Docket: IMM-2253-15
Citation:
2016 FC 173
Toronto, Ontario, February 9, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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CHANCELVIE DE
GRACE YOBATH NTATOULOU
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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AND
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant seeks judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of a decision by the Refugee Protection Division [RPD] of the
Immigration and Refugee Board, wherein the RPD rejected the Applicant’s claim
for refugee protection under sections 96 and 97 of the IRPA.
II.
Background
[2]
The Applicant, Chancelvie de Grace Yobath
Ntatoulou (age 31), is a citizen of the Republic of Congo.
[3]
The Applicant alleges witnessing, on
April 5, 2014, the beating of a friend, citizen of the Democratic Republic
of Congo, by the Congolese “Direction
de la surveillance du territoire” [DST].
[4]
Then, on May 17, 2014, while at a
restaurant with work colleagues, the Applicant expressed political opinions
against the president of the Republic of Congo (Denis Sassou Nguesso). She was
accused by three work colleagues, as well as other patrons in the restaurant,
of supporting the opposition party. Later in the evening, the Applicant was
informed, by an elder man living in the same neighbourhood, that the DST was
looking for her. Fearing for her security, she packed her belongings; and,
using a visitor’s visa for the United States, previously obtained for tourism
purposes, she fled to the United States on May 18, 2014.
[5]
While living in Washington, D.C., with a friend,
the Applicant tried to contact her husband, a Canadian citizen. Four months
after her arrival in the United States, her husband brought her from Washington
to the Canadian border on September 17, 2014. The Applicant sought refugee
status at the Canadian border.
[6]
In a decision, dated April 16, 2015, the
RPD determined that the Applicant is neither a Convention refugee nor a person
in need of protection. Specifically, the RPD held that the Applicant lacks
credibility due to her behaviour following the alleged incidents of
persecution; as a result of her four month delay in making a claim; and, due to
her failure to claim asylum in the United States. The RPD held that the
behaviour is not compatible with that of an individual with a subjective fear
of persecution.
III.
Issue
[7]
The central issue to be determined by this
application for judicial review is:
Did
the RPD err in its finding that the Applicant lacked credibility?
IV.
Legislation
[8]
The following are the relevant
legislative provisions:
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Convention
refugee
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Définition de
« réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need
of protection
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Personne à
protéger
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist, of torture
within the meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
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b) soit à une menace à sa vie ou au risque
de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
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(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,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(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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(2) A person in
Canada who is a member of a class of persons prescribed by the regulations as
being in need of protection is also a person in need of protection.
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(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
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V.
Position of the Parties
[9]
The Applicant’s main argument is that the RPD
erred in rejecting her refugee claim on the sole basis that she failed to make
an asylum claim in the United States; and, delayed her claim until she arrived
to Canada, four months after her arrival to the United States. The Applicant
firstly submits that a lack of subjective fear is not a determinative issue on
a section 97 of the IRPA analysis (Mamak v Canada (Minister of Citizenship
and Immigration), 2014 FC 730 at para 6). Secondly, it was unreasonable,
under a section 96 of the IRPA analysis, for the RPD to find that the Applicant
lacked a subjective fear due to a failure to make a claim elsewhere or delay in
making a claim that cannot be the only basis on which a decision-maker can rely
to make a finding that an applicant lacked subjective fear – there must be
other supporting elements. Thirdly, the RPD did not assess the merits of the
claim, with regard to the events that allegedly happened in the Republic of
Congo; rather, the RPD only based its decision on the behavior of the Applicant
in the United States.
[10]
Conversely, the Respondent submits that the
RPD’s negative credibility findings are reasonable given the Applicant’s
behavior and her failure to seek asylum in the United States which undermined
her claim of subjective fear. Firstly, a delay in making a claim and a failure
to make a claim at the first opportunity are relevant factors in the assessment
of an applicant’s credibility (Durmus v Canada (Minister of Citizenship and
Immigration), 2015 FC 330 at para 52; Gavryushenko v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1209 (QL), 194 FTR 161 at para
11). Secondly, a delay in making a claim can be determinative in the absence of
satisfactory explanation, even where the credibility of an applicant’s claim is
not otherwise challenged (Chikerema v Canada (Minister of Citizenship and
Immigration), 2012 FC 616 at para 21). Thirdly, it was due to the finding
of a lack of subjective fear that the RPD held the Applicant was not credible.
Claims under sections 96 and 97 of the IRPA may be rejected on the basis of an
applicant’s lack of credibility (Canada (Minister of Citizenship and
Immigration) v Sellan, 2008 FCA 381 at para 3).
VI.
Standard of Review
[11]
The RPD’s determinations of credibility and
weighing of evidence are to be reviewed under the standard of review of
reasonableness (Iqbal v Canada (Minister of Citizenship and Immigration),
2014 FC 415 at para 15). This Court owes the highest degree of deference to
credibility findings of the RPD unless such findings are capricious or without
supporting evidence; or, if the RPD does not provide sufficient reasons as to
how it arrived at its conclusions (Elhassan v Canada (Minister of
Citizenship and Immigration), 2013 FC 1247 at para 25; Odetoyinbo v
Canada (Minister of Citizenship and Immigration), 2009 FC 501 at para 3).
VII.
Analysis
[12]
The Applicant explained during her testimony
before the RPD that she did not seek asylum in the United States because her
spouse, a Canadian citizen, lives in Canada; and, she was attempting to contact
him. Effectively, after four months of research, the Applicant left the United
States and crossed the Canadian border with the assistance of her husband.
[13]
The RPD rejected the Applicant’s explanations
for her delay in making her claim based on the fact that the Applicant
previously traveled by herself; had met French speaking individuals in
Washington; and, because she has advanced level of education (accounting and
marketing); and it was considered that she should have done otherwise.
[14]
The Court finds that the RPD erred in its
determination that the Applicant lacked credibility because of her alleged lack
of subjective fear. Neither failure to make a claim elsewhere, nor, delay in
making a claim are, in and of themselves, determinative (Pena v Canada
(Minister of Citizenship and Immigration), 2011 FC 326 at para 4 [Pena];
Hue v Canada (Minister of Citizenship and Immigration), [1988] FCJ No
283; Wamahoro v Canada (Minister of Citizenship and Immigration), 2015
FC 889 at para 32):
[T]he long delay in making a claim must not
be a pretext and is not in itself sufficient to reject a refugee claim without
reviewing the other facts in the record.
(Malaba v Canada (Minister of Citizenship
and Immigration), 2013 FC 84 at para 11)
[15]
Unfortunately, this is exactly what the RPD did.
The RPD had a duty to carefully consider the explanations provided by the
Applicant, but, failed to do so (Pena, above at para 4). The Applicant
has a spouse in Canada, with whom she had a child; and, she preferred to claim
refugee status in Canada for the very purpose of family reunification. This
Court has previously held this to be a valid reason:
[65] The only basis for a negative
credibility finding is the Board's consideration of the Applicants' delay in
claiming protection while residing in the United States. It is true that delay
or a failure to claim can ground an adverse credibility finding (Goltsberg,
above, at para 28). However, the Board cannot draw an adverse inference if
there is a valid reason for not claiming asylum in a foreign country (Ortiz
Garzon, above at para 30). The fact that the Applicants' sister and brother
reside in Canada is, in my view, a valid reason to transit through the United
States and then file a claim in Canada. The IRPA promotes the reunification of
refugees with their family members (subsection 3(2)(f)). Further, the
Safe Third Country Agreement between Canada and the United States includes a
specific exception for family members. For the Board to not even consider this
potential "valid reason" renders its analysis of the Applicants'
delay in claiming protection unreasonable.
(Rajadurai v Canada (Minister of
Citizenship and Immigration), 2013 FC 532 at para 65 [Rajadurai])
[16]
In Rajadurai, above, the Applicants had
spent two and a half months in the United States before applying for refugee
protection. In Al Ismaili v Canada (Minister of Citizenship and Immigration),
2014 FC 84, the Applicants came to Canada to make a claim after spending three
months in the United States. In both cases, the Court did set aside the RPD’s
decisions as the RPD had drawn an adverse inference due to the Applicants delay
in making a refugee claim. In the present case, the Applicant stayed four
months in the United States before reaching Canada, in an attempt to reunite
with her spouse. The Court finds that a four-month delay, in comparison to the
aforementioned decision is not an excessive delay warranting an adverse
inference of lack of subjective fear.
[17]
Given the foregoing, the RPD erred in finding
that the Applicant lacked credibility by relying on an unreasonable finding of
lack of subjective fear. The Applicant did provide exceptionally reasonable
explanations as to why she did not claim asylum in the United States and delay
her refugee status claim for four months. She did so because of a desire to
reunite with her husband and her child.
VIII.
Conclusion
[18]
Consequently, the application for judicial
review is granted.
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