Date: 20121219
Docket:
IMM-4327-12
Citation: 2012
FC 1501
Montréal, Quebec, December 19, 2012
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN :
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KENDRA VICTORIA ROTHWALL HAZELL
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Applicant
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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 FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of
the Immigration and Refugee
Protection Act,
SC 2001, c 27 [IRPA] of a decision dated
April 17, 2012, by the Refugee Protection Division [RPD] that Kendra Victoria
Rothwall Hazell, a citizen of Saint Vincent and the Grenadines, was neither a
“refugee” within the meaning of section 96
of the IRPA nor a “person in
need of protection” under section 97 of the IRPA.
I. Facts
[2]
The
applicant is a citizen from Saint Vincent and the Grenadines (Saint Vincent).
She suffered physical, verbal and sexual abuse at the hands of Mr. Julian Sergeant.
The applicant claims that the abuse began in 1996 and lasted until 2009. The
applicant has two children with Mr. Sergeant, who both live in Saint Vincent.
[3]
The
applicant explained that Mr. Sergeant burnt her leg with an iron in November
2000 and, when she complained to the police, she was informed that they would
not intervene in domestic matters.
[4]
In
May 2001, the applicant fled to Canada. She left her two children with Mr.
Sergeant’s mother. She returned in December 2006 when the caregiver of her
children died. She attempted to make a fresh start with Mr. Sergeant but the
abuse began again in January 2007 and so she then left for Canada in February 2007.
[5]
While
in Canada, she received threatening phone calls from Mr. Sergeant up until
2009. On January 25, 2010, her permanent residence application based on
humanitarian and compassionate grounds was refused. She claimed refugee
protection on February 9, 2010.
II. Decision under Review
[6]
The RPD’s
determination is that the applicant is not credible in her allegations.
[7]
The main
reason why the applicant is claiming refugee protection is that she fears
returning to Saint Vincent because of her abusive ex-partner. The RPD therefore
took the Women Refugee Claimants Fearing Gender-Related Persecution
(Guideline 4) into consideration. The RPD came to the conclusion that the
applicant is not credible because of inconsistencies in her testimony that
undermine her credibility.
[8]
First,
whereas in her Personal Information Form (PIF), the applicant indicated that
the physical abuse at the hands of her ex-partner started after her first
daughter’s birth in 1996, at the hearing, she stated that the physical abuse
started one month into her pregnancy. When confronted with such contradiction,
the applicant simply replied that after her daughter’s birth, the abuse started
to get worse.
[9]
Second, the
applicant submits that she was constantly threatened over the phone by Mr.
Sergeant between 2001 and 2006, when she was in Canada. The RPD noted that the
applicant during her testimony specified that she received about 20 phone
calls, which is an important element of her claim that should have been
mentioned in her PIF.
[10]
Third, the
applicant’s children came to visit her in Canada in July 2007. As the applicant
was aware at that time that some options were available to her to legalize her
status, the RPD found that it was unreasonable for the applicant not to try to
keep her children in Canada so that they would be protected from Mr. Sergeant,
who could be a threat to her children as he is violent, uses drugs and drinks
heavily. The applicant’s explanation that it did not occur to her to take steps
to keep her children safe was not accepted by the RPD. The decision-maker also
considered that the applicant adjusted her testimony by stating that although
Mr. Sergeant was abusive with her, he was not abusive with her children.
[11]
Fourth, the
RPD considered the fact that the applicant never made any attempt to have her
phone number changed in Canada to avoid Mr. Sergeant’s threats points to a lack
of subjective fear.
[12]
Finally, the
RPD determined that as Mr. Sergeant has not contacted the applicant since
August 2009, she is not in a position to allege a prospective fear of returning
to Saint Vincent.
[13]
Moreover, the
RPD came to the conclusion that it was unreasonable for the applicant not to
have explored all possible avenues besides sponsorship by her employer to
secure her stay in Canada in 2007, given that her employer had made a legal
counsel available to her. It would also have been reasonable for the applicant
to seek assistance from her employer if she was truly facing fear of returning
to Saint Vincent.
[14]
The
RPD determined that although there is evidence that the applicant suffered
physical injuries, it is not established that they are the result of Mr.
Sergeant’s abusive behavior. Therefore, the applicant was found to be neither a
Convention refugee nor a “person in need of protection”.
III. Applicant’s Submissions
[15]
The
applicant first submits that the negative credibility finding regarding the
date at which the physical abuse started is unreasonable and that the RPD
committed a factual error. The applicant specified that the decision-maker’s question
pertained to abuse generally and not specifically to physical abuse and that,
therefore there was no contradiction between her PIF and her testimony.
[16]
Second,
the applicant is of the view that with regard to the threats received, the
applicant provided detailed information in her PIF as to the nature of the
threats received and therefore the RPD’s finding is unreasonable.
[17]
Third,
the applicant submits that the RPD’s conclusion that the applicant should have
actively tried to find ways to keep her children with her in Canada is
unreasonable as the applicant clearly explained that although at that time she
had heard of the possibility to claim refugee protection, she was nevertheless
told that this was not the appropriate channel for her and that she was
preparing an application for permanent residence on humanitarian and
compassionate grounds. The RPD ignored such explanations. Therefore, it was
reasonable for the applicant to believe that a refugee claim would not be
appropriate for her children either. Moreover, the RPD’s finding that the
applicant adjusted her testimony is unreasonable as the applicant volunteered
the information pertaining to Mr. Sergeant’s treatment of the children.
[18]
Fourth,
the RPD’s conclusion that the applicant should have changed phone numbers is
unreasonable considering that since her return to Canada in 2007, the applicant
received only one phone call and therefore there was no need to change her
phone number. The applicant adds that there is a strong probability that the applicant
would start living with her ex-partner as this is common in cases of domestic
violence.
[19]
Finally,
the applicant submits that the RPD erred in determining that she should have
communicated her domestic abuse problem to her employer and that she did not
actively seek alternative avenues to secure her stay in Canada. The applicant submits that a valid explanation was given: she had submitted a
permanent residence application based on humanitarian and compassionate grounds
and she was under no obligation to disclose details pertaining to her personal
life to her employer.
IV. Respondent’s Submissions
[20]
The
respondent generally submits that the applicant’s testimony contradicts her
earlier statement in her PIF, which undermines her credibility. First, the
applicant’s explanation pertaining to contradictions regarding the time when
the abuse started was vague
as she simply stated that “the abuse started to get worse”. The RPD determined
that such explanation is unsatisfactory, which is reasonable.
[21]
Second,
the respondent submits that the RPD rightly concluded that the applicant is not
credible as she did not provide detailed information on the phone threats.
Indeed, the applicant in her PIF does not make any mention of phone threats
that allegedly occurred between 2001 and 2006.
[22]
Third,
the respondent is of the view that the RPD’s finding that the applicant should
have tried to keep her children with her in Canada is reasonable and that a
person who fears returning to their home country should file a refugee claim at
the earliest opportunity. The RPD considered the applicant’s explanation that
she had filed an application for permanent residence based on humanitarian and
compassionate to be unsatisfactory. Furthermore, it was not unreasonable to
find that the applicant should have sought the assistance of her employer.
[23]
Fourth,
the respondent submits that the RPD’s determination that the applicant’s
decision to keep the same phone number after receiving threats points to a lack
of subjective fear is well-founded. Indeed, the applicant knew that her
ex-partner had knowledge of her phone number but she deliberately decided not
to change it.
[24]
Moreover,
the RPD rightly found that the applicant cannot establish a prospective fear of
returning to Saint Vincent as she has not been contacted by her ex-partner
since 2009.
[25]
Finally,
the respondent submits that the applicant is asking this Court to reassess the
facts that were before the RPD and that the conclusion that the applicant does
not face any subjective or objective fear is based on the evidence that was
before the RPD.
V. Issue
[26]
Did
the Board err in its credibility findings regarding the applicant’s alleged
fear?
VI. Standard of Review
[27]
The
applicable standard of review to credibility determinations is that of reasonableness
(Aguebor v Canada (Minister of Employment and
Immigration), 160 NR 315 at para 4, 1993
CarswellNat 303 (FCA)).
VII. Analysis
[28]
A
credibility finding is a question of fact and this Court should therefore
intervene only in cases where such finding is unreasonable (Rajaratnam v Canada
(Minister of Employment & Immigration), 135 NR 300 at para 14, 1991
CarswellNat 851 (FCA)). In the present case, all credibility findings are
reasonable and no intervention of this Court is warranted.
[29]
First,
with regard to the RPD’s determination that the applicant’s testimony
contradicted the statement contained in her PIF, such finding is reasonable.
Indeed, contrary to what is argued by the applicant, a reading of the
transcripts shows that the RPD first directed an open question as to the abuse
suffered by the applicant. The decision-maker then asked specifically what kind
of abuse occurred in 1995 when the applicant was pregnant to which she replied
“both verbal and physical”.
[30]
Therefore,
the RPD’s negative credibility finding is justified in the circumstances as the
applicant’s testimony clearly contradicted the information included in her PIF,
in which she specifically mentioned that the physical abuse at the hands of her
ex-partner started after her child was born in 1996 (Canada (Minister of
Employment & Immigration) v Dan-Ash, 5 Imm LR (2d) 78 at para 5,
93 NR 33 (FCA)).
[31]
Second,
the RPD’s determination that there is a lack of details regarding the phone
threats that allegedly occurred between 2001 and 2006 is reasonable. Indeed, as
noted by the respondent, no mention of such threats is made in the applicant’s
PIF. Although the decision-maker does not raise this specific issue in his
decision, he nevertheless made mention of the fact that no detailed information
is provided in the applicant’s PIF as to the nature and the number of phone
threats received by the applicant. Therefore, it was reasonable for the RPD to
conclude that the absence of details as to phone threats in the applicant’s PIF
seriously undermines her credibility as it would have been important to mention
such events in her PIF.
[32]
Third,
the RPD’s finding that a mother who cares for her children would try to find
any possible means to keep them safe from an abusive caregiver is reasonable.
Regardless of whether Mr. Sergeant had or had not been abusive with the
children, it remains that any reasonable parent would do anything possible to
keep their children away from a person who has allegedly been abusive to them.
[33]
After
questioning the applicant as to why she did not try to keep her children in
Canada with her, the RPD considered the applicant’s explanation that she had
filed a permanent residence application based on humanitarian and compassionate
grounds as she had been advised that a refugee claim would not be the right
channel for her and that it did not occur to her that she could have done
something to keep her children in Canada. The RPD reasonably concluded that any
parent fearing for his children’s safety would take positive steps to keep them
away from a dangerous caregiver and therefore validly rejected the applicant’s
explanation. Intervention of this Court is therefore not warranted (Muthuthevar v Canada
(Citizenship and Immigration),
[1996] F.C.J. No. 207 at para 7, 1996 CarswellNat 211).
[34]
Fourth,
the RPD reasonably found that a person who fears a persecutor would change
phone numbers in order to avoid threats. Such a conclusion is reasonable in the
circumstances.
[35]
Moreover,
the RPD reasonably established that the fact that Mr. Sergeant has not tried to
contact the applicant since 2009 is evidence of the applicant’s lack of
prospective fear. The applicant’s argument that should the applicant return to Saint Vincent, she would certainly start seeing her ex-partner again cannot be accepted by
this Court. Indeed, the applicant cannot raise the possibility that she would
return to her ex-partner as the prospect of returning to an abusive
relationship does not constitute the basis of a refugee claim. Moreover, the
applicant did not submit any evidence showing that should she return to Saint Vincent, she would be forced to live with Mr. Sergeant. The conclusion of the RPD
that the applicant has not demonstrated that she has a prospective fear of
persecution is reasonable and based on the evidence.
[36]
Finally,
the RPD reasonably concluded that in February 2007, when her employer provided
her with a legal counsel, the applicant should have actively tried to secure
her stay in Canada through means other than a sponsorship application. The RPD
rightly concluded that it would have been reasonable in the circumstances to
seek help from her employer who had previously contracted a legal counsel to
assist her. Indeed, if the applicant genuinely feared returning to Saint
Vincent, she would have explored all possible avenues with her employer to
regularize her status in Canada and would have therefore disclosed that she
faces the risk of domestic abuse in Saint Vincent. The RPD assessed the
applicant’s behavior and concluded that it is not consistent with that of a
person who fears for his safety.
[37]
The
parties were invited to submit a question for certification but none was
proposed.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT:
The application for judicial
review is dismissed. No question is certified.
“Simon Noël”
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