Docket: IMM-5299-13
Citation:
2014 FC 1232
Toronto, Ontario, December 17, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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LOULA OMAR MAHAMOUD
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of the decision of a member [Member] of the
Refugee Protection Division [RPD, Board] wherein the Board determined that the
Applicant was not a Convention refugee or a person in need of protection.
II.
Facts
[2]
The Applicant is a 38 year old citizen of Djibouti. She claims that she was forced by her family to marry a man 21 years older than
herself, who would not allow her to leave the house, and who violently
assaulted her on a number of occasions. The marriage took place without her
consent or her presence on June 27, 2011.
[3]
At the beginning of the RPD hearing, Applicant’s
prior counsel submitted 3 police reports and 2 medical reports, which the
Applicant testified had recently arrived in the mail from her aunt in Djibouti.
The Applicant testified that incidents of violence by her husband “used to happen all the time”, but that there were three
times she reported it to the police (Certified Tribunal Record [CTR], p 182).
The Applicant provided documentary evidence for the following 3 incidents:
A. September 19, 2011 – police certificate and medical certificate;
B. April 17, 2012 – police certificate and medical certificate; and
C.
November 7, 2012 – police report with details of
verbal complaint.
[4]
The Applicant’s original French basis of claim
[BOC] states that on September 19, 2011, the first incident of physical abuse
occurred. She describes the incident in detail in her BOC. She also described
in the BOC that following that incident, she stayed with her aunt for a week,
after which her husband gave money to her family and her family brought her
back to his home by force. Thereafter, her husband, according to her testimony:
did not allow her to leave the house; insulted her; and hid a knife in his
pillow, telling her that she was a slave that he bought and that if she did not
obey him, he would kill her. She was scared, cried regularly, and lacked sleep
and appetite.
[5]
The RPD hearings involved some confusion, at
least partially stemming from translation issues, which included the alleged
April 17, 2012 incident. The BOC does not mention April 17. However, the
Applicant gave testimony at the hearing that there had been an incident on this
date and submitted a police certificate, as well as a medical certificate
describing her injuries from this date.
[6]
Dates became confused surrounding the 3
incidents at the hearing, but there was medical evidence and police reports to
back the three separate incidents up. The medical evidence appears consistent
with the police reports, but these were not discussed in the Decision. Rather,
the Board focused on the date confusion in the oral testimony, and the fact that
the BOC only accounted for two incidents. The Applicant explained in the
hearing that she had asked her first counsel (a law student) to include the
April 17 incident, but he did not do so. Subsequent counsel, who represented
her at the RPD hearing, orally advised of the amendment when he realized that
the BOC the Board had was not an amended version.
[7]
The nature of the testimony was significant in
terms of abuse, and the medical reports were consistent with significant abuse.
The Applicant alleges that her husband came home early in the morning after
having been out with his friends the whole night, and she got up early that
morning to prepare breakfast for him. He was not happy with the tea and poured
the hot tea on her. He verbally insulted her, became very aggressive, and threw
a number of objects at her: glasses, chairs, metal objects, a pan, etc. He then
kneed her in the stomach several times, punched her in the face several times,
and struck her violently with a wooden stick. After that, he tore her clothes
with a knife, threatened to cut her throat, injured her collarbone with the
knife, and dragged her half naked to the door of the house.
[8]
The Applicant testified that with her aunt’s and
neighbour’s help, she obtained a plane ticket and fled to the United States
[U.S.], where she stayed with her neighbour’s friend until the friend took her
to catch a flight to Canada, where her brother lives and where she ultimately
made a claim for refugee protection.
III.
Decision
[9]
The RPD found the Applicant not to be credible,
on the following grounds:
A. The Applicant testified in a vague and evasive manner throughout the
hearing.
B. Contradiction #1: When the Applicant
testified that she got her passport in June 2012, the Member confronted her
with the fact that she had earlier testified that she only decided to leave Djibouti on November 7, 2012. The Board found her explanation, that she always knew she
would leave, to be evasive.
C.
Contradiction #2:
The Applicant testified that her husband spilled hot tea on her on April 17,
2012, but the police report indicated that this incident had occurred on
November 7, 2012. When confronted with this, she “adjusted” her testimony to be
that this incident occurred on November 7.
D. Contradiction #3: The Applicant’s BOC
referred to only two events, but she referred to three in her testimony. Her
explanation for the omission of the April 17 incident from the BOC – that she
had told her previous counsel about the April 17 incident but he had refused to
amend the BOC, telling her she would be able to do so at the hearing – was
found not to be logical, especially given that the Applicant described the
incident as very important.
E.
Delay: The Board
concluded that the Applicant did not behave like someone who fears for her
life, because she obtained her American visa in June 2012 but did not leave the
country until November 15, 2012. The Board found her explanation that she could
not leave while her husband was in Djibouti, because he watched her constantly,
unsatisfactory as she was able to leave her house at some point to go to an
interview at the U.S. embassy.
IV.
Relevant Provisions
[10]
Sections 96 and 97 of IRPA are attached
below as Appendix A.
V.
Issue
[11]
This matter raises the following issue:
A. Was the Decision reasonable?
VI.
Standard of Review
[12]
The RPD’s findings of fact and mixed fact and
law are reviewable on a standard of reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9 at para 51.
[13]
When reviewing a decision on the standard of
reasonableness, the Court is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” and with “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).
VII.
Parties’ Submissions
[14]
The Applicant submits that the Board erred by:
A. ignoring relevant evidence that directly contradicts the conclusions
she reached;
B. after making negative credibility findings with respect to parts of
the Applicant’s testimony, failing to consider parts of her testimony that were
considered credible and that clearly expressed a subjective fear of
persecution;
C.
failing to give full and proper consideration to
the documentary evidence submitted by the Applicant, which is consistent with
her allegations of domestic abuse and directly contradicts the Board’s
conclusions, namely the police certificates and medical certificates;
D. failing to consider the Chairperson’s Gender Guidelines,
below, in determining whether or not the Applicant has a well-founded fear of
persecution; and
E.
failing to consider the country condition
evidence and the existence of a nexus under section 96 of IRPA.
[15]
The Applicant also points out that switching the
hearing from French to English to accommodate new counsel created a number of
problems for the Applicant. There were also issues regarding the Somali
dialect used at the hearing, which was clear from the transcript.
[16]
The Respondent submits that: the Board’s finding
that the Applicant’s fear of being targeted at the hands of her husband was not
credible, was reasonable; the Board did consider the Applicant’s personal story
and documentation; and the general country documentation on the challenges of
Djibouti was not relevant once the Applicant’s own story of being a victim of
domestic violence was impugned. The Respondent stressed that credibility
findings are the domain of the Board, and that the ultimate conclusion of the
Board was reasonable.
VIII.
Analysis
[17]
I do not agree with the Respondent, and find the
Decision unreasonable for the reasons below.
A.
The Board did not assess the corroborating
evidence that supported the plausibility of the Applicant’s story
[18]
First and foremost, I find the Board’s decision
unreasonable because the Member did not consider the evidence in its entirety
before deciding the value to be placed on critical elements of the evidence.
Rather, she dismissed the claim on the basis of the Applicant’s testimony
alone, failing to properly consider, with an open mind, the police certificates
and medical certificates.
[19]
Specifically, the Board focused on the fact that
the Applicant had not referred to the April 17 incident or complaint to the
police in her BOC, and that the Applicant said that the hot tea incident took
place on April 17, contrary to the police report and her later testimony. The
Board did not go on to consider whether the police certificates and medical
certificates were sufficient to support the Applicant’s claim despite
contradictions in her testimony.
[20]
I find Justice Campbell’s decision in RER v
MCI, 2005 FC 1339 particularly pertinent to this case. In RER, the
principal Applicant claimed that he had been detained and tortured by the
police in Peru because of his political opinions. He submitted cogent
supporting evidence of his past torture, and of the rape of his wife
perpetrated by state agents in Peru. The RPD began by making a negative
credibility finding against the principal Applicant as a result of a focus on
discrete features of his testimony. Then, based on the negative credibility
finding, it rejected other very cogent documentary evidence tendered by the
principal Applicant.
[21]
Justice Campbell found that the Board Member had
no regard for relevant evidence that went directly to the issues of the
Applicants’ credibility He wrote:
[…] I conclude that, from the words used in the
reasons, the RPD used a linear approach in evaluating the evidence submitted by
the principal Applicant. I find that the use of this linear approach denied
natural justice to the principal Applicant for two reasons.
First, it is only fair and reasonable for
parties to litigation to expect that the decision-maker will consider the
evidence in its entirety, with an open mind, before making findings about the
value to be placed on critical elements of the evidence. For the general proposition that the evidence must be considered
in its entirety see Owusu-Ansah v. Canada (Minister of Employment and
Immigration) (1989), 98 N.R. 312 (F.C.A.). In the present case, I find that the
RPD was in error in not considering the whole of the evidence, including the
wife's rape evidence and the cogent independent evidence about the apparent
effects of the torture and rape in the form of photographs and reports, before
making the critical finding of negative credibility against the principal Applicant
(also see Gonzalez v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 422, and Herabadi v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 1729).
Second, I find that the RPD was in error by
rejecting evidence which comes from sources other than the testimony of the
principal Applicant simply on the basis that the principal Applicant is not
believed. In my opinion, each independent source of evidence requires
independent evaluation. This is so because the
independent sources might act to substantiate an Applicant's position on a
given issue, even if his or her own evidence is not accepted with respect to
that issue.
[Emphasis added] (RER at paras 8-10)
[22]
In this case, there was significant confusion
regarding the translation. The Board Member took a hypercritical view of
dates, which the Applicant attempted to correct. I find, in sum, that the
Board used the same linear approach found to be improper by Justice Campbell in
RER, by failing to consider the evidence in its entirety, and in
particular, that the Member completely failed to acknowledge the documentary
evidence which buttressed the oral testimony of the Applicant. Instead, she
found against the Applicant on the basis of minor inconsistencies in the Applicant’s
testimony, which were compounded by the translation difficulties that occurred
at the hearing. In order to properly reject the objective evidence that
corroborated the Applicant’s subjective fear, the Board had to explain, at a
minimum, why it found against the Applicant without taking into account the
police certificates and medical certificates that corroborated and supported
her allegations of domestic violence in Djibouti.
[23]
The Board also took a very narrow view of the
evidence in refusing to take into account the Applicant’s explanation for the
omission of the April 17 incident in the BOC. The Applicant explained that she
had had a student lawyer who would not include the April 17 incident as an
amendment, telling her instead that she could make the amendment at the
hearing. Applicant’s counsel corroborated this story, explaining to the Board
that the Applicant had discharged her prior counsel and hired him instead on
this basis. The Board rejected the Applicant’s explanation for the omission on the
basis that it was “not logical, especially given that the
claimant described the incident as very important” (Decision, CTR, p 17,
para 23), despite the fact that the claimant had evidence in writing that she
had previously attempted to raise the April 17 incident.
[24]
The police certificates and medical certificates
independently supported the Applicant’s claim, and as Justice Campbell points
out in RER, above, each independent source requires independent
evaluation. Justice Campbell expanded on this point in Isakova v MCI,
2008 FC 149:
If the RPD properly makes a credibility or
implausibility finding with respect to one aspect of an applicant's evidence,
this will not necessarily provide a basis for rejecting the entirety of the
applicant's claim. Justice Martineau makes this
point in R.K.L.
v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 162, 2003 FCT 116 at para. 11-14:
However, not every kind of inconsistency
or implausibility in the applicant's evidence will reasonably support the Board's
negative findings on overall credibility. It would not be proper for the Board
to base its findings on extensive "microscopic" examination of issues
irrelevant or peripheral to the applicant's claim: see Attakora v. Canada (Minister of Employment and Immigration), (1989), 99
N.R. 168 at para. 9 (F.C.A.) ("Attakora"); and Owusu-Ansah v. Canada […]
[...]
Finally, the applicant's credibility and
the plausibility of testimony should be assessed in the context of her
country's conditions and other documentary evidence available to the Board. Minor
or peripheral inconsistencies in the applicant's evidence should not lead to a
finding of general lack of credibility where documentary evidence supports the
plausibility of the applicant's story: see Attakora, supra;
and Frimpong […]
[…]
[…W]hen evidence
which supports an applicant's claim is not mentioned and other evidence is
selectively relied upon, the RPD errs by ignoring relevant evidence (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
1425 (QL), at para.15).
[Emphasis added] (Isakova, above, at
paras 8-10)
[25]
The Board’s fixation on the details of
particular dates caused it to forget the substance of the facts on which the
Applicant based her claim. Even if the Board was right to doubt some aspects of
the circumstances which had led the Applicant to leave Djibouti, there were
facts in evidence, including undisputed documentary evidence, which could
provide support for her claim that there was a real danger that she might be
subject to persecution or risk to her life or risk of cruel and unusual
treatment in Djibouti. The Board did not take account of this evidence.
[26]
The Board Member’s failure to consider the
documentary evidence submitted by the Applicant is sufficient to dispose of
this claim in the circumstances. However, I allow this application for the
following reasons as well.
B.
False inconsistency and Delay issue
[27]
The Board Member found a contradiction between
the Applicant’s testimony that she had decided to leave the country following
the incident on November 7, 2012 and her later testimony that she had already
obtained her passport in June 2012. When the Board Member asked the Applicant
to explain how it was that she applied for a U.S. visa and a passport before
she had made the decision to leave, the Applicant replied:
I always knew that I can’t stay in this
marriage with this man. He wasn’t respecting me. He wasn’t treating me well. He
was beating me up all the time. I knew I was leaving him and he knew I was
going to leave.
(CTR, p 201)
[28]
In my view, the Board’s finding that there was
an inconsistency, and its finding that the Applicant’s explanation for the
apparent inconsistency was evasive (Decision, CTR, p 15, para 16), were both
unreasonable.
[29]
In apparent expectation that there could only be
one specific day where the decision to leave was formed and conclusively made,
the Board Member required the Applicant to specify a date, then drew a negative
inference from the fact that the November 7 date came after steps taken by the
Applicant to plan her departure. Yet, the Applicant had made it clear from the
very beginning, before she was confronted with any inconsistency, that she had
always wanted to leave:
BY PRESIDING MEMBER (to interpreter)
- When exactly did you take the
decision to leave?
BY CLAIMANT (to presiding member)
- I
always wanted to leave, that is the situation, but the last incident when
that happened, that’s when I decided to leave.
[Emphasis added] (CTR, p 164)
[30]
In my view, applying for a passport and a U.S. visa in June is completely consistent with deciding in November, following a
particularly violent beating, and a few days before her husband was to leave on
a business trip, that the time had come and she was now going to take the
definitive action of leaving.
[31]
The dates of preparations for her departure also
came up with respect to the issue of delay. When the Board asked the Applicant
why, though she had obtained her American visa in June 2012, she had not left Djibouti until November 15, the Applicant explained that she could not leave Djibouti until her husband went away on business because her husband watched her constantly. The
Board questioned why she could not have left before if she was able to leave
the house for a visa interview, and the Applicant explained that she had taken
a risk to attend the interview, but had made it back to the house before her
husband returned from the market.
[32]
I find the Board’s rejection of the Applicant’s
explanation for the alleged inconsistencies, and reliance on the Applicant’s
delay in leaving Djibouti, to be unreasonable for two reasons. The Applicant
did not explain why the Applicant’s explanation, which was consistent with the
fact that she was experiencing domestic abuse and was afraid of her husband,
was not believed. Her explanation was consistent with her testimony that, as
soon as her husband went away on business on November 10, she sold the
furniture in the house to raise funds, bought a plane ticket immediately, and
then left on November 15, which confirms that it takes longer to organize a
departure than it does to attend a visa interview.
IX.
Conclusions
[33]
The Board based its findings on inconsistencies
such as dates, without regard to key evidence, and by drawing conclusions that
were simply unreasonable in a global view of the claim. The Board erred by
failing to consider the totality of the evidence, focusing instead on minor
inconsistencies in the Applicant’s testimony. In my view, it made its
conclusions based on erroneous findings of fact made without regard to the
material before it: Owusu-Ansah v Canada (MEI) (1998), 98 NR 312 (FCA).
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