Date: 20091030
Docket: IMM-1888-09
Citation:
2009 FC 1111
Ottawa, Ontario, October 30, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
VANIOLA
PIERRE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by the
Refugee Protection Division of the Immigration and Refugee Board (panel) dated
March 18, 2009, determining that the applicant, Vaniola Pierre, is not a refugee
under section 96 of the Act or a person in need of protection within the
meaning of section 97.
[2]
The
applicant, a student and Haitian citizen, claims she was persecuted for voicing
political opinions against the Aristide government in January 2004. In July of
that same year, she travelled to the Dominican Republic with other members of her church choir, subsequently
returning to her country. She alleges that in September 2004, two students
disappeared because they had not ceased their activities after having been
warned to do so. With the help of her family, she made her way to the United States, where her claim for asylum
was denied in December 2005. She arrived in Canada on May 11, 2007, and claimed refugee
protection.
[3]
The
panel’s negative decision is based on the applicant’s lack of credibility, as
well as the numerous inconsistencies between her oral testimony and her
Personal Information Form (PIF).
[4]
Since Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 R.C.S.
190, the applicable standard of review in cases such as this is reasonableness.
[5]
The
applicant maintains that the panel failed to analyze her claim under section 97
of the Act. Since it is a question of mixed law and fact, the same standard of
review is applicable (Dunsmuir, at paragraph 53; Mbanga v. Canada (Minister of Citizenship and Immigration), 2008 FC 738, [2008] F.C.J.
No. 949 (QL)).
[6]
Consequently,
the Court will intervene only if the decision falls outside of the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir, at paragraph 47).
[7]
The
applicant cited Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) and
Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199
(F.C.A.) to support her claims that the panel had erred with regard to her
credibility.
[8]
While it
is true that Maldonado creates a presumption that an applicant’s
testimony is truthful, this presumption is rebuttable. In the case at bar, the
panel clearly identified several inconsistencies, on key elements, between the
applicant’s oral testimony and her PIF.
[9]
As for the
panel’s lack of assessment regarding section 97 of the Act, Justice de Montigny,
writing in Mbanga, above, stated the following at paragraphs 20 and 21:
There is no doubt the Board needs to make
an independent determination under section 97 of the Immigration and Refugee
Protection Act (S.C. 2001, c. 27). As this Court repeatedly stated, there
may well be cases where a refugee claimant is found not to be credible with
respect to his subjective fear of persecution, but where the country conditions
are such that the claimant’s particular circumstances make him or her a person
in need of protection. The elements required to establish a claim under
sections 96 and 97 are not the same, and a negative determination of a refugee
claim may therefore not be determinative of a claim for protection: see, inter alia Nyathi v. Canada (MCI), 2003 FC 1119, 125 A.C.W.S. (3d) 873; Bouaouni
v. Canada (MCI), 2003 FC 1211, 126 A.C.W.S.
(3d) 686; Ayaichia v. Canada (MCI), 2007 FC 239, 309 F.T.R. 251.
That being said, the failure to proceed
to a separate section 97 analysis is not fatal in every case. Where, as here,
there is no evidence supporting a finding of a person in need of protection,
this analysis will not be required: see, for example, Ndegwa v. Canada (MCI), 2006 FC 847, 55 Imm. L.R. (3d) 108; Soleimanian
v. Canada (MCI), 2004 FC 1660, 135 A.C.W.S.
(3d) 474; Brovina v. Canada (MCI), 2004 FC 635, 130 A.C.W.S.
(3d) 1002.
[10]
In the
case at bar, it is clear that the applicant’s lack of credibility is
determinative regarding her allegations of persecution.
[11]
It is not
always necessary to proceed to a separate section 97 analysis when an applicant
is found not to be credible (Gonulcan v. Canada (Minister of Citizenship and Immigration),
2004 FC 392,
[2004] F.C.J. No. 486 (QL)).
[12]
In this
case, it cannot be said that there was no analysis by the panel under section
97. Paragraphs 2 and 24 refer to this, as does the transcript (pages 110 to
116, Tribunal Record).
[13]
The
intervention of the Court is not warranted.
[14]
No
question for certification has been proposed and none arises from this case.
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