Date: 20120605
Docket: IMM-7980-11
Citation: 2012 FC 688
Ottawa, Ontario, June 5, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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PORTICA JOHN
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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
I. Introduction
[1]
[33] The
weight the trier of fact gives evidence tendered in a proceeding is not a
science. Persons may weigh evidence differently but there is a reasonable range
of weight within which the assessment of the evidence’s weight should fall.
Deference must be given to PRRA officers in their assessment of the probative
value of evidence before them. If it falls within the range of reasonableness,
it should not be disturbed. In my view the weight given counsel’s statement in
this matter falls within that range.
[34] It is also my view that there
is nothing in the officer's decision under review which would indicate that any
part of it was based on the Applicant's credibility. The officer neither
believes nor disbelieves that the Applicant is lesbian – he is unconvinced.
He states that there is insufficient objective evidence to establish that she
is lesbian. In short, he found that there was some evidence – the statement of
counsel – but that it was insufficient to prove, on the balance of
probabilities, that Ms.
Ferguson was lesbian. In my view,
that determination does not bring into question the Applicant’s credibility.
[Emphasis added]
(Ferguson v Canada (Minister of
Citizenship and Immigration), 2008 FC 1067).
[2]
This
Court is not convinced that the Applicant’s credibility was an issue. In fact,
the proof submitted by the Applicant to the officer was simply not probative.
II. Judicial Procedure
[3]
This
is an application for judicial review under subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision, dated September 9, 2011, dismissing the Applicant’s application for a
Pre-Removal Risk Assessment [PRRA].
III. Background
[4]
The
Applicant, Mrs.
Portica John, is a citizen
of St. Lucia.
[5]
The
Applicant arrived in Canada on December 12, 2007 and claimed refugee protection
on January 27, 2009. She alleged that she had been sexually assaulted by her
step-father. Her claim was rejected by the Refugee Protection Division [RPD] on
September 10, 2010 as it was determined that the Applicant was not credible in
regard to her sexual abuse.
[6]
The
Applicant sought leave and judicial review of that RPD decision. This Court
dismissed her leave on January 5, 2011.
[7]
The
Applicant submitted a PRRA application based on two grounds. The first one, the
same as claimed before the RPD, is the domestic violence and the physical abuse
suffered from her step-father in St. Lucia. The new claim is based on her
sexual orientation. She has realized since her RPD hearing that she is bisexual
and is now involved in a romantic relationship with a woman.
III. Decision under Review
[8]
The
officer concluded that the Applicant had not demonstrated her sexual
orientation on a balance of probabilities nor had she demonstrated that her
step-father was threatening her and that she faced a personalized risk upon
return.
[9]
The
officer found that the affidavit of the Applicant’s partner lacks specific
details on the relationship. The officer also accorded the photographs
submitted little probative value as they did not establish the Applicant’s
sexual orientation.
V. Issue
[10]
Did
the PRRA officer err in determining that the Applicant was not a Convention
refugee nor a person in need of protection?
VI. Relative Legislative Provisions
[11]
The
following legislative provisions of the IRPA, are relevant:
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Consideration
of application
113. Consideration of an
application for protection shall be as follows:
(a) an applicant whose claim to
refugee protection has been rejected may present only new evidence that arose
after the rejection or was not reasonably available, or that the applicant
could not reasonably have been expected in the circumstances to have
presented, at the time of the rejection;
(b) a hearing may be held if the
Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required;
(c) in the case of an applicant
not described in subsection 112(3), consideration shall be on the basis of
sections 96 to 98;
(d) in the case of an applicant
described in subsection 112(3), consideration shall be on the basis of the
factors set out in section 97 and
(i) in the case of an applicant for
protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada, or
(ii) in the case of any other
applicant, whether the application should be refused because of the nature
and severity of acts committed by the applicant or because of the danger that
the applicant constitutes to the security of Canada.
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Examen
de la demande
113. Il est disposé de la
demande comme il suit :
a) le demandeur d’asile débouté ne peut
présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au
paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et,
d’autre part :
(i) soit du fait que le demandeur
interdit de territoire pour grande criminalité constitue un danger pour le
public au Canada,
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
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[12]
The
following legislative provisions of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations], are relevant:
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Hearing
— prescribed factors
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a) whether there is evidence
that raises a serious issue of the applicant's credibility and is related to
the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is
central to the decision with respect to the application for protection; and
(c) whether the evidence, if
accepted, would justify allowing the application for protection.
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Facteurs
pour la tenue d’une audience
167. Pour l’application de
l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si
la tenue d’une audience est requise :
a) l’existence d’éléments de preuve
relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments de
preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments
de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée
la protection.
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VII. Position of the Parties
[13]
The
Applicant submits that her partner’s affidavit provides sufficient details in
respect of the time-frame in which their relationship developed contrary to the
officer’s determination. The Applicant continues that the officer made a
negative credibility finding in respect of the Applicant’s bisexuality claim.
Although the officer never did use the term credibility, the Applicant claims
he had it in mind. The Applicant submits the officer should have held a hearing
to assess the Applicant’s credibility. She then argues that the documentary
evidence was not appropriately assessed by the officer due to his credibility
finding.
[14]
In
response, the Respondent submits that the officer did not question the
Applicant’s credibility. Rather, the officer found the Applicant’s evidence was
insufficient. Therefore, the Applicant did not meet the requirements for an
oral hearing.
VIII. Analysis
[15]
The
standard of review that applies to a PRRA officer's decision with respect to
his assessment of the evidence is reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[16]
This
Court must determine whether the officer’s decision is based on the Applicant’s
credibility or whether there was insufficient evidence to support the
Applicant’s claims (Andrade v Canada (Minister of Citizenship and
Immigration), 2010 FC 1074).
[17]
In
Ferguson, above, this Court made the following statement with respect to
the weight that should be given by an officer to the evidence:
[26] If the trier of fact finds
that the evidence is credible, then an assessment must be made as to the weight
that is to be given to it. It is not only evidence that has passed the test
of reliability that may be assessed for weight. It is open to the trier of
fact, in considering the evidence, to move immediately to an assessment of
weight or probative value without considering whether it is credible.
Invariably this occurs when the trier of fact is of the view that the answer to
the first question is irrelevant because the evidence is to be given little or
no weight, even if it is found to be reliable evidence. For example,
evidence of third parties who have no means of independently verifying the
facts to which they testify is likely to be ascribed little weight, whether it
is credible or not.
[27] Evidence tendered by a witness
with a personal interest in the matter may also be examined for its weight
before considering its credibility because typically this sort of evidence
requires corroboration if it is to have probative value. If there is no corroboration,
then it may be unnecessary to assess its credibility as its weight will not
meet the legal burden of proving the fact on the balance of probabilities.
When the trier of fact assesses the evidence in this manner he or she is not
making a determination based on the credibility of the person providing the
evidence; rather, the trier of fact is simply saying the evidence that has been
tendered does not have sufficient probative value, either on its own or coupled
with the other tendered evidence, to establish on the balance of probability,
the fact for which it has been tendered. That, in my view, is the assessment
the officer made in this case. [Emphasis added].
[18]
In
the present case, the Applicant submitted an affidavit from her partner. It was
reasonable for the officer to conclude there was a lack of details. The part of
the affidavit relating to the Applicant’s risk from her step-father was also
found to be hearsay. The officer then gave little probative value to the
photographs submitted by the Applicant as they appeared to be taken in the
“course of a day and a night” (PRRA Decision) and were undated. Finally, the
officer found that the Applicant’s allegation that she had been informed by her
friends and her family that her step-father is currently threatening to kill
her lacked corroborative evidence.
[19]
In
these findings, the officer clearly weighed the evidence and, consequently, did
not call into question the Applicant’s credibility. Therefore, subsection
167(1)(a) of the Regulations does not apply.
IX. Conclusion
[20]
Though
the Applicant may wish this Court to reassess the evidence, it is important to
note that it is not the role of this Court to simply substitute its opinion for
that of the officer. Thus, this Court’s intervention is not warranted.
[21]
For
all of the reasons above, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT
ORDERS that Applicant’s application for judicial
review be dismissed. No question of general importance for certification.
“Michel
M.J. Shore”
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