Date: 20080318
Docket: IMM-3585-07
Citation:
2008 FC 362
Ottawa, Ontario, March 18, 2008
Present:
The Honourable Mr. Justice de Montigny
BETWEEN:
SAYON
CAMARA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated August 14, 2007,
by which the Board concluded that the applicant was not a Convention refugee within
the meaning of section 96 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act). The Board also concluded that the applicant was not
a person in need of protection within the meaning of paragraphs 97(1)(a)
and (b) of the Act.
[2]
For the
following reasons, I have reached the conclusion that this application for
judicial review had to be dismissed.
I. Facts
[3]
The
applicant was born on October
11, 1967, in the
city of Conakry, in the Republic of Guinea. She is the eldest of a
family of seven children. Her mother died in 1982, and when her father died in
1991, her uncle took custody of her and her siblings.
[4]
The
applicant had to abandon her studies in 1988 because of a lack of money. She
then did various tasks at home to help pay for the studies of her brothers and
sisters. It was only in 2002 that she managed to continue her own studies and pass
a secretarial course. She then obtained employment as a secretary with the Guinean
ministry of education.
[5]
In October
2005, the applicant’s uncle announced that it was time she married. He told her
that he had decided to give her hand in marriage to one of his friends, Kaba
Sandou, a prosperous man 27 years her senior who already had two wives. Because
this marriage entailed a financial benefit for her uncle, he threatened to disown
the applicant if she refused to marry. As a result of the pressure from her
family, the applicant finally consented to this marriage which she did not want,
because she feared reprisals from her family if she refused.
[6]
Accordingly,
the applicant married Mr. Kaba on December 26, 2005. She quickly
realized that her new husband was violent and treated his wives like slaves.
Mr. Kaba felt humiliated by the fact that the applicant wanted to continue
to work and took this as an affront. It was impossible to determine the precise
moment when the applicant began to be mistreated, as the accounts varied from
the very day of the marriage to a few weeks later.
[7]
When the
applicant complained about mistreatment by her husband, her uncle said that she
had to accept it and stop being stubborn. On July 3, 2006, Mr. Kaba allegedly cut her
on the face with a razor blade. One week later, she went to the Hamdallaye
police station in order to file a complaint of spousal abuse. The person who was supposed to take her
complaint made her wait for some time and came back with her husband half an
hour later. The husband brought her home and beat her savagely, pulling some of
her hair out.
[8]
The day
after this incident, while the applicant was dressing to go to work, her
husband ordered her to stay at home and burned her chest and abdomen with an
iron. He also threatened to kill her if she continued to humiliate him and
forbade her to work.
[9]
On August
5, 2006, a friend of the applicant, worried because the applicant was no longer
coming to work, went to visit her at home. She suggested that the applicant
leave the country to escape her violent husband and promised to help her. On August 21, 2006, the applicant went to her
friend’s home. Her friend gave her a French passport, an airline ticket to Canada and the telephone number of
one of her friends who was available to help the applicant once she arrived in Canada. She therefore left Guinea on August 21, 2006, and
claimed refugee protection on August 23.
II. The impugned decision
[10]
The Board
rejected the applicant’s claim for refugee protection because she was found not
to be credible, and because of the numerous contradictions, inconsistencies and
implausibilities noted. It rendered its decision on the basis of the following evidence:
·
The
contradictory statements made at the port of entry in her Personal Information
Form (PIF) and during the applicant’s testimony concerning when the violent
episodes allegedly began;
·
The failure
to mention, at the port of entry and in the PIF, the sexual assault of which
she was allegedly a victim. The Board was of the opinion that the applicant’s
explanations for this omission were insufficient and contradictory;
·
In her PIF,
the applicant wrote that she had left the house on July 10, 2006, and had been confined only after
that date. However, at the hearing before the RPD, she stated that she had been
confined by her husband from July 3 to 19, 2006;
·
The
applicant allegedly gave an unsatisfactory explanation about the fact that she
had been paid for the entire month of July even though she had not reported for
work since July 2,
2006;
·
In spite
of the applicant’s scars, which are consistent with her story of being slashed
with a razor blade and burned with an iron, the Board concluded that,
considering the applicant’s total lack of credibility, her scars had not been
caused in the alleged circumstances;
·
The
applicant contradicted herself with regard to her luggage and identity
documents;
·
There was
no explanation as to why the applicant failed to bring along a copy of her
marriage certificate and photographs of her wedding when she left Guinea;
·
The
applicant did not remember the number and names of the witnesses who were
present at her wedding;
·
The Board found
the fact that the mayor had placed two seals on the marriage certificate (Exhibit P-3)
to be implausible;
·
Because
the Board was unable to identify the applicant in the marriage photographs
submitted in evidence, it attached no probative value to them.
III. Issues
[11]
Considering
the written and oral submissions by the parties, the following issues must be
decided for the purpose of this application for judicial review:
(a) Did the Board fail to
consider the Women Refugee Claimants Fearing Gender-Related Persecution
guidelines (Guideline 4)?
(b) Did the Board err in
failing to consider all the evidence on record?
(c) Did the Board meet the
requirements of procedural fairness?
IV. Analysis
[12]
When
issues of credibility and the assessment of evidence are involved, it is well
established that the Court will intervene only if the decision was based on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it (Federal Courts Act,
R.S.C. 1985, c. F-7, paragraph 18.1(4)(d)). This high degree of deference
to the administrative decision-maker is entirely warranted in this case, given
the Board’s expertise and the fact that it had the advantage of hearing the
applicant.
[13]
As far as
the issue of procedural fairness is concerned, it is now well established that
the Board is not entitled to make a mistake, and it is up to this Court to
determine what the requirements of procedural fairness were and whether or not
they were met: Sketchley v. Canada (Attorney General), 2005 FCA
404.
[14]
As far as
Guideline 4 is concerned, the applicant alleged that the Board had not
taken it into consideration even though it had specifically mentioned having
taken it into consideration in its decision. In the applicant’s opinion, the
Board should have been more sensitive in its assessment of her testimony,
especially concerning the sexual assault she had allegedly suffered. She
submitted that she did not mention it during her first interview with an
immigration officer and in her PIF because of the shame she felt and the
ensuing trauma. This trauma also explained her lack of knowledge of the names
and the number of the witnesses to her forced marriage.
[15]
It is true
that simply writing that Guideline 4 was taken into consideration in assessing a
claim for refugee protection is not sufficient when the decision shows a lack
of sensitivity on the part of the Board. However, the Board cannot be
considered to be lacking sensitivity simply because it found the applicant not
to be credible because she failed to mention important facts, not only at the
port of entry, but also in her PIF, particularly after having stated at the
beginning of the hearing that her PIF was complete.
[16]
At her
interview with an immigration officer, the applicant stated that her problems
had begun two weeks following her forced marriage, when her husband had cut her
on the cheek and burned her with an iron. However, in her PIF, she wrote that
after a few weeks of marriage she had discovered that her husband was violent. Then,
during her testimony, the applicant stated that she had been sexually assaulted
on her wedding night and mistreated on a daily basis after that.
[17]
The Board
confronted the applicant with these contradictory accounts in order to
determine the reason why she had failed to mention a fact as important as a
rape during her first interview and in her PIF. The applicant first of all
explained that she had realized some two weeks following her wedding that her
husband also mistreated his other wives and that she could not continue to live
with him. When questioned once again by the Board, the applicant explained that
she had told the immigration officer that her problems had begun on her wedding
day. Then, with regard to her failure to write this in her PIF, she stated that
she did not know what the interpreter who had helped her had written and that she
had not understood when the Board asked her if the content of her PIF was true.
Finally, she stated that she was ashamed, because rape is something which is not
talked about in Guinean society.
[18]
The Board
concluded that, considering the many contradictory versions, it was possible to
seriously doubt the applicant’s version. The Board also noted that “[t]he fact that she was allegedly ashamed to record in her narrative
that her husband had raped her on her wedding day did not prevent her from
pointing out that she had allegedly been beaten and mistreated on that day.”
[19]
If it were
not for the numerous contradictions in the applicant’s testimony, shame could
have very well explained why the applicant had not mentioned, before the
hearing was held, the rape of which she had been a victim on her wedding day.
However, it was only after having tried to give other explanations for her
forgetfulness that she gave this explanation, which undermines her credibility
even more. In addition, it must be taken into account that the applicant was 38
years old at the time of her marriage and that she had had 12 years of
schooling. She did not submit a psychological assessment, which could have corroborated
the stress responsible for the memory lapses related to her wedding day. In
these circumstances, the Board did not lack sensitivity in doubting the
truthfulness of her narrative. Accordingly, I cannot accept the applicant’s
submissions to the effect that the Board did not take Guideline 4 into
consideration in dealing with her claim.
[20]
Secondly,
the applicant submitted that the Board had failed to consider the medical
report and the photographs of her scars, her employer’s system for dealing with
absences, and her marriage certificate.
[21]
The
applicant submitted a medical report stating that the [translation] “examination showed the presence of scars which
were consistent with (1) a history of laceration with a razor blade on the left
cheek, (2) a history of burns from a hot iron on the left breast and extending
to the abdomen under the left breast.” Although it admitted the existence of
these scars, the Board concluded that because of the applicant’s total lack of
credibility, it did not believe that these scars had been caused in the
circumstances alleged by her. Although the violence of the acts that caused her
injuries is troubling, I cannot conclude that the Board’s decision is
unreasonable, considering the applicant’s total lack of credibility.
[22]
The Board
also concluded that it was improbable that the applicant would have been paid
by her employer for the entire month of July, as shown by her pay slips for
that month, although she stated that she had not returned to work since July 2,
2006, and had not provided her employer with a medical report. The applicant alleged
that she had simply called in sick without submitting any medical evidence to
confirm that. It is true that the Board’s conclusion to the effect that even in
an African context it was improbable that an employer would pay a salary to an
employee who is absent for an entire month without having any evidence of his or
her inability to work was not based on any documentary evidence. However, I am
not satisfied that this conclusion reached by the Board was unreasonable.
[23]
With
regard to the marriage certificate, this is what the Board concluded:
The claimant testified that the mayor, who had performed the civil
wedding, had affixed the two seals found in Exhibit 3. The first reads
[Translation] “Mayor, Commune of Matam,” and the second, [Translation] “Chief
Registrar of the Conakry Court of Appeal, Court of First Instance of Conakry,”
which is irreconcilable, since Mr. Toure, who signed the marriage
certificate, identified himself simply as the mayor in the document.
[24]
At the
hearing, the applicant stated that she did not know the difference between the
two seals affixed to her marriage certificate. She stated that she simply
signed it and that she had never mentioned that the mayor had placed the two
seals on the document. Considering article 2822 of the Civil Code of
Québec, which provides that “[a]n act purporting to be issued by a
competent foreign public officer makes proof of its content against all persons
and neither the quality nor the signature of the officer need be proved”, I do
not think that the Board could have rejected the marriage certificate submitted
by the applicant because it was not authentic without having any other evidence
to that effect. But there is more.
[25]
The Board
also expressed doubts about not only the marriage certificate, but also the
birth certificate, the national identity card and the wedding photographs
submitted by the applicant because of a contradiction between the applicant’s
statements at her initial interview with an immigration officer and her
testimony at the hearing. During her testimony, the applicant explained that
she had looked for her documents on the morning of her interview with the
immigration officer but found only her passport. She later found the rest of
her documents, including her marriage certificate, mixed up with her clothing.
Because she stated that she had travelled with a single carry‑on bag, the
Board was of the opinion that it was implausible for her to have lost her
documents among her clothes. The applicant then subsequently stated, on the one
hand, that she had left for Canada with her marriage papers and,
on the other hand, that she had asked her friend to send them to her at the request
of her Canadian lawyer. As a result of these contradictions, the Board drew a
negative inference about the origin of these documents.
[26]
I do not
think that the Board erred in finding the applicant not to be credible, and I am
of the view that it properly assessed the evidence before it. Even if one
accepts that some of the inconsistencies and contradictions in the applicant’s narrative
could be explained by the horrible violence she states she suffered, her story
is nevertheless difficult to understand, given the different versions alleged
and the implausibility of her explanations.
[27]
In
passing, I note that the applicant’s passport, issued on May 16, 2003, states that her civil status
is that of a married woman. However, according to the applicant’s version, she
had married on December 26, 2005. Although this fact had not been noted by
the Board, it also tends to confirm the lack of credibility of the applicant’s
narrative.
[28]
Finally,
the applicant submitted that she had not been given a fair hearing, because the
interpreter was Malian and spoke a different dialect than she did. According to
her, this was an infringement of the audi alteram partem rule and in
itself would warrant intervention by the Court.
[29]
Unfortunately
for the applicant, I think that this argument must fail. At question 1(j)
of her PIF concerning the “language and dialect you now speak most fluently,”
the applicant answered that it was French. In addition, as appears from the PIF
and the applicant’s statement made at the hearing, she did not use an
interpreter to complete her PIF because she said that she understood the
content of this document.
[30]
At the
hearing, she did not raise any objection and even confirmed in answer to a
question put by the Board that she understood the interpreter very well. She
had been asked on several occasions to wait for the translation of the
questions before answering. Even though she chose to testify in her language,
she nevertheless agreed to listen to the submissions made by her counsel at
that time in French.
[31]
In these
circumstances, it is too late to object to the fact that the interpreter at the
Board hearing was Malian. She cannot now raise this argument for the first time
in this application for judicial review. Not only did she have to show that the
principles of natural justice had been breached, which she did not, but she also
had to do so in a timely manner, that is, at the hearing.
[32]
For all
these reasons, I would dismiss this application for judicial review. Counsel
for the parties did not raise any questions for certification, and none will be
certified.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed.
“Yves
de Montigny”
Certified
true translation
Michael
Palles
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