Date: 20110308
Docket: IMM-4266-10
Citation: 2011 FC 266
Ottawa, Ontario, March 8, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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DESMARIE SHARIL AUDANNA NANTON
(a.k.a. DESMARIE SHARIEL
NANTON)
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Applicant
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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
Applicant is a woman from the small country of St Vincent and the
Grenadines.
After a tumultuous and abusive relationship, she was pregnant and sought refuge
from her boyfriend at the time. She came to Canada and filed a
refugee claim, alleging not only abuse, but also St Vincent’s incapacity to
meaningfully protect her in dealing with this abuse. Her claim was denied by a
written decision of the Immigration and Refugee Board (IRB), dated June 30,
2010. She sought to have this decision judicially reviewed. Leave was granted
on November 30, 2010.
[2]
The
impugned decision was to the effect that the Applicant was not a Convention refugee
and was not a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). Central to the IRB’s
findings were the following elements:
a) A
negative inference was made from the Applicant’s “inability to accurately
identify what year she began her relationship with Neil”;
b) A
negative inference was made from the fact that the Applicant did not indicate
in her Personal Identification Form (PIF) that she had resided for four (4)
months with Neil in Sandybay;
c) A
negative inference was made from the Applicant’s omission to indicate that she
had approached Marion House, a non-governmental organization helping battered
women;
d) No
supporting documentation, such as medical or police reports, were provided; and
e) The
fact that there is effective state protection in St Vincent.
Position of the Parties
[3]
The
Applicant reproaches the IRB’s decision on the grounds that it conducted an
unreasonable assessment of her credibility and misapprehended the evidence to
make its credibility findings. Furthermore, it is alleged that no supporting
documentation could be provided because of important facts of the case that
were ignored by the IRB. More importantly, the Applicant argues that the IRB
misconstrued the evidence on state protection in St Vincent. Also, the IRB did
not properly justify why it considered the positive aspects found in the
documentation to supersede the negative aspects put forward in the country
documentation.
[4]
The
Respondent argues that the findings were reasonable and that, in light of the
principles of judicial review and the applicable standards of review, this
Court should not intervene. Basically, the Respondent finds that the Applicant
wants the Court to re-weigh the evidence placed before the IRB.
Standard of Review
[5]
Two
(2) questions are to be reviewed by this Court. Firstly, was the IRB’s
appreciation of the Applicant’s credibility reasonable? Secondly, if necessary,
the Court must assess if the findings in regards to state protection were
reasonable.
[6]
As
indicated, these are questions to be reviewed on the standard of
reasonableness, whereby the Court must evaluate whether the decision falls
within the range of justifiable outcomes in fact and in law (Dunsmuir v New
Brunswick, 2008 SCC 9, at para 47; Hinzman v Canada (Citizenship and
Immigration), 2007 FCA 171; Myle v Canada (Minister of Citizenship and
Immigration), 2006 FC 871).
Analysis
A. The Credibility Issue
[7]
It
is certain that the evaluation of asylum-seekers’ credibility must find its
basis in the facts of the case. The credibility findings must be
factually-founded, well-explained and reasonable. A reviewing court must assess
them in light of these factors. It must not substitute itself to the role of
the trier of facts.
[8]
The
IRB made a negative inference from the fact that the Applicant did not recall
the exact year of the start of her relationship. The transcript of the hearing
definitely relates an exchange and further questions asked in this respect.
However, the sum total of the evidence does reasonably lend itself to the
conclusion that a negative inference was to be made from not remembering a
date. As the IRB noted, there was confusion with the start of the relationship.
It was reasonable for the IRB to make a negative inference on the Applicant’s
inability to remember this date; surely, it was an important relationship,
which was central to her claim.
[9]
However,
the same cannot be said of the Applicant’s claim of “having lived four months
in Sandybay”. In fact, the transcript of the hearing shows that this fact was
presented differently before the IRB. Indeed, the Applicant visited her
boyfriend and would spend nights in Sandybay. She specifically said she did not
consider herself to be residing there and did not include it in her PIF. Taking
a negative inference on this basis is unreasonable, but is not determinative.
[10]
Furthermore,
the Applicant’s evidence in regards to approaching Marion House was mixed. She
clearly stated having gone to Marion House (see page16, line 30 of the
Transcript). Her affirmations were to the effect that she had only spoken with
a woman working there. Counsel for the Applicant concurred with this
presentation of the facts. The IRB’s conclusion was that a negative inference
was to be made from her not indicating in her PIF that she had been in contact
with Marion House. The Applicant indicated that only counselling was offered
and that she did not consider it important to include it. It does seem that
deference is to be owed to the IRB on this point, as its finding falls within
the reasonable range of outcomes, especially as the evidence shows the
Applicant had only been in contact with the organization days before her
departure. Also, as an important element of the claim was sufficiency of state
protection, it is clear that this evidence was relevant to her claim.
[11]
Furthermore,
it remains true that the Applicant did have responsibilities in terms of
providing sufficient documentary evidence for the assessment of her claim
(section 16(1) of IRPA). A letter was to be forwarded by her mother, confirming
the events as they had taken place. However, no documentary evidence was
provided. It was reasonable for the IRB to make a negative inference on this
basis.
[12]
The
negative inferences made in regards to the date of the start of her
relationship and her documentary evidence are reasonable. Evidently, these
matters go to the heart of the Applicant’s claim and affect her credibility. As
noted by Mr.
Justice
Shore in Kengkarasa v Canada (Citizenship
and Immigration), 2007 FC 714, at para 1, where it is said that:
On a credibility finding, it is not for
an applicant to substitute his interpretation of a credibility determination
for that of a specialized tribunal, nor is it for this Court, within its
jurisdiction in a judicial review application, to substitute its interpretation
of a credibility determination for that of a specialized tribunal unless the
determination is perverse, capricious or made without regard to the evidence.
[13]
In
this light, while the Court could have comments to make on the IRB’s
appreciation of the sufficiency of state protection in St Vincent, it is not
necessary to do so as the IRB’s credibility findings are reasonable. As noted
by the Court, a negative credibility finding is determinative per se of
the application, and the failure to rebut it is determinative of the
application for judicial review (Quintero Cienfuegos v Canada (Citizenship
and Immigration), 2009 FC 1262, at para 25 citing Chan v Canada
(Minister of Citizenship and Immigration), [1995] 3 S.C.R. 593, at para 147; Salim
v Canada (Minister of Citizenship and Immigration), 2005 FC 1592, at para
31).
[14]
Therefore,
the application is denied. No question for certification arises, and none was
suggested.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is denied. No question is certified.
“Simon
Noël”
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