Date:
20121128
Docket:
IMM-5466-11
Citation:
2012 FC 1380
Ottawa, Ontario,
November 28, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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COLINDIA MASON
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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
I. Introduction
[1]
The
main issues in this judicial review application brought by Colindia Mason, a
citizen of St-Lucia, is whether the Refugee Protection Division (the Tribunal)
erred in law when it determined on July 8, 2011 in a decision rendered
orally, she was not a Convention refugee nor a person in need of protection
under section 96 and section 97 of the Immigration and Refugee Protection
Act, SC 2001,
c 27
(IRPA),
because her “evidence in areas crucial to the claim lacks credibility.”
The Tribunal also found she had not supplied clear and convincing confirmation
of the state’s inability or unwillingness to protect her.
II. The
applicant’s fear
[2]
The
central element of the applicant’s story was accepted by the Tribunal. On
August 20, 2006 the applicant was stabbed in the back by a group of young
women or girl gang members during a robbery at a beach concert she attended
with her sister who was visiting her during a study break from the school she
was attending in Canada. She went to the hospital, received a number of
stitches and reported the incident to the police (Applicant’s Record, p 189).
On October 8, 2006 the police arrested one of the gang members who was identified
by the applicant during a line-up.
[3]
The
documentary evidence filed by the applicant includes the following:
- A letter
from the Royal Saint Lucia Police Force written by the Assistant
Commissioner of Police at Police Headquarters in Casteles; and
- A newspaper
article from the Star dated August 23, 2006 entitled “Girl Gangs on
the rise? Sisters attacked on the beach”. The Tribunal refused to admit
the article in evidence.
[4]
The
police report confirmed “Colindia Mason of Massade, quarter of Gros Islet, reported
to police about 10:15 pm on Friday, August 20, 2006 … a group of young women
unknown to her attacked her wielding weapons causing injuries while
simultaneously robbing her.” It said an investigation was launched by a
constable of the Gros Islet Police Station and that “pursuant to the
investigation one of the perpetrators was arrested and charged for the offence
of robbery with violence …while the others were being pursued without
relent.” It added that “according to the complainant several threats
had been levied against her as the trial date approached aimed at averting the
course of justice and in furtherance to conceal the identity of the remaining
perpetrators.”
[5]
In
her Personal Information Form (PIF) the applicant indicated the following:
i.
She
stated her problems did not end at the police station because the gang learned
that she had gone to the police, was branded as a snitch and was under constant
threat.
ii.
It
took a year and a half for the case to came to trial with the accused’s lawyer
obtaining an indefinite adjournment on the grounds of late evidentiary
disclosure by the Crown.
iii.
She
further stated the threats continued and was told she would not be around for
the final trial. That is when she decided to leave for Canada.
III.
The Tribunal’s decision
1.
The credibility findings
[6]
As
noted, the Tribunal ruled the evidence in areas central to her claim lacked
credibility. The Tribunal was also of the view “numerous significant
discrepancies remained inadequately explained at the hearing.” Three
examples where identified, all related to her experience after the
stabbing occurred in August 2006.
[7]
The
first discrepancy related to what she knew about the gang’s whereabouts and
their hangouts. In her testimony, according to the Tribunal, she stated she
did not know where the gang’s hangouts were, only where they had come from.
The Tribunal said this testimony was in “sharp contrast” to what she had
written in her PIF that “you knew where their hideout was and that it was close
to the place where you took transportation to your work.” The Tribunal
concluded:
When you were asked to explain this discrepancy, you
stated that you were talking about where they came from rather than where
they hung out or where their hideout was. I reject this explanation; I do
not find it satisfactory in the circumstances. In my view, if you had the
experience you allege and knew about the gang’s hideout, then more likely than
not, clear and un-contradicted evidence in this regard would have been provided
to Canada’s Immigration and Refugee Board.
[8]
The
second discrepancy was where she lived in Saint Lucia at times material to
her allegations of risk of serious mistreatment and threats at the hands of
gang members. The Tribunal noted in her testimony the applicant had
relocated to her mother’s house in order to obtain at least temporary safety.
The Tribunal pointed out to the applicant in the residence section of her PIF
“where in the Tribunal’s view your mind was specifically turned to the time and
the relevance of your places of residence at times crucial to your claim” shows
she had one place of residence for “many years right until the time you left
St Lucia.”
[9]
In
her PIF the applicant had written she had resided at Massade, Gros Islet from
November 1999 to April 2009. In her affidavit filed with the Tribunal, the
applicant’s mother stated she was a resident of Massade, Gros Islet. The
Tribunal found:
Your explanations in this important area, some of
which flowed from examination which I consider to have been leading questions,
were that your place of residence at your original home was what you
considered your permanent place of residence, this was at your
grandfather’s place, and that your mother’s home, which was the place where you
went to for a short period of time before you left St. Lucia, was a
temporary place. You also stated that you received mail at you original
place of residence. I reject these explanations.
[10]
The
Tribunal added the following:
I find that when you submitted your PIF, you were
declaring it to be complete, accurate and true; you had representation at the
time or at times material to the preparation of your claim and in preparation
for the hearing. You have had representation by a counsel before you were
represented by the current counsel, and this counsel is a barrister and
solicitor having experience in the presentation of refugee claims. You have
turned your mind to presenting the Board with amendments to your PIF and even
proffered a new or additional narrative in the form of a letter, which for
reasons already provided on the record, was not admitted into evidence.
Therefore, I am of the view that if you had
relocated in St. Lucia to save yourself from a fear of serious harm, then more
likely than not, clear reflection of this would have been found in your PIF
residence section.
[11]
The
third discrepancy related to how many gang members were arrested: The
applicant testified on more than one occasion only one gang member was
arrested and charged and was in fact one of the reasons why you did not
believe that you were adequately protected by and served by the St. Lucia
police and that she feared upon her return to her country of birth there would
still be other gang members who would be upset and could seek retribution
against you. The Tribunal pointed to an affidavit from her friend (Devon
Jules) who stated that the gang members were later arrested and charged with
assault and attempted robbery. The Tribunal concluded:
Even though you cannot reasonably be expected to
know whey another person makes certain declarations, whether in an affidavit or
in any other form, I am left with crucial discrepancies in the body of material
in front of me.
Your explanation for this discrepancy was that you
did not know why your friend referred to gang members in the plural, but
insisted that there was only one gang member who was arrested. You added that
the letter from the police also confirms this.
Having reviewed all of the evidence in its totality
and, in particular, the evidence and submissions that flowed in this area of
the claim, I am not satisfied on the balance of probabilities that you have
supplied sufficient credible evidence on which it may be found that the
police were either unwilling or unable to provide adequate protection in the
circumstances.
[12]
It
is to be noted that in a few paragraphs before the Tribunal had written:
You have supplied material intended to corroborate
the essential elements of your claim. You have submitted affidavits from a
friend and your mother. I find these sources both to be proximate to you and
not independent. As such, I find that they lack the necessary objectivity to
permit the Division to place weight on their declarations. You indicated
that your relationship with your mother was a good one and you stated that the
affidavit from the other person is an affidavit from a friend. The friend’s
affidavit conflicts materially and crucially, in my view, with your
testimony and the letter of your mother asked the police, the assistant
commissioner of the police, to write with respect to how many gang members
were arrested by the police.
[13]
The
Tribunal went on to state there was no independent corroboration from
the courts on the police to support here allegations and explanations why no
supporting documents supporting the multiple claims she made to the police.
The Tribunal was not satisfied with her explanations (investigating officer on
maternity leave and her mother’s lack of success in obtaining appropriate
documentation). The Tribunal then concluded it was not satisfied the
applicant had provided sufficient explanations and corroboration were
sufficient in the circumstances of her refugee claim and that based on the
evidence before the Tribunal it had been established that the applicant continued
to be threatened at times material to your decision to flee and time of alleged
flight. The Tribunal did, however, recognize the letter from the police
which referred to threats but went on to conclude the letter from the
police was created upon the request of her mother to provide support for
her allegations and noted the letter did not specify dates, periods or duration
of the threats.
[14]
The
Tribunal went on to make a finding concerning the delay in making her refugee
claim which was made six months after her arrival as a self-declared visitor in
Canada.
[15]
I
mention the Tribunal refused, on the grounds of non-compliance with the 20-day notice,
to enter into evidence an addition to her PIF for the purpose of illustrating the
origins of the threats against her. She explained the police told her she
would be needed to identify the girls from a line-up consisting of some of the
gang members along with some other girls around the same description. It
turned out at the line-up she was not behind a screen but face to face with
eight girls. She was scared and only identified one of them.
[16]
The
applicant described how the threats started and continued. She reported some
of the threats to the police who said the gang was in hiding and every time
they went on a search they came back empty handed. She had anxiety attacks and
saw a doctor.
[17]
The
Tribunal also refused to enter into evidence her sister’s affidavit for the
same reason.
[18]
These
documents had been provided to the Tribunal three days before the hearing.
[19]
At
the hearing the Tribunal refused to enter into evidence the newspaper article
which was provided at the hearing.
IV. The
position of the parties
1. That of the
applicant
[20]
Counsel
for the applicant submits this judicial review application raises the following
issues:
i.
A
breach of procedural fairness when the Tribunal refused to allow an amendment
to her PIF because it was filed late under Rule 30 (3 days before the hearing).
ii. Did
the Tribunal fixate on minor or peripheral omissions in evidence in making
negative credibility findings?
iii.
Did
the Tribunal make selective use of documentary evidence and/or make erroneous
findings with regard to state protection?
iv.
Did
the Tribunal err in finding the applicant’s claim was not well founded due to
her delay in making her claim?
2. That of the
respondent
[21]
Counsel
for the respondent argues:
i.
The
claimant bears the onus of establishing, if she were to return to St. Lucia, she would face a serious risk of persecution.
ii.
In
this case, the applicant failed to provide trustworthy and probative evidence
necessary to corroborate her allegations of persecution, a determination which
falls well within the Tribunal’s decision-making purview noting from Dunsmuir
where a tribunal decides a question of fact the standard of review is
reasonableness; a credibility finding is a properly factual determination.
The Tribunal is entitled to significant deference.
iii.
A
review of the evidence shows the Tribunal made reasonable credibility findings
and did not err in finding the applicant’s documentary evidence did not
corroborate her claim.
iv.
The
applicant showed a lack of subjective fear when she delayed six months after
she arrived in Canada and only after her status as a visitor had expired.
v.
The
applicant failed to rebut the presumption of state protection.
V. Analysis and
Conclusion
(a) The
standard of review
[22]
It
is settled law that a breach of procedural fairness is gauged on the standard
of correctness and findings of fact which is what a credibility finding is, as
well as any other error of fact, gauged on the reasonableness standard.
[23]
It
is clear from the Supreme Court of Canada decision in Dunsmuir, the
reasonableness standard requires this Court to grant significant deference to
the Tribunal and unless the decision does not fall within a range of acceptable
outcomes that are defensible in respect of the facts and the law, the Court is
not to intervene.
(b) Conclusions
[24]
For
the following reasons this judicial review application must be allowed. As
noted the Tribunal accepted the applicant had been stabbed by a group of young
women or girl gang members; that she had made a complaint to the police who
arrested one gang member whose trial was indefinitely postponed, a trial in
which the applicant was the main witness. The Tribunal also accepted the fact the
police was searching for the other gang members.
[25]
The
main component of the applicant’s fear was the threats she was receiving from
the gang members. Yet, the Tribunal concluded the applicant had not
established she continued to be threatened at material times.
[26]
The
Tribunal reached this conclusion finding the applicant’s testimony not to be
credible.
[27]
It
is settled law that credibility findings are findings of fact which command a
substantial deference from this Court. However, a tribunal’s credibility
findings are not immune from review. The defects in the applicant’s testimony
must be central to her story; those defects must not be trivial or minute. The
Court must consider whether the decision as a whole supports the tribunal’s
credibility findings.
[28]
In
my view, this is where the Tribunal erred. The evidence as a whole does not
support the Tribunal’s credibility findings.
[29]
The
Tribunal relied on three discrepancies to cast aside the applicant’s central
fear – a fear of the gang members who attacked her in respect of which she
complained to the police. In this context, the defects in her testimony were
minor and trivial. The Tribunal’s decision cannot stand and the other issues
raised must be deferred until a differently constituted tribunal has the
opportunity to assess the applicant’s well founded fear of persecution.
JUDGMENT
THIS
COURT’S JUDGMENT is that this judicial review application is
granted, the Tribunal’s decision is quashed and the matter is remitted to a
differently constituted tribunal for redetermination. No certified question
was proposed.
“François Lemieux”
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