Docket: IMM-5149-15
Citation:
2016 FC 565
Ottawa, Ontario, May 20, 2016
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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HUGUETTE
KABASELE IYOMBE
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision, dated September 18, 2015, of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada [IRB], which found that the
applicant was neither a “Convention refugee” nor a “person in need of
protection” pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
The applicant is a citizen of the Democratic
Republic of Congo [DRC] who alleges that, as a nurse, she treated a young woman
[the victim], who had been raped by a high-ranking police officer [the
officer]. The applicant accompanied the victim to the clinic, and then to the
public prosecutor in order to denounce the rape. The applicant alleges that as
a result of her assisting the victim, she was subsequently arrested and
detained by the police, and that the same officer who committed the rape
accused the applicant of encouraging the victim to produce a defamatory
declaration against him. The applicant was released from custody due to a
health issue. Following her release, she continued to be threatened by the
officer.
[3]
The RPD noted that the applicant had maintained
in her Basis of Claim [BOC] form and file, as well as in her testimony, that
the sole reason she was being targeted by the officer was because she had
accompanied the victim in denouncing said officer to the authorities, noting
that the applicant had not alleged any gender-based persecution from the
officer, nor did she describe the beatings she endured while incarcerated as
being gender-based violence. The RPD therefore concluded, on the basis of the
oral testimony and documentary evidence, that consideration of section 96 of
IRPA was not applicable. This finding is not questioned before the Court today.
[4]
With respect to the existence of a personalized
risk under subsection 97(1) of the IRPA, the RPD determined that, on a balance
of probabilities, the applicant was not credible. The standard of
reasonableness applies to the credibility finding made by the RPD, including
its conclusion that there is no credible basis for the claim (Hernandez v
Canada (Minister of Citizenship and Immigration), 2016 FC 144 at para 3).
The Court shall not interfere with the RPD’s decision if it 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). The
reasons provided by the RPD in this case are clear and transparent.
[5]
Firstly, the RPD did not believe that the
applicant was persecuted or targeted by the officer whose name she did not
know. Since the only distinguishing feature of the officer provided by the
applicant was that he was “high-ranking”, the applicant was asked at the
hearing how she knew this fact. She first stated that she knew the officer was
high-ranking because of his uniform, but when asked to provide details, the
applicant stated that she had never actually seen the officer and that this was
told to her by the victim. The applicant later stated that the officer’s
uniform demonstrated that he was high-ranking because it was blue, and then
adjusted her testimony yet again to state that the uniform had certain buttons,
such as one with a leopard image, which indicated his rank. In both cases, the
applicant was unable to explain how a blue uniform or a uniform with leopard
buttons meant that the officer was high-ranking. Later, the applicant testified
that while she was in detention, the other police officers referred to the
officer as the chief of the police station. When asked why she had not
mentioned this information when initially asked to explain how she knew the
officer was high-ranking, the applicant stated that until the more precise,
subsequent question was asked, she did not think to explain that the officer
was the police chief. The RPD found that the applicant had adjusted her
testimony and that she should have been consistent in her BOC form and her
testimony by mentioning that the officer was actually the police chief. As a
result, the RPD drew an adverse credibility finding on the part of the
applicant.
[6]
Secondly, with respect to the applicant’s
alleged detention by the DRC police for two weeks – from May 13, 2015 to May
24, 2015 – the RPD asked the applicant why she had responded negatively to a
question in the Canadian form IMM-0008, which asks if she was ever sought,
arrested or detained by the police or any other authority in any country. The
applicant initially responded that this was because she had not told her
sisters in Canada of her mistreatment, and because she did not know the refugee
process in Canada. The applicant then adjusted her testimony to state that she
did tell the agent filling out the form and had no reason to think that the
agent made a mistake filling out the form for her. The applicant was also asked
why she had responded negatively in another form – IMM-5669 – with respect to
having been previously detained and incarcerated. The applicant responded that
she did tell the agent at the airport that she had been previously arrested,
contrary to the written response to that question in form IMM-5669. She did not
remember why she had signed the form with this written response, but maintained
that she had verbally answered yes to having been detained and incarcerated. The
RPD did not accept these explanations. The RPD noted that the applicant is
university educated, had stated that she understood French, and had proceeded
at her hearing in French without the need for an interpreter. As a result, the
RPD determined that the applicant had understood forms IMM-0008 and IMM-5669,
and signed them to the effect that she agreed with their contents and declared
said contents to be truthful. The burden of proof was on the applicant with
respect to the evidence, and the RPD therefore determined that her failure to
state in the forms that she had been previously detained and arrested further
undermined her credibility.
[7]
Thirdly, the RPD also noted that when the
applicant entered Canada on a cancelled Canadian visa, she stated to a Canadian
border officer that she had no problems in returning to the DRC the following
day. When asked at the hearing why she had made this statement, the applicant
stated that she had been demoralized at the news that she had to go back and
did not know the Canadian refugee process. When asked why she had not informed
the border officer that she did have problems in returning to the DRC, in spite
of not knowing the refugee process, the applicant stated that she was very
emotional at the time due to the cancelled visa. Counsel for the applicant further
stated that the applicant may have meant that she had no physical
problems in returning to the DRC. The RPD did not accept these explanations.
The RPD found that if the applicant was facing a danger to her life and further
illegal detention and torture in the DRC, the applicant would have stated this
to the border officer rather than declaring that she had no problems in
returning to the DRC. Her statement thus reflected behaviour incompatible with
the risk of harm being alleged. Moreover, there was no evidence that the
applicant’s statement of having no problems with returning to the DRC was made
in relation to physical problems only. As a result, the RPD made a negative
credibility finding.
[8]
Fourthly, the RPD also considered the
documentary evidence in light of the allegation made by the applicant that she
was whipped and kicked in the back while in police custody and that she had
sought medical treatment the day she was released. The RPD noted in this regard
that the medical documents provided by the applicant made no mention whatsoever
of the claimant having visible marks on her body and that these documents
therefore offered no probative value to corroborate these allegations. With
respect to the applicant’s skin condition that she allegedly developed while in
police custody, the RPD determined that the applicant’s overall lack of
credibility and the lack of documentary evidence did not support this
allegation. With respect to the medical report and policy complaint
corroborating the victim’s rape, the RPD noted that even if these documents
were valid, they made no reference whatsoever to the applicant and therefore
did not corroborate, per se, that the applicant was in any way
associated with the victim such that she would be targeted by the victim’s rapist.
The RPD found these documents to have no probative value with respect to the
applicant’s allegations.
[9]
Finally, the RPD also considered the Court’s
decision in Quintero Cienfuegos v Canada (Citizenship and Immigration),
2009 FC 1262 at para 1 [Quintero Cienfuegos] to the effect that the
accumulation of contradictions between the applicant’s testimony, port-of-entry
statements, and BOC form are sufficient for a negative credibility finding. The
RPD also noted that risks identified in country condition documentation are not
sufficient to establish that a claim is well-founded; rather, a claimant must
demonstrate how country conditions apply to her personal circumstances, which
the applicant failed to do in this case, on the balance of probabilities. The
RPD concluded that the applicant had not established the credibility of her
allegations with respect to being targeted by the officer, and had therefore
not established on the balance of probabilities that she faced a prospective
risk of harm in the circumstances. As a result, there was no credible basis for
her claim with respect to subsection 107(2) of IRPA.
[10]
Today, the applicant challenges the
reasonableness of these various non-credibility findings. With respect to the
RPD’s finding regarding how the applicant knew that the officer was
high-ranking, the applicant submits that she is a simple civilian and thus not
an authority on what indications or criteria would be useful in establishing
the rank of an officer. Rather, the applicant was simply testifying to what she
perceived to be indications of the officer’s high rank, and she was entitled to
present testimony based on this belief or perception that she held. With
respect to the RPD’s finding that she had omitted to mention in her BOC form
that the officer was the police chief, the applicant states that this omission
does not alter the fact that a police officer was causing or threatening to
cause her harm, and therefore that a fear of persecution existed. The applicant
asserts that a reasonable margin of appreciation must be applied to perceived
flaws in a claimant’s testimony, that the RPD should not engage in a
microscopic examination of the evidence, and that explanations that are not
obviously implausible should be taken into account. Moreover, inconsistencies
or contradictions found by the RPD must be significant and central to the claim
and must not be exaggerated.
[11]
With respect to the applicant’s failure to
mention that she was previously sought, arrested or detained by police in
response to questions in port-of-entry forms IMM-0008 and IMM-5669, the
applicant submits that she testified under oath that it was an immigration
officer who filled out the forms, and that she had verbally responded that she
had been previously detained. While she may have negligently signed these forms
without verifying their content, the applicant maintains that she was alone and
in a stressful environment at the time. Moreover, she points out that she was
not under oath when the forms were filled out, and the statements she made were
given without the guidance of a lawyer or immigration consultant. The applicant
also cites secondary sources and case law, which underline the legitimate
reasons and “inhibitory factors” behind why initial interviews with asylum
seekers may legitimately produce errors, omissions and apparent discrepancies.
[12]
The applicant also reiterates that her statement
to the Canadian border officer that she would have no problems returning to the
DRC was made in the context of feeling very demoralized and emotional at the
prospect of being sent back to the DRC due to a cancelled visa, and due to her
lack of awareness of the Canadian refugee determination process. In addition,
the applicant makes a distinction between the physical or logistical
possibility of returning, and the problems she would face if she were to return;
while she would not be prevented from going back to the DRC, she submits that
she would face serious problems from the officer that raped the victim if she
were to do so.
[13]
Finally, the applicant states that the medical
documents she submitted corroborate the victim’s rape by the officer and that
the RPD was too harsh in making a finding that there is no credible basis for
the claim. In addition, the documents on country conditions in the DRC establish
that there is a lack of justice in the country, as well as human rights abuses.
Furthermore, there was a presumption in the applicant’s favour with respect to
the evidence produced.
[14]
The arguments made by the applicant are not
convincing. I am not satisfied that the credibility findings made by the RPD
are unreasonable. I basically endorse the arguments for dismissal made by the
respondent in both the memorandum of arguments and the oral submissions of
counsel. The RPD clearly identified in its reasons many omissions and
inconsistencies between the applicant’s testimony, port-of-entry statements,
and statements in her BOC. The RPD also found that the applicant adjusted
aspects of her testimony during the course of the hearing. This Court has
repeatedly confirmed that such contradictions or omissions are sufficient to
serve as the basis for a negative credibility finding (Quintero Cienfuegos
at para 1). Moreover, the RPD determined that other aspects of the
applicant’s behaviour and statements undermined the credibility of her claim –
for example, her statement to a Canadian border officer that she had no
problems returning to the DRC the following day. Taken together, it was
reasonable for the RPD to draw a negative credibility finding on the basis of
these factors (Siete v Canada (Minister of Citizenship and Immigration),
2002 FCT 1286 at para 19). The applicant is simply asking the Court to re-evaluate
the evidence submitted at the hearing, and to substitute its own opinion. In
the present case, the applicant has not shown that the RPD’s findings are
arbitrary or unreasonable, considering the weaknesses of the applicant’s
evidence with respect to central elements of her claim. The applicant had the
burden to prove that her allegations were well-founded, and she failed to do
so. She therefore did not establish her claim on a balance of probabilities.
[15]
Yet, the fact that the RPD finds that an
applicant’s testimony is not credible does not, de facto, lead to a
finding that there is no credible basis for a claim (Foyet v Canada
(Minister of Citizenship and Immigration), 2000 CanLII 16312 (FC) at para
23 [Foyet]). There is a high threshold for finding that there is no
credible basis for a claim (Ramón Levario v Canada (Citizenship and
Immigration), 2012 FC 314 at para 18). The RPD may not make a “no credible
basis” finding in cases where there is independent and credible documentary
evidence (Foyet at para 19). However, as the Federal Court of Appeal
specified in Rahaman v Canada (Minister of Citizenship and Immigration),
2002 FCA 89 at para 19, “in order to preclude a “no credible
basis” finding, the “independent and credible documentary evidence” to which
Denault J. [in Foyet] refers must have been capable of supporting
a positive determination of the refugee claim.” This is not the case here.
[16]
I am satisfied that the RPD carefully examined
the documentary evidence provided by the applicant. The RPD noted that neither
the medical documents relating to the rape of the victim, nor the complaint,
actually referred to the applicant. As a result, the RPD could give these
documents no probative value in terms of being able to corroborate her
allegations that she was being targeted by the police officer on this basis. As
for the medical documents relating to the applicant’s skin condition, which she
allegedly developed while in police custody, the RPD found that these documents
did not corroborate the applicant’s claim that she had been kicked and whipped
in the back, as there was no mention of markings or injuries of this kind. As a
result, and in light of the other concerns with the applicant’s credibility,
the RPD found that these documents also lacked probative value.
[17]
Finally, with respect to the country condition
evidence submitted by the applicant, the RPD noted that a claimant must
demonstrate how country conditions apply to his or her particular
circumstances. While these documents may well establish a pattern of human
rights abuses in the country, the applicant nevertheless failed to demonstrate
how these conditions applied to her individual case, particularly in light of
the fact that the RPD found key aspects of her story to lack credibility.
Therefore, it was reasonable for the RPD to determine that the documents
submitted did not amount to “credible documentary evidence”, and as a result,
it was also reasonable for the RPD to conclude that there was no credible basis
for the applicant’s claim pursuant to subsection 107(2) of IRPA.
[18]
For the foregoing reasons, the application for
judicial review is refused. Counsel agree that this case does not raise a
question of general importance.
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