Docket: IMM-3840-11
Citation: 2012 FC 118
Ottawa, Ontario, January 31, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LIZ COOPER
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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 seeks an order setting aside the May 24, 2011 decision of the Refugee
Protection Division of the Immigration Refugee Board of Canada (the Board),
which found her to be neither a Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugee
nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons
that follow, the application for judicial review is granted.
[2]
The
applicant is from St.
Lucia and
fears her ex-boyfriend. The Board refused the applicant’s claim on the basis
that she lacked credibility. The Board found:
The claimant’s testimony was marked with inconsistencies, contradictions and
implausibilities. The claimant’s evidence concerning the more material aspects
of her claim was neither consistent nor cogent. Given the importance of the
search for her parents to her story, it is reasonable to expect the claimant to
give clear and consistent evidence in this regard. She did not.
[3]
I
find that the Board’s decision falls outside the scope or range of legally
permissible outcomes given the facts and law and is unreasonable. Notwithstanding
the concerns about the applicant’s credibility, the decision fails to
substantively analyze the claim. Instead of focusing on the factual issues
that are material to a claim for protection, the Board focused its attention on
matters that were immaterial and irrelevant to the claim for protection. In
consequence, the Board undertook no analysis of the principle basis of the
claim of risk. As Justice Luc Martineau held in Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116, paras 10-12:
….the Board is entitled to make reasonable findings based on implausibilities,
common sense and rationality…The Board may reject uncontradicted evidence if it
is not consistent with the probabilities affecting the case as a whole, or
where inconsistencies are found in the evidence….
However, not every kind of inconsistency
or implausibility in the applicant's evidence will reasonably support the
Board's negative findings on overall credibility. It would not be proper for
the Board to base its findings on extensive “microscopic” examination of issues
irrelevant or peripheral to the applicant’s claim: …. In particular, where a
claimant travels on false documents, destroys travel documents or lies about
them upon arrival following an agent's instructions, it has been held to be
peripheral and of very limited value to a determination of general credibility.
[Citations omitted]
[4]
Secondly,
the Board’s determination that the applicant lacked credibility was vague and
imprecise. Prior to examining the decision in question, it is helpful to
revisit some of the principles which govern the assessment of credibility:
a. A board is
entitled to make findings of credibility based on implausibility, common sense
and rationality: Hilo v Canada (Minister of Employment and Immigration), [1991] FCJ No 228; Lubana, above;
b.
Uncontradicted evidence may be rejected if it is not
consistent with the probabilities of the case as a whole, or where
inconsistencies are found in the evidence: Akinlolu v Canada (Minister
of Citizenship and Immigration), [1997] FCJ No 296;
c.
Inferences must be reasonable and must be
set out in clear and unmistakable terms: Hilo;
d. Not all inconsistencies and implausibilities will support a
negative finding of credibility. Adverse credibility findings should not be
based on microscopic examination of issues irrelevant or peripheral to the
claim: Attakora v Canada (Minister of Employment and Immigration), [1989] FCJ No 444;
e. Evidence or testimony
with respect to whether a claimant travels on false travel documents, destroys
travel documents or lies about them upon arrival is peripheral and of very
limited value to a determination of credibility: Lubana;
f.
Assessment of testimony should take into account the age,
culture, background and prior social experience of the witness, as should a
lack of coherence in testimony where the psychological condition of the witness
has been medically established;
g. Similarly,
in assessing statements made by refugees to immigration officials on first
arrival to Canada, the trier of fact must consider that “most refugees have
lived experiences in their country of origin which gives them good reason to
distrust persons in authority”: Professor J.C. Hathaway, The Law of Refugee
Status (Toronto, Butterworths) (1991), pp 84-85, as cited by Justice Martineau
in Lubana;
h. Where a credibility
finding is based on inconsistencies of the applicant, specific examples of
inconsistency must be set out. The inconsistency must arise in respect of
other evidence which was accepted as trustworthy. Put otherwise, an
inconsistency can arise in one of two ways: evidence is internally inconsistent
in the testimony of the witness, or; evidence that is inconsistent with respect
to the testimony of other witnesses or documents. If, in the later situation,
that of external inconsistency, the evidence on which the inconsistency is
predicated must be accepted as trustworthy;
i.
The
cumulative effect of minor inconsistencies and contradictions can support an
overall finding that an applicant is not credible: Feng
v Canada (Citizenship and Immigration),
2010 FC 476; and
j.
A general finding of a lack of credibility may conceivably extend
to all relevant evidence emanating from the testimony of a witness: Sheikh v Canada (Minister
of Employment and Immigration), [1990] 3 FC 238.
[5]
In
the present case, the Board placed an unreasonable emphasis on the applicant’s
travel documents which, in turn, served as the basis for rejecting the claim. As
for the inconsistencies, contradictions and implausibilities
which the Board claimed marked the entirety of the applicant’s testimony, the
Board failed to provide specific examples or to demonstrate new the applicant’s
testimony was inconsistent, contradictory or implausible. In Hilo, the Federal
Court of Appeal held at paragraph 6 that:
…the board was under a duty to give its reasons for casting doubt upon the
appellant’s credibility in clear and unmistakable terms. The board’s
credibility assessment….is defective because it is couched in vague and general
terms. The board concluded that the appellant’s evidence lacked detail and was
sometimes inconsistent. Surely particulars of the lack of detail and of the
inconsistencies should have been provided. Likewise particulars of his
inability to answer questions should have been made available.
[Citations omitted]
[6]
Reading the decision
as a whole it cannot be said that the Board has provided, in clear and
unmistakeable terms, reasons for casting doubt on the applicant’s credibility.
To the extent reasons were given, they were vague and speculative. In
consequence, the Board failed to substantively and materially evaluate the
nexus to the Convention ground the applicant asserted came into being after she
had returned from the United Kingdom (UK); namely, the threat of physical abuse
from her male partner after she had returned from the UK to St. Lucia.
[7]
I
note as well that the Board supports its conclusion on credibility in its
observation that the applicant did not state the name of her persecutor. In
this regard, two observations are in order. First, the Board was focussed on
its analysis on events prior to those giving rise to the claim, such that it
never asked the question; secondly, the name of the persecutor was included in
the applicant’s PIF.
[8]
In
my view, while it is appropriate to test and probe events ancillary to the
substance of the claim, in this case the credibility findings were based on an
entirely peripheral matter. The Board member was clearly of the view that the
applicant held status in another country and theorized as to how the
applicant’s life unfolded:
… I believe it more plausible that Liz left Saint Lucia with her parents and the middle child
Lena, leaving the eldest child alone in Saint Lucia, rather than the story Liz wants the
Division to accept,…
[9]
The
proof of the alternate theory advanced by the Board member would lie of course
in proof of UK status,
which the Board member sought to establish. Even the Board member noted the
correlation between the two:
This suggests to this panel (and I so find) that the claimant likely has or had
status in the United
Kingdom. I note
that the claimant failed to provide her British immigration file, which would
have cleared up this mystery.
[10]
The
Board member set-up, through this analysis, a false paradigm. If it could be
established that the applicant lied about her UK status, the
claim failed:
From my experience both as a member of this Division and in my professional
life before becoming a member, I gained some experience with passports. … I
find it more likely than not that the claimant travelled to the United Kingdom
and possibly back to Saint
Lucia on a
passport that she has not disclosed that contains information that she does not
want me to know.
[11]
The
reasons for decision, and the questioning of the Board member, reflect a
singular pursuit of a theory of a case that the applicant was a resident of the
UK:
MEMBER: If I
were to ask you for your permission, and I need your permission, you do not
have to say yes, but if I were to ask your consent to contact the English
authorities to find out what your status was in the UK, would you agree?
CLAIMANT: My status?
MEMBER: Yes.
CLAIMANT: I did not have any status in the UK.
MEMBER: Well, you had a status of visitor,
according to you.
CLAIMANT: Well, I thought you were talking about
(inaudible).
MEMBER: You… according to your own personal
information form, you had the status of visitor, alright, so that is a status.
It is a temporary resident visitor. So, if I were to ask you for your
permission to give me your consent…
CLAIMANT: Yeah you can (inaudible).
MEMBER: And I can check with the UK authorities to see if you were a citizen
of the UK or a permanent resident of the UK. Would you give me your permission?
CLAIMANT: Yes, you can go ahead.
MEMBER: Are you a citizen of the UK?
CLAIMANT: I am not.
MEMBER: Are you a permanent resident of the UK?
CLAIMANT: No I am not.
[12]
In
a subsequent correspondence to the applicant the Board member indicated that he
would not be contacting the UK authorities.
[13]
The
Board member then speculated as to what that passport might have disclosed.
While interesting, and relevant to an exploration of the overall credibility of
the claim, it is not determinative of the claim for protection, which was, in
main, unexplored.
[14]
The
application for judicial review is granted.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted. The matter is referred back to the Immigration Refugee
Board for reconsideration before a different member of the Board’s Refugee
Protection Division. No question for certification has been proposed and the
Court finds that none arises.
"Donald
J. Rennie"
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