Date:
20120920
Docket:
IMM-2324-12
Citation:
2012 FC 1097
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 20, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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VERONICA VIRIDI
GONZALEZ HERNANDEZ
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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]
The
applicant is seeking judicial review of a decision of the Refugee Protection
Division [RPD] of the Immigration and Refugee Board dated February 15,
2012, by which the RPD determined that she was not a Convention refugee or a
person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], because the evidence
she submitted was not credible.
[2]
The
applicant challenges this decision which, she alleges, is based on erroneous
findings of fact made by the RPD in a perverse or capricious manner or without
regard for the evidence before it, more specifically, an addendum dated
October 6, 2011, changing the narrative in her Personal Information Form
[PIF] submitted with her claim for refugee protection in July 2009.
[3]
For
the reasons below, the Court has reached the conclusion that there is no reason
to intervene and set aside the decision of the RPD.
Facts
[4]
The
applicant is a young, 22-year-old citizen of Mexico. She arrived in Canada on March 26, 2009, and, a few months later, claimed refugee protection because
of her membership in a particular social group, namely, [translation] “women victims of violence”,
under section 96 of the IRPA. Initially, the applicant alleged that she
was persecuted by a certain Victor Almaraz, a police officer who was in love
with her and who started stalking her in 2007, and by whom she was harassed and
sexually assaulted.
[5]
On
June 14, 2011, that is, two days before her hearing before the RPD, the
applicant asked for a postponement of 10 to 12 weeks to allow her to undergo a
psychological assessment and to receive psychotherapy in order to prepare
herself for her hearing. This request was supported by a letter from her
psychologist, Dr. Marta Valenzuela, dated June 13, 2011. Dr. Valenzuela
expressed her concern about the applicant’s ability to testify before the RPD
and wrote that the applicant had revealed to her details of past sexual abuse
of which she had been a victim and which were directly related to her fear of
returning to Mexico. On June 16, 2011, the RPD granted her a 12-week
postponement.
[6]
On
October 6, 2011, the applicant filed an addendum to her narrative of the
facts provided in response to question 31 of her PIF, signed July 3,
2009. She added a new basis for her claim for refugee protection: she now
alleges that she fears her brother-in-law, Fabian G., who had been sexually
touching her since 2000, when she was nine years old.
[7]
For
a better understanding of what follows, here is a summary of the facts alleged
in the first PIF and in the addendum.
Facts
alleged in the first PIF
[8]
The
applicant claimed that, before leaving for Canada, she was living with her
mother and sister in the city of Atlixco. She alleged that,
since June 4, 2007, she had been continually harassed, threatened and
physically abused by a certain Victor Almaraz. Mr Alvarez was a judicial
officer working for the municipal police force whose offices were close to the
school she was attending.
[9]
The
applicant alleged that she had attempted to report this man to the public
prosecutor’s office, but that the officer she met with had refused to file a
complaint on her behalf given that she was a minor. She was told that she had
to come accompanied by an adult.
[10]
The
same day, Victor Almaraz allegedly followed the applicant from her place of
work and attempted to forcibly enter her family home. Fearing for her safety
and that of her family, the applicant was obliged to move to the city of Puebla in August 2008, but she regularly travelled to Atlixco for her job.
[11]
The
applicant alleges that, despite her moving, Victor Almaraz continued to seek
her out. On the evening of March 6, 2009, he allegedly followed her to her
new home, where she was living alone, forcibly entered her home and raped her.
As a result of this incident, convinced that she would be unable to obtain any
protection against her rapist, the applicant decided to leave Mexico for good and come to Canada.
Facts
alleged in the amended PIF
[12]
The October 2011 addendum provides the same facts as
the first version, but the applicant adds that, from 1999, she lived with her
mother and sister at the home of her sister’s fiancé, Fabian G.
[13]
She
described at length how Fabian had started coming up to her as of November 1999,
and, from April 2000, he had isolated her on several occasions to sexually
touch her. According to this second version of the facts, Fabian’s abusive
behaviour and his threats against the applicant continued, unbeknownst to her
mother and sister, for many years.
[14]
The
applicant alleges that, given this situation, she attempted by any means to avoid
her brother-in-law, but her psychological health gradually deteriorated. She
states, for example, that she would cut her arms, finding relief by punishing
herself. She added that her sister was especially insensitive to her situation
and that their relationship was conflict-ridden.
[15]
The
applicant explained that, for financial reasons, her mother was not willing to
move to their old house. Fabian had had a second floor built at his mother’s
home, where they all lived together for eight years.
[16]
She
added that, in 2004, she started drinking, skipping school and coming home
drunk. All of this harmed her relationship with her mother and sister to the
point that, in August 2005, one of her aunts took her in for four months.
In December 2005, the applicant returned to live at her sister’s and went
back to school following a discussion between her sister and aunt, the contents
of which she is unaware.
[17]
In
January 2007, while the applicant’s sister was pregnant, the applicant and
her mother again moved to the house close to her sister’s to avoid the constant
arguments between the two sisters. The applicant alleges that, after their
move, Fabian tried to visit her several times, but that the applicant did
everything to avoid him.
The RPD’s
decision
[18]
The RPD concluded, in light of all of the evidence
analyzed, that the applicant had not met her burden of proving that there was a serious possibility that she would
be persecuted on a Convention ground or that, on a balance of probabilities,
she would be subject to a risk of torture or to a risk to her life or to a risk
of cruel and unusual treatment or punishment should she return to Mexico. In
the RPD’s opinion, the determinative issue was the credibility of the applicant’s
narrative, as provided in the two abovementioned versions and in her testimony
before the RPD. The applicant also failed to file any credible documentary
evidence that could have helped her in establishing the truth of the alleged
facts. The RPD did not believe that the applicant was afraid of her
brother-in-law, her sister or Victor Almaraz.
[19]
The
RPD’s main findings regarding the applicant’s credibility can be summarized as
follows:
-
the
fact that the applicant was unable to speak of the sexual abuse committed by
her brother-in-law fails to explain the many contradictions regarding dates,
the applicant’s and her family’s places of residence, the locations where the
various incidents occurred and the family situation as described;
-
the
fact that the first narrative makes no mention of the applicant’s problems with
alcohol and her arguments with her mother and sister;
-
the
fact that, when examined about the period during which she allegedly lived on
the second floor of the building where her sister and brother-in-law resided,
the applicant testified before the RPD that she had lived there with her mother
from 2004 until her departure in 2009; according to the written version of her
addendum, she lived there for [translation]
“almost eight years”;
-
the
fact that, according to this second version, it was her mother’s house, yet the
applicant testified that it was Fabian’s house and that the written version of
the amendment was incorrect;
-
the
fact that, according to this amendment, the applicant allegedly attempted to
complain to the Public Prosecutor in July 2008, that this date was not
provided in the first PIF and that she changed this date to July 2007 at
the start of the hearing before the RPD;
-
the
implausibility that the applicant did not return with her mother to file a
complaint with the authorities, despite Victor Almaraz’s attempts to break into
their home; and,
-
the
implausibility that the applicant’s sister and brother-in-law did nothing in
this situation, given that they were all living under the same roof.
[20]
In
general, the RPD drew a negative inference regarding the applicant’s
credibility from the amendments and significant additions she made to her
initial PIF. The RPD also drew a negative inference from the fact that the
applicant made new changes to the second version of her narrative at the
beginning of the hearing.
[21]
The
RPD also questioned why the applicant did not “seek redress and protection from
protection agencies other than police”, referring to this Court’s decision in Fuentes v Canada (Minister of Citizenship and Immigration), 2010 FC 457 at paragraph 14, [2010] FCJ 659 [Fuentes], citing Minister of
Citizenship and Immigration v. Maria Del Rosario Flores Carrillo, 2008 FCA
94 at paragraphs 31-36.
[22]
The
RPD also found that it could not give any probative value to the letter from
the applicant’s mother (neither the original of this letter nor the envelope in
which it was sent were filed in evidence) to corroborate the applicant’s
testimony on whether or not Victor Almaraz exists. Relying on this Court’s
decision in Sosa v Canada (Minister of
Citizenship and Immigration), 2009 FC 275 at paragraph 19, [2009] FCJ 343, the RPD was of
the opinion that it could require such evidence.
[23]
Lastly,
the RPD found that the psychological report of Dr. Valenzuela, in which
she concluded that the applicant was suffering from trauma, stress and anxiety
as a result of the conduct of her brother-in-law who abused her for many years,
was insufficient to establish the facts, in light of the applicant’s
questionable credibility.
Submissions of
the applicant
[24]
In
her memorandum, the applicant challenges the general finding that her narrative
was not credible on several grounds.
[25]
She
first submits that her failure to disclose certain facts when she wrote her
first PIF could in part be explained by the fact that she had been traumatized
by what she had gone through, including the sexual assault and abuse of which
she had been a victim as a child. The applicant submits that, with Dr. Valenzuela’s
help, she was finally able to reveal certain incidents involving her
brother-in-law and that the psychological assessment must serve as evidence for
the applicant’s psychological scars and not to corroborate the alleged facts.
[26]
Second,
the applicant submits that, in its reasons, the RPD does not address the
principal elements of her claim, namely, whether she had in fact been sexually
abused by her brother-in-law, and whether her fear of the police officer who
had abused her was reasonable. The applicant argues that the RPD instead sought
to discredit her testimony on the secondary elements of her claim for refugee
protection, such as the time she lived at her brother-in-law’s and the date of
her move.
[27]
Third,
the applicant submits that, at her hearing, the RPD demonstrated a lack of
sensitivity towards her, considering her claims that she had been sexually
abused over a long time and at a young age.
[28]
Lastly,
the applicant submits that, given her age, the Mexican authorities’ reaction to
the complaint she had tried to file against her assailant, amounts to a
complete refusal on their part to protect her.
[29]
At
the hearing before the Court, counsel for the applicant submitted that her
client’s claim for refugee protection was essentially based on her fear of her
brother-in-law and of her family’s reaction should she have to return to Mexico. There was no mention at all of Victor.
Applicable
standard of review
[30]
The credibility and plausibility findings regarding a claim
for refugee protection essentially rely on the assessment of
the facts. Further to Aguebor v Minister of Employment and Immigration,
[1993] FCJ 732 (FCA),
“[t]he jurisprudence is clear in stating that the Board’s credibility and
plausibility analysis is central to its role as trier of facts and that,
accordingly, its findings in this regard should be given significant deference”
(Lin v Canada (Minister of Citizenship and Immigration), 2008 FC
1052 at paragraph 13, [2008] FCJ 1329).
[31]
The RPD’s conclusions regarding state protection are
reviewable on a standard of reasonableness, and this Court must show
considerable deference (Huerta v Canada (Minister
of Citizenship and Immigration), 2008 FC 586 at paragraph 14, [2008] FCJ 737).
Analysis
[32]
Question 31 of the PIF reads as follows: “On the following 2 pages, set out in chronological order
all the significant events and reasons that have led you to claim
refugee protection in Canada. . . . Provide details of any steps you
took to obtain protection from any authorities in your country and the result.”
(emphasis in original). The option of correcting one’s PIF is provided in
subsection 6(4) of the Refugee Protection Division Rules, SOR/2002-228.
[33]
However,
the decisions of this Court that have dealt with whether the credibility of a
claimant for refugee protection can reasonably be questioned because of discrepancies
between the narrative in the claimant’s initial PIF and any later additions or
changes are more nuanced.
[34]
The case law recognizes that making changes to a PIF in
order to clarify things or provide additional information, without changing the
facts described in it, does not undermine the presumption that, in the absence
of evidence to the contrary, the facts alleged by the claimant are true. Any
omission in a previous version of the facts must therefore be examined in its
context and be assessed in light of all of the evidence (Puentes v Canada (Minister of Citizenship and Immigration), 2007 FC 1335 at paragraphs 17-20, [2007] FCJ 1729). When
the changes made to the PIF are minimal and the applicant has provided a
plausible explanation of the corrections made, or when the information added to
the initial PIF has already been presented to the panel through other means
(such as port-of-entry notes), the credibility of a claimant’s narrative cannot
be impugned on that ground (Ameir v Canada (Minister
of Citizenship and Immigration), 2005 FC 876 at paragraphs 21-25, [2005] FCJ 1094).
[35]
However, the impact is different when omissions have to do
with the facts that directly concern the very basis of a claim for refugee
protection. In Aragon v Canada (Minister
of Citizenship and Immigration), 2008 FC 144 at paragraph 21, [2008] FCJ 173, Justice Frenette
determined as follows:
The applicant’s
failure to disclose in his original PIF that he “immediately” reported the
firearms threat to the police was a significant omission that justified the
Board’s negative credibility finding. The same reasoning applies to the
applicant’s initial failure to account for the July 2005 telephone calls he
allegedly received from the vehicle owner. Both omissions involve significant
and important aspects of the applicant’s refugee claim that should have been
included in the original PIF. These omissions do not address minute details of
the claim that the applicant was merely clarifying through amendment. Rather,
they go directly to the heart of the applicant’s claim.
[36]
Similarly, in Zeferino v Canada (Minister
of Citizenship and Immigration), 2011 FC 456 at paragraphs 31-32,
[2011] FCJ 644, Justice Boivin wrote as follows:
This Court has
confirmed on a number of occasions that all the important facts of a claim must
appear in the PIF and that failing to mention them could affect the credibility
of part or all of the testimony. Furthermore, the RPD is entitled to review the
contents of the PIF before and after its amendment and may draw negative
inferences about credibility if matters it considers important were added to
the PIF by an amendment later (Taheri v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 886, [2001] F.C.J. No. 1252, at paragraphs 4 and 6; Grinevich
v. Canada (Minister of Citizenship and Immigration), (1997) 70 A.C.W.S.
(3d) 1059, [1997] F.C.J. No. 444).
It was open to
the panel to gauge the principal applicant’s credibility and to draw negative
inferences about the disparities between her statements in the original PIF, in
the interview notes, in the amended narrative of the PIF and in the viva voce
testimony, for which the principal applicant provided no satisfactory,
plausible or credible explanation in the circumstances (He v. Canada
(Minister of Employment and Immigration), (1994), 49 A.C.W.S. (3d) 562,
[1994] F.C.J. No. 1107). In this case, and the Court agrees with counsel for the
respondent, the evidence shows that the applicants’ story and narrative changed
over the last two years.
[37]
In
the case under review, the applicant submits that the RPD’s decision is
unreasonable since the RPD did not consider the fact that the omissions in the
applicant’s first narrative were due to her psychological state and fears. In
my view, this argument has no merit in the present matter, even though it might
have done in another context. At paragraph 11 of its written reasons, the
RPD clearly states as follows:
[E]ven if the claimant did not want to talk about
the fact that her brother-in-law had been sexually touching her since 2000,
there was no reason for the first narrative to be inconsistent with respect to
the dates, the incident locations and the family situation that she described.
[38]
On
reading what follows, it must be noted that the RPD did not rely only on the
complete absence of the allegation regarding the applicant’s brother-in-law,
but also on other, unrelated significant omissions and contradictions. Contrary
to the applicant’s allegation, these were not secondary facts but significant
events in her life, such as the conflict-ridden relationship with her sister
and the date and destination of her move with her mother. In light of the evidence
on file and the RPD’s reasons, the finding that
the applicant was not credible remains reasonable, even if the RPD did not give
any probative value to the psychologist’s report filed by the applicant. It was
entirely within its discretion to do so.
[39]
I
also dismiss the applicant’s argument that the RPD lacked sensitivity towards
her. Nothing in the transcript of the hearing indicates to me that the
applicant had trouble answering the questions of the RPD member and that,
therefore, the RPD was insensitive to the applicant’s allegations or did not
consider the guiding principles of the Immigration and
Refugee Board’s Guideline 4: Women Refugee Claimants Fearing Gender-related
Persecution. In any event, the applicant did not bring up any
specific facts in support of this argument, other than that the RPD did not
accept her argument that her omissions were due to her psychological problems.
The RPD’s analysis in that respect, as indicated in the previous paragraphs,
was well-founded and reasonable.
[40]
The
RPD’s not finding a refugee claimant credible does not in itself show that the
RPD was insensitive to the claimant’s situation (Vargas v
Canada (Minister of Citizenship and
Immigration), 2008 FC 1347 at
paragraph 15, [2008] FCJ 1706; SI v Canada (Minister of
Citizenship and Immigration), 2004 FC 1662 at
paragraphs 3-4, [2004] FCJ 2015).
[41]
The
RPD clearly explained its findings on the applicant’s subjective fear: “. . . the
claimant failed to credibly establish that she fears her brother in law and her
sister. The claimant failed to credibly establish her alleged fear of Victor
Alvarez” (paragraphs 17-18 of the RPD’s reasons). The applicant has failed to
satisfy me that the RPD’s findings on the implausibility of her passivity and
especially that of her relatives in regard to Victor Almaraz’s conduct over a
long period of time were unreasonable. In the circumstances, such findings
clearly 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).
[42]
Lastly,
given the above, the RPD’s finding that the applicant did not rebut the
presumption of state protection, the scope of which is clarified in Fuentes (above), was not
unreasonable. This Court cannot intervene to substitute its own assessment of
the facts for that of the RPD by concluding, as the applicant would wish it to,
that her knowledge and abilities did not allow her to make further efforts to seek
state protection.
[43]
In
that respect, I note that, at the hearing before this Court, counsel for the
applicant submitted that her client’s claim for refugee protection was
essentially based on her fear of her brother-in-law and sister and not her fear
of Victor. Yet, the applicant never reported her brother-in-law or sought state
protection from him, which she should have done before applying for
international protection.
[44]
For all of these reasons, the present application for
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES THAT:
1.
The
present application for judicial review be dismissed.
2.
No question is certified.
“Jocelyne
Gagné”
Certified
true translation
Johanna
Kratz, Translator
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