Date:
20120731
Docket:
IMM-8879-11
Citation:
2012 FC 947
Ottawa, Ontario,
July 31, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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DIANA PAPLEKAJ,
LEONARDO ANDREW PAPLEKAJ,
AURORA PAPLEKAJ
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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]
The
refugee protection claims of Diana Paplekaj and her Albanian born daughter were
rejected by the Refugee
Protection Division of the Immigration and Refugee Board because the Board
found that Ms. Paplekaj was not credible. It held that
“lacking independent documents supportive of the claims, the two Albania claims fail.” The claim of Ms. Paplekaj’s son, Leonardo
Paplekaj, a one-year old citizen of the United States of America failed because
it was not established that he could not access state protection.
[2]
The
applicants submit that the Board relied on minor and trivial differences
between Ms.
Paplekaj’s
Personal Information Form (PIF) and her oral testimony.
[3]
It
was alleged that Ms. Paplekaj had been sexually assaulted by Nikoll, a powerful
politician in Albania. who stalked her and assaulted her on three occasions.
As a consequence of its credibility findings. the first two of these incidents
were found by the Board not to have occurred; however, the applicants note that
no negative credibility findings were made regarding the third incident. They
rely on Justice Campbell’s decision in Isakova v Canada (Minister of
Citizenship and Immigration), 2008 FC 149 at para 17 [Isakova],
which held that “[i]f the RPD properly makes a credibility or implausibility
finding with respect to one aspect of an applicant's evidence, this will not
necessarily provide a basis for rejecting the entirety of the applicant's
claim.” They also rely on Justice Campbell’s decision in RER v Canada (Minister of Citizenship and Immigration), 2005 FC 1339 at para 9 [RER],
which held that all evidence with respect to an applicant’s claim must be
considered before a global credibility finding is made.
[4]
The
applicants further emphasize the evidence by way of a psychological report that
spoke to Ms. Paplekaj’s traumatic experiences and how they could influence her
memory. They submit that because there is no mention of the psychological
report in the reasons, the Board failed to consider it and accordingly, the
decision is unreasonable: Yilmaz v Canada (Minister of Citizenship and
Immigration), 2003 FC 1498, Khawaja v Canada (Minister of Citizenship
and Immigration), [1999] FCJ No 1213 and CA v Canada (Minister of
Citizenship and Immigration), [1997] FCJ No 1082.
[5]
I
accept none of these submissions.
[6]
First,
the differences between the PIF and the oral testimony on which the Board
relied were neither minor nor trivial; they went to the heart of the allegations
of stalking and assault, as detailed below.
[7]
The
Board noted that Ms. Paplekaj’s PIF indicates that on her first encounter she
was stopped and confronted by Nikoll and one other person who said he was a
bodyguard. She wrote that “[t]he two men tried to get me into Nikoll’s car,
parked on the street next to the sidewalk, but I refused to comply.”
Inconsistently, at the hearing she testified that Nikoll and two of his
bodyguards got out of a car and called her by her name; she kept walking and that
was the end of the encounter.
[8]
The
Board asked Ms. Paplekaj why she did not testify that the men tried to get her
in the car, rather than the encounter ending when she continued walking. In
response, she explained that it was because she was not forced into the car.
This was not accepted by the Board which was of the view that it was
unreasonable to omit the most threatening action.
[9]
The
Board further noted that the PIF only mentions one bodyguard during the
encounter, rather than the two she mentioned at the hearing. Ms. Paplekaj was
confronted with this inconsistency and responded that the PIF only mentions one
bodyguard because only one of them spoke to her. This explanation was not
accepted by the Board which cited a passage in the PIF relating to the second
incident. This portion of the PIF states that “one of the bodyguards, not the
same one as the first time [emphasis by the Board].” In the Board’s
view, if the explanation was true, Ms. Paplekaj would have written that the
bodyguard at the second incident was “not the same as either guard at
the previous incident [emphasis by the Board].”
[10]
Furthermore,
the Board found inconsistencies with the events that allegedly took place
during the second incident. Ms. Paplekaj testified that Nikoll rolled down his
window and reached out in an attempt to grab her off the street, whereas in her
PIF she stated that he opened the door of his car and tried to grab her.
Counsel before the Board said that it was a translation error, but that
explanation was not accepted. The Board wrote that “[t]here was no suggestion
she had said ‘door’ and it was interpreted as ‘window’. Further, the
interpreter translated the Albanian as ‘rolled down the window’ which could not
apply if in fact the door was opened.”
[11]
The
Board was additionally at odds with the plausibility of certain facts
pertaining to that event. It noted that in the PIF she states that Nikoll
approached her in his speeding car. In the Board’s view, “[i]t is simply
implausible that a man in a moving car could get close enough to somehow reach
out and grab a woman off the street while she was walking in a plaza.”
[12]
Those
findings led the Board to give none of the applicants’ evidence sufficient
weight to support the claim. The Board found that although there are documents
supporting the fact that Nikoll is now a member of the government and has been
found guilty of poor judgment concerning women, there is no independent or
credible evidence that he is interested in Ms. Paplekaj.
[13]
In
my view, these findings are reasonable and supported by the evidence of
discrepancies between Ms. Paplekaj’s statements in her PIF and her oral
testimony.
[14]
Second,
it is true that the Board makes no assessment of Ms. Paplekaj’s evidence
regarding the third incident with Nikoll; however, in my view, it was not
required to do so before making its finding that she was not credible.
[15]
The
decision of the Court in RER does not, as was submitted, stand for the
proposition that the Board cannot make a general credibility finding prior to
examining all of the evidence. The ratio of that decision is found in
paragraph 10 wherein Justice Campbell writes that the error is in rejecting
independent evidence simply on the basis that the applicant is not believed:
…
I find that the RPD was in error by rejecting evidence which comes from sources
other than the testimony of the principal Applicant simply on the basis that
the principal Applicant is not believed. In my opinion, each independent
source of evidence requires independent evaluation. This is so because the
independent sources might act to substantiate an Applicant's position on a
given issue, even if his or her own evidence is not accepted with respect to
that issue.
[16]
The
decision in Isakova is fundamentally much the same. There the Court
relied on an earlier decision by Justice Martineau in RKL v Canada (Minister
of Citizenship and Immigration), 2003 FCT 116, wherein it was stated that
“minor or peripheral inconsistencies in the applicant’s evidence should not
lead to finding of a general lack of credibility where documentary evidence
supports the plausibility of the applicant’s story [emphasis added].”
[17]
In
this case, unlike RER and Isakova, there was no independent
evidence to support the claim of Ms. Paplekaj that Nikoll had done these
things, let alone any evidence that he had an interest in her at all.
Accordingly, having found that she fabricated two of the three events relied
upon, there was no impediment to rejecting all of her testimony, without
examining the third incident which was supported only by her testimony.
[18]
Third,
although the psychological report says that Ms. Paplekaj may have difficulties
understanding questions, request that questions be repeated or rephrased, have
an inability to retrieve specific details of the past, and have an inability to
formulate specific sentences, none of those were relevant to the
inconsistencies noted by the board or was evident on a reading of her
testimony.
[19]
The
Board questioned Ms. Paplekaj on the inconsistencies in her evidence for a
significant period of time; this discussion spans for over six pages in the
transcript. Ms. Paplekaj never claimed that she forgot evidence or was
confused; neither did her counsel for that matter. Instead, the explanations
involved discounting the relevance of the inconsistencies. These explanations
were considered and, in my view, reasonably rejected.
[20]
For
these reasons, the application is dismissed. Neither party proposed a question
for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed and no
question is certified.
"Russel W.
Zinn"
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