Date:
20120816
Docket:
IMM-404-12
Citation:
2012 FC 999
Ottawa, Ontario,
August 16, 2012
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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ADEN MAHARI
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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]
Ms. Aden
Mahari, the Applicant, applies for judicial review of the December 14, 2011 decision of
the Refugee Protection Division of the Immigration and Refugee Board (RPD)
refusing her claim for refugee protection pursuant to section 96 and subsection
97(1) of the Act.
[2]
The RPD
refused the Applicant’s claim on the basis of negative credibility findings
against the Applicant and insufficient evidence establishing that the Applicant
was persecuted in Eritrea.
[3]
The Applicant
submits the RPD ignored the psychiatric medical evidence, erred in finding her
failure to claim refugee status in South Africa undermined her credibility,
erred in drawing a negative inference about her being a Pentecostal Christian,
and erred in finding she faced a generalized risk in Eritrea rather than a
personalized risk.
Background
[4]
The
Applicant is a citizen of Eritrea. She entered Canada as Aden Mahari in April
2009. However, on September 20, 2010, Canada Border Services Agency provided a
biometric match for the Applicant under Aden Mehari Ghebreyesus. The Applicant
is also documented as Eden Mehari.
[5]
She
claims a fear of persecution if deported to Eritrea on the basis of religion
and as a failed asylum seeker. She says she is of Pentecostal faith. Her third
common-law spouse has been arrested in Eritrea for his religious beliefs and
she left Eritrea following that incident.
[6]
The
Applicant has a history of mental illness. Due to years as a victim of violence
and abuse, she suffers from symptoms consistent with major depressive disorder,
such as poor sleep, appetite, energy and concentration and memory difficulties.
The Applicant was receiving treatment 20 years ago when she took antidepressant
medication. However, she stopped after ten days and turned to religion as a
source of healing.
[7]
She
left Eritrea for Sudan and South Africa. She stayed in South Africa for four months where she worked with a temporary permit. The Applicant
testified that she had not applied for refugee status in South Africa since she believed that there was no such thing in that country. However, she
later explained that she could not obtain a replacement passport from the
Eritrean Embassy since she had applied for refugee status in South Africa. There is no documentary evidence of such an application. Eventually, the
Applicant paid an agent to provide the documents for her travel from South Africa to Canada.
[8]
There
are numerous inconsistencies between the information in the Applicant’s Personal
Information Form (PIF) and the information provided during her testimony before
the RPD. During the hearing before the RPD, doubts were raised with regard to
the Applicant’s identity, refugee claim history and the information in the PIF.
[9]
Most
notably, the Applicant provided an incorrect date of birth and hid the fact
that she had been denied a visa for the United States. Following the
Respondent’s disclosure of a biometric match, the Applicant provided an amended
PIF. When asked about the contradictions in her PIF and testimony, the
Applicant testified she could either not remember that she had provided such
information or she had been afraid to disclose information.
Decision Under Review
[10]
As
a preliminary matter, the RPD Member considered and refused the Applicant’s
recusal application made following the Member’s refusal to answer the question
regarding participation in the selection process of decision makers of the new
Division under the Balanced Refugee Reform Act (the Test). The RPD
dismissed the Applicant’s application for recusal for lack of evidence, stating
that the application was only based on pure speculation.
[11]
The
RPD dismissed the Applicant’s claim for refugee protection essentially on
negative credibility findings. As such, the RPD dismissed the Applicant’s claim
under sections 96 and 97.
[12]
After
a lengthy discussion regarding the Applicant’s identity, the RPD accepted the
Applicant’s Eritrean Identity card, confirmed by information from the Minister.
The RPD also accepted that the Applicant was an Eritrean national. Nonetheless,
the RPD described the Applicant’s failure to disclose her alias as an attempt
to obscure her true identity.
[13]
The
RPD gave little probative value to the Applicant’s amended PIF. The RPD noted
that the Applicant had failed to sign the amended pages as required by the RPD
Rules and noted that the Applicant could not recall the amended documents.
Relevant Legislation
[14]
The
Immigration and Refugee Protection Act, SC 2001, c 27 provides:
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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,
(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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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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Issues
[15]
Three
issues arise in this case:
1. Did the RPD err by
refusing the application for recusal?
2. Did the RPD err in its
credibility findings and assessment of the evidence?
3. Did the RPD
err by finding that the Applicant did not face a personalized risk under
section 97?
Standard of Review
[16]
The
Supreme Court of Canada held in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 that there are only two standards of review:
correctness for questions of law and reasonableness involving questions of
mixed fact and law and fact. The Supreme Court also held that where the
standard of review has been previously determined, a standard of review
analysis need not be repeated.
[17]
Findings
as to credibility and weighing of the evidence made by the RPD are subject to
deference. As such, a standard of reasonableness will apply. Aguebor v Canada (Minister of Employment and Immigration), 160 NR 315, [1993] FCJ 732 (FCA).
Courts will only intervene if the Officer’s decision was based on an erroneous
finding of fact made in a perverse or capricious manner or a decision that was
made without regard to the material before it. Ventura v Canada (Minister of Citizenship and
Immigration), 2012
FC 463 at para 25.
Analysis
1. Did the
RPD err by refusing the application for recusal?
[18]
The
Applicant relied on media reports that revealed a high failure rate among
current RPD Members regarding the Test. The Applicant criticizes the Member’s
refusal to answer the Applicant’s question as to whether the Member took the
Test. The Member refused to answer, stating that the question is irrelevant to
the matter at bar. The Applicant believed otherwise and submits that the Member
should have recused himself based on this refusal. The Applicant does not
provide any legal authorities to support this argument.
[19]
The
RPD did not err in refusing the application for recusal. In Gillani v Canada (Minister of Citizenship and Immigration), 2012 FC 533 [Gillani], counsel
raised the argument to the effect that there was a reasonable apprehension of
bias and institutional incompetence for failure to disclose whether or not the
Member had failed the Test. This argument was rejected by the Court on the
basis of lack of evidence and factual basis, stating the argument was based on
speculation and was farfetched. The Applicant’s assertion here rests on
similar speculation. As this argument is thus the same as in Gillani, I
dismiss it on the same grounds.
2. Did the RPD err in its
credibility findings and assessment of the evidence?
[20]
The
Applicant criticizes the RPD for basing its negative credibility findings on
the confusion surrounding the Applicant’s identity which the Applicant states
the RPD established notwithstanding the confusion.
[21]
The
Applicant also submits that the RPD failed to take into account the Applicant’s
psychiatric assessment in its consideration of the Applicant’s difficulties
during her oral testimony. According to the Applicant, that assessment revealed
that the Applicant suffered from symptoms consistent with major depressive
disorder, leading to poor energy and concentration and memory lapses. As such,
the Applicant argues that the RPD erred in making negative credibility findings
against the Applicant without due consideration of this psychiatric assessment.
[22]
The
Applicant further submits that the RPD erred by finding that the Applicant’s
failure to claim refugee status in South Africa undermined the veracity of her
refugee claim. The Applicant states there is no requirement that a refugee seek
protection in the country nearest to her home, or even in the first state to
which she flees.
[23]
Finally,
the Applicant submits that the RPD erred in its assessment of her religious
belief. The Applicant argues that the RPD erred by drawing a negative inference
from the lack of corroborating evidence with regard to the Applicant’s faith.
[24]
The
RPD’s credibility findings are to be afforded deference. Such findings are
unreasonable only when they are made without regard to evidence before it. In
the matter at bar, the RPD made negative credibility findings on the basis of
what it considered the Applicant’s intent to deceive. The Applicant did not
disclose her aliases and only did so when confronted with the biometric evidence.
[25]
While
the Applicant argued that the memory lapses were explained by her medical
condition, the Applicant’s inconsistencies go beyond that of memory
difficulties. The Applicant’s evidence contained multiple contradictions
between her oral testimony and PIF. The RPD reasonably recognized that
psychiatric reports were not a “cure-all” for the multiple deficiencies in the
Applicant’s testimony. In CAN
v Canada (Minister of Citizenship and Immigration), 2011 FC 822, the Court found
that it was appropriate for the RPD to assess psychological and social services
evidence in light of its earlier negative credibility findings.
[26]
The
RPD did more than simply consider the psychiatric report. The RPD acknowledged
the contents of the report, but doubted its probative value considering the
issues surrounding the Applicant’s credibility. The RPD is entitled to decide to give little weight
to the psychiatric report, considering its negative credibility findings.
[27]
The
RPD also did not err when it further doubted the Applicant’s credibility
following her failure to claim at the first opportunity in South Africa. In Gavryushenko v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1209, Associate Chief
Justice Lutfy’s (as he then was) stated:
The fact that a person does not seize the first
opportunity of claiming refugee status in a signatory country may be a relevant
factor in assessing his or her credibility, but it does not thereby
constitute a waiver of his or her right to claim that status in another country.
[Emphasis added]
Accordingly, I find the RPD may
consider the Applicant’s failure to claim refugee status in South Africa in assessing her credibility.
[28]
Contrary
to the Applicant’s assertion, the RPD did not dismiss the Applicant’s faith
through the lack of corroborating evidence. It is the RPD’s role to assess and
weigh contradictory evidence. The RPD acknowledged the letter from the Eritrean
Movement for Democracy and Human Rights saying the Applicant is a follower of
the Pentecostal faith. However, the RPD gave the letter little probative value
considering the Applicant’s inability when testifying to recall the name of the
church she allegedly attended in Toronto. In doing so, the RPD was weighing
contradictory evidence. I see no error in the RPD’s assessment giving little
weight to the letter.
3. Did the RPD
err by finding that the risk faced by the Applicant is a generalized risk, not
personalized under section 97?
[29]
The
Applicant submits that she will suffer a personalized risk upon return to Eritrea. She explains she faces personalized risk due to her faith and her status as a
returning asylum seeker. Moreover, she states that the RPD erred by finding
that personalized risk and generalized risk are mutually exclusive.
[30]
The
RPD found, considering its negative credibility findings and the little weight
given to the Applicant’s evidence, there was insufficient evidence to establish
personalized risk in the Applicant’s situation.
[31]
The
RPD relied on Prophète v Canada (Minister of Citizenship and Immigration), 2008
FC 331 to conclude that while it acknowledged that the situation in Eritrea is
dire, there was insufficient evidence to link the systemic and generalized
violation of human rights in Eritrea to the Applicant’s specific circumstances.
[32]
I
find the RPD’s determination of generalized risk as opposed to personalized
risk to the Applicant to be reasonable.
[33]
Neither
party submitted a question of general importance for certification.
Conclusion
[34]
While
it is acknowledged that the Applicant does suffer from the consequence of a
major depressive disorder, it was reasonable for the RPD to rely on the
Applicant’s multiple inconsistencies with regard to her identity, to her
contradictory explanation about her sojourn in South Africa, and her failure to
identify the Pentecostal Church she attended to find the Applicant as not
credible. These inconsistencies go well beyond those related to memory lapses.
It is the Applicant herself who undermined her credibility.
[35]
In
result, I find the RPD’s negative credibility findings reasonable. The
application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is dismissed.
2. No question of general
importance is certified.
“Leonard S. Mandamin”
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