Docket: IMM-3655-11
Citation: 2012 FC 140
Ottawa, Ontario, February 2, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ELIZABETH NGOZI OWOCHEI
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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
INTRODUCTION
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated 27 April 2011 (Decision), which refused the Applicant’s
claim for protection as a Convention refugee or person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant, Elizabeth Ngozi Owochei, is a citizen of Nigeria who was born
and has lived most of her life in the village of Abuedo, town of
Ubulu Uku, Delta
State, Nigeria.
[3]
The
Applicant claimed refugee protection from her former husband, Nwke Owochei
(Owochei), whom she married on 23 March 1972. She says their marriage went well
until the birth of their first daughter in February 1974. Owochei was not
satisfied because their daughter was not a boy and began quarrelling with the Applicant.
Their first daughter died in 1976. After the birth of their second daughter in
1979, Owochei began physically abusing the Applicant and slapping her two to
three times per week. After the birth of their third daughter in 1982, the
abuse escalated to include punching and flogging with an electric wire. The
couple’s fourth daughter was born in March 1988 and the abuse continued. After
a particularly brutal beating, the Applicant’s parents brought the situation to
the attention of the village elders, but Owochei refused their orders to stop.
He was exiled from the community but returned later. In 1991, the Applicant
gave birth to a son, followed by two more sons in 1993 and 1995, all of whom
Owochei fathered.
[4]
Owochei
began a relationship with another woman and brought her into the marital home
in 1991. Owochei continued to physically abuse the Applicant and eventually stopped
providing for her and her children.
[5]
In
June 2005, members of Owochei’s family visited the house and beat the Applicant
so severely she lost consciousness. The police came after one of her sons found
her unconscious and went to a police station. The police arrested one woman who
had led the group assaulting her, but this woman was later released. After the
incident, Owochei became more violent and told his family to kill the Applicant
with poison because she called the police.
[6]
In
2005, the village elders told the Applicant to leave home because they could
not do anything more about Owochei. She moved to her parents’ house, which she
described at the hearing as being three to four blocks away. The Applicant
brought her youngest son with her but left the other children in the care of
their father. Owochei frequently went to the store in front of her parents’
house. At the hearing, the Applicant said that she did not encounter Owochei directly
during this period because neighbours would alert her when he approached the
house, allowing her to hide or flee before he arrived.
[7]
In
October 2008, the Applicant and her youngest son moved into a rented room in
another house in the same village. At 5:00 in the morning on 20 November 2008, Owochei
knocked on the door of the Applicant’s house and asked to see her. Another
tenant opened the door and noticed that Owochei was carrying a cutlass; he
alerted the Applicant, who hid. Owochei forced his way into the house and
ransacked the Applicant’s room. He told the other tenants that he would kill
the Applicant.
[8]
After
this incident, the Applicant hid and moved between several houses in her town.
On 3 January 2009, she moved to Lagos, Nigeria, and hid at a
friend’s house. Owochei discovered the Applicant’s whereabouts and sent her a
message that he would find and kill her. The Applicant then contacted an agent
and made arrangements to come to Canada.
[9]
The
Applicant left Nigeria on 10 January 2009 and arrived in Canada on the next
day. She claimed protection on 16 March 2009. The RPD heard her case on 26
January 2011 and made its decision on 27 April 2011. The RPD gave the Applicant
notice of the Decision on 17 May 2011.
DECISION
UNDER REVIEW
[10]
The
RPD found that the Applicant had not provided credible and trustworthy evidence
to support her claim and concluded she is neither a Convention refugee nor a
person in need of protection. The Applicant is not a Convention refugee because
she does not have a well-founded fear of persecution in Nigeria connected to
a Convention ground. She is not a person in need of protection because she does
not personally face a risk to her life or a risk of cruel and unusual treatment
or punishment if she were returned to Nigeria.
Credibility
[11]
The
RPD found that the Applicant invented, or at least embellished, material parts
of her story in order to further her claim for refugee protection. It found
that the Applicant’s evidence going to the merits of her claim contained
discrepancies, was vague, and was confusing. The RPD said that it took the
Applicant’s education level, cultural differences and nervousness into account
in assessing credibility and the plausibility of her allegations.
[12]
The
RPD found there were major contradictions between the Applicant’s Personal
Information Form (PIF) and her oral testimony, which impugned her overall
credibility. In her PIF, the Applicant said that, when she lived at her
parents’ home, Owochei would visit and physically abuse her. At the hearing,
the Applicant said that she did not see Owochei after leaving the marital home,
but would hear him “physically abuse” her by using words when he visited the
store in front of her parents’ house. The RPD told the Applicant that “physical
abuse” meant being hit or beaten. The Applicant responded by saying that Owochei
would come, beat on the door, and use physical insults. Nearby people would see
him coming and alert the Applicant so she could run away.
[13]
The
RPD pointed out at the hearing that she did not mention in her PIF that she
would run away when Owochei visited. The RPD accepted that she ran away to live
elsewhere after a number of years at her parents’ house, but found that she did
not run away from Owochei. The RPD found that if Owochei had wanted to have
direct contact with the Applicant in the small village, he could have done so
easily, and that he did not physically abuse her after she left the marital
home in 2005. The contradiction between her PIF narrative and her oral
testimony was a serious contradiction which impugned her credibility.
[14]
The
RPD also said there was a basic implausibility in the Applicant’s testimony. She
testified that she lived in a small village of only 15 streets. She also
testified that, from June 2005 - when she left the marital home - until January
2009 - when she fled to Lagos, Nigeria - she did not see Owochei or any
of her five oldest children who lived only a few blocks away. The RPD found
that it would be highly unlikely, if not impossible, that she would not have run
into any of them over a period of three-and-a-half years in such a small area.
The RPD also found that it was highly improbable that none of her children would
visit or run into her when they only lived three blocks apart.
[15]
The
RPD relied on Canada (Minister of Employment and Immigration) v Dan-Ash,
[1988] FCJ No 571 (FCA) and Bakare v Canada (Minister of Employment and
Immigration), [1994] FCJ No 31 and held that the contradictions and
omissions in the evidence presented by the claimant on issues central to her
claim rebutted the presumption of a claimant’s truthfulness established by Maldonado
v Canada (Minister of Employment and Immigration), [1994] FCJ No 72. The
RPD also cited Orelien v Canada (Minister of Employment
and Immigration), [1992] 1 FC 592 (FCA) at paragraph 20 where the Federal
Court of Appeal said that, “…one cannot be satisfied that evidence is credible
or trustworthy unless satisfied that it is probably so, not just possibly so.”
The RPD found that the Applicant had not discharged the onus on her to
establish her claim.
[16]
The
RPD concluded that the Applicant generally lacked credibility because her
testimony did not have the ring of truth one would expect from a trustworthy
witness with a genuine claim. It found that there was insufficient credible or
trustworthy evidence before it to find that if the Applicant returned to Nigeria she would
face a serious possibility of persecution. It also had insufficient evidence to
find that it was more likely than not that the Applicant would face a risk to
life or a risk of cruel and unusual treatment or punishment or to a danger of
torture.
STATUTORY
PROVISIONS
[17]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries;
[…]
Person in Need of Protection
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
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Définition de «
réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[…]
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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ISSUES
[18]
The
Applicant raises the following issues:
a.
Whether
the RPD erred in finding that the Applicant was not credible;
b.
Whether
the RPD failed to consider the Chairperson’s Guideline 4: Women Refugee
Claimants Fearing Gender Related Persecution (Guidelines);
c.
Whether
the RPD erred by failing to engage in any analysis of the Applicant’s objective
risk based on the facts it treated as credible;
d.
Whether
the Applicant was denied procedural fairness through inaccurate interpretation;
e.
Whether
the RPD provided adequate reasons.
STANDARD OF
REVIEW
[19]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[20]
In Elmi v Canada (Minister of Citizenship and
Immigration) 2008 FC 773, at paragraph 21, Justice Max Teitelbaum held that
findings of credibility are central to the RPD’s finding of fact and are
therefore to be evaluated on a standard of review of reasonableness. Further,
in Hou v Canada
(Minister of Citizenship and Immigration) 2005
FC 1586, Justice John O’Keefe held at paragraph 23 that the standard of review
on a finding of credibility was patent unreasonableness. Also, in Aguebor v Canada (Minister of Citizenship and
Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. The standard of review on the first
issue is reasonableness.
[21]
The
Applicant asserts that the RPD failed to consider the Guidelines in the context
of its analysis of her credibility. This was the issue before Justice Michael
Phelan in Hernandez v Canada (Minister of Citizenship and Immigration) 2009 FC 106, where he held at
paragraph 13 that, where the guidelines are used as part of the analysis of
credibility, they become subsumed in the standard of review of reasonableness.
The standard of review on the second issue is reasonableness (see also Plaisimond
v Canada (Minister of Citizenship and Immigration) 2010 FC 998 at paragraph
32 and Higbogun v Canada (Minister of Citizenship and Immigration) 2010
FC 445 at paragraph 22).
[22]
Recently,
the Supreme Court of Canada held in Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 that the adequacy
of reasons is not a stand-alone basis for quashing the Decision. Rather, “the
reasons must be read together with the outcome and serve the purpose of showing
whether the result falls within a range of possible outcomes.” (See paragraph
14). If the Reasons, supplemented by the record, permit the Court to determine
if the outcome is within the Dunsmuir range, they will meet the required
threshold.
[23]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
[24]
In Balakumar
v. Canada (Minister of Citizenship and Immigration) 2008 FC 20, at
paragraph 9, Justice Phelan held that whether the RPD applied the correct test
in determining a refugee claim is a question of law, which includes the
question of whether there must be a separate section 97 analysis. In Bouaouni
v Canada (Minister of
Citizenship and Immigration) 2003 FC 1211 Justice Edmond Blanchard wrote
that “whether the Board properly considered both [sections 96 and 97] claims is
a matter to be determined in the circumstances of each case.” Justice Carolyn
Layden-Stevenson held in Brovina v Canada (Minister of Citizenship and
Immigration) 2004 FC 635 at paragraph 17 that a section 97 analysis need
not be conducted in every case; only where there was evidence before the RPD to
support that analysis must it be conducted. This is a question of law, reviewable on the
standard of correctness, so the standard of review on the third issue is
correctness.
[25]
The
fourth issue concerns the adequacy of translation at the RPD hearing. Adequacy
of translation is a procedural fairness issue, which attracts the correctness
standard. See Khosa, above, at paragraph 43. The Federal Court of
Appeal, in Mohammadian v Canada (Minister of Citizenship and Immigration)
2001 FCA 191 held that the factors for assessing accurate translation in a criminal
context, enunciated by the Supreme Court of Canada in R. v Tran, [1994] 2 S.C.R. 951, applied to
immigration proceedings. In Singh v Canada (Minister of
Citizenship and Immigration) 2010 FC 1161, at paragraph 3, Justice François
Lemieux summarized the factors as follows:
…
a.
The
interpretation must be precise, continuous, competent, impartial and
contemporaneous.
b.
No
proof of actual prejudice is required as a condition of obtaining relief.
c.
The
right is to adequate translation not perfect translation. The fundamental value
is linguistic understanding.
d.
Waiver
of the right results if an objection to the quality of the translation is not
raised by a claimant at the first opportunity in those cases where it is
reasonable to expect that a complaint be made.
e.
It
is a question of fact in each case whether it is reasonable to expect that a
complaint be made about the inadequacy of interpretation.
f.
If
the interpreter is having difficulty speaking an applicant’s language and being
understood by him is a matter which should be raised at the earliest
opportunity.
ARGUMENTS
The Applicant
The RPD’s
Credibility Finding Was Unreasonable
[26]
The
Applicant notes that the RPD found there was a contradiction between her PIF –
where she said her husband came to her parents’ home and physically abused her
– and her oral testimony – where she said that he made threats and pounded on
the door, but she ran away. She says that the RPD correctly noted the
contradiction, but argues that her testimony actually diminished what she wrote
in her PIF, so the RPD should not have interpreted this as embellishment.
[27]
The
Applicant also says that the RPD should have realized that the contradiction arising
from her use of the words “physical abuse” may have been nothing more than a
misunderstanding. Her PIF narrative was prepared without a lawyer and through
an interpreter, but the RPD ruled out this explanation before she heard the
Applicant’s answer. She points to the following exchange to support her
position:
RPD: Okay, I want to tell
you something. I’ve been a member of the Board for seven years… I have never
heard someone say physically abuse to mean anything else than the person hit me
or beat me in some way.
Applicant: Madam, my story still
remains the same the way that I said it the first day. Maybe it was put down in
that form by the interpreter who wrote it but that was the story that I
remember happened because that was what happened
[28]
The
Applicant also argues that the wording in her PIF was an abstract statement. At
the hearing she was not embellishing, but telling the RPD what had happened in
her own words. She believed that what was written in English in her PIF
narrative was broad enough to include threats of violence against her, which she
says is within the realm of fair understanding for an uneducated person working
through an interpreter. She says there may have been a meaning which was incorrectly
conveyed by the interpreter who assisted with the preparation of her PIF. It
was unreasonable for the RPD not to consider possible errors in translation
when it was evaluating her credibility.
[29]
The
Applicant also argues that the RPD did not consider that evidence given through
an interpreter is fraught with potential misunderstanding. She says that the
purpose of a hearing with oral testimony is to let the person say what happened
in detail, directly in her own words. She says that Attakora v Canada
(Minister of Employment and Immigration), [1989] FCJ No 444 (FCA), Owusu-Ansah
v Canada (Minister of Employment and Immigration), [1989] FCJ No 442 (FCA),
Rajaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ
No 1271 (FCA), and Ramirez v Canada (Minister of Employment and Immigration),
[1992] 2 FCJ No 109 (FCA) all support her position.
[30]
Relying
on Attakora, above, the Applicant also says that the RPD engaged in a
microscopic examination of her testimony. She also says that the contradiction
the RPD used to impugn her credibility was weak and points to Sheikh v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 568 where Justice
Lemieux held at paragraph 24 that
the inconsistencies found
by the Refugee Division must be significant and be central to the claim […] and
must not be exaggerated. [citation omitted]
[31]
The
Applicant also argues that the RPD erred when it failed to take into account
the Guidelines. She notes that the Guidelines caution the RPD that a battered
woman could use language that is strong to describe the threat of violence,
since violence has been the reality with her abuser. The Guidelines also say
that women claimants face special problems in demonstrating their claims are
credible and trustworthy. The Applicant relies on Garcia v Canada (Minister
of Citizenship and Immigration) 2007 FC 79 and N.Z. v Canada (Minister
of Citizenship and Immigration) 2011 FC 193 for the proposition that it is
an error in law for the RPD to not take the Guidelines into consideration when
assessing a refugee claim by a woman who has suffered domestic violence.
[32]
The
Applicant argues further that the RPD compounded several errors within its
implausibility finding by ignoring aspects of the Applicant’s testimony, ignoring
the domestic abuse context, and making plausibility assumptions without a valid
and relevant evidentiary basis.
[33]
She
says that the RPD made an assumption that all children of abused women seek their
mothers out when they have left the home. The RPD based its finding that it was
implausible for her children to not visit her once she moved to her parents’
house on this unreasonable assumption. There was no evidence before the RPD
that her children would want to visit her. The children of an abused woman might
feel ambivalence to their mother for a number of reasons, including the influence
of the abusive parent, their feelings of being abandoned or unprotected, or uncertainty
about whether they should seek out the abused parent. By making an unfounded
assumption, the RPD did not apply contextual sensitivity in assessing conduct
in domestic abuse cases (see Garcia, above, and Sanchez v Canada (Minister of
Citizenship and Immigration) 2011 FC 68).
[34]
The
Applicant further says that the RPD speculated in a way that was contrary to
the evidence by presuming that her husband would have come into contact with
her earlier. Because she was avoiding him she cannot be expected to justify Owochei’s
thinking or why he escalated his behaviour.
[35]
The
Applicant says that the RPD anchored its credibility finding on all of these
findings when it wrote at paragraph 12 of the Decision that:
While each individual discrepant response
to questions about material aspects of the claim might not amount to a finding
of a lack of credibility, I find that assessed in their totality and in their
context, they lead me to make a finding of a general lack of credibility on the
part of the claimant.
[36]
Had
the RPD not made the errors the Applicant has alleged, it could have arrived at
a different assessment of credibility.
The RPD Failed to Analyse the Applicant’s Section
97 Risk
[37]
The
Applicant further asserts that the RPD’s overall conclusions leave the fact
that she was a victim of domestic abuse for three decades undisputed. The RPD’s
findings imply that it believed most of what she said. The RPD’s general
finding that she lacked credibility at paragraph 12 of the Decision was only supported
by two unreliable aspects of her testimony. The RPD concluded at paragraph 15 of
the Decision that the only material aspects of her testimony were fabrications
or embellishments and that it did not have sufficient credible evidence.
[38]
Although
the RPD disbelieved some incidents or aspects of her testimony, it should have
assessed whether she faces an objective risk of abuse in Nigeria under section
97 of the Act. The Applicant is a woman who has experienced domestic abuse over
a long period. She says she could still be at risk from Owochei in Nigeria, where men
are entitled to abuse women and enjoy impunity in doing so. The RPD erred by
treating the fact that it rejected the most recent incident (and the
plausibility of her children not visiting her) as dispositive of any other risk.
[39]
She
also says that the RPD did not find her totally lacking in credibility. There
was evidence which was credible and trustworthy on which the RPD could have
concluded that she faces a risk under section 97 if she were returned to Nigeria. She points
to a report from the US Department of State and the RPD’s Response to
Information Request NGA103509.E.29, both of which were part of the National
Documentation Package for Nigeria before the RPD. In
addition, the Applicant says that she has established a link between her
circumstances and other similarly situated people, so it was an error for the
RPD not to examine her risk under section 97.
The RPD Provided
Inadequate Reasons
[40]
The
Applicant says that the RPD’s reasons are insufficient to show why her claim
failed. She relies on Mehterian v Canada (Minister of
Employment and Immigration), [1992] FCJ No 545 (FCA). She also says that the RPD failed
to mention why the Guidelines are not applicable in her case even though she
submitted at the hearing that they were. This omission also makes the RPD’s
reasons inadequate.
The Respondent
[41]
The
Respondent notes that the RPD denied the Applicant’s refugee claim because she
lacked credibility on key and central elements of her allegations of a well-founded
fear of persecution. She provided vague, confusing and implausible evidence
that the RPD found lacked credibility. Because the Applicant lacked
credibility, she could not establish a well-founded fear of persecution. The
RPD’s reasons are clear, cogent, and reasonable.
The RPD’s Credibility
Findings Were Reasonable
[42]
The
RPD’s conclusion on credibility was within the Dunsmuir range and should
not be disturbed on judicial review. The Applicant seeks only to have the Court
re-weigh the evidence, which is not its proper role on judicial review. Although
the Applicant has asserted that the RPD did not find she was abused, the RPD
did not have to make such a finding. Overall, the RPD found she was not
credible because of contradictions in her evidence. It was reasonable for the
RPD to conclude it was implausible that she would not see Owochei for four years
when they apparently lived only four blocks apart. It was also reasonable for
the RPD to find a contradiction between her PIF – where she said Owochei
physically abused her – and her oral testimony – where she said he beat on the
door of her parents’ house and shouted. The RPD explained reasonably why it
rejected her explanation.
[43]
The
Respondent notes that I said in Higbogun, above, at paragraph 39 that
“inconsistencies and contradictions create a perception of a lack of
credibility.” He says that the RPD’s reliance on inconsistencies in the Applicant’s
evidence was reasonable.
[44]
The
Respondent reminds the Court that the RPD has had the benefit of observing the
testimony of the Applicant directly and is in the best position to determine
the credibility of her account (see Aguebor, above, at paragraph 4). The
RPD is entitled to draw reasonable inferences from the evidence and to reject
uncontradicted evidence if it is not “consistent with the probabilities
affecting the case as a whole” (see Faryna v Chorny, [1951] BCJ No 152;
[1952] 2 DLR 354 at 357 (BCCA)), and that the RPD is entitled to make
reasonable findings based on implausiblities, common sense and rationality.
Though the Applicant disagrees with the RPD’s findings and puts forward her own
interpretation of the evidence, this is not sufficient to quash the Decision.
[45]
In
this case, the RPD did not overlook evidence or err in its assessment of the
Applicant’s evidence. The RPD conducted a reasonable assessment of the
Applicant’s evidence going to the merits of her claim and found that it contained
discrepancies, exhibited vagueness and was confusing. Taken together, the
Applicant’s evidence did not have the ring of truth and led the RPD to conclude
that the Applicant was not a credible witness. It was open to the RPD to find
on the basis of the evidence before it that the Applicant did not meet the onus
of demonstrating that she faces a well-founded fear of persecution or risk in Nigeria.
[46]
The
RPD’s consideration of the plausibility of the Applicant’s story was
reasonable. Her testimony was inherently implausible and not in accordance with
rationality and common sense when viewed against the backdrop of other
evidence. The Respondent relies on Gonzalez v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No. 805 at paragraph 27 for the proposition
that the RPD may consider the manner in which the story was told and tested in
the course of the hearing against the backdrop of other evidence and its own
understanding of human behaviour.
The Guidelines are not Dispositive
[47]
The
Respondent says the Guidelines are not binding on the RPD and do not shield a
claimant from having her evidence tested. The Guidelines also do not entitle a
claimant to have her evidence accepted without inquiry and are not intended to
serve as a cure for all deficiencies in a claimant’s claim or evidence. The
claimant bears the onus of proving her claim throughout the process. The
Respondent quotes Newton v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 738 where Justice Denis
Pelletier said at paragraphs 17 and 18 that
The
Guidelines are an aid for the CRDD panel in the assessment of the evidence of
women who allege that they have been victims of gender-based persecution. The
Guidelines do not create new grounds for finding a person to be a victim of
persecution. To that extent, the grounds remain the same, but the question
becomes whether the panel was sensitive to the factors which may influence the
testimony of women who have been the victims of persecution
[…] The Guidelines cannot be treated as
corroborating any evidence of gender-based persecution so that the giving of
the evidence becomes proof of its truth.
[48]
The
Applicant has adduced no persuasive evidence to establish that the RPD did not
follow the Guidelines. Neither the Applicant nor her counsel objected to the
conduct of the hearing at that time and there is no evidence that the Applicant
was unable to present her case fully. Having disbelieved the Applicant’s story,
the RPD was not required to apply or specifically mention the Guidelines. There
was also no reason to believe that the Applicant was reluctant to testify or
needed alternative arrangements. The RPD displayed sensitivity to the
Applicant’s circumstances when it specifically acknowledged her education
level, cultural differences and nervousness.
[49]
The
RPD found that the Applicant generally lacked credibility and the application
of the Guidelines would not have cured this problem. The Respondent relies on Sy
v Canada (Minister of
Citizenship and Immigration), 2005 FC 379 at paragraphs 17 to 19.
The Applicant did not have a Well-Founded
Fear of Persecution
[50]
The
Respondent notes that, in Sellan v Canada (Minister of
Citizenship and Immigration), 2008 FCA 381, the Federal Court of Appeal
found at paragraph 3 that
[W]here
the Board makes a general finding that the claimant lacks credibility, that
determination is sufficient to dispose of the claim unless there is independent
and credible documentary evidence in the record capable of supporting a
positive disposition of the claim. The claimant bears the onus of demonstrating
there was such evidence.
[51]
Though
she has referred to general country condition documents, the Applicant has not
linked this evidence to her particular circumstances. The Respondent relies on Canada (Minister of
Public Safety and Emergency Preparedness) v Baraniroobasingam 2010 FC 92,
where Justice Sean Harrington held at paragraph 6 that country conditions alone
are insufficient to ground a refugee claim. The Applicant failed to discharge
the onus on her to prove her claim, so the Decision should stand. She testified
that her friend told her Owochei still hunts her, but did not support this
testimony with objective evidence. Without credible evidence to support her
claim, it was bound to fail and neither the Guidelines nor the country
condition evidence can cure this defect. The RPD’s conclusion that she did not
have a well-founded fear of persecution was reasonable.
ANALYSIS
[52]
The
determinative issue in this case was credibility; the RPD said:
While each individual discrepant response
to questions about material aspects of the claim might not amount to a finding
of a lack of credibility, I find that assessed in their totality and in
context, they lead me to make a finding of a general lack of credibility on the
part of the claimant. In other words, the testimony of the claimant does not
exhibit the “ring of truth” one would expect from a trustworthy witness making
a genuine claim.
[53]
Although
this looks like a general negative credibility finding, the reasons are brief
and it is not clear whether the RPD believed any of the Applicant’s story. It
seems obvious from the Decision as a whole that the RPD accepted her identity
and that she came from the village of Abuedo, town of Ubulu Uku, Delta State, in Nigeria. The RPD
also explicitly accepts that “after a number of years she ran away from her
parent’s home to live elsewhere at a boarding house” even though “she did not
run away from her husband coming to harass her at her parent’s house.” How much
of her past abusive relationship with her husband is accepted is unclear
because the RPD only addressed the “merits of her claim” which it says
“contained discrepancies, exhibited vagueness and was confusing.” The Applicant
and the Court are not given a full context or a comprehensive set of reasons
because the RPD only deals with “some examples” of the defects it found in her
testimony.
[54]
Although
the Decision suggests that the RPD based its conclusion on several
inconsistencies, I think its treatment of the Applicant’s allegation of
“physical abuse” is sufficient to dispose of this case.
[55]
The
RPD relied on the supposed contradiction between what the Applicant said in her
PIF about “physical abuse” by her husband while she resided at her parents’
house and what she said at the hearing to the effect that she never saw her
husband again after she left the family home and that he came to the store,
beat on the door, and used verbal abuse. For the RPD, there is a clear
distinction between physical abuse and verbal abuse and this is enough for it
to conclude that “her responses to this major material contradiction are
inadequate and unreasonable.” The RPD makes a specific finding that the husband
“did not come and physically abuse her after she left the marital home in 2005,
and this is a very serious contradiction which impugns her overall
credibility.” This finding is extremely important for the overall negative
credibility finding. There is, however, no evidence that she ran away from her
parents’ home for any other reason; if the RPD accepted that she was running
away, it is reasonable to expect that it would pay close attention to the
Applicant’s explanation that she did not change her story from physical abuse
to verbal abuse.
[56]
The
problem is that, in its reasons, the RPD does not mention the principal explanation
offered by the Applicant for this discrepancy or say why her explanation is
inadequate or unreasonable. The relevant portions of the transcript read as
follows:
Q. So what was your life like when
you lived at your parent’s? [sic]
A. My
situation was pathetic because I felt like I was homeless, I couldn’t
(inaudible) the homes, but this was me now dealing with my parents (inaudible)
to survive.
Q. And did you have contact with
your husband?
A. No, we didn't have contact; I
didn’t see him anymore.
Q. So when was the last time you saw
your husband?
A. Right from the day I left his
house I did not see him (inaudible).
Q. Now,
in your personal information form, on page 3, you’re talking about when you
lived at your parent’s [sic] house and you wrote: “My husband did not
leave me alone at my parent’s [sic] house. On many occasions he visited
me there and at the store and physically abused me”. That’s very different from
what you just told me.
I’m sorry,
please wait until our interpreter translates. I said that’s very different from
what you just told me.
Let him
translate and then you can tell me more.
A. So
what happened was that I never saw him after that but there were many times
that he came to the store where I was doing my petty trade and people who
recognized him will call and say my husband was coming and I will run away, so
that I don’t get beaten and get harassed.
Q. Okay,
there’s still something there that I don't understand what you wrote and I want
to make sure you understand it. You wrote: “On many occasions he visited me
there” – – that’s referring to your parent’s [sic] house. “He visited me
there and at the store and physically abused me”.
A. Madam,
the scenario was this; the store being in front of the house and were other
rooms behind the store. When they came to told me that my husband was coming I
will escape, I go to the back and here him physically abuse – – abusing – –
like using words, in the store and said whenever – – whenever he sees me he was
going to do this, he was going to do that; that was the physical abuse that I
was referring to. But to see him, I didn’t see him.
Q. Okay,
I want to tell you something, I’ve been a member of this Board for seven years,
I’ve done many claims of women who say that their husbands were abusing them. I
have never heard someone say physically abuse me to mean anything else than the
person hit me or beat me in some way.
A. Madam,
my story still remains same the way that I said it the first day. Maybe it was
put down in that form by the interpreter who wrote it, but that was the story
that I remember happened because that was what happened.
Q. Okay.
It’s very difficult for me to read that your – – what you wrote was that your
husband did not leave you alone and that he physically abused you and now you’re
telling me that you never saw him again after you left his home or the home
where you had lived in 2005.
A. The
way I spoke to this interpreter is the way I’m speaking to you. He will come,
yes, he will make noise, use his hands and beat the door and shout abuses and
insults, yes, I didn’t see him. He came to my parent’s [sic] home, yes;
I didn’t see him because before he’d come to where we were word would have come
to me that my husband was coming, my husband was coming, because everybody knew
what I went through in his hands and the moment they saw him coming towards my
parent’s [sic] place always (inaudible) that he was coming and I would
just run behind and people would tell him that I’m not there, I’m not there.
I heard him
raise his voice, I heard him, you know, shout and threaten and abuse, that’s
exactly what I said to the interpreter when I spoke (inaudible).
[57]
The
Applicant says she has always described the abuse in the same way and explains
that something got lost in translation yet the RPD never considers whether this
may have occurred. The record shows that there were translation issues with
this Applicant, which makes the RPD’s failure to consider the problems she
raised puzzling. Her PIF was interpreted to her in Yoruba by a Yoruba interpreter,
while at the hearing an Igbo interpreter was used; this interpreter told the
RPD that Igbo and Yoruba are “extremely different.” The Applicant speaks both
languages, but it is clear that Igbo is her most comfortable language because a
pre-hearing was held to determine what kind of interpreter was required for the
hearing and the RPD decided to proceed with the Igbo interpreter. It is also clear
that the Applicant is not fluent in English.
[58]
Against
the backdrop of these translation issues, the Applicant explained that she has
never changed her narrative about the kind of abuse she experienced from her
husband while she was at her parents’ house. She asked the RPD to consider
whether this was a translation problem and not a credibility issue, but the RPD
did not act on this request. Given the language issues in this case, I think it
was unreasonable for the RPD not to consider the translation issues raised by
the Applicant to explain an apparent inconsistency.
[59]
As
the Federal Court of Appeal said in Attakora, above,
I have mentioned the Board’s zeal to find instances of
contradiction in the applicant's testimony. While the Board's task is a
difficult one, it should not be over-vigilant in its microscopic examination of
the evidence of persons who, like the present applicant, testify through an
interpreter and tell tales of horror in whose objective reality there is reason
to believe.
[60]
Also,
the Federal Court of Appeal said in Owusu-Ansah, above
The inconsistencies relied on often go unnoted during the Board’s hearing
and unremarked by counsel in argument before it. In many cases, this among
them, the claimant’s evidence has been given through interpreters, usually
different at each proceeding. The process is fraught with the possibility of
innocent misunderstanding. It is also to be noted that, in the scheme of the
legislation, reasons for a decision are composed by the Board some considerable
time after the decision has been rendered not, as in the usual judicial
proceeding, as a critical part of the decision making process.
[61]
The
Federal Court of Appeal also said in Rajaratnam, above, that
Applying the law as so developed to the case at bar, I am
persuaded that, by and large, what the Board characterized as “discrepancies”
cannot properly be so viewed. There were no real internal inconsistencies in
the applicant's testimony at the hearing and the differences between what she
stated there and in her Personal Information Form can be explained, it seems to
me, by innocent misunderstanding because of the fact that she was assisted on
each of these separate occasions by different interpreters. I consider the
criticisms offered by the applicant's counsel to be entirely fair and accurate
in the circumstances.
[62]
In
these cases, it is noteworthy that the interpreters were speaking the same
language. In the present case, the Applicant had to convey her narrative
through two interpreters who spoke different languages.
[63]
Because
the Decision is so brief and only really provides two examples of what the RPD
calls the Applicant’s discrepancies, and because the alleged discrepancy about
the kind of abuse which the Applicant suffered “is a very serious contradiction
which impugns her overall credibility,” my finding that the RPD was
unreasonable not to consider the translation explanation disposes of this
application. There is no reason to consider the implausibility finding. The
matter must be returned for reconsideration.
[64]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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