Date: 20090112
Docket: IMM-2266-08
Citation: 2009 FC 29
Ottawa, Ontario, January 12,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
SABINE
SEMEXTANT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Federal Court of Appeal and this Court have established that a refugee claimant
has an obligation to claim asylum as soon as possible upon entry in a country
where protection is available; thus, the Immigration and Refugee Board (Board)
may recognize delay as a significant mitigating factor in the evaluation of subjective
fear:
[24] There is a well-established
principle to the effect that any person having a well-founded fear of
persecution should claim refugee protection in Canada as soon as he or she arrives
in the country, if that is his or her intent. On this point, the Federal Court
of Appeal has already concluded that any delay in claiming refugee protection
is an important factor which the Board may take into consideration in its
analysis.
Such a delay indicates a lack of a subjective fear of persecution, since there
is a presumption to the effect that a person having a well-founded fear of
persecution will claim refugee protection at the first opportunity.
Accordingly, in conducting its assessment, the Board is entitled to take into
consideration the applicant’s delay in claiming refugee protection. (Thomas
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.241
(QL), at paragraph 4; Huerta v. Canada (Minister of Citizenship and
Immigration), [1993] F.C.J. No. 271 (QL); Espinosa v. Canada (Minister
of Citizenship and Immigration), 2003 FC 1324, [2003] F.C.J. No. 1680 (QL),
at paragraph 16) (Emphasis added).
(Singh v. Canada (Minister of
Citizenship and Immigration), 2007 FC 62, 159 A.C.W.S. (3d) 568; reference
is also made to Huerta v. Canada (Minister of Citizenship and Immigration)
(1993), 40 A.C.W.S. (3d) 487, [1993] F.C.J. No. 271 (QL); Sainnéus v. Canada
(Minister of Citizenship and Immigration), 2007 FC 249, [1993] F.C.J. No.
321 (QL)).
[2]
In
the present case, the Applicant did not provide a reasonable explanation for
the delay. The Board was, therefore, justified to conclude as it did on a lack
of subjective fear (Sainnéus, above).
[3]
Consequently,
there was no error on the part of the Board in concluding that the Applicant’s
behaviour, in and of itself, undermined the credibility of her testimony.
II. Judicial Procedure
[4]
On
April 18, 2008, the Board concluded that the Applicant was not a Convention refugee
nor a person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[5]
The
decision of the Board is based on the Applicant’s absence of credibility and
her lack of subjective fear. The Federal Court is to determine, subsequent to
an application for leave, whether the Board decision should be upheld.
III. Background
[6]
The
Applicant, Ms. Sabine Semextant, is a citizen of Haïti.
[7]
She
alleges that, in 1999, she was forced to leave her country for the United
States (U.S.) because of her mother’s political affiliation that placed her
family in jeopardy.
[8]
More
particularly, she claims that, after the capture of one of the members of the
political group in question (unidentified by the Applicant), she and her family
were forced to hide in separate locations. Subsequently, she was brought to a
beach and told to board a boat for the U.S.
[9]
She
was allegedly told that the rest of her family would eventually meet her in the
U.S.
[10]
Ms.
Semextant arrived in the U.S. and was greeted by her father’s second
wife, Rosaline. She never saw the rest of her family again.
[11]
She
remained in the U.S. with Rosaline for eight years and never claimed asylum
before entering Canada, on March 6, 2007.
[12]
Ms.
Semextant claims that she was adopted by Rosaline during her stay and that
Rosaline tried to apply for U.S. residency on her behalf. The application
in the U.S. was
considered abandoned because it was not completed in time.
[13]
In
Canada, the hearing
before the Board was held on December 19, 2007. Ms. Semextant was duly
represented by counsel.
IV. Issue
[14]
Did
the Board err in determining that the Applicant was not credible?
V. Analysis
Standard of Review
[15]
It
is trite law that an assessment of evidence and an evaluation of credibility of
an applicant is of the Board’s purview. This Court must refrain from
interfering in questions of fact.
[17] … The Court must
demonstrate a high degree of deference since it is up to the Board to weigh the
applicants’ testimony and assess the credibility of their statements. If the
Board’s findings are reasonable, no
intervention is warranted…
(Bunema v. Canada (Minister of
Citizenship and Immigration), 2007 FC 774, 160 A.C.W.S. (3d) 865 at para. 1;
reference is also made to Desronvilles v. Canada (Minister of Citizenship
and Immigration), 2007 FC 711, 158 A.C.W.S. (3d) 978 at para. 9: Étienne
v. Canada (Minister of Citizenship and Immigration), 2007 FC 64, 308 F.T.R.
76 at paras. 10-14; Singh, above at para. 28; Kengkarasa v. Canada
(Minister of Citizenship and Immigration), 2007 FC 714, 158 A.C.W.S. (3d)
973; Encinas v. Canada (Minister of Citizenship and Immigration), 2006
FC 61, 152 A.C.W.S. (3d) 497 at para. 21).
[16]
The
Supreme Court of Canada, in respect of the standard of “unreasonableness”,
recognizes that due deference is to be applied in regard to credibility matters
(Dunsmuir v. New Brunswick, 2008 9 SCC,
[2008] 1 S.C.R. 190; Singh, above; Navarro v. Canada (Minister
of Citizenship and Immigration), 169 A.C.W.S. (3d) 626 at paras.
12-14).
[17]
In
findings, wherein evidence supports the Board’s credibility finding and that
the Board’s reasons stated is in clear and unmistakable terms, the Court is not
to disturb the Board’s decision. (Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 42 A.C.W.S (3d) 886, [1993] F.C.J. No. 732 (QL)
(F.C.A.) at para. 4; Kirbyik v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1192, 118 A.C.W.S. (3d) 870 at paras. 5-7; Egeresi
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1133, 125
A.C.W.S. (3d) 1047 at para. 5).
Applicant’s
lack of credibility
[18]
In
the present case, on the basis of a lack of subjective fear, the Board found
that Ms. Semextant’s story was not credible:
(a) Ms. Semextant
testified that, after living in Florida, she and her adoptive mother moved to
Georgia in mid-January 2006, although her Personal Information Form (PIF)
indicates that she lived in Florida until October 2006 but that she moved to
Georgia in September 2006 (Tribunal Record at pp. 6, 13, 15, 98, 100 and 101);
(b) She failed to
provide any corroborating evidence with respect to her move to Georgia (Tribunal
Record at p. 6);
(c) Ms. Semextant
did not act like a person fearing for her life:
(i) omitting to
claim asylum while living the U.S. and waiting for eight years before finally
doing so in Canada;
(ii)
then waiting five months to claim asylum although she apparently feared for her
life since September 2006 (Tribunal Record at p. 6);
(iii)
failing to undertake any action to rectify her status in the U.S., even though
she feared to return to Haïti (Tribunal Record at pp. 5-6).
(d) She provided
no satisfactory explanation for neglecting to submit a U.S. residency
application by which to rectify her status. All the documents which had been
requested by the U.S. authorities had been issued to Ms. Semextant before she
filed her application for residency on October 20, 2005; therefore, the Board
failed to understand how her alleged adoptive mother could have then claimed
that she was unable to obtain these very same documents in time for the
application to be examined (Tribunal Record at pp. 5-6).
(e) Ms. Semextant
omitted to provide any corroborating evidence with respect to her alleged
adoption (Tribunal Record at p. 5).
(f) She could not
remember when and why her baptism certificate had even been issued to her,
although, she, herself, provided this document to support her claim (Tribunal
Record at p. 7)..
[19]
The
Board was entitled to conclude that Ms. Semextant’s failure to claim asylum
earlier negated her subjective fear of persecution.
[20]
Indeed,
Ms. Semextant’s behaviour with respect to her alleged risks of return to Haïti,
and her uncle’s situation, was incompatible with her fear, recognizing that she
had had several opportunities to claim refugee status or residency, but had omitted
to do so.
[21]
Furthermore,
due to Ms. Semextant’s assertion that she was adopted by a U.S. resident, the
Board was justified to conclude that it was most improbable that she could not
have become an American resident herself by virtue of the alleged successful
adoption (Decision of the Board, Tribunal Record at p. 5; Yala v. Canada (Minister of
Citizenship and Immigration) (1999), 89 A.C.W.S. (3d) 338, [1999]
F.C.J. No. 384 (QL)).
[22]
The
Federal Court of Appeal and this Court have established that a refugee claimant
has an obligation to claim asylum as soon as possible upon entry in a country
where protection is available; thus, the Board may recognize delay as a
significant mitigating factor in the evaluation of subjective fear:
[24] There is a well-established
principle to the effect that any person having a well-founded fear of
persecution should claim refugee protection in Canada as soon as he or she arrives
in the country, if that is his or her intent. On this point, the Federal Court
of Appeal has already concluded that any delay in claiming refugee protection
is an important factor which the Board may take into consideration in its
analysis.
Such a delay indicates a lack of a subjective fear of persecution, since there
is a presumption to the effect that a person having a well-founded fear of
persecution will claim refugee protection at the first opportunity.
Accordingly, in conducting its assessment, the Board is entitled to take into
consideration the applicant’s delay in claiming refugee protection. (Thomas
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.241
(QL), at paragraph 4; Huerta v. Canada (Minister of Citizenship and
Immigration), [1993] F.C.J. No. 271 (QL); Espinosa v. Canada (Minister
of Citizenship and Immigration), 2003 FC 1324, [2003] F.C.J. No. 1680 (QL),
at paragraph 16) (Emphasis added).
(Singh, above; reference is
also made to Huerta and Sainnéus, above).
[23]
In
the present case, Ms. Semextant did not provide a reasonable explanation for
the delay. The Board was, therefore, justified to conclude as it did on a lack
of subjective fear (Sainnéus, above).
[24]
Consequently,
there was no error on the part of the Board in concluding that
Ms. Semextant’s behaviour, in and of itself, undermined the credibility of
her testimony.
[25]
The
Board, therefore, was in a position to reject Ms. Semextant’s claim for refugee
protection, simply, on the basis of incompatible conduct with a “subjective
fear”:
[8] There are many ways to make determinations in matters
of credibility. In assessing the reliability of the applicant’s testimony the
Board may consider, for example, vagueness, hesitation, inconsistencies,
contradictions and demeanour (Ezi-Ashi v. Canada (Secretary of State) [1994]
F.C.J. No. 401, at paragraph 4). In El Balazi v. Canada (Minister
of Citizenship and Immigration) 2006 FC 38, [2006] F.C.J. No. 80,
at paragraph 6, Mr. Justice Yvon Pinard states that even in some
circumstances, the applicant’s conduct may be enough to deny a refugee claim:
The respondent correctly says that the IRB may take into account a
claimant’s conduct when assessing his or her statements and actions, and that
in certain circumstances a claimant’s conduct may be sufficient, in itself, to
dismiss a refugee claim (Huerta v. Minister of Employment and Immigration (March
17, 1993), A-448-91, Ilie v. Minister of Citizenship and Immigration
(November 22, 1994), IMM‑462-94 and Riadinskaia v. Minister of
Citizenship and Immigration (January 12, 2001), IMM-4881-99). (Emphasis added).
(Biachi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 589, 152 A.C.W.S. (3d) 498).
[26]
Finally,
the Board was entitled to ask Ms. Semextant to produce documentary evidence to
prove her adoption and her move to Georgia since her testimony was
not credible. In the absence of documentary evidence in that regard, the Board,
therefore, was in a position to draw a negative inference:
[28] It is trite law that
the Board may draw an unfavourable conclusion about Mr. Singh’s credibility
when his story is implausible and when he does not submit any evidence to
corroborate his allegations. In Encinas v. Canada
(Minister of Citizenship and Immigration), 2006 FC 61, [2006] F.C.J. No. 85
(QL), Mr. Justice Simon Noël wrote the following:
[21] I would add that it is clear
from reading the transcript of the hearing that the applicants did not
discharge their onus of proof to convince the RPD that their claim was
well-founded. Indeed, the RPD informed them more than once that certain facts
should have been put in evidence (the employment relationship in 2003, for
example). Consequently, the RPD, not having at its disposal the evidence
that it would have liked to receive, found that the version of the facts in the
claim was not credible. That finding was certainly open to the RPD. (See Muthiyansa
and Minister of Citizenship and Immigration, 2002 FCT 17, [2001] F.C.J. No.
162, at para. 13.) (Emphasis added).
(Singh, above; reference is also
made to Encinas, above).
[27]
Furthermore,
Ms. Semextant argued that the Board erred by not having considered the
Chairperson’s Guidelines on Gender-Related Claims (Guidelines).
[28]
The
Board did specifically specify having taken the Guidelines into consideration;
however, since Ms. Semextant was found not to be credible, the Guidelines did
not apply to the present case.
[29]
As
stated by this Court in Munoz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1273, 307 F.T.R. 67:
[31] Second, the RPD was
presented with an account that was not credible, in which there was no credible
allegation related to the claimant’s gender. Moreover, as mentioned above, the
RPD stated in clear, explicit and intelligible terms the valid reasons why it
doubted the truthfulness of Ms. Munoz’s allegations, given her lack of
credibility.
[32] The defects noted by
the RPD were based on the evidence submitted, pertained to major points in Ms.
Munoz’s claim and were relevant and sufficient to reject the applicant’s
credibility. In this case, the RPD considered that since the applicant’s
account had been deemed not credible, her claim raised no such issues.
[33] The Guidelines are used
to ensure that gender-based claims are heard with sensitivity. In this case,
the RPD followed the “spirit” of the Guidelines by means of active listening,
despite the fact that this particular case does not even lead to the
application of the Guidelines primarily because the RPD considered Ms. Munoz
and the basis of her evidence to be not credible.
[34] Finally, it is
important to reiterate that, in the caselaw, it has consistently been held that
the RPD is not bound by the Guidelines in cases where they do not apply (Ayub,
supra, at paragraph 19; Balasingam, supra).
[35] Consequently, failure
to consider the Guidelines on gender-based persecution does not in itself give
rise to a reversible error where there is a sufficient basis for the tribunal’s
conclusion, as in this case (Sy v. Canada (Minister of Citizenship
and Immigration), 2005 FC 379, [2005] F.C.J. No. 462 (QL), at paragraph
18.)
[30]
Finally,
contrarily to what Ms. Semextant implies, since no evidence had been provided
to the contrary and because her story was not believed by the Board, it adduced
no evidence of a personal risk should she return to Haïti.
VI. Conclusion
[31]
Ms.
Semextant has not made her case; therefore, the application for judicial review
is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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