Date: 20090320
Docket: IMM-3919-08
Citation: 2009 FC 290
Ottawa, Ontario, March 20,
2009
PRESENT: The Honourable
Mr. Justice Orville Frenette
BETWEEN:
Victima
Rosilia BELTRAN LEON
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
the Refugee Protection Division (the RPD) of the Immigration and Refugee Board,
dated July 30, 2008, determining that the applicant was neither a
“Convention refugee” nor a “person in need of protection” under sections 96
and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act).
Her refugee claim was therefore dismissed.
I. Facts
[2]
The
applicant is a citizen of Peru and was born on July 23, 1963.
[3]
On
May 27, 1991, she had a son with Gustavo Sedano Fabian and
named him Noe Gustavo Sedano Beltran.
[4]
The applicant
pointed out that she had not lived with the father of her child and that she
was raising her son on her own. She stated that the family of the child’s father
abused her and that his brother, Anibal Sedano Fabian, treated her
badly. He made amorous advances and proposed to her; these manoeuvres were
refused. He persisted and harassed her from 2000 to 2006, attempted to
rape her twice and raped her in August 2006.
[5]
Following
these events, she filed complaints with the police, but to no avail.
[6]
The
applicant gave custody of her son to his godfather and, on
November 1, 2006, arrived in Canada alone, claiming
refugee status. She stated that the child’s godfather wrote to her on
March 5, 2008, to tell her that Anibal went to harass Noe and was
trying to find the applicant.
II. Impugned
decision
[7]
The
RPD analyzed the
testimonial and documentary evidence and determined that it could not allow the
applicant’s refugee claim because, according to the RPD, she was not a credible
person since her story was, quite simply, invented for purposes of her
application.
[8]
The
RPD based its
decision on a contradiction in the applicant’s evidence about the identity of
her persecutor. It was established that, in her Personal Information Form
(PIF), the applicant indicated that she feared Anibal, the brother of her
child’s father, but, on her arrival in Canada, she told
the immigration officer that she feared her child’s father, Gustavo.
III. Issues
[9]
Does
the RPD decision contain errors of law or is it unreasonable having regard to
the facts?
IV. Standard
of judicial review
[10] For a factual
question or a question of mixed law and fact, the appropriate standard of
review is reasonableness. On a question of law, the standard of review is
correctness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190).
The decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,
points out that decisions of administrative tribunals are entitled to
deference.
V. Preliminary
objection
[11] The
respondent opposes the application because it was filed a day late. The
applicant requested an extension of time because the delay was caused by the
reorganization of her lawyer’s office. The respondent opposes this request,
relying on the following cases: Grewal v. Minister of Employment and
Immigration, [1985] 2 F.C. 263 (F.C.A.); Beilin v. Minister
of Employment and Immigration, [1994] F.C.J. No. 1863 (T.D.) (QL); Minister
of Citizenship and Immigration v. Singh, [1997] F.C.J. No. 1726 (T.D.)
(QL).
VI. Analysis
[12] Subsection 72(2)
of the Act requires that applications for judicial review be filed within 15 days
of the decision unless the Court extends the time for “valid reasons”.
[13] This is a
discretion based on equity. I believe that, under the circumstances described
above, the delay of one day, which is not imputable to the applicant, justifies
the requested extension of time.
A. Is
the decision reasonable on the merits?
[14] The applicant
contends that the negative credibility decision is not founded and that the
dismissal of the documentary evidence that supported her version is also not
founded in law.
(1) Issue
of credibility
[15] The RPD essentially
based its decision on the applicant’s lack of credibility because the
immigration officer at the entry point to Canada wrote that the applicant had
said she feared she would be beaten by her child’s father if she returned to Peru. The
applicant explained that this was a mistake; she repeated a number of times
that it was the brother of her child’s father, Anibal, who was the assailant. In
support of her testimony, she attempted to file copies of complaints about
Anibal that she had made to the Peruvian police in 2000 and 2006. But the RPD refused to admit
them, stating that the originals were required. The RPD also said that it was
easy to obtain false documents in Peru.
[16] There is no
doubt that, according to the case law, the RPD may base its decision on inconsistencies
between an applicant’s statements at the point of entry and his or her
testimony to support a non-credibility finding (Chen v. Minister of
Citizenship and Immigration, 2005 FC 767 ; Moscol v. Minister of
Citizenship and Immigration, 2008 FC 657).
[17] However, there
are distinctions that apply to this general rule in the factual determination
of the evidence.
[18] In this case,
the applicant spoke in Spanish at the point of entry, and her responses were
conveyed by an interpreter. Was there confusion regarding the persons’ names or
did the applicant misspeak at the time?
[19] The RPD did
not probe any further; it simply made a non-credibility finding and refused to
consider the applicant’s corroborative evidence. The record contained copies of
two assault and harassment complaints filed by the applicant against Anibal in
2000 and 2006 with the Peruvian police. The RPD simply excluded this evidence
on the ground that it was easy to obtain false documents in Peru.
[20] There is no
evidence that the documents submitted by the applicant were false.
[21] Our Court has
already determined that evidence of forgery in a country does not mean that a
document is false in the absence of concrete evidence to that effect (Halili
v. Minister of Citizenship and Immigration, 2002 FCT 999, at paragraphs 4 and
5; Cheema v. Minister of Citizenship and Immigration, 2004 FC 224).
[22] Furthermore, the
RPD is not bound by strict rules of evidence like the common law courts; thus,
the best evidence rule is not mandatory before the RPD.
[23] In my view,
this error by the RPD warrants the intervention of our Court.
[24] The applicant
alleges that the RPD did not maintain or follow Guideline 4—Women Refugee
Claimants Fearing Gender-Related Persecution. She submits that the RPD
confronted her three times about one aspect of her story (i.e. the names
of Anibal – Gustavo) and excluded her version and all the evidence that
supported it. She contends that the RPD did not comply with Guideline 4
regarding women refugees who are victims of violence and that the RPD did not
have an [translation] “extremely
sensitive attitude”. The respondent replies that the fact that the panel did
not mention the Guidelines does not mean that it did not follow them (Munoz v.
Minister of Citizenship and Immigration, 2006 FC 1273 ; Gutierrez v.
Minister of Citizenship and Immigration, 2007 FC 1192).
[25] Our Court’s
case law recognizes that the Guidelines are not part of the Act but are useful
in interpreting evidence. These Guidelines should be consulted in cases where a
woman refugee is claiming persecution based on sex, as in this case (Begum v.
Minister of Citizenship and Immigration, 2001 FCT 59 ; Muradova v. Minister
of Citizenship and Immigration, 2003 FCT 274).
[26] The RPD must
also consider the documentary and testimonial evidence regarding services available
for victims of violence and sexual assault in the specific country involved in
the dispute (Lubana v. Minister of Citizenship and Immigration (February
3, 2003), IMM-2936-02, at paragraph 14). That requirement was not satisfied in
this case.
[27] For all these
reasons, the application for judicial review will be allowed.
JUDGMENT
THE COURT ORDERS:
1.
The application for judicial review is allowed.
2.
The decision by the Refugee Protection Division of the Immigration
and Refugee Board, dated July 30, 2008, refusing to grant refugee status to the
applicant, is set aside.
3.
A new hearing of the application should be held before a
differently constituted panel.
4.
No question will be certified.
“Orville
Frenette”
Certified
true translation
Mary
Jo Egan, LLB
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