Date:
20071115
Docket:
IMM-1693-07
Citation:
2007 FC 1192
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 15, 2007
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
Lesli Karina CASTRO
GUTIERREZ
Haly Madeline CASTRO GUTIERREZ
Gardiner Beigad CASTRO
Astrid Arleth CASTRO
Applicants
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants, all citizens of Guatemala, are challenging the legality of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the Tribunal), rendered January 22, 2007, finding that they were not
Convention "refugees" or "persons in need of protection"
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[2]
The
principal applicant based her refugee claim on her membership in a particular
group, abused women, and the other applicants, in the family group. The
applicant claims that her first husband, the father of her two first children,
disappeared without a trace in 1995. She then began a romantic relationship
with a Mr. Osorio and this union led to the birth of a daughter in 2001; he now
has custody of this daughter. In December 2003, the applicant and a Mr. Rivero,
a man with responsibilities at his municipal office, became friends. However,
in January 2004 when they were out together, the applicant was drugged and
raped by Mr. Rivero. After this rape, she gave birth to her youngest daughter
in 2004. Mr. Rivero continued to have a relationship with the applicant under
threats and warned her that he would kill her if she told her friends that he
was the father of her last child. The applicant left Mexico for Canada in
February 2006 with her three minor children.
[3]
Considering
the general behaviour of the applicant makes her story unlikely, considering
contradictions revealed during her testimony and finding that the applicant had
attempted to support her claims with a false complaint certificate, the
tribunal dismissed the applicants' claim for protection.
[4]
Essentially,
the applicant is alleging that the tribunal did not take into consideration
the Guideline on Women Refugee Claimants Facing Gender-Related Persecution (the
Guideline) and arbitrarily dismissed her explanations, which makes the
tribunal's decision patently unreasonable (Griffith v. Canada (Minister
of Citizenship and Immigration), [1999] F.C.J. No. 1142 (QL) at paras. 3,
17 and 18; Keleta v. Canada (Minister of Citizenship and Immigration),
2005 FC 56 at paras. 13 to 15; Myle v. Canada (Minister of Citizenship and
Immigration), 2006 FC 871 at paras. 26 and 31; Villarreal Zempoalte v.
Canada (Minister of Citizenship and Immigration), 2007 FC 263, at paras. 9 to
15). As for the respondent, he claims that the affidavit filed in support of
this application aims to mislead the Court and that the complaints the
applicant makes against the tribunal's negative decision are not valid.
[5]
First,
we must remember that the Guidelines are to ensure that gender-based claims are
heard with sensitivity by the tribunal. In the Guidelines, the tribunal is
encouraged to consult R. v. Lavallée, [1990] 1 S.C.R. 852, at
footnote 31
For a discussion of
the battered woman syndrome see R.
v. Lavallee, [1990] 1 S.C.R. 852. In Lavallee, Madame Justice Wilson addressed the
mythology about domestic violence and phrased the myth as "[e]ither she
was not as badly beaten as she claims, or she would have left the man long ago.
Or, if she was battered that severely, she must have stayed out of some
masochistic enjoyment of it." The Court further indicated that a
manifestation of the victimization of battered women is a "reluctance to
disclose to others the fact or extent of the beatings". In Lavallee, the Court
indicated that expert evidence can assist in dispelling these myths and be used
to explain why a woman would remain in a battering relationship.
[6]
The
fact the Guidelines are not mentioned in the reasons for decision does not mean
the tribunal did not consider them (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35; [1998] F.C.J. No. 1425
(QL) at para. 17; Keleta, supra, at para. 14; Villarreal Zempoalte, supra,
at para. 11) and, in the present case, the alleged failure to
follow the Guidelines, which was far from being proven to the Court's
satisfaction, would not justify the vacation of this decision. It is not
patently unreasonable in the circumstances and is based on all the evidence on
file. In this case, the applicant's credibility was at the heart of the refugee
claim. The applicant's credibility was seriously compromised when she attempted
the support her claims with a false complaint certificate. This document
(certification), dated August 8, 2005, was issued from the office of the Public
Ministry of the City of Villanueva and attests to the serious threats uttered
by Rivero against the applicant and her children, However, according to the
reply obtained from Guatemalan authorities, the certification is not in
accordance with the complaint form used by the Office of the Prosecutor of the
City of Villanueva. Moreover, the seal does not correspond to the official
stamp. Lastly, the signing official never worked at the Office of the Prosecutor
of Villanueva.
[7]
Producing
a false document to support allegations in a refugee claim must not be
minimized by the Court and legitimately allows the tribunal to doubt a
claimant's credibility (Rahaman v. Canada (Citizenship and Immigration),
2007 FC 1008, at paras. 15 to 17). We must note that false identity papers the
claimant may have obtained from a smuggler are not included in this category. As I wrote in R.K.L
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J.
No. 162 (QL), at paragraph 11:
However, not every
kind of inconsistency or implausibility in the applicant's evidence will
reasonably support the Board's negative findings on overall credibility. It
would not be proper for the Board to base its findings on extensive
"microscopic" examination of issues irrelevant or peripheral to the
applicant's claim: see Attakora v. Canada (Minister of Employment and
Immigration), (1989), 99 N.R. 168 at para. 9 (F.C.A.) ("Attakora");
and Owusu-Ansah v. Canada (Minister of Employment and Immigration),
[1989] F.C.J. No. 442 (QL) (C.A.) ("Owusu-Ansah"). In particular,
where a claimant travels on false documents, destroys travel documents or lies
about them upon arrival following an agent's instructions, it has been held to
be peripheral and of very limited value to a determination of general
credibility: see Attakora, supra; and Takhar v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 240 at para.
14 (QL) (T.D.) ("Takhar").
[Emphasis
added].
[8]
In
this case, the tribunal could certainly dismiss the explanations, which I found
very brief and not very convincing, provided by the applicant about the
certification and conclude that she attempted to support her claims with a
false document. Contrary to the claims by counsel for the applicant today in
the specific case being reviewed, it was a determining factor.
[9]
Additionally,
a quick review of the transcript shows that the applicant's story is filled
with implausibilities. It is clear that the tribunal had serious doubts not
only about the authenticity of the certification provided by the applicant in support
of her story, but also about other fundamental aspects of her claim. The
tribunal noted that upon her arrival in Canada, the applicant stated she had
never filed a complaint against Mr. Rivero. This statement contradicts her
story and confirmed that the certification was likely fake.
[10]
At
paragraph 32 of her affidavit in support of this application for judicial
review, the applicant categorically denies that she told the immigration
officer that she had never filed a complaint against her former friend. This
paragraph states the following:
[translation]
I never stated that I did not file a complaint
against this man out of fear. I stated that I did not have the complaint with
me because the question was: Do you have the complaint with you? I answered:
NO.
[11]
The
applicant firmly states that she had a relationship with a man who threatened
her, a key point to her claim. However, as the immigration officer's notes from
the point of entry indicate, the applicant clearly stated that she was afraid
to file a complaint against her ex-husband. This statement reads as follows:
Question: What did you do then?
Reply: I cried and I asked him what happened to me. When I
realized what had happened, I was furious and I told him I would report him to
the police.
Question: And did you do that?
Reply: No, because he is part of the Rios Mont F.R.G. that
has killed many people.
[12]
Without
finding there was perjury, I feel that this new statement by the applicant,
again contradictory regarding a fundamental aspect of her refugee claim,
reinforces the Court's belief that the tribunal's general finding was not
patently unreasonable.
[13]
To
conclude, I note that the reasons by Member Lapommeray were given orally at the
hearing. This, of course, includes the risk of a potential debate before this
Court on the exact meaning of certain expressions that can sometimes be a
little awkward in oral reasons. Counsel for the applicant added to this at the
hearing before this Court, and referred to certain questions the member asked
to support the applicant's claim that the tribunal was being insensitive
towards her. Having had to initially consider the entire transcript following
such serious allegations, I am now satisfied that the tribunal did not overstep
the acceptable limits in this case. In my opinion, a reasonable person would
not detect a reasonable apprehension of bias in the tribunal's questions, or any
violation of the Guidelines. It is clear here that the tribunal was at all
times motivated by the search for the truth and it took the applicant's
specific situation into consideration. However, I urge the tribunal to be more
cautious in the future in its wording of questions to suspected victims of
spousal or family violence.
[14]
For
these reasons, the application for judicial review must be dismissed. No
question of general importance was raised and none arises in this case.
ORDER
THE COURT ORDERS that the application for
judicial review be dismissed. No question is certified.
"Luc
Martineau"
Certified true
translation
Elizabeth Tan,
translator
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