Date:
20130801
Docket:
IMM-4590-12
Citation:
2013 FC 844
Ottawa, Ontario,
August 1, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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DENISE LAURALEE ALEXANDER
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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 Immigration and Refugee Board, Refugee Protection Division (the
Board), dated April 23, 2012, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a citizen of St. Lucia fleeing abuse at the hands of her
ex-partner.
[4]
She
moved in with her partner in St. Lucia in November 2009. After she objected to
his selling drugs, he subjected her to abuse including being beaten, punched,
kicked and threatened. She lost a pregnancy due to one of these incidents. She
made several police reports but the police did not protect her.
[5]
She
arrived in Canada on November 28, 2010 on a visitor’s visa and claimed
protection in June 2011.
Board’s Decision
[6]
The
Board’s decision dated April 23, 2012, sent to the applicant on May 2, 2012,
indicated the Gender Guidelines had been considered. The Board held that the
applicant had not established that she had the experience, risk or fear alleged
and the evidence lacked credibility.
[7]
The
Board indicated it would not accept two letters submitted by the applicant due
to their late disclosure. The Board found that the applicant’s explanation for
the lateness, that her mother and sister had delayed in sending them to her, to
be inadequate. Counsel made no submissions on this issue and declined to take
up the Board’s offer of addressing this evidence later in the hearing.
[8]
With
these documents ruled inadmissible, the Board found there was no independent
corroborating evidence to support the applicant’s claim. The applicant and her
family were not able to get medical or police documents. No explanation was
supplied for why neither the applicant nor her counsel contacted the hospital where
the applicant was allegedly treated in order to obtain the documents.
[9]
The
Board concluded that if the applicant had the experience, fear and risk
alleged, she would more likely than not have obtained and supplied independent
corroboration.
[10]
The
Board also noted the applicant’s six month delay in claiming protection and
rejected counsel’s submission that since she had a visitor’s visa during those
six months, she did not need to claim protection. If she had the fear alleged,
she would have acted on regularizing her status in Canada.
[11]
The
Board noted that counsel was asked to refer to any country conditions evidence
indicating difficulty in obtaining corroborating documentation and counsel had
conceded there were no such references in the country conditions material.
[12]
The
Board concluded that if police documentation existed, then the relocation of
one officer from one station to another would have no bearing on the police’s
ability to respond to a request from the applicant for material. Similarly, it
had not been established why medical documentation could not be obtained.
[13]
The
Board noted the applicant claimed she had moved from her partner’s house to her
grandmother’s house, but no change of address had been noted on her Personal
Information Form (PIF) address history. This is something the applicant would
have done, given her experienced counsel, if she had indeed moved.
[14]
The
Board concluded with the alternative finding that if the applicant faced a
risk, it was a generalized risk.
Issues
[15]
The
applicant submits the following points at issue:
1. Is the Board’s
decision unreasonable with regard to the finding that domestic violence is a
generalized risk?
2. Was it
unreasonable for the Board to impugn the applicant’s credibility solely on the
basis of the absence of corroborative evidence while discounting her
corroborative evidence?
[16]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[17]
The
applicant argues that it is a serious error for the Board to conclude that victims
of domestic violence faced a generalized risk. The Board failed to consider the
gender-related risk. The applicant was the victim of serious domestic abuse.
Domestic violence is prevalent in St. Lucia.
[18]
The
applicant further argues that the Board cannot impugn an applicant’s testimony
solely based on the absence of corroborative evidence. The applicant’s
testimony was not lacking in credibility and the Board provided no reasons for
rejecting it. The Board is entitled to ask for corroboration where it had
credibility concerns, but it must be put to the applicant, which did not happen
here. It is capricious for the Board to make a credibility finding based on the
lack of evidence when it rejected the relevant corroborative evidence submitted
by the applicant. A short delay in making a refugee claim, with a reasonable
explanation for the delay, cannot be determinative of a negative decision.
Respondent’s Written Submissions
[19]
The
respondent argues the applicant provided inconsistent evidence. Her move from
her partner’s house to her grandmother’s was not reflected in her PIF.
Comparing the PIF to oral testimony is one of the Board’s primary ways of
testing credibility.
[20]
Rule
7 of the Refugee Protection Division Rules, SOR/2002-228, requires a
claimant to provide documentary evidence or explain why they were not provided.
The Board may take into account a claimant’s lack of effort to obtain corroborative
evidence and draw a negative inference as to credibility. Here, the applicant
acknowledged that documentation existed, yet she did not provide it. The Board reasonably
found she had failed to explain why she did not approach the hospital directly.
[21]
The
respondent agrees that corroborative evidence is not always required, but here
the Board made a finding of fact that the documentation is readily available to
the applicant, allowing a reasonable negative inference for it not being
provided. When there is no reasonable explanation for material omissions, they
may impugn an applicant’s credibility, even in the face of the presumption of
truthfulness.
[22]
This
Court has affirmed that a delay in seeking protection points to a lack of
subjective fear. The Board considered the applicant’s explanation that she
thought she had no legal status in Canada and was vulnerable to arrest and
reasonably concluded if she had the alleged fear, she would act to regularize
this status.
Analysis and Decision
[23]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[24]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7,
[2003] FCJ No 162; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada
(Minister of Citizenship and Immigration), 2011 FC 584 at paragraph 23,
[2011] FCJ No 786). Similarly, the weighing of evidence and the interpretation
and assessment of evidence are reviewable on a standard of reasonableness (see Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38, [2009] FCJ No 1286).
[25]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Khosa above, at paragraph 59). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[26]
Issue
2
Did the
Board err in rejecting the applicant’s claim?
The decision
relied on by the applicant discusses how it is unreasonable for the Board to
require corroborative evidence when there are no independent credibility
concerns (see Byaje v Canada (Minister of Citizenship and Immigration),
2010 FC 90 at paragraphs 26 and 27, [2010] FCJ No 103. As Mr. Justice Richard
Mosley wrote at paragraph 26, “… the Board will not err when it requires
corroborating documents in circumstances in which it had credibility concerns
…”.
[27]
In
this case, however, it is not fair to say there were no other credibility
concerns. The Board was concerned with an inconsistency between the applicant’s
PIF and her oral testimony concerning where she lived in St. Lucia, as well as
her delay in making a claim for protection. The Board put questions on these
subjects to the applicant during her hearing. While the applicant may disagree
with these concerns, she cannot argue that the Board never expressed any doubt
in her credibility, or that either of these well-worn credibility-testing
techniques is unreasonable.
[28]
Given
that the Board did not admit letters from the applicant’s family, there was no
such corroborative evidence.
[29]
As
it was reasonable for the Board to require such evidence and the applicant has
not challenged the credibility finding on any other basis, I must conclude that
the decision was transparent, justifiable and intelligible, as well as within
the range of acceptable outcomes. The applicant gave conflicting evidence,
delayed in making her claim and had taken few steps to secure documentary
evidence. It was therefore reasonable for the Board to find she lacked
subjective fear.
[30]
I
agree with the applicant that the Board’s one sentence determination of a generalized
risk was unreasonable and if that finding were determinative, I would question
whether the Board had fulfilled its duty to give reasons. However, given that
the Board’s credibility finding was reasonable, this alternative finding is
irrelevant.
[31]
The
application for judicial review is therefore dismissed.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is 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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Refugee
Protection Division Rules,
SOR/2012-256
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11. The claimant must
provide acceptable documents establishing their identity and other elements
of the claim. A claimant who does not provide acceptable documents must
explain why they did not provide the documents and what steps they took to
obtain them
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11.
Le demandeur d’asile transmet des documents acceptables qui permettent
d’établir son identité et les autres éléments de sa demande d’asile. S’il ne
peut le faire, il en donne la raison et indique quelles mesures il a prises
pour se procurer de tels documents.
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