Date: 20080505
Docket: IMM-3751-07
Citation: 2008 FC 571
Ottawa, Ontario, May 5, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
SARA LAURA TRIANA AGUIRRE,
JAVIER JOSHUE GONZALEZ TRIANA,
SABRINA LETICIA TRIANA AGUIRRE,
WILFRIDO ZUNIGA TRIANA and
DAVID SEBASTIAN ZUNIGA TRIANA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal applicant, Sara Laura Triana Aguirre, her son Javier Joshue Gonzalez
Triana, her sister Sabrina Leticia Triana Aguirre and her sister’s two sons,
Wilfrido and David Sebastian Zuniga Triana (collectively referred to as the “applicants”),
apply for judicial review, pursuant to section 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”), of a decision made
by the Immigration and Refugee Board (the “Board”), dated August 14, 2007, which
determined that the applicants were not convention refugees nor persons in need
of protection.
[2]
The
principal applicant, Sara Laura Triana Aguirre, and the other family members
are citizens of Mexico. Their account is as follows: the applicants lived
together with the principal applicant’s husband. The principal applicant had been
physically abused by her husband beginning in 2003. On December 10, 2004, the principal
applicant’s sister found cocaine, cash, a gun and a list of names associated
with a drug cartel in the husband’s portfolio. The husband arrived to find her
making this discovery and threatened her and her children if she told the principal
applicant about what she found.
[3]
On
December 15, 2005, the husband assaulted and attempted to rape the principal
applicant’s sister. On December 16, 2005, the sister told the principal
applicant about her experience and filed a formal complaint with the police the
next day. Four days later the principal applicant, after consulting a lawyer,
also made a formal complaint with the police about her husband’s domestic
violence.
[4]
While
the husband was away, the principal applicant changed the locks on the family
home. The husband broke into the home and took away his jewellery, computer
and other documents. On December 24, 2005 the principal applicant and the
other family members fled to her mother’s house. When they returned to
retrieve valuables, they found that the family dog had been shot and a warning
written on the wall. Subsequently, the lawyer the principal applicant had consulted
advised her that the complaints lodged against her husband had been dismissed
for lack of evidence.
[5]
On
January 2, 2006, the husband telephoned the principal applicant at her mother’s
and threatened her. The principal applicant published a complaint in a local
newspaper against the authorities for not providing her with protection. On
January 7, 2006, the principal applicant’s son, alone at his grandmother’s, was
confronted and pistol whipped by the husband who was his step father, not his
natural father.
[6]
The
applicants fled to Juarez, Chihuahua. After an incident on
January 11, 2006, where shots were fired at the vehicle the principal applicant
was driving, the applicants flew to Mexico City to collect their
passports. They arrived in Canada on January 13, 2006.
THE DECISION UNDER
REVIEW
[7]
The
Board found that the applicants were not convention refugees or persons in need
of protection because it found portions of their testimony to not be credible
or trustworthy due to inconsistencies, omissions and speculations.
[8]
The
Board began by referring to the Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution (the “Guidelines”) and noting
that some individuals in abusive relationships may have difficulties leaving
their partners.
[9]
The
Board stated that questions of credibility arose because the applicants did not
provide documents and their explanation for not providing those documents were
not satisfactory. The Board was of the view that the delay in efforts to
obtain documents was due to a lack of interest in pursuing their refugee claim.
[10]
The
Board considered omissions and discrepancies in the port-of-entry notes as a
further basis for its negative credibility finding. The Board paid particular
attention to the failure to mention taking refuge at the mother’s residence or
the assault on the son in the port-of-entry notes. The Board also found it
significant that the principal applicant offered differing descriptions of the
disposition of her complaint to the police in the port-of-entry-notes and her
hearing. The Board remarked that the port-of-entry notes indicate that the
file was lost, whereas at the hearing she stated that her complaint file was
closed because of insufficient evidence.
[11]
Finally,
the Board considered as speculative the allegation that shots were fired at the
principal applicant’s vehicle at the instigation of her husband.
ISSUES
[12]
The
issues which arise in this application for judicial review are:
1. Did the Board
err in basing its credibility assessment on the absence of corroborating
documentation and in not considering the applicants’ explanation for the
absence?
2. Did the Board
err in making a credibility finding by relying on omissions and discrepancies in
the port-of-entry notes?
STANDARD OF
REVIEW
[13]
The
Supreme Court of Canada held in Dunsmuir v. New Brunswick, 2008 SCC 9,
that there are only two standards of review, correctness and reasonableness
(Dunsmuir at para. 34). Questions of fact, discretion and policy
generally attract a standard of reasonableness. The Supreme Court went on to
note that board decisions relating to fact and credibility will continue to
attract a high standard of deference.
[14]
Questions
of credibility are within the expertise of the Board (Aguebor v. Canada
(Minister of Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
As a result, issues related to reviewing credibility findings made by the Board
attract the deferential standard of reasonableness (Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at para. 15.
ANALYSIS
Did
the Board err in basing its credibility assessment on the absence of
corroborating documentation and in not considering the applicants’ explanation
for the absence?
[15]
Applicants
are presumed to be telling the truth in an IRB hearing (Puentes v. Canada
(Minister of Citizenship and Immigration, 2007 FC 1335 at para. 16; Valtchev
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at paras. 6-8). Justice
Teitelbaum in Ahortor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 705 at para. 45, spoke to findings of
credibility and findings of fact with respect to the absence of corroborating
documentation:
The Board
appears to have erred in finding the Applicant not credible because he was not
able to provide documentary evidence corroborating his claims. As in Attakora,
supra, where the F.C.A. held that the applicant was not required to provide
medical reports to substantiate his claim of injury, similarly here the
Applicant is not expected to produce copies of an arresting report. This
failure to offer documentation of the arrest, while a correct finding of fact,
cannot be related to the applicant's credibility, in the absence of evidence to
contradict the allegations.
[16]
The
Board’s credibility analysis begins with the second paragraph in its reasons
(Tribunal Record at 5):
There were a number of credibility issues
that arose. The claimants did not provide any of the following salient
documents; the denunciations that were made to the authorities, the son’s
medical report as a result of the assault on him by the PC’s spouse, and a copy
of the public denunciation made in the local newspaper.
The Board’s focus on the applicants’
failure to provide documentation suggests that the absence of corroborating
documentation is the Board’s primary basis for a finding of a lack of
credibility. To use the absence of documentation to impugn credibility is
contrary to the proposition in Ahortor, above.
[17]
In
some instances, the failure to provide corroborating documentation may be a
proper consideration for a board to undertake. Justice Kelen in Amarapala
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 12 at para. 10, explained the
circumstance where a the absence of corroborating documentation may impact
credibility:
…[w]here there are valid reasons to doubt
a claimant’s credibility, failure to provide corroborating documentation is a
proper consideration for a panel if the Board does not accept the Applicant’s
explanation for failure to produce that evidence.
[18]
The
Board continues its credibility reasons by finding the explanations offered by
the applicants for their delay and lack of success in securing documentation
unsatisfactory, concluding that the applicants demonstrated a lack of interest
in pursuing their claim for refugee status, and it drew a negative inference as
to their credibility:
The PC and her son were asked what steps
were taken to obtain documents from Mexico.
They testified that no attempts were made until March 2007, approximately
fifteen months after their arrival in Canada.
They explained that they did not have any contact with anyone in Mexico and they did not have the
intention of contacting anyone in Mexico.
In March 2007, the PC made contact with a girlfriend who the PC felt would be
of assistance in obtaining documents. The friend did not want to get the
documentation because she did not want problems. The PC’s son also made
telephone contact with a friend, but was not able to obtain any documents.
Further questions were asked as to why the lawyer could not be of assistance in
obtaining the denunciation; the response was that she did not think it was
necessary and that he had lost all credibility in her eyes; why the public
denunciation which allegedly appeared in the newspaper was not available; the
response was that she did not think of it; why there was no medical report for
the son’s injuries; the response was that she was fearful of the police and
institutions. The explanations provided were not satisfactory. The claimants
have demonstrated a lack of interest in pursuing their claim by waiting until
March 2007 to even attempt to obtain available corroborative documentation and
then not using various means that may have been available to them in order to
obtain documents. The panel draws a negative inference as to their
credibility. (Tribunal Record at 5-6)
While the Board does discuss the
port-of-entry notes in relation to the applicants’ credibility, the Board’s
discussion does not meet the “valid reasons” precondition set out by Justice
Kelen in Amarapala, above.
[19]
It
is clear that the Board did not have much regard to the explanation provided by
the applicants for the lack of corroborating documentation. The events that
led to the applicants’ flight from Mexico occurred within the
space of a single month. They were fleeing a violent spouse who appeared to
have an association with a drug cartel. The principal applicant was fleeing
someone who had been violent toward her for the previous two years and whose
violence was now extending to other members of her family, namely her sister
and her son. In doing so, they relocated twice before departing Mexico.
[20]
This
situation appears to have resulted in the principal applicant’s self-alienation
from her past in Mexico. The principal applicant explained:
Because I did not have any contact with
anyone, because when I left, when I was fleeing the country, I did not have any
intention of ever dialling any phone number in Mexico, because the last thing
that I wanted to do is call Mexico because I don’t have any
support from anyone in Mexico. And I didn’t have any
reason to call Mexico (Tribunal Record at 360).
[21]
Coupled
with this self-imposed alienation, the principal applicant was also alienated
from her family. She testified that she did not have a close relationship with
her brothers and would not be able to rely on them for assistance in obtain
corroborating documentation (Tribunal Record at 365). The applicants
explained in the PIF supplementary documentation that:
[s]ince leaving Mexico, we have had no contact with our
family. Our relationship has become quite distant due to the trouble that we
had in Mexico. My brothers were not all
supportive of our problems and we have not spoken to them since. We also did
not want to put our family at further risk by telling where we were. We were
so traumatized by our experience in Mexico that we felt it was best to cut off
all relations with our family in Mexico.
Recently we have discovered through a
third party, that my mother has passed away. We have tried to contact our
father to discover what happened, but we have not been able to reach him. We
do not know if he changed his telephone number or moved, or what has happened.
We have not contacted our brothers because we are sure they will blame us for
what happened to our mother.
[22]
The
Board did not accept the applicants’ explanation why they did not seek
documentary corroboration until March 2007. While the Board is not bound to
accept their explanation, it is bound to consider that explanation instead of
dismissing it as demonstrating a lack of interest in pursuing the refugee
claim. This is especially so in the context of victims of domestic abuse in
light of the Guidelines and country condition documentation before the Board.
[23]
The
Guidelines advise board members to be sensitive to issues arising from gender-related
persecution as is asserted here by the applicants. Both the principal
applicant and her son testified that the friends they contacted to obtain
documents declined to get involved because of the trouble they could get into.
Given that the Guidelines advise the Board to be sensitive to gender-related
issues, it is surprising the Board does not consider the principal applicant’s
self-isolation, the alienation from family, or the disconnect from friends in
relation to the non-support victims of domestic violence receive from both
officialdom and Mexican society.
[24]
The
documentary evidence indicates that Mexican authorities do not adequately
protect women against violence and abuse. At the legal end of the spectrum, Mexican
state laws set a high threshold for prosecution of domestic violence against
women. The Human Rights Watch Report, which was available to the Board, states
(Tribunal Record p. 321):
In several states, law and policy
inadequately address the issue of violence against women, and existing
protections fall short of Mexico’s international obligation to
adopt all necessary penal, civil, and administrative provisions to prevent,
punish, and eradicate violence against women. In seven of Mexico’s thirty-two independent
jurisdictions, there is no specific law on the prevention and punishment of
domestic violence. Seven states do not recognize domestic violence as a
crime. Of the twenty-five states where domestic violence is penalized, fifteen
state penal codes require women to suffer “repeated” violence in the family in
order for it to be criminal. In eleven states, domestic violence is considered
an infraction of the state civil code in addition to a criminal offense, though
seven of these states require the violence to be repeated to merit sanctions.
[25]
At
the other end of the spectrum dealing with law enforcement, police are reported
to have little regard for domestic violence complaints. As one woman in the
same Human Rights Watch Report described:
[O]ne time I had gone to declare against
my ex-husband and I was all black and blue all beaten up and they said to me
there wasn’t enough proof. They took my declaration and did nothing” (Tribunal
Record at 323).
[26]
I
find that the Board based its negative credibility finding on the absence of
documentation and on rejection, without proper consideration, of the applicants’
explanation for their delay and lack of success in obtaining documentation.
Did
the Board err in making a credibility finding by relying on omissions and
discrepancies in the port-of-entry notes?
[27]
The
Board considered it significant that the port-of-entry notes do not contain a
report of the flight to the principal mother’s home or the assault on the son
as well as the principal applicant’s differing explanation about the
disposition of the police compliant.
[28]
The
port-of-entry notes for the principal applicant, her sister and her son are
very brief, but are consistent with the applicants’ PIF and testimony at the
hearing. The principal applicant’s translated explanation of her fear of
returning to Mexico is only five
sentences, as was her son’s. The sister’s explanation is an eight word
sentence. (Tribunal Record at 165 and 204).
[29]
As
a result, this case can be distinguished from Dehghani v. Canada (Minister of
Employment and Immigration), [1990] 3 F.C. 587 (F.C.A.) at para. 33, a case
cited by the respondent for the proposition that the existence of
contradictions or inconsistencies between the evidence of an applicant and the
port-of-entry notes is an accepted basis for a finding of a lack of credibility.
In Dehghani, there was a fulsome transcript, consisting of 75
questions and answers, available on judicial review of the port of entry
interview.
[30]
The
port-of-entry notes may be relevant if they differ markedly from an applicant’s
PIF or hearing testimony. They may also be relevant if the port-of-entry
interview is extensive and contains significant differences from an applicant’s
later evidence. Here the brief port-of-entry notes are consistent with the applicants’
later evidence. Given the brevity of the port-of-entry notes they are an
insufficient basis for findings of significant omissions.
[31]
Finally,
the port-of-entry notes were prepared with the assistance of an interpreter as
was the PIF statements and the hearing testimony. It is clear from reading
the port-of-entry notes that they were not written by the principal applicant.
The port-of-entry writer indicates that the police had ‘lost’ [sic] the
complaint. The specific insertion of the quotation marks suggests something more
than the ordinary dictionary meaning of the word lost since nothing else was in
quotations (Tribunal Record at 165). The Board’s reasons do not take this into
account (Tribunal Record at 6). Against this backdrop whether the police file
was ‘lost’ or closed because of lack of evidence is not a definitive difference
upon which to find a lack of credibility.
CONCLUSION
[32]
I
find that the Board’s findings on the credibility of the applicants to be
unreasonable even given the deference due to the Board on findings of credibility.
The application for judicial review is granted and the matter is to be returned
for re-determination by a different Board.
[33]
The
applicant has submitted two questions on the use of port-of-entry notes for
certification. The respondent opposes certification of the questions
submitting, that use of port-of-entry notes are a matter of weight and would
vary from case to case. I agree. I do not submit any question of general
importance for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is granted.
2.
The
matter is to be sent back for re-determination by a different officer.
“Leonard
S. Mandamin”
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