Date: 20110627
Docket: IMM-4888-10
Citation: 2011
FC 778
Ottawa, Ontario,
June 27, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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PERLETHA AVERISA PETER
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated July 12, 2010, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
[2]
The applicant requests that the decision be set aside and the
claim remitted for redetermination by a different member of the Board.
Background
[3]
Perletha
Averisa Peter (the applicant) is a citizen of St. Vincent and the Grenadines (St. Vincent).
[4]
In
2005, the applicant began a relationship with Desroy John (DJ) who she then
lived with for several years. Over time, DJ became violent and controlling with
the applicant.
[5]
In
June 2007, the applicant decided to leave DJ while she was two months pregnant.
He tried to stop her and threatened to kill her. The applicant alleged that DJ
assaulted her so badly that she had a miscarriage and a neighbour took her to a
local clinic where she was treated.
[6]
The
applicant and her mother approached the police about the abuse, but the
applicant states that they did not take a report and treated the incident as a
lovers quarrel.
[7]
Following
her miscarriage, the applicant’s mother took her to the family home. The
applicant stayed there until her mother arranged for her to go to Canada where they had a family
friend.
[8]
The
applicant arrived in Canada in 2007. She lived at
the home of the family friend for several years where she was required to cook,
clean and care for the woman’s children without pay.
[9]
In
January 2010, the applicant fled this woman’s house to a local church. She
claimed refugee protection in March 2010.
Board’s Decision
[10]
The
Board reviewed the Chairperson’s Guideline 4: Women Refugee Claimants
Fearing Gender-Related Persecution (the Gender Guidelines) and noted that
women making gender-related claims of persecution may face special obstacles
when testifying on sensitive matters. The Board stated that it was sensitive to
cross-cultural misunderstandings and the social, cultural, traditional and
religious norms impacting the applicant’s testimony.
[11]
The
Board found the determinative issues to be credibility, delay and state
protection.
[12]
The
Board reviewed jurisprudence from this Court and the Federal Court of Appeal
finding that inconsistencies and contradictions may be a basis to make a
negative credibility finding.
[13]
The
central concern for the Board was the absence of corroborating medical
documentation of the applicant’s miscarriage. The Board did not find the
applicant’s explanation that she did not think the hearing would occur so
quickly to be a reasonable explanation for the lack of documentation because
the applicant knew the date of the June hearing from April 22, 2010. The Board
found it unreasonable that the applicant did not personally take steps to
secure medical documentation by writing to the clinic. The Board found it
implausible that the medical clinic would refuse to issue a report about a
serious medical issue such as a miscarriage. In the absence of persuasive
evidence, the Board concluded that there was insufficient evidence that the
applicant suffered a miscarriage and abuse by DJ.
[14]
The
Board also drew negative inferences from the following:
- The
applicant’s failure to mention a facial scar that she alleged was a result
of abuse by DJ at any point before the hearing;
- The
implausibility that in the three years since leaving St. Vincent, the
applicant’s mother would not have mentioned any contact between DJ and the
applicant’s family in St. Vincent and then mentioned it after the
applicant had submitted her Personal Information Form (PIF);
- That the
applicant’s mother’s letter did not mention abuse the applicant suffered
from DJ prior to June 2007 and the applicant’s explanation that her mother
did not know of the abuse despite the very small size of the community in
which they lived was implausible.
[15]
The
Board also concluded that there is no reliable evidence that DJ is still
looking for the applicant.
[16]
The
Board gave little probative weight to the submitted psychologist’s report. The
Board found the report to be only as valid as the truth of the facts on which
it was based and given the Board’s negative credibility findings, it found the
probative value of the report to be low.
[17]
The
applicant did not claim refugee protection until she had been in Canada for over two
years. The Board found the applicant’s explanation for delay – being mistreated
by the family friend - to be untrustworthy as she had not made a report to any
official in Canada about this
mistreatment. The Board found delay to be inconsistent with a person living in
fear of persecution.
[18]
Finally,
the Board concluded that there is adequate state protection in St. Vincent.
The Board noted that St. Vincent is a
democracy with an independent judiciary indicating a strong presumption of state
protection. The Board considered several reports on domestic violence in St. Vincent noting the
laws against it and the ability for victims to apply for protection orders. It
also highlighted police training on domestic violence. The Board found that the
applicant approached the police one time without any medical documentation of
the abuse she suffered. The Board concluded that the applicant did not take
reasonable steps to seek state protection and did not provide evidence of
similarly situated individuals let down by the state.
Issues
[19]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
finding that delay defeated the applicant’s subjective fear?
3. Did the Board err in
its assessment of the applicant’s credibility?
4. Did the Board err in
its state protection analysis?
Applicant’s Written Submissions
[20]
The
applicant submits that the Board erred in requiring corroborating evidence for
the applicant’s allegations.
[21]
Further,
the applicant argues that the Board erred in making a negative credibility
finding based on minor inconsistencies or omissions. Credibility findings which
result in a negative decision must be about issues central to the issue of the
applicant’s persecution.
[22]
The
applicant also submits that the Board erred in its treatment of the
psychologist’s report. The Board should not have determined the applicant not
to be credible before assessing all of her evidence, including the psychologist
report.
[23]
Further,
the applicant argues that the Board did not have regard for the totality of the
evidence in making its findings on state protection. The Board rejected the
applicant’s evidence that she went to the police on a number of occasions and
protection was not forthcoming. This was not contradicted by evidence that
there is not a complete breakdown in St Vincent or that it is a democracy. The
Board ignored the Response to Information Request (RIR) VCT 102962.E that
states that police are not effective in combating domestic violence in St. Vincent. The Board
failed to address how any measures put in place to combat domestic violence are
not translated into protection in reality.
[24]
Finally,
the applicant submits that the Board erred in rejecting her explanations for
the delay in claiming refugee protection that she was exploited by someone who
said that she would help her regularize her status. The Board’s insistence that
the applicant should have reported the woman is unreasonable.
[25]
Given
the multiple errors, according to the applicant, the Board’s decision cannot
stand.
Respondent’s Written Submissions
[26]
The
respondent submits that the Board’s credibility findings were reasonable. It
was open to the Board to assess the plausibility of the applicant’s story by
considering it and the manner in which she told it and testing this against the
other evidence and the probabilities which a practical and informed person
would recognize. The Board was also entitled to make findings based on
implausibilities, common sense and rationality. The presumption of truth does
not apply until an applicant has established to the Board that he or she is
generally credible.
[27]
Given
the Board’s credibility findings, it was open to the Board to draw an adverse
inference from the applicant’s failure to provide medical documents
corroborating her claim. The applicant’s miscarriage was an important element
of her claim as it related to the abuse from her former boyfriend and
precipitated her leaving St. Vincent. The Board found that the applicant had
not taken reasonable steps or provided a reasonable explanation for the lack of
corroborating documentation.
[28]
The
respondent further submits that the Board did not err in assigning little
weight to the psychologist’s report. Since the Board doubted the applicant’s
veracity, it doubted the account that she gave the psychologist. In addition,
the psychological condition could not inherently prove the facts alleged by the
applicant.
[29]
Delay
in claiming refugee protection was relevant for the Board’s assessment of the
applicant’s statements and actions, according to the respondent. The respondent
highlights however, the Board was entitled to reject the applicant’s claim on
the basis of lack of credibility alone.
[30]
Finally,
the respondent submits that the Board conducted an exhaustive review of the
documentary evidence on state protection. The applicant contacted the police
only once in St.
Vincent. A
single refusal by the authorities will not meet the high threshold necessary to
rebut the presumption of state protection. The applicant did not provide clear
and convincing evidence that St. Vincent would not provide adequate
protection.
Analysis and Decision
[31]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue, the reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[32]
Assessments
of credibility are essentially pure findings of fact and it was Parliament’s
express intention that administrative fact finding would command this high
degree of deference (see Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at paragraph 46). This
Court must not substitute its assessments for those of the Board unless the
applicant can demonstrate that the findings of fact were made in a perverse or
capricious manner without regard to the material before it (see Siad v Canada (Secretary of State),
[1997] 1 FC 608 (FCA) at
paragraph 24).
[33]
Assessments
of the adequacy of state protection also raise questions of mixed
fact and law and is also reviewable against a standard of reasonableness (see Hinzman,
Re, 2007 FCA 171 at paragraph 38).
[34]
Issue 2
Did the Board err in
finding that delay defeated the applicant’s subjective fear?
I find the Board’s handling of the
applicant’s explanation regarding delay in claiming refugee protection in Canada to be harsh. The
applicant testified, and the Board accepted, that she was held as an indentured
servant for several years when she arrived in Canada. The Board found, however, that her delay
in claiming refugee protection was evidence of a lack of subjective fear
because she did not go to the authorities after escaping from the woman with whom
she lived. Given her lack of immigration status and the conditions she lived
under for several years in Canada, this seems an unreasonable conclusion.
[35]
That
said, the Board accepted that while delay may form part of its analysis, it
rarely is the basis of rejecting a refugee claim. The Board also considered the
issues or credibility and state protection. For this reason, the Board’s
conclusions on delay do not affect the overall reasonableness of the Board’s
decision, as the determination can stand on the other grounds alone.
[36]
Issue
3
Did the Board err in its
assessment of the applicant’s credibility?
The Board made a negative credibility
finding based on several implausibilities or inconsistencies between the
applicant’s PIF and her oral testimony, as well as the lack of corroborating
evidence.
[37]
Mr. Justice James Russell held in Higbogun
v Canada (Minister of Citizenship and Immigration), 2010 FC 445 at paragraph 39, that “inconsistencies
and contradictions create a perception of a lack of credibility.” Further, inconsistencies in a refugee claim may be held against an
applicant (see Sun v Canada (Minister of Citizenship and Immigration), 2008 FC 1255). The Board is in the best
position to assess the oral testimony and evidence presented by the applicant
and to draw inferences from that evidence. The Board’s negative inferences were
based on common sense and not outside the range of reasonable conclusions.
[38]
Concerning
corroborating evidence, the applicant’s claims rest primarily on the abuse she
suffered during one incident where she then suffered a miscarriage.
[39]
Rule
7 of the Refugee Protection Division Rules, SOR/2002-228, states
that the onus is on the applicant to provide acceptable documents to establish the elements of her claim. Pursuant to Rule 7, a claimant who does not
provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. The Board
reasonably found that the applicant had not provided any documentary evidence
or sufficiently explained why that was the case. The applicant’s response to
the Board’s question of why she herself did not attempt to secure a medical
report from the clinic was “I have no reason” (tribunal record, page 176). It
was reasonable for the Board to consider this to be an insufficient explanation
for the lack of evidence supporting her claim.
[40]
Concerning
the psychologist report, where the report is based entirely on the applicant’s
story, which the Board disbelieves, it is open to the Board to afford the
report little weight (see Ameir v Canada (Minister of
Citizenship and Immigration), 2005 FC 876 at
paragraph 27). The report in this case was not based on independent evidence
but rather evidence emanating directly from the applicant. It was reasonable
for the Board to afford it low probative weight. In addition, the respondent is
correct to note that the applicant’s psychological condition could not
inherently prove the facts that she alleged.
[41]
Issue
4
Did the Board err in its
state protection analysis?
The applicant
submits that the Board ignored evidence before it in assessing state
protection.
[42]
Contrary
to the applicant’s submissions, there was only evidence before the Board that
she approached the police in St. Vincent on one occasion, not
several. It was reasonable for the Board to find that a single incident of
refusal of assistance by the authorities may be insufficient to rebut the
presumption of state protection (see Kadenko v Canada (Minister of
Citizenship and Immigration), 143 DLR (4th) 532, [1996] FCJ No 1376 (FCA)
at paragraph 5; Sanchez v Canada (Minister of Citizenship and Immigration),
2008 FC 134 at paragraph 9).
[43]
The
applicant also had the opportunity to present evidence of similarly situated
people let down by the state protection arrangement (see Ward v Canada (Minister of Employment
and Immigration),
[1993] 2 S.C.R. 689).
[44]
The
applicant pointed to one document that she argues is evidence of a lack of
adequate state protection which the Board did not refer to. This RIR
VCT102962.E indicated that police officers have limited knowledge on domestic
violence and few treat the issue seriously and can be disrespectful or
impatient with victims.
[45]
There
is a presumption that Board members have considered all of the evidence before
them (see Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 (FCTD)). The
Board need not summarize all of the evidence in its decision so long as it
takes into account evidence which may contradict its conclusion and its
decision is within the range of reasonable outcomes (see Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ No 598 (FCA) (QL); Rachewiski v Canada
(Minister of Citizenship and Immigration), 2010 FC 244 at paragraph 17).
[46]
While
the Board did not specifically refer to the RIR mentioned by the applicant, I
do not find its content demonstrative of similarly situated people let down by
the authorities in St. Vincent such that it is contrary to the conclusion
reached by the Board on the adequacy of state protection.
[47]
Given
the above analysis, I would dismiss the application for judicial review.
[48]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[49]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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