Docket: IMM-7581-13
Citation:
2015 FC 442
Ottawa, Ontario, April 10, 2015
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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KEIRI LISBETH
CHAVEZ
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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.
Introduction
[1]
This is an application for judicial review by
Keiri Lisbeth Chavez [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by the
Immigration and Refugee Board of Canada, Refugee Protection Division [RPD],
dated November 7, 2013, in which the RPD determined that the Applicant was not
a Convention refugee or a person in need of protection. The application is
granted for the following reasons.
II.
Facts
[2]
The Applicant was born on May 12, 1990. She is a
citizen of El Salvador. She alleges fear of persecution as a woman subject to
domestic violence in El Salvador. She made the following allegations in support
of her refugee protection claim:
a)
In 2006, when she was 16 years old, the Applicant
entered into a relationship with Juan Carlos Bonilla, who was 20 years old at
the time and whom she knew from her childhood. The Applicant’s family never
approved of the relationship as Mr. Carlos had a bad reputation – he did not
work and was consuming alcohol and drugs. The Applicant escaped family pressure
by moving in with Mr. Carlos in September 2007.
b)
Mr. Carlos became verbally abusive six months
after the Applicant moved in with him, and then became physically abusive. Approximately
one year into the relationship, the Applicant tried to end it and Mr. Carlos
threatened to kill her. She feared him and knew he had a gun. The Applicant did
not want to go back to her family and cause them problems, so she decided to
stay with Mr. Carlos.
c)
In June 2009, Mr. Carlos came home at midnight
while being drunk and drugged. He had an evil look and told the Applicant he
was going to kill her. He then assaulted the Applicant, punching and kicking
her. She attempted to flee through the back door but Mr. Carlos grabbed her and
stabbed her with a fork in the hip and in the right thumb. Mr. Carlos stopped
assaulting the Applicant when his mother came to help her. The Applicant fled
to a neighbour’s home who runs a pharmacy and was helped with her wounds.
d)
Three weeks later, Mr. Carlos came home drunk
and once again assaulted the Applicant by punching her in the stomach, breast
and arms and raping her, and his mother again intervened.
e)
In September 2009, Mr. Carlos came home late at
night, drunk and intoxicated with drugs, and demanded that the Applicant have
sex with him. When she refused, he pulled out a gun and threatened to put a
bullet through her head if she resisted. The Applicant was forced to have sex
with Mr. Carlos. The morning after, the Applicant told Mr. Carlos’ mother about
the gun but she responded that there was nothing that could be done because she
was afraid of him. Mr. Carlos forced the Applicant to have sex with him with a
gun on another occasion as well.
f)
The Applicant never reported Mr. Carlos to the
police because she knew the police would not assist her. She knew another woman
who had called the police because her husband had assaulted her and the police
took her husband in for one night to sober up and he was then released without
facing any charges. The Applicant also knew that Mr. Carlos had a cousin who
was a police officer in Santa Ana and she feared that he would use his
influence to ensure Mr. Carlos was not arrested or charged.
g)
The Applicant believes the violence escalated as
a result of her trying to end the relationship. Sometime around November 2009,
Mr. Carlos again came home drunk late at night. He pulled the Applicant’s hair,
threw her on the floor, raped her and pointed a gun at her for resisting the
rape. Mr. Carlos’ mother heard the event and intervened. She told the Applicant
to leave the house, so the Applicant went to a church across from Mr. Carlos’
home. The pastor from the church escorted her to her mother’s home and then
with her mother to the doctor. The Applicant’s mother was worried about her
daughter’s safety as she had heard from neighbours that Mr. Carlos was hanging around
with criminals who sold drugs and had been involved in robberies and assaults.
Mr. Carlos had been arrested on two occasions but was never charged due to the
influence of his cousin.
h)
The following day, Mr. Carlos went to the
Applicant’s mother’s home. He shouted for the Applicant to come out and
threatened to kill her mother. The mother called the Applicant’s father in New York and he agreed to help her out. He contacted a friend of his in El Salvador, who arranged for the Applicant to travel to the Guatemalan border where a coyote would
assist her to reach the United States.
i)
On November 13, 2009, the Applicant travelled to
the Guatemalan border. She was able to enter the United States on December 9,
2009, but was apprehended by border patrol agents and taken to a detention
centre where she was processed as a refugee claimant. She attended three
immigration hearings, one in San Antonio on October 4, 2010, and two in Houston in March and April, 2011. In February 2012, the Applicant’s lawyer told her that he
would likely lose her case as all El Salvadoran cases were being rejected. The
Applicant was scared as she had also heard of El Salvadoran cases where the claimants
were immediately arrested and deported after their claims were rejected.
j)
The Applicant feared her claim was going to be
rejected. She called her sister in Canada for advice. Her sister told her to
come to Canada. The Applicant travelled to the Canadian border by bus and made
her refugee claim in Canada on April 23, 2012.
k)
After the Applicant left El Salvador, her mother told Mr. Carlos about her departure. He then started going to the
Applicant’s mother’s home and threatened to kill the Applicant in front of her
mother if she returned to El Salvador. The Applicant’s mother reported the
threats to the police.
[3]
The RPD rejected the Applicant’s claim on
November 7, 2013 and leave to apply for judicial review was granted on January
5, 2015.
III.
Standard of Review
[4]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question”.
The issues of whether the RPD erred in its credibility findings, and whether
these findings were consistent with the Chairperson’s Guidelines on Women
Refugee Claimants Fearing Gender-Related Persecution [Gender Guidelines],
are reviewable on the reasonableness standard: Joseph
c Canada (Ministre de la Citoyenneté et de l’Immigration), 2015 CF 393; Zhou v Canada (Minister of Citizenship and
Immigration), 2015 FC 5 at para 13; Cato v Canada (Minister of
Citizenship and Immigration), 2010 FC 1313 at para 13. In Dunsmuir
at para 47, the Supreme Court of Canada explained what is required of a court
reviewing on the reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[5]
I recognize that findings of credibility are the
heartland of the RPD’s jurisdiction: Giron v Canada (Minister of Employment
and Immigration) (1992), 143 NR 238 at 239 (FCA). In addition, the RPD is
obliged to assess the evidence in a manner that is consistent with the Gender
Guidelines: Ahmed v Canada (Minister of Citizenship and Immigration), 2012
FC 1494 at para 8.
IV.
Decision under Review and Analysis
[6]
The RPD was satisfied as to the Applicant’s
identity. The determinative issue was credibility. The RPD did not find the
Applicant credible for several reasons as set out below. My comments follow
each.
[7]
The RPD took issue with the Applicant’s
inconsistent description of the reasons why she believed Mr. Carlos was
physically abusive towards her. In her US claim, the Applicant had stated that
her former common-law partner was upset because she was unable to have his
children. At the RPD hearing, the Applicant testified that Mr. Carlos
mistreated her because of his drug problems. When the Applicant’s past
statements were put to her, she testified that it was true that her inability
to bear children was the source of the initial abuse in 2009. She explained
that she omitted this fact at the RPD hearing and in her Personal Information
Form [PIF] because it was a constant reminder of a great source of trauma. The
RPD rejected this explanation, finding that although “this
is a subject that may be difficult for the claimant to discuss, it is
nevertheless a very relevant and significant detail as this was apparently the
source of the problems in the couple’s relationship”. The RPD also noted
that the Applicant was able to discuss other traumatizing events involving rape
and a gun and drew a negative inference with respect to her subjective fear and
credibility as a witness. Court Comment: This finding is not reasonable
for two reasons. First, it is based on a misapprehension of the evidence given
in the US. A review of the question and answer summary of her US testimony
confirms, as the Applicant alleges, that she provided the answer regarding her
inability to have children in response to a specific question concerning the
first attack made upon her by Mr. Carlos in June 2009. While the RPD initially
and correctly noted that this answer was in respect to a “specific incident”, a page or so later, the RPD, as
Applicant’s counsel correctly commented, inflated this specific answer in
relation to a specific incident into grounds for attacking the Applicant’s
general credibility. In my view, the Applicant was under no reasonable
obligation to mention her infertility in her initial evidence (in her PIF
narrative for example) because her condition was merely the triggering event of
one of several violent attacks on her by Mr. Carlos. Therefore, it was not
reasonable for her credibility to suffer on that account. The use by the RPD of
the definite article “the source” was certainly
not justified on the evidence. The fact that a discussion of her infertility
threw Mr. Carlos into a rage on one specific occasion cannot reasonably be
converted into a finding that her infertility was “the
source of the problems” (note the plural) in their relationship. Subsequently
the RPD in its reasons transformed this reasonable non-disclosure into something
it was not, namely a “complete omission” of a “very relevant and significant detail as this was apparently the
source of the problems in the couple’s relationship”. In drawing this
conclusion, the RPD again misconstrued the evidence. The evidence was that the
source of problems in the relationship was that Mr. Carlos was a violent,
aggressive and abusive person and that he was so because of drug use or
otherwise. On the evidence properly construed, the source of their problems was
not the Applicant’s inability to have children. That is a finding which comes too
close to blaming the victim instead of the perpetrator for the assaults on the
Applicant’s person. On the evidence, the blame for Mr. Carlos’ serious and
repeated abuse of the Applicant lies squarely on Mr. Carlos, not the
Applicant’s medical situation. Therefore, this finding is set aside. Secondly,
I am unable to accept the RPD effectively equating the likely trauma occasioned
to the Applicant in giving evidence regarding sexual assaults and violence
against her, to the trauma entailed in revealing that she, as a young woman, is
not able to have children. The first two narratives concern attacks on her by a
third party, namely Mr. Carlos. Giving evidence of infertility involves
disclosing a deeply personal medical issue that she had every reason to expect
to keep private unless directly asked (as she was in the US). It is agreed that different testimony will provoke differing levels of trauma from
different witnesses. In my view, without a better foundation, it was
unreasonable for the RPD to speculate and to expect this Applicant to react
similarly to the reporting of these very different situations. I set aside this
finding as unreasonable also.
[8]
The RPD noted some confusion regarding the
sequence of certain events, namely whether one of the attacks took place on
June 2009 as stated at the RPD hearing, or in November 2009 as stated in the
Applicant’s US claim. When confronted with this contradiction, the Applicant
explained that she had told the immigration officers everything and that
perhaps they had made a mistake as a result of them only asking a few questions
and then putting the whole story together. The Applicant also explained that
the translation was conducted by telephone, which made it complicated and
difficult for her to hear. The RPD rejected the Applicant’s explanation, namely
because the US interview notes indicated that the interview had been conducted
in a question and answer format, that the attack discussed was clearly the June
2009 one, and that the interview was not short. The US interview notes also
indicated that the Applicant had not asked for anything to be clarified at any
point in the interview. The RPD consequently drew a negative inference in
respect to the Applicant’s subjective fear and credibility as a witness. Court
Comment: The RPD was incorrect in stating that the US interview document
was “not a summary”. The interview notes say
they are “not a verbatim transcript”. I take
this to mean they are a summary. However, given the centrality of the RPD’s
role in determining credibility, and the totality of the evidence on this point,
in my view the RPD’s overall finding in this connection is within the range of
possible outcomes. I am not prepared to accept that as a precondition of their
evidence being accepted in Canada, foreign immigration officers, or
interpreters engaged by their governments, should be subject to examination in Canada. In many respects, notes of foreign interviews are simply business records
legislatively admissible in Canada for the truth of their contents, and which
are in any event generally admissible on a principled basis, because there is
presumptively no motive for these officers to make false reports, and other
policy reasons. The competence of foreign government officials at such note
taking is generally a matter for the RPD to assess and determine. I should note
that the US summary in this case was more contemporaneous, and therefore more
likely to be reliable, than later testimony before the RPD. I agree with the
Applicant that US immigration notes, and such notes from other countries,
should be subject to an appropriate level of caution depending on the
circumstances in which they are made, what they purport to be, relevant country
and other factors. On balance I find this aspect of the RPD’s decision is
reasonable.
[9]
The Applicant stated in her PIF narrative that
Mr. Carlos went to her mother’s home while she was still in El Salvador, as well as after she left, and did not mention gun shots. At the hearing, the Applicant
testified that there were gun shots at her mother’s home and this occurred the
first time when she was in El Salvador. Later, the Applicant testified that she
was actually not in El Salvador when the gun shots happened and that her mother
had told her about them. The Applicant testified that she had mentioned the gun
shots to her counsel and could not explain why they were omitted from the PIF.
The RPD rejected this explanation as the Applicant had affirmed at the start of
the hearing that her PIF, including amendments, was complete, true and correct.
The RPD found that the Applicant was embellishing her story and again drew a
negative inference in respect to her subjective fear and credibility as a
witness. Court Comment: This finding is also reasonable on the evidence,
given the RPD’s role in assessing credibility.
[10]
The RPD took issue with the Applicant being
unsure of precisely what Mr. Carlos’ age was. She said he could be 25-26 as he
is two years older than her and that his birth day is “around
September 14”, but she said she did not know the year in which he was
born. The RPD found it implausible that someone in the Applicant’s position,
who was in a relationship with Mr. Carlos from the age of 16 to 19 and who had
spent two years with him, would not know his birth day or even the year of his
birth. The RPD again drew a negative inference in respect to the Applicant’s
subjective fear and credibility as a witness, and found it implausible that she
would not know this information about Mr. Carlos. Court Comment: The
record shows that the Applicant knew Mr. Carlos’ birth day except in one respect.
Her evidence in the US and in Canada was consistently that he was two years
older than she was. The Applicant correctly stated his day of birth as “14SEPT19??” in her original claim for refugee status.
She never hid the fact that she did not know what year he was born. Despite
this, the RPD seized on the fact that the transcript reported that the
Applicant said “around” in relation to the day
of his birth, and concluded she knew neither his birth day nor his birth year.
The RPD was correct to do so regarding the birth year, but that was never in issue.
The RPD erred with respect to the birth day: the Applicant never wavered on it
being September 14, except by her reported use of the word “around”. On judicial review, the Applicant filed an
affidavit of an English Spanish assistant in a law office, to the effect that
the word “around” was not used by the Applicant
but was added by the interpreter, based on the oral recording of the hearing.
The RPD did not follow up on the day of birth issue with the Applicant even
though her testimony differed from her original claim. Nor was the Applicant’s
affiant cross-examined on this point. While at the very low end of what is
required, in the circumstances of this case, I find that there was or may have
been a translator error in respect of which the Court has some evidence before
it, in addition to the Applicant’s allegation of error. In Huseynova v Canada (Minister of Citizenship and Immigration), 2011 FC 408, at para 10, this Court
held:
[10] The Applicant suggests that the
confusion in this area of testimony resulted from problems with the translation
of the nuances of language. If the Applicant wished to seriously make that
claim, she ought to have produced evidence. If, for some reason, certain words
are nuanced and may lead to different choices of words by the translator or
words and concepts not readily translatable into English, then the proper way
to proceed is by way of expert or at least knowledgeable evidence of this
linguistic/translation issue. There was no such evidence here.
I conclude that it is unsafe to fault the
Applicant for not knowing Mr. Carlos’ birth year.
[11]
Based on all of the inconsistencies noted, the
RPD found a general lack of credibility on the part of the Applicant which
extended to all relevant evidence emanating from her testimony. The RPD found
that it was more likely than not that the Applicant was not a victim of domestic
violence as she has alleged. Court Comment: The finding of general
credibility is undermined by the weaknesses identified above. Seen as a whole,
it is not possible to determine which of these several factors led to the RPD’s
conclusions, and it is therefore unsafe to allow the general credibility
finding to stand. It must be set aside, and with it goes the RPD’s finding that
the Applicant was not the victim of abuse.
[12]
The RPD stated that it took into consideration
the Applicant’s profile of a young unsophisticated lady with a grade 9
education, as well as the Gender Guidelines. Court Comment: While
counsel for the Respondent is correct in submitting that the RPD showed some
courtesy to the Applicant (as was to be expected), I am not satisfied that the Gender
Guidelines were applied by the RPD in coming to its decision. Reasons “bookended” with mention of the Gender Guidelines
at the beginning and end, but without references or discussion in between as the
evidence is assessed, are danger signals for reviewing courts: Danelia v
Canada (Minister of Citizenship and Immigration), 2014 FC 707 at para 31; Keleta
v Canada (Minister of Citizenship and Immigration), 2005 FC 56 at paras
14-15. As is well known, the RPD must not only refer to the Gender
Guidelines, it must also apply them. I appreciate that the Gender
Guidelines are not a cure all, nor a get out of jail card, and that the RPD
may still find an applicant’s credibility wanting even when applying these
guidelines correctly. In this case, however, I would have expected the Gender
Guidelines to be considered at least in connection with the RPD’s
unreasonable finding that the Applicant’s inability to have children was “the source of the problems in the couple’s relationship”.
However, the Gender Guidelines were not considered or applied there or
elsewhere, and the end result may very well have been different. I feel compelled
to set aside the analysis on this ground.
[13]
The RPD noted letters from the Applicant’s
mother, neighbour, doctor and pastor, but explained that it had “no way of assessing their origins”, and they did not
contain “security features”. The RPD also noted
some inconsistencies between the content of three of the letters and the
Applicant’s testimony, namely that they (letters from the pastor, the mother
and the neighbour) mentioned that the pastor took the Applicant to the doctor
first and then to her mother’s home. The Applicant explained that the notary
wrote the letters based on what her mother had to say and made the mistake. The
RPD rejected the Applicant’s explanation that the notary had made the mistake,
namely because it was unlikely that the notary would make the same mistake on
three different letters. The RPD found that the Applicant was again trying to
shift the blame for her inconsistent evidence. In light of the credibility
concerns, the RPD gave these letters little weight in terms of establishing the
Applicant’s allegations. Court Comment: Given the disposition of this
matter, it is only necessary to comment on the assessment of the physician’s
letter in support of the Applicant’s claim, which reads:
I, Rebeca Hernandez de Flores, an adult, Medical
Doctor, with residence in the Municipality of San Alejo, Department of La
Union, with Sole ID Document No: 04598435-1 assisted Keiri Lizbeth Chavez, on
11 November 2009 at evening hours as she had several blows to her head, thorax
and these were very serious injuries to her head and thorax and she suffered
psychological trauma. As a professional, it was my duty to ask her how she
received those blows and she told me that she was having many problems with her
partner and he was assaulting her.
As a result of the physical and
psychological trauma that Ms. Keiri had, I referred her to a psychologist as
she was very nervous, shaking and was crying.
To certify the above, I signed and sealed
this document in the Municipality of San Alejo, Department of La Union, on the
23rd day of the month of May 2013.
The RPD was mistaken to say the
physician’s letter had no “security features”.
The physician’s letter was signed by the physician and her signature was
attested to by a notary who, in addition, signed the letter and affixed his or
her stamp and seal. The Respondent suggests it could have been on letterhead
which, while true, misses the point. The point is, the physician’s letter had security
features, and the RPD was incorrect to find otherwise; the finding was contrary
to the evidence. In addition, it is important to note that the report of the
treating or attending physician is not contradicted in a single respect by any
other evidence. Whatever may be said about the letters from the pastor, mother
and neighbour, the physician’s letter is unchallenged. It was illogical and
contrary to the evidence to reject the physician’s letter because the RPD had
issues with other documents or the evidence of other parties. Moreover, and in
fact, the physician’s letter corroborated the Applicant’s evidence regarding
the nature of the attack on the Applicant. It stated, in part, “she had several blows to her head, thorax and these were
very serious injuries to her head and thorax and she suffered psychological
trauma. As a professional, it was my duty to ask her how she received those
blows and she told me that she was having many problems with her partner and he
was assaulting her”. None of these points were considered by the RPD. In
my view, the RPD was not entitled to overlook the physician’s letter. While I
recognize that the RPD is not obliged to refer to every piece of evidence
before it (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 16), a reviewing Court may
infer, as I do, that specific evidence was overlooked if it was important to
the case and not referred to or analyzed: Hassan v Canada (Minister of
Employment and Immigration) (1992), 147 NR 317 (FCA); Goman v Canada
(Minister of Citizenship and Immigration), 2012 FC 643 at para 13; Urrea
Bohorquez v Canada (Minister of Citizenship and Immigration), 2011 FC 808
at para 13; Saraci v Canada (Minister of Citizenship and Immigration),
2005 FC 175 at para 33. This letter is not like a paragraph buried in a mountain
of country condition documents. It is a simple and direct account confirming
that the Applicant was the victim of a vicious and violent attack. In this
respect, the case at bar is all but indistinguishable from Lumaj v Canada
(Citizenship and Immigration), 2012 FC 763 at para 70:
[70] The RPD muses about the
Physician’s Report but nowhere tells us what weight it should have, or whether
it is accepted as evidence, or rejected. At the same time, this letter is
crucial to the Principal Applicant’s account that she was raped. If accepted,
it directly contradicts the RPD’s finding that the “account of the rape has
been created to support the claim.” The Physician’s Report was so crucial that
the RPD was obliged to address it and provide clear findings on whether it was
accepted and what weight it should receive. It goes to the heart of the
Decision and yet the RPD does not address it. This is a reviewable error. See Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at
paragraph 15 and O.E.N.R. v Canada (Minister of Citizenship and Immigration)
2011 FC 1511 at paragraphs 35 and 36.
V.
Conclusions
[14]
Stepping back, and reading the RPD’s decision in
its entirety and as a whole as this Court is required to do, I find that the
decision, while reasonable in some respects, overall does not fall within the
range of possible, acceptable outcomes that are defensible in respect of the
facts and law.
[15]
Neither party proposed a question to certify and
none arises.
[16]
The application for judicial review should be
allowed, and no question is certified.
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