Docket: IMM-3748-16
Citation:
2017 FC 290
Ottawa, Ontario, March 20, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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FRANCOISE
MIREILLE ODY ESQUIVEL
SERGIO RODOLFO
MEDINA SALAZAR
ALEJANDRA
MEDINA ODY
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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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REASONS AND JUDGMENT
I.
Overview
[1]
The applicants, Ms. Francoise Mireille Ody
Esquivel, her husband, Mr. Sergio Rodolfo Medina Salazar and their 15 year-old
daughter Alejandra Medina Ody are citizens of Peru. The family arrived in
Canada via the United States. They claimed protection on the basis that
they had been assaulted and threatened by a former police officer in Peru.
[2]
The Refugee Protection Division [RPD] dismissed
the applicants’ claim finding they lacked credibility and that Ms. Ody and
Alejandra are entitled to acquire citizenship in Argentina.
[3]
In seeking judicial review, the applicants
submit that the RPD unreasonably relied upon a single contradiction related to one
element of their narrative to discount all of their evidence. They further
argue that the RPD erred by: (1) concluding that Argentine citizenship was
available to Ms. Ody and Alejandra; and (2) by failing to independently assess Alejandra
and Mr. Salazar’s situation in this regard.
[4]
I am of the view that it was unreasonable for
the RPD to conclude that all of the applicants’ evidence in support of the
claim was discredited as a result of the single contradiction. However, the RPD
reasonably concluded that Ms. Ody and Alejandra were entitled to obtain Argentine
citizenship by complying with mere formalities. This finding was determinative
of Ms. Ody’s and Alejandra’s claim. For the reasons that follow, the matter
will be returned for re-determination but only as it relates to Mr. Salazar’s
claim for protection.
II.
Standard of Review
[5]
The issues raised in this application relate to
the RPD’s findings of fact and the application of the law to those facts. These
matters are to be reviewed against a reasonableness standard (Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 51[Dunsmuir] and Sangmo v
Canada (Minister of Citizenship and Immigration), 2016 FC 17 at para 15 [Sangmo]).
III.
Analysis
A.
Did the RPD reasonably conclude that Argentine
citizenship was available to Ms. Ody and Alejandra?
[6]
The RPD found that Ms. Ody’s now deceased father
was a citizen of Argentina and, under Argentinian law citizenship is available
to children where a parent is a citizen. On this basis, the RPD concluded that
Ms. Ody and Alejandra had a right to citizenship in Argentina and they had not
established a risk of persecution or a need for protection under sections 96 or
97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]
in Argentina. Relying on Williams v Canada (Minister of Citizenship and
Immigration), [2005] 3 FCR 429 [Williams], the RPD noted that protection
will be denied where an applicant is entitled, through mere formalities, to acquire
citizenship in a country where there is no well-founded fear of persecution.
[7]
The applicants do not take issue with the test
adopted by the RPD but argue that it misapprehended the evidence and
unreasonably relied on a Wikipedia article regarding Argentine nationality
laws. The applicants further submit that the RPD erred in not conducting an independent
assessment of Alejandra’s right to obtain citizenship as her mother was not
born in Argentina. In written submissions the applicants also argued that the
RPD had erred by failing to conduct an independent assessment of Mr. Salazar’s
right to Argentinian citizenship. The RPD made no finding in respect of Mr. Salazar
and the applicants did not pursue this argument in oral submissions.
[8]
The RPD’s determination was not unreasonable. In
Crast v Canada (MCI), 2007 FC 146 [Crast], Justice Roger Hughes
summarized the principles identified in the jurisprudence where a refugee
claimant may have connections with several states (Canada (Attorney General)
v Ward, [1990] 2 FCJ No 209, Williams and Katkova v Canada (MCI),
[1997] FCJ No 549. At paragraph 20 of Crast, Justice Hughes states:
[20] From these authorities, the
principles of law that emerge are:
1. The
Board must investigate whether the claimant is unwilling to avail him or
herself of the protection of each and every country of nationality (Ward).
2. When
available, the home state protection is the claimant’s sole option (Ward).
3. Where
citizenship in another country is available, a claimant is expected to make
attempts to acquire it (Williams).
4. A
claimant is not expected to make attempts to acquire citizenship in a state with
whom there is no genuine connection and physical link (Katkova).
5. A
claimant is not expected to make attempts where he or she is unwilling to do so
where the unwillingness arises from fear of persecution (Williams).
6. Refugee
status will be refused when it is shown that it is within the claimant’s power
to acquire that other citizenship (Williams).
[9]
In this case, the RPD identified the issue of
Argentinian citizenship in advance of the hearing and disclosed documentation
relating to the issue. That documentation did include a Wikipedia extract.
However, the RPD also had other documentary evidence before it, including
extracts from the webpage of the Consulate General of Argentina in Sydney,
Australia and the Consulate General of Argentina in Montreal, Canada.
[10]
Reliance on Wikipedia evidence has been found by
this Court to be of concern. However, in this case any error was rendered of no
consequence as there was other documentary evidence before the RPD establishing
the process for obtaining citizenship. That evidence allowed the Panel to reasonably
conclude that upon production of documentation: (1) establishing the parent as
an Argentine citizen; and (2) the identity of the individual to receive
citizenship, citizenship would be granted. It was not unreasonable for the RPD
to conclude that Argentine citizenship was available to both Ms. Ody and
Alejandra through the mere formality of producing documentation for Argentine
authorities.
[11]
The RPD noted the applicant’s testimony and
submissions relating to the obstacles to obtaining citizenship. In doing so,
the RPD concluded that the applicants were conflating citizenship by descent,
the basis for their right to citizenship in Argentina, with citizenship by
naturalization. This conclusion was not inconsistent with the documentary
evidence and was reasonably available to the RPD.
[12]
The RPD also noted that Ms. Ody’s attempts to
acquire the documentation to apply for citizenship were minimal and the application
process itself had not been pursued. In the circumstances, it was not
unreasonable for the Officer to conclude that Ms. Ody’s efforts were
insufficient to demonstrate that it was not within her power to obtain
citizenship in Argentina.
[13]
The applicants now argue that Alejandra’s
situation differs from that of her mother. They rely on the decision of Justice
Glennys Mcveigh in Murrizi v Canada (Minister of Citizenship and
Immigration), 2016 FC 802 [Murrizi] to argue that where distinct
claims are made in the same proceeding, each claim must be addressed individually.
While I take no issue with this statement of law, in this case, unlike in Murrizi,
the applicants did not advance a separate and distinct claim on behalf of
Alejandra. The evidence indicates that what is required to obtain citizenship is
a birth certificate of “the Argentine parent”.
It was reasonable for the RPD to conclude that in the case of Alejandra, Ms.
Ody would satisfy this requirement upon her receipt of citizenship.
[14]
The RPD reasonably concluded that Argentine
citizenship was available to Ms. Ody and Alejandra.
B.
Was it reasonable for the RPD to discredit all
of the applicants’ evidence?
[15]
The applicants alleged that they had experienced
incidents of serious sexual and physical assault, and threats, from a retired
police officer who was also their business associate. They alleged that these
incidents had been reported to police but no action was taken because the agent
of persecution was a retired police officer. On March 25, 2016, they allege
they were attacked in a supermarket parking lot by armed individuals and
threatened with death because they had sought out police assistance. They fled
and hid as a result of this attack, deciding at that point to leave the
country, which they did on March 29, 2016.
[16]
The RPD took issue with the fact that the
applicants’ travel itinerary was dated March 23, 2016, two days before the
attack that triggered the decision to flee Peru. The applicants were unable to
provide any explanation for this discrepancy. Counsel for the applicants suggested
that it may have simply reflected a clerical error. The RPD rejected the explanation.
[17]
The RPD found the inconsistency to be fatal to
the applicants’ credibility on the basis that the timing of the decision to
flee Peru was central to the claim. The RPD noted possible explanations for the
inconsistency but noted that no explanation had been provided. The RPD
recognized that there was corroborative evidence of the alleged earlier assaults
and threats but found the evidence to be of limited probative value in light of
the negative credibility finding arising out of the unexplained discrepancy
regarding the timing of the decision to flee Peru. The RPD also noted that the
applicants were generally credible and consistent in all other aspects of their
narrative.
[18]
The respondent submits that the March 25 attack
was central to the applicants’ claim. Evidence indicating a decision to leave
Peru prior to that date undermined the applicants’ well-founded fear of
persecution. The respondent argues that absent an explanation for the inconsistency,
it was reasonable for the RPD to reject the claim without addressing the
applicants’ other evidence. I disagree.
[19]
The RPD noted that there were no other
inconsistencies or omissions in the applicants’ testimony. The RPD acknowledged
a number of documents that were corroborative of the claimed sexual assault,
the existence of the agent of persecution and the reporting of the alleged
incidents to the police.
[20]
While it was open to the RPD to reach a negative
credibility finding as a result of the inconsistency relating to the timing of
the decision to leave Peru, it was not reasonable to rely on that inconsistency
to discount the remainder of the narrative. This is particularly so where there
was evidence that was corroborative of other aspects of the claim. As noted by
Justice Russel Zinn in Guney v Canada (MCI), 2008 FC 1134 at paragraph
17 “[t]he fact that a witness has been caught in one
lie, in itself, is insufficient to discredit all of his evidence, where, as
here, the evidence is otherwise plausible and consistent.”
[21]
Based on the foregoing, the
RPD’s failure to engage and assess the remainder of the applicant’s narrative
was unreasonable.
IV.
Conclusion
[22]
Having concluded that the question of Argentine
citizenship is determinative in respect of Ms. Ody’s and Alejandra’s claim and
that there is no basis for this Court to interfere with the RPD’s findings in
this regard, the application is dismissed in respect of the female applicants.
[23]
Having found that the RPD’s determination on the
issue of credibility was unreasonable, the application is granted and the matter
returned for redetermination of Mr. Salazar’s claim only.
[24]
The parties did not identify a question of
general importance and none arises.
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