Date: 20090731
Docket: IMM-18-09
Citation: 2009 FC 793
Montréal, Quebec, July 31, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
JACITHA JASETTE WILLIAMS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The
applicant, a
citizen of Saint Vincent and the Grenadines, seeks
judicial review of a decision rendered pursuant to s. 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) and asks that the matter be referred
back to a differently constituted panel for redetermination. In the impugned decision
rendered on November 28, 2008, by the Immigration and Refugee Board, Refugee
Protection Division (the Board), the applicant was found not to be a Convention
refugee nor a person in need of protection under ss. 96
and 97(1)(a) and (b) of the Act.
II. Facts
[2]
The
applicant arrived in Canada on September 12, 2005, but
only claimed refugee status on July 8, 2007, stating she suffered sexual
and physical abuse from her stepfather, from the age of eight to seventeen, and
half-brother, while she lived with him from September 2004 to September 2005.
[3]
The
applicant claims that in July 2002, when she was seventeen years old, she
became pregnant by her stepfather who, in August of that year, forced her to
take some medicine which resulted in her having a miscarriage.
[4]
Immediately
following this incident, Ms. Williams allegedly left her stepfather’s
house and moved to Shaps to live with her half-sister. She claims that, two years later, her stepfather
located her and started making threats against her.
[5]
In light
of these threats, the applicant allegedly sought help from her half-brother,
and in September 2004, moved to Canouan
Island to live with him. She claims that, for the next year, she was abused and
threatened by her half-brother.
[6]
In
September 2005, the applicant left her country and came to Canada, without first attempting to
claim protection in her own country. On August 8, 2007, nearly two years after
her arrival, she claimed, for the first time, refugee status, asserting in her
claim that she had been unaware, until the month of August 2007, of the
possibility of claiming refugee status in Canada.
[7]
The Board
dismissed the applicant’s claim on the basis of a number of negative credibility
findings and declared the applicant not credible because she had contradicted
herself on several key elements.
III. The
impugned decision
[8]
Considering
the applicant’s overall lack of credibility, the Board ruled that she was
neither a Convention refugee nor a person in need of protection under ss. 96
and 97(1)(a) and (b) of the Act.
IV. Issue
[9]
Was the
Board’s decision unreasonable?
V. Analysis
Standard of
review
[10]
The
standard of
review applicable to a finding of credibility or of fact on the part of a board
is that of reasonableness. This is a standard whereby administrative
tribunals are entitled to deference with respect to their decisions pertaining
to certain questions that do not dictate one specific, particular result, a
number of reasonable conclusions being possible (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9 (QL), at paragraph 47). Where the reviewing Court is to make
pronouncement on a decision of this kind, it should not interfere.
[11]
As
stated in Dunsmuir, at paragraph 161: “decisions on questions of fact
always attract deference”, especially
when the credibility of the applicant is affected, and “when the issue is
limited to questions of fact, there is no need to enquire into any other factor
in order to determine that deference is owed to an administrative decision
maker”.
[12]
In
reviewing the Board's decision, the Court is mostly concerned with “the existence [or lack] of justification, transparency
and intelligibility within the decision-making process” and also “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above, at paragraph 47).
[13]
Unless
the credibility findings were made capriciously or without supporting evidence,
and if the Board did not provide sufficient reasons in clear and unmistakable
terms to find as it did, this Court normally treats these findings with the
highest degree of deference. The burden is on the applicant to show that the
negative credibility inferences drawn by the Board were not reasonable (Aguebor
v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J.
No. 732 (QL), at paragraph 4).
Reasonableness
of the decision
[14]
The
applicant submits that the Board erred in law for not having taken into account
the particular characteristics of the individual and relied on innocent errors
to impugn her credibility.
[15]
The
applicant submitted before the Board, as evidence, a psychological report which
stated that the applicant showed many signs of post‑traumatic stress
disorder, intense anxiety, and feelings of helplessness, shame and underlying
depression.
[16]
The Board
claimed that it took into consideration the Chairperson’s Guidelines on
Women Refugee Claimants Fearing Gender-Related Persecution in reaching its
decision in this case. It also took into consideration “the claimant’s alleged
difficulty with concentration identified in the psychological assessment report
[...] and the fact that she quit school in the eighth grade”.
[17]
However,
the Board found that the applicant had contradicted herself in her testimony,
that her behaviour revealed an absence of subjective fear, and that her
testimony was, at times, implausible. Furthermore, it could not accept that she
had suffered abuse for years and had been forcibly induced to have a
miscarriage.
[18]
The Board
indicated in its reasons that it “rejects the claimant’s explanations
[regarding the delay in filing her refugee claim] as insufficient and is of the
opinion that her behaviour is inconsistent with that of someone who fears for
her life”.
Absence of a
transcript
[19]
The
applicant has not demonstrated in her affidavit any serious possibility of an
error on the record or that the absence of a recording deprived her of grounds
for review. In fact, in her affidavit, she did not make any additional
statements contradicting the Board’s findings; she was simply reiterating
allegations already made in her Personal Information Form (PIF).
Credibility
[20]
As the
Federal Court of Appeal wrote in Siad v. Canada (Secretary of State)(C.A.), 1996 CanLII 4099 (F.C.A.):
The
Tribunal is uniquely situated to assess the credibility of a refugee claimant;
credibility determinations, which lie within "the heartland of the
discretion of triers of fact”, are entitled to considerable deference upon
judicial review and cannot be overturned unless they are perverse, capricious
or made without regard to the evidence […]
[Footnotes
omitted.]
[21]
Although
the applicant strongly disagrees with the Board’s assessment of her
credibility, she has not shown that the decision was arbitrary and taken
without regard to the evidence offered. The Board found that she had
contradicted herself in her testimony, that her behaviour showed an absence of
subjective fear and that her testimony was, at times, implausible. Her
affidavit does not add anything to contradict these findings.
Delay
[22]
The
applicant arrived in Canada on September 12, 2005, and
waited until July 8, 2007 to claim refugee protection, almost two years
later. She explained that she had not sought Canada’s protection earlier as she
did not know that “she had to obtain documentation establishing her identity or
a passport in Canada, because that was not how
things were done at home.” However, the evidence shows rather that the
applicant had a valid passport delivered to her on October 6, 2003, which was
valid until October 5, 2013. Moreover, she explained that she did not obtain
her passport to travel, but rather for “identification” purposes and to “obtain
a cell phone”.
[23]
She also
explained that, right after her arrival in Canada, she lived eight months with a woman who
was a compatriot, and yet she would have had the Board believe that they had
never discussed their personal problems and that she had not asked any question
as to the refugee status procedure in Canada.
In May of 2006, she is supposed to have worked for a woman who offered to
sponsor her. Yet, it was allegedly only after meeting a stranger in a supermarket
in August 2007, and discussing the subject with him, that she realized that she
could claim refugee protection in Canada.
[24]
How could
the Board believe that the applicant would never have heard of the possibility
of claiming refugee protection in Canada when she lived eight months with a
woman from her home country, and how could she not have been aware of the need
to obtain legal status when the sponsorship offer was made? Moreover, how could
the Board believe that the applicant became aware of the refugee determination
process only almost two years after her arrival in Canada, after meeting a total stranger in a
supermarket?
[25]
With these
explanations, the Board had valid grounds not to believe the applicant and to
find that her explanations were neither logical nor plausible. It was entirely
open to the Board to find this sequence of events implausible. Rationality and
common sense may be considered when assessing the truthfulness of an asylum
claimant’s scenario. The Board was entitled to find that the applicant’s
behaviour was not that of a person who had a subjective fear of persecution,
and that it affected negatively her credibility.
[26]
The Court
recognizes that, according to the case law, while delay in making a claim is an
important factor to consider, it is not decisive; nonetheless, delay may, in
circumstances such as in this case, suffice to warrant the dismissal of a
claim, even though this is unfortunate for the applicant. The explanations of
the applicant, viewed in the context of her uncorroborated evidence in its
entirety, warranted the dismissal of her claim by the Board.
The
psychological report
[27]
The Board
specified that it considered the applicant’s psychological report and that
although she might suffer from depression and anxiety, she had not shown on a
balance of probabilities that the symptoms were related to a reasonable fear of
being killed by her stepfather or half-brother if she were to return to her
country.
[28]
It is
trite law that expert opinion cannot serve as a substitute for the
decision-making role of the Board. The “opinion evidence is only as valid as
the truth of the facts on which it is based […]. If the [Board] does not
believe the underlying facts it is entirely open to it to assess the opinion
evidence as it did” (Xi v. Canada (Minister of Citizenship and Immigration), 2007 FC 174). In this
instance, the Board did not believe the underlying facts on which the medical
expert based her report, and therefore it was open to the Board to find that
this report “did not show on a balance of probabilities that [the applicant’s] symptoms [of depression and anxiety] were related to a reasonable
fear of being killed […]
were she to return to her country”.
VI. Conclusion
[29]
The Board
clearly had the advantage of seeing the applicant testify, thereby being in a
better position than this Court to make a fair assessment of her narrative and
of the explanations she gave when confronted with discrepancies and the
implausibility of her story.
[30]
The
Board’s decision may not be what the applicant expected; it is obviously for
this reason that the applicant drew the attention of the Court to evidence
supporting a different result. However,
it is not the role of this Court to re-examine the evidence. The Court is only
called to determine whether the impugned decision, viewed as a whole, appears
reasonable or not with respect to the facts of record and the law.
[31]
The
applicant has not succeeded in showing that the impugned decision was based on
findings of fact made in a perverse or capricious manner, or that the Board
made its decision without regard to the evidence. The impugned decision was
warranted in fact and in law; it was therefore reasonable. The application for
judicial review must be dismissed.
[32]
Neither
counsel suggested a question for certification. The Court is of the opinion
that this application does not raise a serious question which warrants
certification.
JUDGMENT
FOR THESE
REASONS, THIS COURT dismisses the
application for judicial review.
“Maurice E. Lagacé”
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