?
Applicant’s Written Submissions
[15]
The
applicant submits that the Board’s reasons were inadequate. This deprived her
of a fair hearing. The adequacy of reasons is a question of procedural fairness
that is reviewable on a standard of correctness. In this case, the Board’s
reasons, when read as a whole, were not meaningful or sufficient and provided
an inadequate analysis of the issues.
[16]
The
applicant also submits that the Board was unreasonably harsh, overzealous
and/or hypercritical in finding defects in her overall credibility. The Board
merely mentioned the Gender Guidelines, without properly applying them.
Further, the Board strictly enforced the 20 day advance disclosure rules
without any sensitivity to the applicant’s circumstances or her background as a
domestic violence victim.
[17]
The
applicant also submits that the Board erred by drawing negative inferences from
the lack of corroborating police and medical evidence. The applicant had
specifically explained that the police refused to take her seriously when she
went to report her partner’s abuse. This general police apathy towards domestic
abuse victims in St. Lucia was noted in the documentary evidence that was before
the Board.
[18]
The
applicant also submits that the Board came to an unreasonable decision on her
delay in claiming. The applicant gave a reasonable explanation for her delay;
namely, her lack of funds and her ignorance of Canadian refugee policies. Upon
being informed of her right to apply for refugee protection, the applicant
promptly filed her claim. The applicant submits that a delay in making a claim
cannot be a decisive factor in refusing that claim. In addition, a claim may be
credible even though it is not made at the earliest possible opportunity.
[19]
The
applicant submits that the Board also made unreasonable speculations as to her
awareness of the disclosure rules, thereby perversely disregarding the
supporting letters. The fact that she was represented by a consultant was
irrelevant to the question of her awareness of the disclosure rules. The
applicant gave reasonable explanations for her late submission of the
supporting letters, namely, her ignorance of the rules and her recent receipt
of the letters. Furthermore, provisions in the rules themselves clearly
indicate that they are not to be applied in a rigid manner. In fact, boards are
granted a measure of discretion in deciding whether to enforce the disclosure
rules.
[20]
The
applicant also submits that the Board made erroneous findings of fact. It did
not refer to or assess pivotal documentary evidence before it that supported
the applicant’s well-founded fear and personalized risk of harm. In addition,
the Board did not undertake a thorough and balanced review of the evidence that
described both the serious nature of domestic abuse in St. Lucia and the limited state protection available to abuse victims there.
[21]
Nevertheless,
the applicant submits that a positive Convention refugee determination can
still be rendered despite an adverse credibility finding. The key question is
whether the applicant meets the subjective and objective elements of the
refugee test. In addition, negative credibility findings cannot be made based
on the absence of evidence and findings of fact based on speculation are
inherently unreasonable.
[22]
In
summary, the applicant submits that the Board erred by not carefully examining
her evidence or grasping the nature of her matter. The decision contains errors
of fact and law that both individually and cumulatively warrant this Court’s
intervention.
Respondent’s Written Submissions
[23]
The
respondent submits that the Board reasonably found that the applicant’s conduct
was inconsistent with that of a person having a serious desire to act
diligently in pursuing their case. The applicant, who had retained a consultant
six months prior to the hearing, provided no reasonable explanation for her
late disclosure of letters written several months prior to the hearing.
Furthermore, the applicant did not explain how her profile as a domestic
violence victim affected her ability to provide disclosure in a timely manner
and in accordance with the rules.
[24]
The
respondent submits that given the applicant’s questionable credibility and the
nature of her claim, it was reasonable for the Board to draw a negative
inference from the fact that she was unable to provide objective documentary
evidence in support of her claim.
[25]
The
respondent submits that a delay in seeking protection points to a lack of
subjective fear of persecution or negates a well-founded fear of persecution.
Delay in claiming protection can be a determinative factor where an applicant
fails to provide a satisfactory explanation for that delay.
[26]
In
this case, the respondent submits that the Board reasonably found that the
applicant’s previous experience in Canada, her one year delay in claiming and
the expiration of her visitor visa undermined her alleged fear of persecution.
It was also notable that the applicant provided inconsistent testimony to explain
her delay in claiming. At one point, she blamed the delay on her lack of funds
to hire counsel, while later she blamed the delay on her own ignorance. Given
the applicant’s extensive experience in Canada and this inconsistent testimony,
the respondent submits that the Board reasonably drew a negative credibility
inference.
Analysis and Decision
[27]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[28]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board's jurisdiction”, are essentially pure findings of fact
and are therefore reviewed on a reasonableness standard (see Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No 12
at paragraph 46; Demirtas v Canada (Minister of Citizenship and Immigration),
2011 FC 584, [2011] FCJ No 786 at paragraph 23; and Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116, [2003] FCJ No 162
at paragraph 7).
[29]
In
reviewing the Board’s decision on a standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Khosa above, at paragraph 59). It is not up to a
reviewing court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing court to reweigh the evidence (see Khosa
above, at paragraphs 59 and 61).
[30]
Conversely,
the existence of a Board’s reasons is a matter of procedural fairness and
natural justice and the appropriate standard of review is correctness (see Poggio
Guerrero v Canada (Minister of Citizenship and Immigration), 2010 FC 384,
[2010] FCJ No 448 at paragraph 19). However, the Supreme Court of Canada
recently explained that where reasons are issued, the reasoning contained
therein is reviewable on a reasonableness standard. As stated by Justice Abella
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at paragraph 22:
It
is true that the breach of a duty of procedural fairness is an error in law.
Where there are no reasons in circumstances where they are required, there is
nothing to review. But where, as here, there are reasons, there is no such
breach. Any challenge to the reasoning/result of the decision should
therefore be made within the reasonableness analysis. [emphasis added]
[31]
Issue
2
Were the Board’s reasons
adequate?
An administrative tribunal’s
written reasons are intended to inform the affected individual of the
underlying rationale for the decision. Therefore, reasons must be proper,
adequate and intelligible and include considerations of the parties’
substantial points of argument (see Syed v Canada (Minister of Employment
and Immigration) (1994) 83 FTR 283 (FCTD), [1994] FCJ No 1331 at paragraph
8; and Via Rail Canada Inc v Lemonde, [2001] 2 FC 25, [2000] FCJ No 1685
at paragraph 22). However, reasons need not be perfect. They must be examined
in the full context of the decision and in the particular circumstances of the
specific case (see Guerrero above, at paragraph 30). It is not necessary
that all relevant factors be discussed in detail as long as the reasons serve
the purpose and function for which they are required (see Abu Ganem v Canada
(Minister of Citizenship and Immigration), 2011 FC 1147, [2011] FCJ No 1404
at paragraph 47).
[32]
The
Supreme Court of Canada recently elaborated on the application of Dunsmuir
above, in the context of the sufficiency of reasons. On behalf of a unanimous
court, Justice Abella explained that the adequacy of reasons is not a stand-alone
basis for quashing a decision. Rather, “reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (see Nurses’ Union above, at paragraph 14).
Although courts should not substitute their own reasons, they may, if
necessary, look to the record to assess the reasonableness of the outcome (see Nurses’
Union above, at paragraph 15). The Dunsmuir criteria will be met “if
the reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes” (see Nurses’ Union above, at paragraph 16). In Nurses’
Union above, the reasons were upheld because they “showed that the arbitrator
was alive to the question at issue and came to a result well within the range
of reasonable outcomes” (at paragraph 26).
[33]
In
this case, the applicant submits that the Board’s reasons, when read as a
whole, were not meaningful or sufficient and provided an inadequate analysis of
the issues. However, I find the Board’s reasons sufficient to allow this Court
to understand the reasoning that led to its final decision. Although relatively
brief, the decision describes the applicant’s responses at the hearing. The
Board also described specific factors that led to its negative credibility
finding. As a whole, I find that these reasons sufficiently convey the Board’s
reasoning on credibility which was the determinative issue in this case.
[34]
Issue
3
Did the Board err in
making a negative credibility finding?
It is well
established that credibility findings demand a high level of judicial deference
and should only be overturned in the clearest of cases (see Khan v Canada
(Minister of Citizenship and Immigration), 2011 FC 1330, [2011] FCJ No 1633
at paragraph 30). The Court will generally not substitute its opinion unless it
finds that the decision was based on erroneous findings of fact made in either
a perverse or capricious manner or without regard for the material before it
(see Bobic v Canada (Minister of Citizenship and Immigration), 2004 FC
1488, [2004] FCJ No 1869 at paragraph 3). In reviewing a board’s decision,
isolated sections should not be scrutinized. Rather, the Court must consider
whether the decision as a whole supports the ultimate credibility finding (see Guarin
Caicedo v Canada (Minister of Citizenship and Immigration), 2010 FC 1092,
[2010] FCJ No 1365 at paragraph 30).
[35]
In
this case, the applicant’s criticism of the Board’s credibility findings rests
primarily on three grounds: delay in filing the claim; awareness of disclosure
rules; and lack of corroborating evidence.
[36]
On
the first ground, it is established jurisprudence that a delay in filing a
refugee claim can point to a lack of subjective fear of persecution (see Pina
Gaete v Canada (Minister of Citizenship and Immigration), 2011 FC 744,
[2011] F.C.J. No. 938 at paragraph 23). As observed by the Board, it is notable
that the applicant in this case had prior experience with Canadian immigration
officials, which included being removed for failing to abide to immigration
requirements. She was also cognizant of the time limit of her visitor visa.
Nevertheless, she waited eight months after the expiry of her visitor visa to
file a refugee claim. This Court has held that the more inexplicable the delay,
the greater the probability that the subjective fear is absent (see El Hage
v Canada (Minister of Citizenship and Immigration), 2008 FC 1177, [2008]
FCJ No 1459 at paragraph 13).
[37]
Based
on the evidence before the Board, including the applicant’s past immigration
experience and the delay in filing after the expiry of her visitor visa, I find
that the Board drew a reasonable negative credibility inference on the
applicant’s subjective fear. The applicant’s past experience with immigration
matters in Canada renders her allegations of ignorance of claim filing
procedures questionable.
[38]
On
the second ground, the Board found that the applicant, who had the benefit of
an experienced immigration consultant to help her, did not provide any
reasonable or credible explanation for the lateness of disclosure of her
supporting letters. All three letters were dated several months before the
hearing.
[39]
The
applicant submits that she did give reasonable explanations for the delay; namely,
her lack of awareness of the rules and her recent receipt of the letters. In
addition, the applicant submits that the Board was empowered with a certain
level of discretion in deciding whether to strictly enforce the 20 day
disclosure rule. In support, the applicant refers to four cases. However, I
note that these cases pertain more specifically to the application of the
Gender Guidelines to victims of abuse than to the Board’s discretion in
applying the disclosure rules.
[40]
Again,
bearing in mind the applicant’s prior experience with Canadian immigration and
her lack of explanation on how her profile as a domestic violence victim
affected her ability to provide disclosure in accordance with the rules, I find
the Board came to a reasonable finding on her failure to meet the disclosure
rules. The applicant has not submitted jurisprudence that clearly supports her assertion
that the Board should have granted an exception to the rules in this case.
[41]
Finally,
the applicant criticizes the Board for drawing a negative inference from the
lack of corroborating police and medical evidence. In its decision, the Board
noted that corroborating documentary evidence is not a prerequisite in all
cases. However, it found that the applicant had not provided any reasonable or
credible explanation for the lateness of disclosure and had not alleged,
corroborated or established an inability to meet the disclosure timelines for
reasons out of her control.
[42]
It
is established jurisprudence that a board can draw a negative inference from an
applicant’s failure to produce extrinsic documents corroborating her
allegations when her credibility is at issue (see Richards v Canada
(Minister of Citizenship and Immigration), 2011 FC 1391, [2011] FCJ No 1697
at paragraph 23; and Nechifor v Canada (Minister of Citizenship and
Immigration), 2003 FC 1004, [2003] FCJ No 1278 at paragraph 6). The
requirement to submit corroborating evidence is more acceptable where it
pertains to critical aspects of an applicant's claim (see Guzun v Canada (Minister of Citizenship and Immigration), 2011 FC 1324, [2011] FCJ No 1615 at
paragraph 20).
[43]
In
this case, the applicant’s failure to meet the disclosure timelines, coupled
with her previous immigration experiences and her delay in filing a refugee
claim several months after her visitor visa had expired, clearly placed her
credibility at issue. It was therefore reasonable for the Board to consider
whether she had any corroborating evidence to support her claims and to draw
negative inferences from the lack of any such evidence.
[44]
In
summary, I find that when read as a whole, the decision supports the Board’s
final credibility finding.
[45]
Issue
4
Did the Board
err in denying the applicant’s refugee claim?
The Federal Court of Appeal
recently held that where a board makes a general finding that an applicant
lacks credibility, this determination is sufficient to dispose of the claim
unless there is independent and credible documentary evidence capable of
supporting a positive disposition of the claim (see Canada (Minister of
Citizenship and Immigration) v Sellan, 2008 FCA 381, [2008] FCJ No 1685 at
paragraph 3). In this case, I have found that the Board came to a reasonable
negative credibility decision based on the evidence before it. This finding is
sufficient basis on which to dispose of the applicant’s claim. The applicant
has not demonstrated that independent and credible documentary evidence exists
to support her claim (see Sellan above, at paragraph 3).
[46]
In
summary, I find that the Board’s decision was transparent and intelligible and
within the range of possible outcomes. I would therefore dismiss the
application for judicial review.
[47]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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,
(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
(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.
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
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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 :
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;
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.
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 :
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;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
(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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Refugee
Protection Division Rules,
SOR/2002-228
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29. (1) If
a party wants to use a document at a hearing, the party must provide one copy
to any other party and two copies to the Division, unless these Rules require
a different number of copies.
. . .
(4) Documents
provided under this rule must be received by the Division or a party, as the
case may be, no later than
(a) 20
days before the hearing; or
(b) five
days before the hearing if the document is provided to respond to another
document provided by a party or the Division.
69. The
Division may
(a) act
on its own initiative, without a party having to make an application or
request to the Division;
(b) change
a requirement of a rule;
(c) excuse
a person from a requirement of a rule; and
(d) extend
or shorten a time limit, before or after the time limit has passed.
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29. (1) Pour
utiliser un document à l’audience, la partie en transmet une copie à l’autre
partie, le cas échéant, et deux copies à la Section, sauf si les présentes
règles exigent un nombre différent de copies.
. . .
(4) Tout
document transmis selon la présente règle doit être reçu par son destinataire
au plus tard :
a) soit
vingt jours avant l’audience;
b) soit,
dans le cas où il s’agit d’un document transmis en réponse à un document reçu
de l’autre partie ou de la Section, cinq jours avant l’audience.
69. La
Section peut :
a) agir
de sa propre initiative sans qu’une partie n’ait à lui présenter une demande;
b) modifier
une exigence d’une règle;
c) permettre
à une partie de ne pas suivre une règle;
d) proroger
ou abréger un délai avant ou après son expiration.
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