Date: 20090914
Docket: IMM-3959-08
Citation:
2009 FC 903
Ottawa,
Ontario, September 14, 2009
PRESENT:
The Honourable Louis S. Tannenbaum
BETWEEN:
MARIA ERCILIA ARAMBULO RUIZ
MAGALI ARAMBULO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division (the Board), dated August 29, 2008, which found that the applicants,
citizens of Paraguay, are neither “Convention
refugees” nor “persons in need of protection”.
[2]
Maria
Ercilia Arambulo Ruiz and her minor daughter, Magali Arambulo, claimed refugee
status on March 21, 2006, two weeks after their arrival in Canada. The Board
found that the principal applicant was not credible. Furthermore, the Board
found that the applicant failed to rebut the presumption of state protection in
her country.
ISSUES
[3]
The issues
are as follows:
a. Was the Board’s negative
credibility finding concerning the principal applicant unreasonable?
b. Was the Board’s negative
finding concerning the presumption of state protection unreasonable?
APPLICABLE STANDARD OF REVIEW
[4]
Pursuant
to Dunsmuir v. New
Brunswick,
2008 SCC 9, the decisions of administrative tribunals on questions of fact are
reviewable according to the standard of reasonableness. Credibility is a
question of fact.
FACTS ALLEGED BY APPLICANTS
[5]
The
principal applicant alleges that she was abused by her spouse, Luis Reinaldo
Grenier, when they lived together from 1995 to 1998. He became increasingly
violent with her. Her daughter, Magali, was born in February 1998, but Mr.
Greiner did not recognize the girl as his daughter.
[6]
The
applicant submits that she did not report her spouse to the police. She
testified that it would have been too humiliating and that she knew that it
would have done no good, since the police do not help women in her situation.
That said, since 1996, she has turned to the social group of the Holy Family of
Nazareth Parish for spiritual, psychological and personal help. She told them
that she was having problems with her spouse, but she never informed them of
the violence she was subjected to.
[7]
The
applicant submits that the year her daughter was born, she learned that a
search warrant had been issued for her spouse in the city of Foz do Iguaçu, Brazil. Instead of reporting him to the
police, she warned him that she was aware of his situation with regard to the
Brazilian police and that she would not file any complaints against him if he
disappeared from her and her daughter’s lives. The result of this agreement was
that for nearly eight years, she lived without any problems.
[8]
The applicant alleges that she saw her former
spouse again for the first time in January 2006. She submits that he
spoke, at the applicant’s home, with her daughter’s baby-sitter, who gave him
the name of the school the child attended. Then, on January 20, he contacted
the school principal to offer to pay the tuition fees and obtain permission to
take his daughter after school. The principal immediately contacted the
principal applicant for information on the matter. The applicant went to the
school that same day to formally forbid the school to accept her former
spouse’s offer or give him access to her daughter.
[9]
After
that, the applicant alleges that her former spouse called her and threatened to
take her daughter away from her. On January 28, 2006, she made the decision not
to send her daughter to school and to leave for Canada. A friend, resident of the city Foz do
Iguaçu in Brazil, helped her: she took in the
little girl while the applicant made the necessary arrangements for the
journey. The applicant returned to Paraguay
several times, but submits that it was only to put her affairs in order at home
and at work. Apart from that, she applied for visas in Argentina, and the applicants left Brazil on March 4, 2006.
IMPUGNED DECISION
[10]
The Board
is of the opinion that the applicants are neither “Convention refugees” nor
“persons in need of protection” because the principal applicant was not
credible. The Board concluded that it did not believe the applicant’s story or
problems, and its view was that the principal applicant made up a story in
order to obtain status in Canada.
[11]
According
to the Board, the incident that allegedly marked the principal applicant
occurred when her former spouse appeared at his daughter’s school to offer to
pay the tuition fees and ask for permission to take her from school. The
applicant made a mistake about the name of the school, and the Board was not
satisfied with her explanation that she had merely made a mistake and wished to
forget the incident. What is more, even without the mistake regarding the name
of the school, the date of the incident, January 2006, is not consistent with
the information provided on the minor girl’s Personal Information Form (PIF),
where it is written that she finished school in November 2005.
[12]
Furthermore,
the Board stated at paragraph 17 of its decision that all of the conduct of the
principal applicant, who went to democratic countries (Argentina, Brazil)
without requesting protection, as well as all of the trips she made back to her
country although she feared being killed by her former spouse, are inconsistent
with the conduct of a person who truly fears for her life, as the principal
applicant alleged.
[13]
The Board
finds that the principal applicant exaggerates her testimony in stating that
her former spouse could easily find her in Paraguay because, generally
speaking, no one disappears in that country. The Board states that there is no
evidence that the former spouse is a powerful man who would have access to
specific information.
[14]
The Board
also criticizes the principal applicant for several other minor points:
·
having
waited more than two weeks before applying for protection in Canada;
·
having
added the letter “H” at the end of the “NAZARETH” religious group that helped
her in Paraguay, whereas in the Spanish document received from that group, the
word is written without an “H”;
·
the fact
that the principal applicant alleges that her former spouse never wished to
recognize his daughter Magali, but two of the photographs she filed in a bundle
show the former spouse with a baby in very tender and affectionate poses, and
that when the Board questioned her about it, the applicant merely replied that
he had been tender towards her as well;
·
having
filed an amendment on the very day of the hearing which stated that her father
had been murdered by thieves in Paraguay, and for having failed to file the
original newspaper article describing the incident and her father’s death
certificate;
·
having
filed the same document twice: the first time unsigned and unstamped, and the
second time with stamps and signatures.
[15]
The Board
concluded that even if it had believed the applicant’s story, she failed to
rebut the presumption of her state’s protection.
ANALYSIS
a. Was
the Board’s negative credibility finding concerning the principal applicant
unreasonable?
[16]
The
applicants submit that a claimant’s testimony should not be easily or lightly set
aside and that the Board had a minimal duty to use its experience in cases
involving claimants who allege having been victims of spousal violence to say,
at the least, whether the events experienced by the principal applicant could
have affected her testimony. Additionally, when it is a matter of assessing the
credibility of a testimony containing implausibilities, it is necessary to
refer to the relevant evidence and the explanations provided by the applicant
which could rebut a finding of implausibility.
[17]
On the
basis of Kong v. Canada (Minister of Employment and
Immigration)
(1994), 23 Imm L.R. (2d) 179, the applicants submit that the negative
credibility findings must be reasonable and cannot be based solely on
conjectures or hypotheses. Furthermore, they submit that this Court has
previously stated that it will not exercise unwarranted deference with regard
to a board’s assessment of plausibility, since that assessment is based on
deductions and may be contested (Giron v. Canada (1992), 143 N.R. 238 (F.C.A.)).
[18]
The
respondent submits that the Board provided clear and unequivocal reasons
regarding the applicants’ credibility and the rejection of their claim for
refugee protection. As well, it was open to the Board to find that the
testimony and evidence contained numerous contradictions and inconsistencies
because that finding was clearly backed up by the evidence before the Board.
[19]
The
respondent also submits that neither the principal applicant nor her counsel
demonstrated to the Board, prior to the hearing, any inability to testify,
which weakens her argument that her claim for refugee protection was affected
because she was traumatized by the incidents she experienced involving her
former spouse.
[20]
It is of
the very essence of the role of the tribunal that hears witnesses to rule on
their credibility. Witnesses must be assessed by a person who is ready to
believe that what they say is the truth and to maintain that belief until there
is a clear and important reason not to do so (Maldonado v. Canada (Minister
of Employment and Immigration), [1980] 2 F.C. 302, Bula v. Canada
(Secretary of State), [1996] F.C.J. No. 876 (QL)). However, the presumption
that the claimant’s sworn testimony is the truth is questionable and, in
appropriate circumstances, is in fact rebuttable if the documentary evidence
fails to mention what it is normally expected to mention (Adu v. Canada
(Minister of Employment and Immigration), [1995] F.C.J. No. 114
(F.C.A.) (QL)).
[21]
One point
that was not clarified at the hearing before the Board or in the documentation
supporting this claim is the length of the school year in South America,
specifically in Paraguay. In North America, the school
year for elementary schools normally begins in September and ends in June. But
from reading the documentary evidence, it seems that the school year in South America is different. In her PIF, the
minor girl, Magali, wrote that she had finished school in November 2005. The
principal applicant stated in her PIF that she had to make an urgent decision
in response to the situation concerning her former spouse and the school
principal because classes at the school would begin again on February 10
(2006). An attentive reading of her PIF, the hearing transcript and her
affidavit in support of this claim shows that the applicant never said that her
former spouse wished to take his daughter from the school on the same day that
he spoke with the school principal. Neither does the applicant say that she
took Magali out of school, only that she went to speak with the principal to
ensure that she would not accept any payment from the applicant’s former
spouse. Her fear was, therefore, prospective.
[22]
Given
these facts, the dates in the applicant’s story pertaining to the meeting
between her former spouse and the school principal are not necessarily
inconsistent.
b. Was
the Board’s negative finding concerning the presumption of state protection
unreasonable?
[23]
The Board
stated at paragraph 26 of its decision that even if it had believed the
applicant’s narrative, the applicant did not rebut the presumption of state
protection in her country. The Board found that although the situation in Paraguay is not perfect with respect
to women who are victims of spousal violence, “there is legislation against
this form of violence; the police and various groups
receive . . . training
. . . to . . . assist women in informing on
their attackers; and some success can be achieved”.
[24]
The
principal applicant submits that the documentary and oral evidence shows that
adequate protection for victims of spousal violence is nonexistent in Paraguay and that the arrangements
made by the state have not helped others in situations similar to that of the
applicants. Consequently, the applicants have rebutted the presumption of state
protection.
[25]
The
respondent submits that a refugee claimant does not rebut the presumption of
the existence of state protection in a functioning democracy by asserting only
a subjective reluctance to engage the state in providing protection (Kim v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1126). The applicants had to provide evidence of having done all that
was required in the circumstances to acquire the protection of their own
country and evidently failed to do so.
[26]
The
respondent suggests that it may be useful to ask whether the applicants’
situation should be considered as a case of criminality in the broad sense
rather than a case of spousal violence because the principal applicant has not
had a spousal relationship with her former spouse since 1998.
[27]
To rebut the presumption of state protection, the applicant must
first introduce evidence of inadequate state protection and must then convince
the board that the evidence adduced establishes that the state protection is
insufficient (Carillo v. Canada (Minister of Citizenship and Immigration),
2008 FCA 94). In Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171 at paragraph 57, the Court explains that “. . . a claimant coming
from a democratic country will have a heavy burden when attempting to show that
he should not have been required to exhaust all of the recourses available to
him domestically before claiming refugee status”.
[28]
The
applicant herself testified that she had never filed a complaint with the
authorities:
[translation]
Q. Why did you
not trust in the authorities? Had you already gone to complain?
R. I never
complained to the authorities because every day, I see that nothing happens
when a report is made. . .
[29]
Paraguay
is a democracy, and the Board observed at the hearing that the Country of
Origin Research, which discusses the protection available to victims of
spousal violence in Paraguay, indicates that there are laws in force and a
certain number of organizations that provide aid and advice to victims of
spousal violence, in addition to non-government organizations which offer the
same services. Furthermore, the Board mentioned that the Country Reports on
Human Rights Practices 2007 states that during the year in question, these
organizations received over 14,000 complaints of domestic violence.
[30]
It is
clear from the documentary evidence that domestic violence is fairly common in Paraguay, but the documentary evidence
also shows that many victims file complaints and make use of the services
available. Consequently, it was open to the Board to find that the principal
applicant had not rebutted the presumption of her state’s protection.
[31]
For all of
these reasons, I conclude that the Board’s negative finding concerning the
presumption of state protection was reasonable, intervention by this Court is
not warranted and the application for judicial review is dismissed.
[32]
There was no question proposed for certification, and none is
involved in this matter.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that for the
reasons given, the application for judicial review is dismissed. No question is
certified.
“Louis S. Tannenbaum”
Sarah Burns
AUTHORITIES CONSULTED BY THE COURT
1. Giron v. Canada (M.E.I.) (1992), 143 N.R. 238 (F.C.A.)
2. Dimitru v. Canada
(M.E.I.) (1994),
27 Imm. L.R. (2d) 62 (T.D.)
3. Kong v. Canada (M.E.I.) (1994), 23 Imm. L.R. (2d) 179
(T.D.)
4. Rasaratnam c. Canada
(M.E.I.), [1992] 1 F.C. 706 (C.A.)
5. Afolabi v. Canada (M.C.I.), 2006 FC 468
6. Zambo v. Canada (M.C.I.), 2002 FCT 414
7. Parnian v. Canada (M.C.I.), [1995] F.C.J. No. 777 (QL)
(T.D.)
8. Chahal v. Canada (M.C.I.), [2001] F.C.J. No. 1540 (QL)
(T.D.)
9. Umana v. Canada (M.C.I.), 2003 FCT 393
10. Sanchez v. Canada
(M.C.I.), 2004 FC 391
11. Muthuthevar v. Canada (M.C.I.), [1996] F.C.J. No. 207 (QL)
(T.D.)
12. Kabir v. Canada (M.C.I.), [2002] F.C.J. No. 1198 (QL)
(T.D.)
13. Baines v. Canada (M.C.I.), 2002 FCT 603
14. Carillo v. Canada (M.C.I.), 2008 FCA 94
15. Ferguson v. Canada (M.C.I.), 2002 FCT 1212
16. Kaur v. Canada (M.C.I.), 2006 FC 1066
17. Kim v. Canada (M.C.I.), 2005 FC 1126
18. Toora v. Canada (M.C.I.), 2006 FC 828
19. Boye v. Canada (M.E.I.), [1994] F.C.J. No. 1329 (QL)
(T.D.)
20. Rahman v. Canada (M.E.I.), A-1224-91, April
22, 1994 (F.C.A.)
21. Parmar v. Canada (M.C.I.), [1998] F.C.J. No. 50 (QL)
(T.D.)
22.
Pan v. Canada (M.E.I.), [1994] F.C.J. No. 1116 (QL) (F.C.A.)
23.
Kwizera
v. Canada (Citizenship and Immigration), 2008 FC 1261 (CanLII)
24.
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 103 D.L.R. (4th) 1; 20
Imm. L.R. (2d) 85.
25.
Sanxhaku
v. Canada (M.E.I.) (FCT, IMM-3086-99)
26.
Riadinskaia
v. Canada (M.E.I.), [2001] F.C.J. No. 30 (QL) (T.D.)
27.
Huerta
v. Canada (M.E.I.), [1993] F.C.J. No. 271 (QL) (F.C.A.)
28.
llie v. Canada (M.C.I.), [1994] F.C.J. No. 1758 (QL)
(T.D.)
29.
Chan v. Canada (M.E.I.), [1995] 3 S.C.R.
593, 659
30.
Rajudeen
v. Canada (M.E.I.), [1984]
F.C.J. No. 601 (QL) (F.C.A.)
31.
Adjei v.
Canada (M.E.I.), [1989] 2 F.C. 680
(F.C.A.)
32.
Cheema
v. Canada (M.C.I.), [2002] F.C.J. No. 1672 (QL) (T.D.)
33.
Monteiro
v. Canada (M.C.I.), [2002] F.C.J. No. 1720 (QL) (T.D.)
34.
Hazara
v. Canada (M.C.I.), [2002] F.C.J. No. 1728 (QL) (T.D.)
35.
Dunsmuir
v. New
Brunswick,
2008 SCC 9
36.
Maldonado
v. Canada (Minister of Employment and
Immigration),
[1980] 2 F.C. 302
37.
Bula v.
Canada (Secretary of State), [1996] F.C.J. No. 876 (QL)
38.
Adu v. Canada (Minister of Employment and
Immigration),
[1995] F.C.J. No. 114 (F.C.A.)
(QL)
39.
Najimiding v. Canada (Minister of Citizenship and
Immigration), 2004 FC 515
40.
Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171
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