Docket: IMM-5626-11
Citation: 2012 FC 267
Ottawa, Ontario, February 27,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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RAGHUJA RANJANI MALLAMPALLY
SAM MANOHAR EMBETI
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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 FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 5,
2011. The Board found that the Applicants were not Convention refugees or
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
For
the reasons set out below, the application is dismissed.
I. Facts
[3]
The
Principal Applicant, Raghuja Ranjani Mallampally, and her adult son, Sam
Manohar Embeti (or the Associate Applicant) are citizens of St. Vincent
and the Grenadines (St. Vincent). Having Indian nationality and race, they
form part of a small minority on the island. The Principal Applicant was also
the only single female doctor living in St. Vincent and was
often referred to by a racially derogatory name.
[4]
She
nonetheless became an expert witness and testified against the accused in
several rape and murder trials. As a result, she started receiving verbal
threats from convicted criminals, sometimes in person but mostly by telephone. She
also experienced break-ins at her home.
[5]
The
Principal Applicant and Associate Applicant arrived in Canada on December
6, 2009 and October 4, 2009 respectively. The Principal Applicant claimed her
decision to leave was precipitated by an incident involving the killing of her
dog and leaving of a knife outside the home.
[6]
Fearful
of having to return to St. Vincent because of the previous threats and
incidents, they brought claims for refugee protection on April 21, 2010
(by the Principal Applicant) and June 9, 2010 (by the Associate
Applicant).
II. Decision
Under Review
[7]
At
the outset, the Board faulted the Applicants for not providing a satisfactory
explanation as to why they delayed in making refugee claims, particularly since
as a medical doctor the Principal Applicant has a relatively high degree of
sophistication compared to other refugee claimants.
[8]
While
the Board accepted that the Applicants were subject to some degree of
discrimination and harassment in St. Vincent over the years, it was not
satisfied that, on a balance of probabilities, the Applicants left St. Vincent,
or chose to stay and claim refugee status in Canada, because of a well-founded
fear of persecution or a risk to their lives, a risk of cruel and unusual
treatment or punishment, or a danger of torture in St. Vincent.
[9]
The
Applicants had not provided credible evidence that the critical incident,
involving the killing of their dog and a knife being left behind as a warning,
actually occurred. It was not articulated consistently and there was no police
corroboration of the presence of the knife.
[10]
The
Board acknowledged that the Applicants might be experiencing some or all of the
symptoms set out by the psychologist but found it had not been established that
the material elements of the claims caused or contributed to those symptoms or
that any historic mistreatment they sustained in St. Vincent, had a
substantially prejudicial effect, morally or physically, that would make it
unreasonable for them to return to St. Vincent.
III. Issues
[11]
This
application raises the following issues:
(a) Did the Board err in its
credibility findings?
(b) Did
the Board err in finding that the harm suffered by the Applicants did not meet
the criteria of serious and persistent harm or rise to the level of
persecution?
(c) Did the Board err by not
conducting an analysis under section 96?
(d) Did
the Board err by determining that the Principal Applicant’s delay in claiming
refugee protection affected her credibility?
(e) Did the Board err in failing to
consider the issue of state protection?
IV. Standard of Review
[12]
Questions
of fact, discretion and policy as well as questions where the legal issues
cannot be easily separated from the factual issues generally attract a standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 51). In particular, credibility findings are reviewed
according to this standard (see Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at para 14).
[13]
Reasonableness
refers to “the existence of justification, transparency and intelligibility” as
well as “whether the decision falls with the range of possible, acceptable
outcomes defensible in respect of the facts and law” (Dunsmuir, above at
para 47).
V. Analysis
A. Did
the Board Err in its Credibility Findings?
[14]
The
Applicants contest the Board’s adverse credibility findings for a failure to properly
consider the evidence before it and provide reasons that explain why it
preferred certain pieces of evidence over others.
[15]
More
specifically, they insist the Board ignored the preponderance of evidence
regarding the profile of the Principal Applicant as a single, foreign-born
doctor who testified in criminal court and that led to her family being
targeted. Instead, the Board conducted a microscopic analysis and focused on
the statement of the Associate Applicant at the Port of Entry (POE) suggesting
that the knife was left in the backyard when he was not physically present in St. Vincent at the time.
The sworn testimony of the Principal Applicant regarding the knife was
rejected in favour of the police report, despite her efforts to ensure that accurate
evidence could be provided to the Board.
[16]
By
contrast, the Respondent maintains that the Applicants are asking the Court to
reweigh the evidence. Two clear credibility findings were made regarding the
police report and Associate Applicant’s erroneous recitation of the location of
the knife. The reasons identify the basis on which the decision was reached as
the Board accepted the allegations of discrimination and harassment but found
that in conjunction with the delay and credibility issues, the persecution
claim was not established.
[17]
Where
the Board makes a negative credibility finding, it must provide reasons in
“clear and unmistakable terms” (see Hilo v Canada (Minister of
Employment and Immigration) (1991), 15 Imm LR (2d) 199, [1991] FCJ no
228 (FCA)). The Board met this requirement in its assessment of the
Applicants’ claims by citing an inconsistency regarding the location of the
knife and failure to provide corroboration through the police report. Since
the Principal Applicant considered this a critical incident in precipitating
her decision to come to Canada, it was not unreasonable for the Board to
place the emphasis it did on this issue.
[18]
Contrary
to the Applicants’ submissions, the Board provided a specific evidentiary basis
for its finding, considered credibility in light of the totality of evidence
before it (see Ahangaran v Canada (Minister of Citizenship and Immigration)
(1999), 168 FTR 315, [1999] FCJ no 772 at para 5), and addressed
contradictory evidence (see Zepeda v Canada (Minister of Citizenship and
Immigration), 2008 FC 491, [2008] FCJ no 625 at para 28).
[19]
While
the Board highlighted inconsistencies regarding the incident involving the
knife and dog, it also acknowledged that the Applicants experienced some degree
of discrimination and harassment over the years in St. Vincent and they
might experience some or all of the symptoms as set out by the psychologist. Albeit
rather brief in its assessment, the Board recognizes the Applicants’ personal and
professional circumstances.
[20]
The
reasons provided for the adverse credibility findings are sufficient to allow
this Court “to understand why the tribunal made its decision” and
determine that the conclusion is within the range of acceptable outcomes (see Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] SCJ 62 at para 16).
B. Did
the Board Err in Finding that the Harm Suffered by the Applicants did not Meet the
Criteria of Serious and Persistent Harm or Rise to the Level of Persecution?
[21]
The
Applicants submit that the Board was dismissive of their evidence of racial and
other forms of persecution. Without proper analysis, the Board disposed of the
issue simply by stating that it did not amount to serious harm.
[22]
The
Respondent maintains that the Board was not dismissive of the treatment
suffered by the Applicant but found that it did not cumulatively rise to the
level of persecution. This demonstrates that it was aware of the relevant
legal tests.
[23]
The
Applicants have highlighted the recent decision of Warner v Canada (Minister of
Citizenship and Immigration), 2011 FC 363, [2011] FCJ no 468 at para 7
where Justice Russel Zinn canvassed determinations on the meaning of
persecution. He makes reference to a definition first considered in Rajudeen
v Canada (Minister of
Employment and Immigration) (1984), 55 NR 129, [1984] FCJ no 601 that
“persecution” is “[t]o harass or afflict with repeated acts of cruelty or
annoyance; to afflict persistently.” Justice Zinn also notes that Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, [1993] 2 SCJ 74 and Chan v Canada (Minister of
Employment and Immigration), [1995] 3 S.C.R. 593, [1995] SCJ no 78 generally
define persecution as a serious interference with a basic human right.
[24]
In
Sagharichi v Canada (Minister of Employment
and Immigration) (1993), 182 NR 398, [1993] FCJ no 796, the
Federal Court of Appeal determined that incidents of discrimination in that
case were “not serious or systematic enough to be characterized as
persecution.” At paragraph 3, the Court stressed:
[3] It is true that the dividing
line between persecution and discrimination or harassment is difficult to
establish, the more so since, in the refugee law context, it has been found
that discrimination may very well be seen as amounting to persecution. It is
true also that the identification of persecution behind incidents of
discrimination or harassment is not purely a question of fact but a mixed
question of law and fact, legal concepts being involved. It remains, however,
that, in all cases, it is for the Board to draw the conclusion in a particular
factual context by proceeding with a careful analysis of the evidence adduced
and a proper balancing of the various elements contained therein, and the
intervention of this Court is not warranted unless the conclusion reached
appears to be capricious or unreasonable.
[25]
Based
on this passage in Sagharichi, above, the Applicants emphasize that
discrimination and harassment can amount to persecution and therefore their
evidence should not have been dismissed quite so easily.
[26]
While
I acknowledge that the Board could have more explicitly stated the legal test
being employed, the conclusion reached is reasonable and in accordance with Sagharichi,
above.
[27]
The
Board recognized that the Applicants had been “subject to some degree of
discrimination and harassment”, but still found that it had not been
“established on the balance of probabilities that these forms of mistreatment
and abuse, even when viewed cumulatively, would meet the criteria of serious
and persistent harm or persecution.” The discrimination and harassment
experienced was simply not serious or persistent enough to amount to
persecution, either singularly or cumulatively. The Board considered the
factual context and conducted a balancing of various elements of the evidence
that was neither capricious nor unreasonable.
[28]
The
Board’s conclusion is brief but as required by Newfoundland and Labrador
Nurses’ Union, above, makes clear why the decision was made. This Court
must bear in mind the quoted passage referred to in that decision that states
“[r]easons are not to be reviewed in a vacuum – the result is to be looked at
in the context of the evidence, the parties’ submissions and the process. Reasons
do not have to be perfect. They do not have to be comprehensive” (para 18).
[29]
I
therefore find that the Board reasonably concluded the treatment the Applicants
experienced did not amount to persecution.
C. Did
the Board Err by not Conducting an Analysis Under Section 96?
[30]
For
similar reasons, the Applicants insist that the Board is silent on any
principled analysis of the Applicants’ claims under section 96. As individuals
of Indian descent, they are part of a small minority in St. Vincent and have
been subjected to racial discrimination. The Principal Applicant’s status as
the only single female doctor on the island further exacerbates their feelings
of vulnerability and fear.
[31]
However,
I agree with the Respondent that there is nothing to suggest that the Board did
not consider the basis of the Applicants’ claim under section 96. At paragraph
2 of its reasons, the Board acknowledges the Principal Applicant’s
professional, gender and personal profile as a “wealthy Indian woman living
alone and having provided expert evidence for the prosecution in other criminal
cases as a medical doctor.”
[32]
As
noted above, the Board simply found that the discrimination experienced in St.
Vincent did not reach the level required to advance a claim of persecution
under section 96. It was reasonable for the Board to weigh the evidence before
it in this manner.
D. Did
the Board Err by Determining that the Principal Applicant’s Delay in Claiming
Refugee Protection Affected her Credibility?
[33]
The
Principal Applicant takes issue with the Board’s finding that the delay in
making a claim negatively affected her credibility. She explains that having
entered the country as a visitor, she initiated a refugee claim before the six
months expired. During her time in Canada, she continued to worry
about returning to St. Vincent and attempted to inform herself of the various
options available to foreign nationals who wished to immigrate. Moreover, the
Board erroneously suggested that as a medical doctor she was more sophisticated
and should have known about the refugee process, when she had a different image
in her mind of who would be considered a refugee.
[34]
However,
I am satisfied by the submissions of the Respondent that the Board’s assessment
of the Principal Applicant’s delay in making a claim was reasonable.
[35]
In
Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR
225, [1993] FCJ no 271, the Federal Court of Appeal determined that while a
“delay in making a claim to refugee status is not a decisive factor in itself”,
it represents “a relevant element which the tribunal may take into account in
assessing both the statements and the actions and deeds of a claimant.”
[36]
The
Board considered the Principal Applicant’s explanation for her delay but found
this was “not satisfactory.” Although in the country legally as a visitor at
the time, it is reasonable to expect that the Principal Applicant would make a
claim at the first possible opportunity and to determine that a failure to do
so further undermines her subjective fear and credibility (see Jeune v
Canada (Minister of Citizenship and Immigration), 2009 FC 835, [2009] FCJ
no 965 at para 15). As the Respondent points out, the fact that she did not
attempt to inform herself about the options available until her visitor’s visa
was about to expire supports the Board’s conclusion.
[37]
In
addition, the Board’s reference to the Principal Applicant’s sophistication as
a medical doctor in not pursuing a refugee claim does not amount to an error. The
Principal Applicant may have preferred that the Board give greater weight to
her argument that she had a different image of refugees when initially learning
about her options, it does not necessarily follow that the Board’s approach is
unreasonable. As the Respondent makes clear, it is within the range of
possible, acceptable outcomes to expect that an educated and sophisticated
individual who feared for her life to have some idea what her plans would be on
arrival in Canada.
[38]
As
a consequence, the Board did not commit any reviewable error in considering the
delay in making a refugee claim and its impact on the Principal Applicant’s
credibility.
E. Did
the Board Err in Failing to Consider the Issue of State Protection?
[39]
As
their final argument, the Applicants dispute the Board’s lack of analysis on
state protection, given extensive evidence provided in relation to state
protection, including admissions by the police to the Principal Applicant. According
to the Respondent, however, this argument does not account for the Board’s
finding that the Applicant lacked a subjective fear of persecution.
[40]
Having
found issues associated with the Applicants’ credibility based on a critical
incident and that any discrimination or harassment experienced did not amount
to persecution; I agree that it was unnecessary for the Board to analyze the
issue of state protection and an error was not committed by failing to do so.
VI. Conclusion
[41]
However
briefly articulated, the Board’s credibility findings, determination that the
discrimination and harassment experienced did not rise to the level of
persecution and analysis under section 96 were reasonable. Given these
conclusions, the Board was also not required to conduct an analysis of state
protection.
[42]
As
a result, I dismiss this application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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