Date: 20110307
Docket: IMM-3702-10
Citation: 2011 FC 264
Ottawa, Ontario, March 7,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LYDIA DENYS, LE SHAWN DENYS
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants seek an order setting aside the June 8, 2010 decision of the Refugee
Protection Division of the Immigration Refugee Board (the Board), which found
the applicants to be neither Convention refugees nor persons in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA). For the reasons that follow
this application for judicial review is dismissed.
Background
[2]
The
applicant, Ms. Lydia Denys, and her minor son, Le Shawn Denys (the minor
applicant) fear
persecution in the form of domestic abuse from the applicant’s former partner.
The Board rejected their Convention and protection claims mainly on the grounds
that the applicant’s story was, due to inconsistencies in her testimony, not
credible.
[3]
The
applicants are both citizens of St. Lucia. Ms. Denys began
dating her former common-law partner in 2001. She had a daughter with him in
2003. The daughter is currently still in St. Lucia. Around the
time her daughter was born, Ms. Denys and Le Shawn (her son from a previous
relationship) moved in with him. The relationship with her former common-law
partner apparently became abusive in 2006, when he began beating her, as well
as mentally and sexually abusing her. In one incident, he allegedly broke her
hand and she had to be hospitalized. The applicant’s ex-partner also allegedly
abused the minor applicant.
[4]
The
applicant made several reports to the police, but claims that no action was
taken against her ex-partner because he had friends and connections in the
police force. The applicant tried to leave her partner several times, and at
one time left St.
Lucia
for Barbados, but subsequently returned to St. Lucia. The
applicant departed for Canada on December 23, 2007, and filed for
refugee protection on January 15, 2008. The minor applicant joined his mother
in Canada on December
23, 2008, and filed for refugee protection on August 5, 2009.
Decision Under Review
[5]
In
the decision dated June 8, 2010, the Board found that the applicants were neither
Convention refugees nor were they persons in need of protection. The main
issue for the Board was the credibility of the applicant. The Board took issue
with inconsistencies and problems in Ms. Denys’ testimony. In particular, the Board
found that the applicant’s allegations that she had tried to make reports to
the police with no success to be fabrications. The Board also found that the
claim that the minor applicant had been abused was also fabricated.
[6]
The
Board also found that state protection was available to the applicant but that
she did not access it. As a result of the Board’s findings that the incidents
alleged by the applicant did not occur, and given Ms. Denys’ delay in making a
claim, the Board found that there was neither an objective nor a subjective
basis for her claims. As such, the Board rejected the claims of both Ms. Denys
and Le Shawn.
Submissions of the
Parties
[7]
The
applicants take issue with the manner in which the Board interpreted the
evidence before it, submitting that the Board misunderstood and misconstrued
the evidence while failing to consider other vital evidence, and therefore
based its decision not on the totality of the evidence but on speculation and
unwarranted inferences.
[8]
The
applicants rely on Attakora v Canada (Minister of
Employment and Immigration), [1989] 99 NR 168 where the Court stated
that the Board:
…should not be over-vigilant in its microscopic examination of the evidence of
persons who, like the present application, testify through an interpreter and
tell tales of horror in whose objective reality there is reason to believe.
[9]
This
case also stands for the proposition that whether or not the claimant is a
credible witness, she could still be found a refugee if her activities were
likely to lead to her arrest and punishment. In other words, credibility
findings resulting in a negative decision must be centered on issues that are
germane or at the heart of the applicants’ claim: R.K.L. v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at paras 9-11.
[10]
Concerning
the Board’s reliance on the applicants’ delay in making a claim, the applicants
submit that the Board did not give adequate reasons for rejecting Ms. Denys’
explanation for her delay in making a refugee claim. The applicants submit
that while this delay may be an important factor in assessing credibility, the Board
must also consider any reasonable explanation offered for the failure to claim
a refugee status at an earlier date, particularly when they have a valid
temporary status: Gyawali v Canada (Minister of Citizenship and Immigration),
2003 FC 1122 at para 18.
[11]
The
respondent argues that the Board did not believe that Ms. Denys was the victim
of domestic abuse. Rather, the Board concluded that the applicant’s
allegations of domestic abuse and violence were exaggerations and
embellishments that she provided to bolster her claim for refugee status. The
respondent further argues that the Board’s rejection of the explanation for
delay was reasonable, and ought not be disturbed.
Analysis
[12]
Credibility
findings of the Board are factual findings and are to be reviewed on a standard
of reasonableness: Huang v Canada (Minister of
Citizenship and Immigration), 2008 FC 1266 at paras 8-10. This means
that deference must be given to the Board on its findings.
[13]
The
applicant was inconsistent in her testimony to the Board. In her Personal
Information Form (PIF), Ms. Denys stated that the first incident of abuse
occurred when her ex-partner thought she had talked to her ex-boyfriend.
However, in her oral testimony, the applicant stated that this incident was
actually the second episode of abuse. When asked to explain this discrepancy
the applicant stated that she got a little mixed up with dates:
Refugee Protection Officer:
Okay. So I was asking you, you told us you went to the police on two
occasions, once with your mother and once with your sister. And you told us
that on the occasion that you went to the police to report […] with your
sister, that that was as a result of a beating that occurred after […] had been
told that someone saw you talking to your ex-boyfriend.
Principal Claimant: Okay.
Refugee Protection Officer: Okay. That’s what’s you’ve
told me. That’s my understanding, is that right?
Principal Claimant: Yeah.
Refugee Protection Officer: So, you told us that was the
second time you went to the police.
Principal Claimant: With my sister?
Refugee Protection Officer: With your sister. However,
it seems you’re also telling us that on the occasion that […] beat you because
he was told that someone saw you talking to your ex-boyfriend, you’ve told us,
in your previous testimony and in your personal information form, that that was
the first time that […] (inaudible) –
Refugee Protection Officer: But you’re telling me that
when you went to report this incident to the police with your sister, that was
the second time you’d been to the police about the abuse. See hat I am saying?
Principal Claimant: Yeah.
Refugee Protection Officer: So, this doesn’t really make
sense.
Principal Claimant: Well, I got a little mix up,
yeah.
[14]
The
Board concluded that although normally this evidence would not be determinative
of and by itself, because it described the circumstances under which the
applicant went to the police for the first time that it took on added meaning.
This conclusion was not unreasonable.
[15]
In
April 2006, Ms. Denys was beaten, and in consequence, hospitalized. While
recuperating in the hospital the applicant was interviewed by the local police,
who were called in by the hospital staff. When the police questioned Ms. Denys
on how she sustained her injuries she told them that she had fallen. When
asked by the Board why she would lie to the police Ms. Denys stated that her
ex-partner threatened to kill her if she did otherwise:
Refugee Protection Officer:
I’m trying to understand why you would have reported to the police on two
occasions, the first, when you were beaten and in May of 2006, and yet, when
you were questioned in the hospital with serious injuries, the most serious
injuries you had suffered –
Principal Claimant: Because that’s when I –
Refugee Protection Officer: - you didn’t tell you didn’t
tell the police on that occasion that you had, in fact been beaten by […]. I’m
wondering why that is.
Principal Claimant: Because that’s when he really
threatened me. He came over to the hospital and threatened me if I say
anything, when I come out, wherever I go, he will get me to kill me.
Refugee Protection Officer: But you, you reported him to
the police after that in May, you reported him to the police.
[16]
Despite
testifying that she was scared to report her ex-partner to the police, the
applicant also stated that she went to the police on two separate occasions,
once before and once after her hospitalization, to file a report against her
ex-partner:
Refugee Protection Officer:
When was it that your hand was fractured –
Principal Claimant: My hand –
Refugee Protection Officer: - as a result of a beating
from […]?
Principal Claimant: In April 2006.
Refugee Protection Officer: So, was it between the two
times that you reported? You told us that you reported to the police the first
time he beat you. And then you told us that you reported to the police in
May. Your hand was fractured and you received serious injury sometime in April
of 2006.
Principal Claimant: M’hm
Refugee Protection Officer: Right? So, that was in
between the two times you reported to the police? Is that right?
Principal Claimant: Yeah.
[17]
The
Board found this to be contradictory testimony and noted that the applicant
also failed to mention in her PIF that she was hospitalized for several days
after this incident, or that police were called in to question her. The Board
noted that the same police force that offered assistance to the applicant while
she was in the hospital would also assist her when she went to the station
directly to file a police report. This observation was germane to its finding
on state protection.
[18]
When
asked why she felt comfortable reporting to the police the less serious
assaults but not the April 2006 assault, the applicant stated that at the time
her hand was broken her ex-partner threatened her. The Board found this
response to be vague and confusing and on that basis rejected the applicant’s
allegation that she was fearful of her ex-partner.
[19]
Although
the applicant testified that her ex-partner beat her son Le Shawn almost
everyday, this point was not included in her PIF. When asked why this omission
was made the applicant testified that her son was beaten as often as every
other week and that she was sorry that she did not include this information in
her PIF:
Refugee Protection Officer:
And why did your mother go to the police to report […] in July of 2007?
Principal Claimant: Because of the – I think
this time he was beating my son and I in –
Refugee Protection Officer: So, your mother went to the
police to report that […] –
Principal Claimant: - and I intervene and then
he was knocking on me too.
Refugee Protection Officer: Was you mother present
during those beatings?
Principal Claimant: Mon son went and tell her.
Refugee Protection Officer: Did she go the same day that
it happened?
Principal Claimant: When my – yeah.
Refugee Protection Officer: Perhaps Counsel can help us
out here, but I don’t see any references to that in your personal information
form. I don’t see any reference to you and your son both being beaten in July
of 2007 and as a result, your mother went to the police.
Principal Claimant: Well, you asked me to
explain why did my mom go to the police I did not
Refugee Protection Officer: Yes.
Principal Claimant: I did not like put all this
information in, I’m sorry about that.
[20]
It
was not unreasonable for the Board to question why these repeated beatings were
not in Le Shawn’s original PIF. In the Board’s view the late introduction of
the story of abuse of Le Shawn further undermined the applicant’s credibility.
The Board also drew a negative inference from the eight month delay it took Le
Shawn to make a claim for refugee protection.
[21]
Counsel
conceded and the Court finds that the Board did err in stating that there were
at least two police reports after the applicant had been threatened by her
former partner. This was an error, as only one report was made after she was
threatened. However, it is the reasonableness of the Board’s credibility
findings based on the evidence as a whole which is assessed: Huang v Canada, 2008 FC 1266
at para 11-17. This minor error by the Board does not detract from the overall
credibility finding by the Board that based on what it found to be multiple
inconsistencies in Ms. Denys’ testimony. The finding of the Board is not with
respect to marginal or tangential events rather the Board found that the
application was generally lacking in credibility and none of the significant
events alleged to have happened actually happened. Moreover, there was no
reasonable compelling explanation for the very lengthy delay in advancing a
claim. This credibility finding was supported by the evidence available to the
Board and was reasonable.
[22]
Accordingly,
the application for judicial review is dismissed.
[23]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
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