Docket: IMM-3818-15
Citation:
2016 FC 598
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 30, 2016
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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JENNY MARCELA
TOVAR MORA
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SARA SIERRA
TOVAR
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Applicants
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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]
The applicants, Jenny Tovar Mora and her
daughter Sara Sierra Tovar, are Colombian citizens. They are applying for
judicial review of a decision rendered in July 2015 by the Refugee
Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB)
refusing to grant them refugee status or protected person status under
sections 96 and 97 of the Immigration and Refugee Protection
Act (IRPA), S.C. 2001, chapter 27, on the ground that
Ms. Tovar’s account is not credible.
[2]
Ms. Tovar argues that the RPD, in rendering
its decision, did not have sufficient reasons to question her credibility and
that the RPD did not comply with the Chairperson Guidelines 4: Women Refugee
Claimants Fearing Gender-Related Persecution (Guidelines) issued by the
IRB. Ms. Tovar and her daughter therefore ask that the Court set aside the
RPD’s decision and refer the matter back for redetermination before a
differently constituted tribunal, in light of all the evidence submitted.
[3]
The issues raised in this application for
judicial review are as follows:
- Did the RPD commit an error by concluding that Ms. Tovar
was not credible?
- Did the RPD commit an error by not referring to the Guidelines
in its decision?
[4]
For the following reasons, Ms. Tovar’s and
her daughter’s application for judicial review must be rejected. I cannot find
any error in the RPD’s decision that would justify the Court’s intervention. I
find the RPD’s conclusions regarding Ms. Tovar’s account lacking
credibility to be reasonable and to clearly fall within the possible,
acceptable outcomes in the circumstances. Moreover, I conclude that the RPD
complied with the principles established by the Guidelines in its handling of
Ms. Tovar’s claim.
I.
Background
A.
The Facts
[5]
Ms. Tovar was a storekeeper in the cities
of Vista Hermosa and Puerto Gaitan in Colombia. In April 2013, a man
known as “Le Singe” approached
Ms. Tovar several times on behalf of another person called “Le Monsieur.” Le Singe told Ms. Tovar
that Le Monsieur wanted to meet with her in an isolated location and that
he would take care of her by buying all of her business’s merchandise.
Ms. Tovar did not respond to these advances. She investigated the identity
of the two individuals and learned that they were affiliated with the
Revolutionary Armed Forces of Colombia (FARC).
[6]
On April 13, 2013, Ms. Tovar again
refused Le Singe’s invitation to meet with Le Monsieur, after which
Le Singe threatened her with a firearm and insulted her. Ms. Tovar hastily
left Vista Hermosa and went to Bogota, the capital of Colombia. She moved in
with her mother there and stopped all her commercial activities, but did not
file a complaint with the Colombian police.
[7]
Two years went by without incident; then, in
April 2015, Ms. Tovar received a threatening text message on her personal
cellphone, directed at her and her daughter Sara. Ms. Tovar called back
the number and found that it came from a public telephone in Vista Hermosa.
Ms. Tovar believed that the call came from Le Singe and took steps to
leave Colombia. She also reported the incident to the Attorney General’s
office, which advised her to change her address and seek police protection.
[8]
Ms. Tovar quickly left Colombia and came to
Canada with her daughter in May 2015, via the United States. She then
filed a claim for refugee protection with Canadian authorities.
B.
The RPD’s decision
[9]
In the decision rendered in July 2015, the
RPD concluded that the story told by Ms. Tovar and her daughter is not
credible. In particular, the RPD pointed to two major contradictions between
the Basis of Claim (BOC) Form completed by Ms. Tovar and her testimony
during the hearing before the tribunal. In her BOC Form, Ms. Tovar said
that she was persecuted because she had refused a business proposal from Le Monsieur
and that residents of Vista Hermosa had told her about Le Singe’s and Le Monsieur’s
affiliation with FARC. At the hearing, on the other hand, Ms. Tovar said
that she had refused sexual advances from Le Monsieur and that she had been
informed of the two individuals’ affiliation with FARC through one of her
customers.
[10]
According to the RPD, Ms. Tovar also failed
to mention in her BOC Form that several women had apparently disappeared under
similar circumstances. In addition, the RPD did not find it credible that Le Singe
and Le Monsieur were still looking for Ms. Tovar, as she claimed, two
years after she had refused Le Monsieur’s alleged advances even though
nothing had happened in the intervening time. The RPD also finds confusing
Ms. Tovar’s testimony concerning public cellphones and concludes that
Ms. Tovar’s actions were inconsistent in that she did not file a complaint
with Colombian authorities following the first series of incidents in 2013,
but did so immediately following the incident in 2015, only a few days
after she decided to leave Colombia.
C.
Standard of review
[11]
It is well established that, with regard to the
credibility or plausibility of a refugee protection claimant, the RPD’s
conclusions are factual and command a high degree of judicial deference,
considering the role of the trier of fact in the administrative tribunal (Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12 [Khosa] at
paragraph 59; Lawal v. Canada (Citizenship and Immigration), 2015 FC 155
at paragraph 9; Martinez Giron v. Canada (Citizenship and Immigration),
2013 FC 7 at paragraph 14; Dong v. Canada (Citizenship and
Immigration), 2010 FC 55 at paragraph 17).
[12]
Assessing credibility is the very core of the
RPD’s expertise and is intimately linked to the facts of a given case (Pepaj
v. Canada (Citizenship and Immigration), 2014 FC 938 at
paragraph 13; Lubana v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 116 at paragraphs 7–8). The RPD is
therefore better positioned to assess the credibility of a refugee claimant,
since it can see the claimant in a hearing, observe the claimant’s manner, and
hear the claimant’s testimony. The tribunal thus has the opportunity and the
capacity to judge the claimant’s testimony, behaviour, candidness, and spontaneity
of response, as well as the coherence and uniformity of the claimant’s
statements. Moreover, the RPD benefits from the specialized knowledge of its
members in assessing evidence that deals with facts related to their field of
expertise (El-Khatib v. Canada (Citizenship and Immigration), 2016 FC 471
at paragraph 6).
[13]
Since it is a mixed issue of fact and law, the
applicable standard of review for questions of credibility and assessment of
evidence by the RPD is therefore that of reasonableness (Aguebor v. Canada
(Minister of Employment and Immigration), [1993] FCJ No. 732
(FCA) [Aguebor] at paragraph 4; Bikoko v. Canada (Citizenship
and Immigration), 2015 FC 1313 at paragraph 8). In such
questions of credibility and assessment of evidence, the Court must not
substitute its point of view for that of the administrative tribunal, even if
that point of view could, in the Court’s eyes, lead to a better result (Khosa
at paragraph 59). The Court must only intervene if the decision-making
process fails to be transparent and intelligible, and if the decision
does not “fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
v. New Brunswick, 2008 SCC 9 [Dunsmuir] at
paragraph 47).
[14]
The reasons for a decision are considered to be
reasonable “if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62
[Newfoundland Nurses] at paragraph 16). In this context, the Court
must exercise deference toward the tribunal’s decision. Its mission is not to
weigh the case’s evidence once again or to interfere with the tribunal’s
conclusions of fact; instead, it should limit itself to determining whether a
conclusion is irrational or arbitrary (Mikhno v. Canada (Citizenship and
Immigration), 2010 FC 385 at paragraphs 32–33; Diallo v.
Canada (Citizenship and Immigration), 2007 FC 1062 at
paragraph 30).
[15]
To assess reasonableness, the Court must review
the RPD’s reasons, but it can also examine the case itself, if necessary, to
assess the reasonableness of the decision (Newfoundland Nurses at
paragraph 15). That said, judicial review is not a “line-by-line treasure hunt for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper,
Ltd., 2013 SCC 34 at paragraph 54).
[16]
The RPD’s assessment of a refugee protection
claimant’s credibility must be transparent and intelligible (Hilo v. Canada
(Employment and Immigration) (1991), 130 NR 236 (FCA) [Hilo]
at paragraph 6). Thus, the tribunal’s reasons must constitute an
assessment of the applicant’s credibility expressed “in
clear and unmistakable terms.” Conversely, a vague and general analysis
would remain insufficient, since a tribunal cannot be satisfied with drawing
conclusions on credibility without explaining why or how that credibility is
disputed or appears unsatisfactory.
II.
Analysis
A.
Did the RPD commit an error by concluding that
Ms. Tovar was not credible?
[17]
Ms. Tovar and her daughter submit that the
RPD was overzealous in trying to find contradictions and implausibilities in
their story. They claim that the RPD did not take the cultural aspect into
account when considering the sexual advances Ms. Tovar experienced.
Moreover, they claim that the RPD did not understand their explanations
regarding public cellphones used in Colombia. They also say the RPD did not
grasp the fact that, as required, Ms. Tovar first sought refuge in her own
country, following the incidents that occurred in April 2013.
Ms. Tovar argues that the testimony of a refugee claimant is assumed to be
true (Adu v. Canada (Minister of Employment and Immigration), [1995]
FCJ No. 114 (FCA) at paragraph 1; Maldonado v. Canada
(Minister of Employment and Immigration), [1980] 2 FC 302 (FCA) [Maldonado]
at paragraph 5), and that the RPD decision must be based on a balance of
probabilities.
[18]
I cannot accept the arguments put forward by
Ms. Tovar and her daughter. Rather, I share the Minister’s opinion that
all the evidence in the record was considered by the RPD and amply supports the
RPD’s findings regarding Ms. Tovar’s lack of credibility. The assessment
of the evidence and Ms. Tovar’s credibility is a matter of the RPD’s
discretion, and it is not up to the Court to substitute its own interpretation.
[19]
The principles governing the manner in which an
administrative tribunal must assess the credibility and plausibility of a
refugee protection claimant’s account can be summarized as follows. From the
outset, the Court must clarify that the presumption of truthfulness mentioned
in Maldonado is not unchallengeable, and the refugee protection claimant’s
lack of credibility suffices to rebut it. Furthermore, even though they may be
insufficient when taken individually or in isolation, the accumulation of
contradictions, inconsistencies and omissions regarding crucial elements of a
refugee protection claimant’s account can support a negative conclusion about
his credibility (Sary v. Canada (Citizenship and Immigration), 2016 FC 178
at paragraph 20; Quintero Cienfuegos v. Canada (Citizenship and
Immigration), 2009 FC 1262 at paragraph 1).
[20]
Of course, the RPD cannot base its findings
regarding the claimant’s lack of credibility on minor contradictions arising in
evidence that is secondary or peripheral to the refugee protection claim. The
tribunal must therefore not delve too deeply in its approach or conduct a “microscopic” analysis of the evidence. In other
words, not all inconsistencies or implausibilities will support a negative
finding of credibility; such findings should not be based on microscopic
examination of issues irrelevant or peripheral to the claim (Attakora v.
Canada (Minister of Employment and Immigration) (1989), 99 NR 168
(FCA) at paragraph 9; Cooper v. Canada (Minister of Citizenship and
Immigration), 2012 FC 118 [Cooper] at paragraph 4; Akhigbe
v. Canada (Minister of Citizenship and Immigration) 2002 FCT 249
at paragraph 16).
[21]
However, a lack of credibility concerning the
central elements of a claim could extend to other elements of the refugee
protection claim (Sheikh v. Canada (Minister of Employment and Immigration),
[1990] FCJ No. 604 (FCA) at paragraphs 7–9) and generalized to
all of the documentary evidence presented to corroborate a version of the
facts.
[22]
The RPD is also entitled to draw conclusions
concerning the credibility of a refugee protection claimant based on
implausibilities, common sense and rationality, and to reject evidence if it is
inconsistent with the probabilities affecting the case as a whole (Hilo at
paragraph 4; Shahamati v. Canada (Employment and Immigration),
[1994] FCJ No. 415 (FCA) at paragraph 2; Yin v. Canada
(Citizenship and Immigration), 2010 FC 544 at paragraph 59; Hernandez
Utrera v. Canada (Citizenship and Immigration), 2007 FC 1212
at paragraph 61). Nonetheless, the RPD’s conclusions and inferences must
always remain reasonable and be formulated in clear and unmistakable terms (Cooper
at paragraph 4).
[23]
The RPD’s findings on Ms. Tovar’s lack of
credibility in this case are based on several valid grounds. First, it should
be noted that Ms. Tovar gave a different version of her story at the
hearing and enhanced her testimony by alleging that Le Monsieur made sexual
advances toward her, which she had not previously mentioned in her refugee
protection claim. Since this was far from peripheral to her claim, it is
difficult to imagine that Ms. Tovar did not describe this matter in her
initial story, as she was required to do.
[24]
Moreover, the RPD found several other
implausibilities and inconsistencies in Ms. Tovar’s testimony, which
undermined her credibility. Among these was her omission of the fact that Le
Singe was apparently responsible for the disappearance of several other women,
a significant element for establishing an objective fear of persecution. The
RPD was also right to focus on Ms. Tovar’s failure to contact the
Colombian authorities after she received physical threats from Le Singe in 2013,
when she planned to stay in Colombia. It was not logical that she did not seek
protection at that time when two years later, in 2015, she quickly filed a
report just a few days after the incident when she had already decided to leave
the country. The RPD also found it unlikely that Ms. Tovar was suddenly
threatened two years after the original incident when she had been living in
Bogota during that period without being bothered by Le Singe or Le Monsieur.
According to Ms. Tovar, Le Singe had been fairly insistent in April 2013
and had contacted her repeatedly over a very short period of time. Under these
circumstances, it is certainly not unreasonable for the RPD to conclude that
any reprisals Ms. Tovar was going to experience would have occurred well
before April 2015.
[25]
The Court definitively finds that the RPD’s
analysis of Ms. Tovar’s credibility is not tainted by any reviewable
error. It is well established that the Court must show significant deference to
the RPD with respect to the assessment of refugee claimants’ credibility, since
these credibility issues are the very core of the RPD’s authority (Dunsmuir at
paragraph 53; Aguebor at paragraph 4; Rahal v. Canada
(Citizenship and Immigration), 2012 FC 319 at paragraph 22).
All of the RPD’s determinations that provide the basis for its finding that
Ms. Tovar is not credible are reasonable and there is no doubt that they
fall within a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law.
[26]
Moreover, the fact that a piece of evidence is
not expressly dealt with in a decision does not render it unreasonable when
there are sufficient grounds to assess the tribunal’s reasoning (Corzas
Monjaras v. Canada (Minister of Citizenship and Immigration), 2010 FC 771
at paragraph 20; Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration), [1998] FCJ No. 1425 [Cepeda-Gutierrez]
at paragraph 16). The RPD is presumed to have weighed and examined all the
evidence submitted to it, unless it is demonstrated not to have done so (Newfoundland
Nurses at paragraph 16; Florea v. Canada (Employment and
Immigration), [1993] FCJ No. 598 (FCA) at paragraph 1). In
this case, I am satisfied that the RPD considered all the evidence, even if it
does not refer directly to all its components. It is only when a tribunal is
silent on evidence clearly pointing to the opposite conclusion that the Court
can intervene and infer that the tribunal overlooked the contradictory evidence
when making its finding of fact (Cepeda-Gutierrez at paragraph 17).
This is not the case here.
[27]
The Court’s mission is not to reassess pieces of
evidence in the docket; rather, it must limit itself to finding whether a
conclusion is irrational or arbitrary. According to the reasonableness
standard, it is sufficient that the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, and the
Court must not substitute its own opinion for that of the tribunal. The
arguments put forward by Ms. Tovar simply express her disagreement with
the RPD’s assessment of the evidence and in fact ask the Court to prefer its
own assessment and reading to that of the tribunal. However, this is not the
Court’s role in matters of judicial review (Kanthasamy v. Canada (Minister
of Citizenship and Immigration), 2014 FCA 113 at
paragraph 99; Cina v. Canada (Minister of Citizenship and Immigration),
2011 FC 635 at paragraph 67). The reasons for the RPD’s decision
on Ms. Tovar’s lack of credibility have the qualities of justification,
transparency and intelligibility, and allow it to be determined that the
conclusion falls within the range of possible, acceptable outcomes. There is
therefore no reason for the Court to intervene.
B.
Did the RPD commit an error by not referring to
the Guidelines in its decision?
[28]
Ms. Tovar and her daughter also claim that
the RPD failed to take the Guidelines into account when making its decision,
thereby committing an error that would justify intervention by the Court.
Indeed, the Guidelines are not mentioned anywhere in the RPD’s reasons,
although Ms. Tovar alleges that she faced gender-related persecution
following sexual advances from Le Monsieur.
[29]
I do not share Ms. Tovar’s opinion.
[30]
In Boluka v. Canada (Citizenship and
Immigration), 2015 FC 37, Mr. Justice Gagné summarized
the application of the Guidelines in the context of judicial review at
paragraph 16:
[16] The applicant is required to
demonstrate a lack of understanding or insensitivity on the RPD’s part to
convince the Court that the Guidelines have not been applied (Sandoval Mares
v Canada (Minister of Citizenship and Immigration), 2013 FC 297
(CanLII) at para 43). Further, this Court has found that the RPD’s failure
to specifically refer to the Guidelines in its reasons does not, in and of
itself, demonstrate insensitivity (Akinbinu v Canada (Minister of
Citizenship and Immigration), 2014 FC 581 (CanLII)) and mere
failure to consider the Guidelines is not fatal to a decision (Higbogun,
above at para 65).
[31]
It must therefore be determined whether, in
spite of the silence on the issue in the reasons, the RPD should have
considered the Guidelines in this case and whether the tribunal applied the
Guidelines in this case.
[32]
Jurisprudence has established that the
Guidelines only need to be considered by the RPD in appropriate situations (Higbogun
v. Canada (Minister of Citizenship and Immigration), 2010 FC 445
at paragraph 57). This is the case, for example, when refugee claimants
allege that they have been victims of violence because of their gender (Khon
v. Canada (Minister of Citizenship and Immigration), 2004 FC 143
[Khon] at paragraph 20). In her submissions, Ms. Tovar
frequently referred to Khon, in which the administrative tribunal
refused a refugee protection claim, concluding that the claimant had not sought
protection from the State and that an internal flight alternative existed. In
that case, the decision maker did not assess the Guidelines, but also did not
doubt the truth of the claimant’s allegations regarding her repeated harassment
and assault at the hands of her ex-spouse. The tribunal’s decision was deemed
unreasonable because of the failure to take into account and apply the
Guidelines.
[33]
However, Khon is not of much help to
Ms. Tovar because it clearly differs from the case before us because of
the RPD’s conclusions regarding Ms. Tovar’s lack of credibility. The fact
that the RPD did not refer to the Guidelines in its decision is not a
determinative error when the tribunal is faced with an account that is not
considered credible and there is sufficient evidence to support the tribunal’s
conclusion regarding a refugee protection claimant’s lack of credibility (Diallo
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1450
at paragraph 36; Kaur v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1066 at paragraph 12). In
Ms. Tovar’s case, there was no credible allegation related to the
persecution of a sexual nature of which she claimed to be a victim. In its
reasons, the RPD clearly, unmistakably, and intelligibly explained the valid
reasons for which it questioned the truthfulness of Ms. Tovar’s
allegations and, under the circumstances, the RPD was not required to apply the
Guidelines (Munoz v. Canada (Citizenship and Immigration), 2006 FC 1273
at paragraph 33).
[34]
In any event, the fact that the Guidelines were
not mentioned in the reasons for the decision does not mean that they were not
considered or that the RPD ignored the principles established by the
Guidelines. Simply reading the decision and the record clearly shows that the
RPD did not act inappropriately or demonstrate a lack of sensitivity toward
Ms. Tovar. Given the nature of the allegations made by Ms. Tovar
during the hearing before the RPD, it may have been preferable and more
transparent for the RPD to have explicitly mentioned the Guidelines in its
reasons. However, even though the RPD did not do so, there is nothing to
indicate that the Guidelines were not taken into account in its decision. On
the contrary, the transcript of the hearing reveals the compassion and
sensitivity shown to Ms. Tovar by the RPD. The Guidelines are intended to
ensure that gender-based claims are heard with compassion and sensitivity and,
although the RPD concluded that Ms. Tovar lacked credibility, I am
satisfied that it fully complied with the letter and spirit of the Guidelines
in this case.
III.
Conclusion
[35]
For the above reasons, Ms. Tovar’s and her
daughter’s application for judicial review is dismissed. The RPD’s decision
refusing their refugee protection claim is transparent and intelligible, and
its conclusions regarding Ms. Tovar’s lack of credibility fall within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law. Furthermore, at no time did the RPD fail to fulfil its
obligations to apply the Guidelines.
[36]
The parties did not raise any serious questions
of general importance for certification in their submissions, and I agree that
there are none in this case.
JUDGMENT
THE COURT ORDERS
that:
1. The application for judicial review is dismissed, without costs;
2. No serious questions of general importance will be certified.
“Denis Gascon”
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