Docket: IMM-4376-15
Citation:
2016 FC 984
Ottawa, Ontario, August 30, 2016
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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S.A.R. AND
Z.I.S.
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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
[1]
This application for judicial review concerns a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) by which the Applicants’ claims to refugee protection were dismissed
on credibility grounds.
[2]
The principal Applicant (identified as S.A.R.
and referred to in these reasons as the Applicant), and her minor child
(Z.I.S.) claimed protection on the basis of allegations of marital abuse and an
associated threat that the child was the subject of a kidnapping threat at the
hands of the child’s father.
[3]
At the heart of the Applicants’ risk narrative
were allegations of several threats and violent attacks directed at the
Applicant and her parents, motivated by her ex-husband’s desire to secure de facto
custody of the child. The reliability of that evidence was central to the
Board’s decision. This application challenges the reasonableness of the Board’s
adverse credibility determination leading to the rejection of the protection
claims.
I.
Background
[4]
The Applicants are citizens of Bangladesh. They
entered Canada in October 2014, having spent the previous four months in the
United States with temporary visa status.
[5]
The Applicant testified that, notwithstanding
her ex-husband’s formal consent on divorce to her having sole custody of the
child, he and his parents immediately launched a terror campaign to gain
custody of the child. This campaign allegedly included a ransacking of the
family home by hired “goons”, a roadside attack
and attempted kidnapping by 10 to 12 men where the windows of the Applicant’s
father’s car were broken out and the Applicant violently assaulted and,
finally, a second ransacking and firebombing of the family home and an assault
on the Applicant’s mother.
[6]
The Applicant claimed that all of these events
were reported to the police by the Applicant’s father but ignored. Indeed, the
Applicant stated that the police advised her father to surrender custody of the
child to her ex-husband.
[7]
The Board rejected the Applicant’s allegations
on credibility grounds. In particular, the Board found it unlikely that the Applicant’s
ex-husband would formally consent to a grant of sole custody in favour of the
Applicant on a divorce and yet, on the same day, orchestrate a violent
confrontation at the family home with a view to obtaining de facto custody of
the child.
[8]
The Board also found it unlikely that, after the
first attack, the Applicant would flee Bangladesh with the child to the United
States, only to re-avail six months later without having made a refugee claim
in the United States. It is also of some significance to the re-availment
concern that when the Applicant returned to Bangladesh she claimed to be living
in constant fear and in hiding with the child.
[9]
According to the Applicant her fears were almost
immediately realized upon return to Bangladesh with a series of violent
assaults and threats, including the firebombing of the family home.
Notwithstanding those asserted events and the Applicant’s and the child’s
possession of United States visas, they did not leave Bangladesh for almost two
more months. It was a particular concern to the Board that the Applicant failed
to produce any objective evidence of the attacks, most notably in the form of
photographs of the home. The Board dealt with this issue in the following way:
[24] … While it is odd even for a country
like Bangladesh that the police would not show up to investigate regardless of
the motive after a bomb was thrown at their house, it is even more concerning
that the claimant’s parents did not take pictures or gather other proofs of the
ransacking and bombing of the house to show the police. The claimant’s
explanation is that “nobody was in a position to take pictures.” The panel is
not satisfied with the claimant’s explanation. Keeping in mind the presumption
of truthfulness, the panel has some doubts as to the credibility of the
claimant’s allegations. The panel is of the opinion that evidence of the break
in and bombing of the parent’s house is central and material to the claimant’s
claim. Where a claimant’s story is found to be implausible or otherwise lacking
in credibility, a lack of documentary corroboration or a lack of effort to
obtain the documentation can be a valid consideration for purposes of assessing
her credibility. Since the onus is on the claimant to prove her claim, the
failure to produce any documentary evidence, not merely pictures, to prove what
happened to her parent’s house on two occasions, raises serious doubts in the
panel’s mind.
[10]
The Board also gave little to no credence to
four letters submitted in corroboration of the Applicant’s evidence. That
evidence was discounted on the following basis:
[25] Furthermore the claimant’s credibility
was put to the test by her own supporting documents which contradict her
testimony. The claimant provided a letter from her uncle in Bangladesh who
testified that the claimant and her son stayed at his house after the divorce
for fear of reprisal from her in-laws, and that his brother’s house was
ransacked and cocktail bombs were thrown outside his house. He also mentioned
that the claimant and her son left for the US on October 2nd 2013
and he learned that now they were in Canada. The uncle seems to mix facts and
do not mention that the claimant stayed at his house in April 2014. The
claimant also provided a letter from her father which contradicts his brother’s
testimony. The claimant’s father testified that he took his daughter twice to
his brother; once for two days after the divorce, and again in April 2014 after
the kidnapping attempt. The claimant’s explanation is that her uncle is
uneducated and that he wrote about as much as he understood. The panel does not
accept the claimant’s explanation as reasonable and gives no weight to the
uncle’s letter. Based on the credibility concerns raised above and vested interest,
the panel also gives little weight to the claimant’s father’s testimony. The
rest of the letters are from her uncle in Canada, and her father’s chauffeur.
Consequently, they do not come from a neutral or impartial source. In light of
the previously made negative credibility finding, and the subjective source of
the mentioned correspondence, the panel finds these letters to have little
probative value and therefore assigns little weight to this evidence.
II.
Analysis
[11]
The Applicant challenges the Board’s credibility
findings on two grounds. First, she contends that, in expressing reservations
about the likelihood of the described events, the Board was, in effect, making
unreasonable plausibility findings. She also argues that the Board acted
unreasonably in rejecting the tendered corroborative correspondence after
having made its adverse credibility assessment. She argues that the correct
approach is to weight the corroborative evidence in an over-arching credibility
assessment and not in after-the-fact isolation. The Applicant also maintains
that it was a reviewable error and unreasonable for the Board to reject the
corroborating evidence based only on the supposed subjectivity of its sources
(i.e. from family).
[12]
Inasmuch as these issues are all evidence-based
and related to credibility, the applicable standard of review is
reasonableness: see Uyucu v Canada (Minister of Citizenship and Immigration)
2015 FC 404 at para 21, [2015] FCJ No 393.
[13]
Notwithstanding counsel’s forceful arguments, I
am not satisfied that the Board’s decision reflects any reviewable error.
Indeed, all of the Board’s concerns about the Applicant’s credibility were
reasonable and justified.
[14]
I do not agree that in rejecting the Applicant’s
version of events the Board was making a plausibility finding or was otherwise
insensitive to prevailing cultural norms. Nowhere does the Board say that the
Applicant’s story was implausible in the sense that it was outside the realm of
human experience or inconsistent with the expected norms of human behaviour.
What the Board did find was that the Applicant’s story was improbable based on
a practical, common-sense view. The Applicant was unable to explain the
inconsistency between her ex-husband’s agreement to waive custody in return for
the avoidance of financial support and the immediate launch of a campaign of
terror to undermine the agreed settlement. The Board is entitled to bring
common sense to issues of this sort and to make appropriate balance of
probability determinations. That was all the Board did here.
[15]
The Board’s credibility finding was also amply
supported by the evidence of re-availment. It was inexplicable that the
Applicant elected to return to Bangladesh in the circumstances she described.
She made no attempt to seek refugee protection or to extend her United States
visa. It was eminently reasonable on this evidence for the Board to find that
the Applicant lacked a subjective fear. As I noted in Garcia v Canada
(Minister of Citizenship and Immigration), 2011 FC 1346, [2011] FCJ No 1645 at para 8, “[a]bsent compelling reasons,
people do not abandon safe havens to return to places where their personal
safety is in jeopardy”. I would add that people do not leave places of
safety in the expectation that, on a return home, they will be required to live
in hiding and without the benefit of state protection. This conduct defies
common sense and it was a major and appropriate consideration in the Board’s
credibility assessment.
[16]
The Applicant’s failure to produce photographs
of the supposed ransacking and firebombing of the family home or the reported
damage to the Applicant’s father’s motor vehicle was equally disconcerting.
Other objective evidence in proof of injuries sustained by the Applicant and
her mother was also lacking. On the occasion of the alleged roadside assault
the Applicant declared that “[t]he men kicked me all
over my body.” This was the culminating event leading to the Applicant’s
final departure and one would reasonably expect photographic or medical
verification. None was forthcoming. The Board was entitled to expect to see readily
available objective corroborative evidence and to draw an adverse credibility
inference when it was not produced. On this point I subscribe to the view
expressed by Justice Simon Fothergill in Uyucu, above, at para 25 that “corroborating evidence may be required when there are
reasons to doubt a claimant’s credibility.” That was exactly how the
Board treated this issue and it did not err in its approach.
[17]
I do not agree with counsel for the Applicant
that there is a strict order in which the Board must approach the assessment of
corroborating evidence of the sort tendered here. I agree that objective and
verifiable corroboration cannot be summarily rejected based on a claimant’s
lack of credibility. That type of evidence must be considered within the
context of the overall credibility analysis. The correspondence tendered here
by the Applicant was, however, of a different sort. It was simply a recitation
of the events the Applicant had described and which the Board, for sound
reasons, rejected. The bare repetition of the Applicant’s narrative did nothing
to rehabilitate her credibility, particularly in the face of the inconsistency
the Board identified in the third party reports. Given the substantial evidentiary
overlap, it was open to the Board to evaluate the reliability of the corroborative
correspondence from both the Applicant’s father and her Bangladeshi uncle in
light of the significant inconsistency in those two versions.
[18]
The Board’s treatment of the Canadian uncle’s
letter was not unreasonable given that he was not privy to the events that
formed the basis of the Applicant’s claim. That evidence was hearsay and
substantially dependent on the Applicant’s credibility. It was, therefore, not
an error for the Board to attribute “little probative
value” to that evidence. Finally, having rejected the father’s
declaration it was not unreasonable to assign “little
weight” to the report offered by his chauffeur. It is of some additional
significance that the chauffeur’s report makes no mention of an alleged
kidnapping attempt. That was, of course, the supposed motivation for the
roadside attack and the failure to mention it is surprising if not suspicious.
[19]
To sum up, an illogical story does not gain
strength by third party repetition.
[20]
For the foregoing reasons this application is
dismissed. Neither party proposed a certified question and no issue of general
importance arises on this record.
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