Date:
20130605
Docket:
IMM-7016-12
Citation:
2013 FC 601
Ottawa, Ontario,
June 5, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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BEVERLY NDJIZERA
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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 for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, RCS 2001, c 27 [Act], of a decision made by a
member of the Immigration and Refugee Board [Board], dated May 14, 2012,
whereby the Board decided that the applicant was neither a Convention refugee
nor a person in need of protection pursuant to section 96 and subsection 97(1)
of the Act. The main issues before the Board were the applicant’s credibility
and lack of corroborating evidence. For the reasons that follow, the Court is
of the view that its intervention is warranted in this case.
Background
[2]
The
applicant, Beverly Ndjizera, is a 26-year-old Namibian woman of Herero
ethnicity. She alleges a well-founded fear of persecution and a risk to her
life, a risk of torture and a risk of unusual treatment or punishment at the
hands of her stepfather, who has abused her and who has pledged to marry her
against her will.
[3]
In
her Personal Information Form [PIF], the applicant explains that in December
2008, she visited her mother and stepfather and learned that her stepfather
wished to take her as his second wife, a practice permitted in the Herero
culture. After the applicant expressed her opposition to the marriage, her
stepfather became violent and told her she had no say in the matter.
[4]
The
applicant then decided with her boyfriend that she would get pregnant in order
to make her stepfather lose interest in her. She gave birth to a son on
December 31, 2009. She returned to her parent’s home shortly after she gave
birth, only to realize her stepfather had not changed his mind. He got angry
when she maintained her refusal. He locked her inside the house and beat her
with an electric cattle prod, which left scars on her legs. The applicant
managed to escape, barefoot. She injured her feet in the process and required
medical attention. Before she escaped, her stepfather told her that he would
get her to marry him no matter where she went.
[5]
The
applicant made a complaint before the traditional council. She was told they
could do nothing, as polygamous marriage is allowed in the Herero culture. She
then went to the Okatjoru Police Station to seek protection and received the
same response.
[6]
The
applicant fled Namibia on January 16, 2011 and arrived in Canada on January 17, 2011. She claimed refugee protection on January 19, 2011.
[7]
In
support of her claim, she submitted letters from her mother and aunt and a sworn
declaration from her boyfriend. All three documents confirmed the applicant’s
story and indicated that her stepfather was still looking for her. The
applicant also submitted a letter from her boyfriend, which indicated that the
hospital had refused to provide him with a medical report because he and the
applicant were not married.
[8]
At
the hearing before the Board, the applicant testified that the police had not
opened a file following her complaint and that she was unable to obtain a
written declaration from the traditional council because her stepfather was a
member of the council and would be the one who would have to “put a stamp on
it.” When asked why this information was not included in her PIF, the applicant
answered that she did not know who would read her PIF and whether it was safe
to include this information.
[9]
The
applicant also testified at the hearing that she had been seen by a counsellor
and a psychiatrist at the YMCA shelter where she was staying, but that she was
unable to obtain a report from them. She also testified that she had seen another
doctor in Canada who had prescribed sleeping pills to her, but that the
doctor’s office was closed when she went to get a report.
The Impugned
Decision
[10]
The
Board rejected the applicant’s claim on the basis that she had not provided
sufficient credible evidence to support her claim.
[11]
In
particular, the Board took issue with the fact that the applicant provided no
corroborating evidence in the nature of a police report, medical report, or
letter from the traditional council. The Board found it implausible that the
police in Namibia would not open a file on the applicant’s complaint. The Board
also found the applicant’s explanation for why she could not obtain a letter
from the council was inadequate, considering that the applicant had omitted to
mention the explanation in her PIF.
[12]
With
regards to the lack of a medical report from the applicant’s doctor in Canada who had prescribed her sleeping pills, the Board found that the applicant’s
explanation that the doctor’s office was closed when she went to get a report
was inadequate for a claimant who was represented by legal counsel. The Board
also found that the applicant had not established why she was unable to authorize
her hospital in Namibia to forward her medical record to her.
[13]
Finally,
the Board rejected the declarations of the applicant’s aunt, mother and
boyfriend, as they were not sufficiently independent or objective.
The Parties’
Positions
The
Applicant
[14]
The
applicant argues that the Board applied the wrong standard of proof with regard
to her section 96 claim. She submits that the Board wrongly considered whether she
had established on a “balance of probabilities” that she would face
persecution. The applicant explains that the applicable test is a less
stringent one, described in the jurisprudence as a “reasonable chance”, “good
grounds” or “more than a mere possibility” of persecution (Adjei v Canada
(Minister of Employment and Immigration), [1989] 2 FC 680 (FCA) [Adjei]; Ponniah v
Canada (Minister of Employment and Immigration), [1991] FCJ No 359 (FCA); Matthews
v Canada (Minister of Citizenship and Immigration), 2012 FC 535; Mugadza
v Canada (Minister of Citizenship and Immigration), 2008 FC 122 [Mugadza]; Ospina v
Canada (Minister of Citizenship and Immigration), 2011 FC 681 [Ospina]; Cordova v
Canada (Minister of Citizenship and Immigration), 2009 FC 309; and Chichmanov
v Canada (Minister of Employment and Immigration), [1992] FCJ No 832 (FCA)).
[15]
The
applicant also raises three arguments concerning the Board’s assessment of her
credibility. First, she submits that the Board erred in drawing an adverse
credibility finding from the lack of corroborating evidence from authorities
and doctors, as it has been held that the lack of corroborating evidence cannot
lead to an adverse credibility finding in the absence of existing credibility
concerns (Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC
302 (FCA); Sadeghi-Pari v Canada (Minister of Citizenship and Immigration),
2004 FC 282; Mejia v Canada (Minister of Citizenship and Immigration),
2009 FC 1091; Ayala v Canada (Minister of Citizenship and Immigration),
2011 FC 611; and Ali v Canada (Minister of Citizenship and Immigration),
2012 FC 259).
[16]
Second,
the applicant submits that the Board committed a reviewable error when it assumed,
without explanation or reference to the documentary evidence, that on a balance
of probabilities, police in Namibia would open a file and take notes when the
applicant made a complaint about her stepfather (Leung v Canada
(Minister of Employment and Immigration), [1994] FCJ 774).
Similarly, the Board erred in considering, without an evidentiary basis, that
medical record from the hospital in Namibia could have been obtained if the
applicant had provided “a signed authorization or other identity material.”
[17]
Third,
the applicant submits that the Board erred in rejecting the declarations from
the her mother, aunt and boyfriend on the sole basis that the authors have a
close relationship with her (Kimbudi v Canada (Minister of Employment
and Immigration),
[1982] FCJ 8 (FCA); Woldegabriel v Canada (Minister
of Citizenship and Immigration), 2008 FC 1223; and Kaburia v Canada
(Minister of Citizenship and Immigration), 2002 FCT 516).
The
Respondent
[18]
It
is the respondent’s position that the Board did not apply the “balance of
probabilities” test with regards to the alleged risk of persecution. The
respondent submits that the applicant is confusing the standard of proof for
factual findings, which is the balance of probabilities, with the legal test
for a well-founded fear of persecution, which amounts to a “serious
possibility” of persecution. To succeed in a section 96 claim, a claimant must
establish “on the balance of probabilities” that he or she has a well-founded
fear of persecution, the latter expression being understood as encompassing the
“serious possibility” legal test (Lopez v Canada (Minister of Citizenship
and Immigration),
2006 FC 1156 [Lopez]; Saverimuttu v Canada (Minister of
Citizenship and Immigration), 2002 FCT 1021; and Li v Canada (Minister of
Citizenship and Immigration), 2005 FCA 1).
[19]
With
regards to the Board’s credibility findings, the respondent submits that the
Board first found that the applicant lacked credibility on the basis that she
omitted to mention in her PIF that her stepfather was a member of the
traditional council. It was then open to the Board to find the lack of
corroborating evidence significant in assessing her credibility (Elazi v Canada
(Minister of Citizenship and Immigration), [2000] FCJ No 212; Luzi v
Canada (Minister of Citizenship and Immigration), 2004 FC 916; Amarapala
v Canada (Minister of Citizenship and Immigration), 2004 FC 12; Syed v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 357; Bin
v Canada (Minister of Citizenship and Immigration), 2001 FCT 1246; Nallanathan
v Canada (Minister of Citizenship and Immigration), 2001 FCT 326; and Nadarajalingam
v Canada (Minister of Citizenship and Immigration), [2001] FCJ No
730).
[20]
Finally,
the respondent argues that this Court should not intervene in the Board’s
decision not to give any weight to the documents provided by the applicant’s
family and boyfriend, as it is within the jurisdiction of the Board, as the
trier of fact, to determine questions of credibility and weigh the evidence (Brar v Canada (Minister
of Employment and Immigration), [1986] FCJ 346 (FCA); Castro v
Canada (Minister of Employment and Immigration), [1993] FCJ 787).
Issues
[21]
This
application for judicial review raises two issues:
1. Did the Board apply the wrong
test for determining a well-founded fear of persecution?
2. Did the Board commit a
reviewable error in its assessment of the applicant’s credibility?
Applicable Standard of Review
[22]
The
first issue in this case is a pure question of law, which is reviewable on the
standard of correctness (Ospina, above, at para 20; Mugadza, above,
at para 10; and Rahman
v Canada (Minister of Citizenship and Immigration), 2009 FC 768 at
para 36).
On the other hand, credibility findings and the weighing of
evidence by the Board are questions of fact to be reviewed against the standard
of reasonableness (Aguebor v (Canada) Minister of Employment and Immigration,
[1993] FCJ 732 (FCA) at para 4; NOO v Canada (Minister of Citizenship
and Immigration),
2009 FC 1045 at para 38).
[23]
The
reasonableness standard calls for the consideration of “the existence
of justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
Analysis
Did
the Board apply the wrong test for determining a well-founded fear of
persecution?
[24]
The
applicant directs the attention of the Court to the two following paragraphs
from the Board’s reasons:
6) …Based on the evidence and submissions before me
it has not been established on the balance of probabilities that you have a
well-founded fear of persecution in Namibia for any Convention reason…
24) Based on the foregoing analysis and having reviewed the evidence properly
before me and the submissions, and having considered closely the Chairperson’s
Gender Guidelines, I conclude that it has not been established that, on a
balance of probabilities, you have a well-founded fear of persecution in
Namibia for any Convention reason…
[25]
The
issue raised by the applicant has been addressed on many occasions by this
Court. It is trite law that in order to succeed with a section 96 claim a
claimant must demonstrate a “serious possibility” of persecution, as opposed to
a possibility of persecution on the “balance of probabilities” (Ospina,
above; Mugadza, above; and Lopez, above). However, the applicant
has not convinced me that the Board misconceived the applicable legal test.
[26]
I
agree with the respondent that a distinction must be made between the
applicable standard of proof and the applicable legal test. Although the legal
test is that of a “serious possibility” or a “reasonable chance” of
persecution, a claimant must still establish his or her claim on the balance of
probabilities. As Justice Mosley held in Lopez, above, at para 20, which
is cited by the respondent:
To establish a well-founded fear of persecution a
claimant must prove that they have (1) a subjective fear of persecution; and
(2) that this fear is well-founded in an objective sense; Canada (Attorney
General) v. Ward, [1993] 2 S.C.R.
689, [1993]
S.C.J. No. 74 at para. 47 (QL) [Ward]. The
applicant must demonstrate on a balance of probabilities that they meet this
test: Saverimuttu
v. Canada (Minister of Citizenship and
Immigration), 2002
FCT 1021, [2002]
F.C.J. No. 1329, at para. 18 (QL). That being said,
the applicant does not have to demonstrate that the persecution would be more
likely than not, as noted by the Court of Appeal in Adjei v. Canada
(Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.): "there need not be more than a 50% chance
(i.e., a probability), and ... there must be more than a minimal possibility.
We believe this can also be expressed as a "reasonable" or even a
"serious possibility", as opposed to a mere possibility."
(emphasis added)
See also Adjei,
above, at para 5.
[27]
The
case at bar can be easily distinguished from the cases cited by the applicant
where this Court found that the Board misapplied the legal test. In Ospina,
above, the Board had written:
Overall, I find that there is no
objective basis to this claim as the evidence before me does not lead me to
find, on a balance of probabilities, that the claimant would be pursued by the
agent of persecution if he returns to Colombia.
[28]
Similarly,
in Mugadza, above, the Board had written:
The panel rejected the claimant's
credibility in regard to material aspects of his claim and was not persuaded, on
a balance of probabilities, that he was targeted by the authorities of his
country or that he will be personally targeted in the future if he
returns.
[29]
It
was apparent in both cases that the Board had required evidence that the
applicant would be persecuted on the balance of probabilities. In the case at
bar, the Board correctly required that it be established, on a balance of
probabilities, that the applicant has a well-founded fear of persecution. It is
true that the Board never specifically referred to the “serious possibility”
test. However, when reading the reasons as a whole, I am satisfied that the
Board applied that test when it referred to a “well-founded fear of
persecution.”
[30]
However,
the Board’s credibility findings contain reviewable errors that justify the
Court’s intervention.
Did the Board commit a
reviewable error in its assessment of the applicant’s credibility?
[31]
In
my view, the Board made a reviewable error when it rejected the evidence
emanating from the applicant’s mother, aunt and boyfriend for the sole reason
that the applicant has a close relationship with these persons. The following
paragraph contains the Board’s only reference to these declarations:
22) You supplied a document called a Sworn Statement
from you boyfriend in Namibia, a declaration from you boyfriend, a letter from
your aunt and a letter from your mother. In my view the documents you have
supplied to help establish crucial allegations in your claim are not
sufficiently independent or objective and I find that even if you have had
varying degrees of closeness with some of these people in your life, on the
whole the sources of these documents are highly proximate to you by
relationship, whether family relationship or intimate relationship in the case
of you boyfriend.
[32]
Recently,
albeit in the context of an application for permanent residence, Justice Kane
wrote in Gilani
v Canada (Minister of Citizenship and Immigration), 2013 FC 243 at
paras 26-28:
(26) As noted by Justice de
Montigny in Ugalde:
[26] However, jurisprudence has
established that, depending on the circumstances, evidence
should not be disregarded simply because it emanates from individuals connected
to the persons concerned: R v Laboucan, 2010 SCC 12, at
para 11. As counsel for the Respondent rightly notes, Laboucan concerned
a criminal matter; however, immigration jurisprudence from this Court has
established the same principle. Indeed, several immigration cases hold that
giving evidence little weight because it comes from a friend or relative is an
error.
[27] For example, in Kaburia
v Canada (Minister of Citizenship and Immigration), 2002 FCT 516,
Justice Dawson held at paragraph 25 that, "solicitation does not per se
invalidate the contents of the letter, nor does the fact that the letter
was written by a relative." Likewise, Justice Phelan noted the following
in Shafi v Canada (Minister of Citizenship and Immigration), 2005 FC 714, at para
27:
The Officer gives little weight to other witnesses' affidavit evidence because
it comes from a close family friend and a cousin. The Officer fails to explain
from whom such evidence should come other than friends and family.
Similarly, Justice Mactavish
stated the following in Ahmed v Canada (Minister of Citizenship and
Immigration), 2004 FC 226, at para 31:
With respect to [sic]
letter from the President of the organization, I do not understand the Board's
criticism of the letter as being "self-serving", as it is likely that
any evidence submitted by an applicant will be beneficial to his or her case,
and could thus be characterized as 'self-serving'.
[28] In light of this
jurisprudence, and under the circumstances, I do not believe it was reasonable
for the Officer to award this evidence low probative value simply because it
came from the Applicants’ family members. Presumably,
the Officer would have preferred letters written by individuals who had no ties
to the Applicants and who were not invested in the Applicants' well-being.
However, it is not reasonable to expect that anyone unconnected to the
Applicants would have been able to furnish this kind of evidence regarding what
had happened to the Applicants in Mexico. The Applicants' family members were
the individuals who observed their alleged persecution, so these family members
are the people best-positioned to give evidence relating to those events. In addition,
since the family members were themselves targeted after the Applicants'
departure, it is appropriate that they offer first-hand descriptions of the
events that they experienced. Therefore, it was unreasonable of the
Officer to distrust this evidence simply because it came from individuals
connected to the Applicants.
(emphasis added)
(27) Other cases have looked at the
particular circumstances and reiterated that evidence should not be
discounted solely because it is self serving. An additional passage
in Ahmed, is relevant, where Justice Mactavish applied that
principle:
[32] That said, although there
are problems with the Board's findings regarding the evidentiary value of the
letter in assessing the nature of Mr. Ahmed's involvement with the Anjuman
Hussainia, these findings were not patently unreasonable. The Board noted that
the letter was written long after the alleged incidents took place, and made no
reference to any of Mr. Ahmed's accomplishments or specific responsibilities
within the Anjuman organization. Further, the Board's negative credibility
finding regarding Mr. Ahmed's problems with the SSP did not hinge solely on
this letter. The Board questioned several aspects of his claim, including the
very existence of a tailor shop, and the extent of Mr. Ahmed's involvement in
the rally. In these circumstances, it was not patently unreasonable for the
Board to view this letter as being of little probative value.
(28)
Similarly in Ray v Canada (Minister of Citizenship and Immigration), [2006]
FCJ 927, at para 39, Justice Teitelbaum stated that while it is an error to
attribute little probative value on the basis that the documents are self
serving, other basis may support the low probative value attributed.
[emphasis
added]
[33]
It
is significant that the declarations at issue went to the heart of the
applicant’s claim and corroborated much of her submissions. Although it is not
this Court’s role to reweigh the evidence that was before the Board, it was
incumbent on the Board to provide a reasonable explanation for why it rejected the
declarations, other than on the basis of the applicant’s relationship with the
authors of the letters provided as evidence. This is even more the case when
one considers that in the Refugee Protection Division File Screening Form
attached to the notice to appear before the Board, under the heading
Instructions to Counsel/Claimant, the applicant was instructed to provide
“Affidavits/letters from mother, siblings, boyfriend, relatives and friends”
(page 39 of Certified Tribunal Record).
[34]
Because
of this finding, I need not address the applicant’s other arguments. I note,
however, that although I agree with the applicant that the lack of
corroborating evidence should not lead to an adverse credibility finding in the
absence of existing credibility concerns, in this case the applicant was also
found to be lacking in credibility because she had failed to mention in her PIF
that her father was a member of the traditional council.
[35]
For
all of the above reasons, the application for judicial review is granted. The
Board’s decision is quashed and the matter is remitted to a differently
constituted panel. The parties did not suggest any question for certification
and this application raises none.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is granted;
2. The
impugned decision is quashed and the matter is remitted back for
redetermination by a differently constituted panel of the Board;
3. No
question is certified.
“Jocelyne Gagné”
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