Date:
20121121
Docket:
IMM-942-12
Citation:
2012 FC 1347
Ottawa, Ontario,
November 21, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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FRANCITA PETER, SHANAM PETER,
EDISON GEORGE PETER
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 20 December 2011 (Decision), which refused the Applicants’ application to
be deemed Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants are citizens of St. Lucia. They seek protection in Canada from persecution at the hands of the Mal Tete gang in St. Lucia. The Primary Applicants are
Francita Peter (Francita) and her husband, Edison George Peter (Edison). Their adult son is Shanam Peter (Shanam).
[3]
The
Applicants lived in the town of Vieux-Fort on the island of St. Lucia. In March 2005, Francita witnessed the beating of a man named Marcus by members of
the Mal Tete gang. Francita reported “Ya Ya,” one of the gang members, to the
police. The next day, members of the Mal Tete came to the Applicants’ home,
threw rocks at it, and killed one of their dogs. While the gang members were
outside shouting threats, Francita called the police. The police said they
would come, but they never did.
[4]
The
next day, Francita heard stones being thrown at her house and what sounded like
gun shots. She saw one of the gang members come into her yard and take Shanam’s
bike. The Applicants called the police and were told they should make a report,
which they did.
[5]
Later,
Francita was visiting a friend at the hospital when Edison pulled up to the
hospital in his bus with Shanam. Shanam had been stabbed in the chest and was
bleeding profusely; Edison rushed him into the emergency room. Gang members had
also damaged Edison’s bus by throwing rocks at it. Police officers came to the
hospital and told the Applicants they would investigate the matter. When the
Applicants called the police a few days later to follow up they were told there
was no report of the incident on record.
[6]
The
Mal Tete gang kept threatening the Applicants and so they went into hiding.
Sometimes they would go to the north or west of the island and stay with
relatives for a few days, and would then return home to Vieux-Fort. Members of
the Mal Tete would demand that family members tell them where the Applicants
were, and the Applicants were threatened whenever the Mal Tete saw them. At one
point a member of the gang grabbed Francita by her arm and told her that her
family likes to talk too much and they will pay with their lives for reporting
Ya Ya to the police. He said that this was just a warning, but any day the gang
could come and take the whole family. That night Francita decided her family
needed to leave St. Lucia.
[7]
Francita
arrived in Canada on 30 July 2007. Shanam followed on 22 December 2007. Edison
attempted to enter Canada on two occasions in 2008, but was refused. He
successfully entered Canada on 27 June 2010. Francita sought refugee protection
in October 2008, Shanam in December 2008, and Edison in June 2010.
[8]
The
Applicants each filed a Personal Information Form (PIF) with the RPD as part of
their refugee claims (Original Narratives). The PIFs center on the story of Francita,
but are told from each of their perspectives. The Applicants submitted a
package of documents to the RPD on 17 June 2011, which included amended PIF
narratives (Amended Narratives). The basic story recounted in the two
narratives is the same, but there are multiple inconsistencies. For example, Francita’s
Original Narrative says that guns shots were fired at her house, and stones were
thrown, whereas the Amended Narrative only says that stones were thrown at it.
The Original Narrative also discusses phone calls from a member of the Mal Tete
gang saying he knows people in the police force, but this is not mentioned in
the Amended Narrative. The details about Shanam’s stabbing are also different;
the Original Narrative says Francita was in Martinique at the time, and the Amended
Narrative says she was visiting friends at the hospital. There are also
differences in the two narratives with regards to the theft of Shanam’s bike,
the damage to Edison’s bus, and other things.
[9]
Francita
states in her Amended Narrative that she was initially represented by a man
named Desmond Cherrington. Mr. Cherrington told the Applicants not to worry
about anything because they had a strong case, and had them sign blank PIF
forms. A hearing date was initially set for 17 February 2011, but Mr. Cherrington
informed the Applicants that he was not prepared for it. At this point Francita
started to doubt his competence, and hired the Applicants’ current counsel.
They obtained copies of the Original Narratives and realized they contained
many lies and exaggerations; the Applicants submitted their Amended Narratives
in order to correct these mistakes. There was no documentation relating to Mr.
Cherrington included with the Applicants’ claim.
Documentary Evidence
[10] The
Applicants submitted a variety of documents in support of their claim. Two
letters from St. Jude Hospital were included. The first is dated 2 December
2008 and states that Shanam was treated for stab wounds to his chest on 26
April 2005. The second letter is dated 29 April 2011 and states that Edison has a history of arterial hypertension and suffered a stroke on 16 April 2009.
[11] The
Applicants also submitted affidavits from two people, Edd Jules and George
Kisna, stating they knew of the events described in Francita’s Amended
Narrative. There was also a letter of reference from Francita’s employer, John
Fox, as well as education and employment certificates for Shanam.
[12] A
letter from a psychologist, Gerald M. Devins, dated 3 August 2011 was also
submitted. In the letter, Dr. Devins states that Francita is suffering from
post-traumatic stress disorder, and that she fears going back to St. Lucia. Dr. Devins says that:
…Other stress-related symptoms include variable
energy and problems with concentration and memory. Intrusive ideation (i.e.,
memories of traumatic events and worries that erupt spontaneously into
consciousness) occurs frequently and interferes with reading and conversation.
At times, her mind simply goes blank. Ms. Peter has become distracted and
forgetful (e.g., she confuses dates and details of past events; she forgets
names, telephone numbers, addresses, and appointments; she misplaces her keys,
searching for them extensively before discovering that they have been in plain
view [“right where I was looking for it”]). Concentration and memory problems
are common among people exposed to traumatic stress. Difficulties are
exacerbated under pressure, such as arises in the high-stakes context of a
Refugee Hearing. Symptoms may arise during the Hearing in the form of
difficulty understanding questions, requests for questions to be repeated or
rephrased, inability to retrieve specific details of the past, or an apparent
difficulty to formulate a coherent response. Stress-related cognitive problems
can lead to difficulties in providing clear and consistent testimony. Should
such problems become evident, it will be important to understand that they
likely reflect the disorganizing effects of traumatic stress rather than an
effort to evade or obfuscate.
[13] There
was also a letter from the Riverdale Immigrant Women’s Centre dated 29
September 2011 which states that Francita has been receiving counselling at
their centre. The letter says that Francita has been suffering from depression
and anxiety, and has demonstrated signs of trauma and fear.
[14] Also
included were copies of faxes from all the Applicants to the St. Lucia Police
Commission requesting copies of documents and reports. The faxes provided the
Applicants’ names and the contact information of their lawyer. It does not
appear that the St. Lucia Police Commission ever responded to these requests.
[15] The
RPD held an oral hearing to determine the Applicants’ claims on 11 August 2011
and 20 October 2011. The RPD found the Applicants’ evidence was not reliable
and rejected their claim on 20 December 2011.
DECISION
UNDER REVIEW
[16] The
RPD found that the Applicants were not Convention refugees or persons in need
of protection because they were not credible and had failed to demonstrate on a
balance of probabilities that they faced a risk to their life if returned to
St. Lucia as required by section 97 of the Act. The RPD also found that the
Applicants had suffered discrimination, but this did not amount to persecution
within the meaning of section 96 of the Act.
Credibility
Different
PIF Narratives
[17] The
RPD found the Applicants were not credible because of differences between their
Original Narratives and their Amended Narratives. It noted differences such as
the year that Francita witnessed the gang beating, whether or not their home
and vehicle were riddled with bullets, how many of the family’s dogs were
killed, the number of times the police were contacted, the number of times they
relocated, and whether or not the Mal Tete gang contacted their family.
[18] The
RPD found the Applicants’ explanation for the differences in the Narratives was
unreasonable. The RPD said the Applicants’ first immigration consultant is a
member of a regulatory body, the Canadian Society of Immigration Consultants,
and the Applicants “have a greater responsibility than simply to cast
aspersions upon the character of their former counsel.” The Applicants had an
obligation to confront their former counsel with the allegations and give him a
chance to reply. The RPD thought the Applicants’ explanation that they did not
complain about Mr. Cherrington because the split was not amicable and they
found it stressful was unreasonable. It further noted that the Applicants
admitted they probably should have pursued the matter, but in the intervening
two months between the first hearing date and its resumption they still did not
do so.
[19] The
RPD drew a negative inference from the Applicants’ lack of action in regards to
their allegation of Mr. Cherrington’s incompetence. The RPD stated that these
are serious allegations, and require serious action. Since the first hearing,
the Applicants acquired new counsel and were better positioned to take
appropriate action. The RPD stated that it is not enough to simply blame former
counsel, and at this point their complaints were nothing more than bald assertions.
[20] The
RPD also noted that Francita said the first time she saw her Original Narrative
was some time after February 2011. However, in her in-take interview in October
2008 she verbally repeated one of the exaggerations: that two of her dogs were
killed by the gang members. Francita explained that her former counsel had told
her to say certain things; if this is the case then she knew of the
embellishments and repeated them knowing them to be untrue. The RPD found that
this demonstrated that Francita was a willing participant in the deception and
that she knew of it well before February 2011, as she had initially testified.
The RPD pointed out that the Applicants signed their Original Narratives
indicating that they were truthful, and this has the same effect as being made
under oath. They admitted the information was not truthful, which calls into
question the reliability of their oral evidence as well. Still, the RPD decided
to proceed with the analysis using the Applicants’ Amended Narratives.
Documentary
Evidence
[21] The
RPD pointed out that the Applicants did not provide copies of any police
reports they had allegedly made. At least one of the forms was not signed, and
the forms did not contain information that could assist authorities in finding
the requested information, other than their names. The Applicants said they
never received a response from the authorities in St. Lucia. However, no
evidence was presented, such as fax confirmations or mail receipts, that the
requests were actually sent. The Applicants were also unclear about what
information was faxed to the authorities. The RPD found the Applicants’
attempts to gather the police reports unreasonable, and did not think the
authorities would have been able to respond in any meaningful way.
[22] The
RPD further noted that after this issue was discussed at the first hearing, the
Applicants sent essentially the same request – that is, one including very
little information – to the authorities in St. Lucia. The RPD said that, based
on the information sent by the Applicants, the authorities would not even be
able to determine if they were citizens of St. Lucia; the lack of information
essentially ensured the Applicants would not be able to obtain an informed
response. In light of the credibility concerns the Applicants knew would be
raised by the tampering allegations of their former counsel, it would be
reasonable to expect the Applicants to be particularly diligent in obtaining
this documentation that was reasonably available. The RPD drew an adverse
inference from the lack of meaningful effort to obtain this information.
Oral Testimony
[23] The
RPD found contradictions in the Applicants’ oral testimony. For example, the
Applicants said they never followed up with the police on any matter, but in Francita’s
Amended Narrative she says she called the police a few days after Shanam was
stabbed. She explained the contradiction by first stating that “Crime was a
major problem and police don’t help you unless you pay,” and then said that she
personally did not follow up with the police. The RPD rejected this
explanation; it stated that if Francita had not followed up personally with the
authorities she would have explained that it was the other Applicants who had
done so, rather than saying why it was useless to go to the police. The RPD
concluded that it did not find the Applicants’ story about their efforts to
obtain state protection believable.
[24] The
RPD noted multiple inconsistencies in the Applicants’ statements about moving
around to avoid being threatened by the Mal Tete gang. It noted that none of
these moves were listed in the Applicants’ PIFs; each Applicant resided in
Vieux Fort until their respective departure from St. Lucia. Francita was
consistent about her residence in Vieux Fort, whereas there were inconsistencies
as to the other two Applicants’ residences between their PIFs, their
Narratives, and their oral testimony.
[25] The
RPD pointed out that the Applicants’ Narratives say that they went to stay with
relatives in different parts of St. Lucia to avoid the gang, and the gang would
go to their relatives’ homes asking for their whereabouts. However, when asked
about this at the hearing they only said that they either left their relatives’
homes because they were too crowded or because they did not feel safe anywhere
in St. Lucia because it is so small. They never mentioned that they left
because the gang was actively seeking them at the other locations. The RPD
found the Applicants’ story about moving around and returning home to Vieux
Fort implausible. If the Applicants’ lives had been threatened, they were in
hiding, and the gang was asking for their whereabouts, it makes no sense that
they would simply return home. The RPD concluded that if the Applicants moved,
which it did not believe they did, then their relatives were not being asked
for the Applicants’ whereabouts at these new locations.
Delay in
Claiming Refugee Protection
[26] The
RPD also found there was significant delay in the Applicants’ making their
claims, and this further undermined their credibility. Francita requested
protection 15 months after arriving in Canada. She explained that she did not
inquire earlier with the authorities because she was fearful of returning to St. Lucia. However, she had legal status in Canada for at least six months, and as this
initial status drew to an end it is reasonable to expect a person who is truly
fearful to take steps to seek to stay in Canada at the earliest opportunity.
The RPD drew a negative inference from this delay, and concluded that Francita
is not as fearful of returning to St. Lucia as she claims. The RPD further
stated that this went towards Francita’s general credibility, and that her
description of the risk of harm to the Applicants was not believable.
[27] Shanam
arrived in Canada in December 2007, but then waited to request protection until
two months after his mother did, in December 2008. They shared the same initial
counsel, so he would have known his mother requested protection in October
2008. Shanam was unclear about whether or not he knew his mother had requested
protection, and he stayed in Canada without valid status for six months before he
made his claim. Based on these reasons, the RPD drew a negative inference as to
Shanam’s subjective fear and the risk he faces if returned to St. Lucia.
[28] Edison
requested protection at the airport upon his arrival from St. Lucia in June 2010. However, he had made two previous attempts to enter Canada in 2008. The second attempt was in November 2008, after Francita had already requested
protection. At the hearing, Francita said that she told Edison to say he wanted
protection when he arrived at the airport, but he forgot. The RPD found this
explanation unreasonable. If Edison was facing a threat in St. Lucia such that he had to call the police multiple times and he was fearful for his
life it is unlikely that he would simply forget to request protection. The RPD
found that Edison did not have the required subjective fear, and drew a
negative inference as to the general credibility of his allegations of risk.
Section 96
Analysis
[29] The
RPD found the Applicants had not demonstrated that the harm feared was
connected to a Convention ground. Francita witnessed a crime and reported it to
the police, and because of this the Applicants feared retaliation by members of
the Mal Tete gang. This is a criminal matter with no nexus to any of the
Convention grounds, and thus the Applicants’ claims must fail under section 96
of the Act.
Section 97 Analysis
[30] The
RPD identified the determinative issue in this analysis as being whether, on a
balance of probabilities, the Applicants face a risk to their lives or a risk
of cruel and unusual treatment or punishment. The RPD reiterated that the
Applicants’ evidence of relocation to avoid the gang was not reliable, and
neither was the evidence of family members being harassed to disclose their whereabouts.
The RPD also stated that “If the claimants did move, there is no reliable
evidence that the gang was actively seeking the claimants.” The RPD concluded
that, considering the small size of St. Lucia, the gang either did not have the
ability or the desire to seek the Applicants.
[31] The
RPD accepted the Applicants’ evidence that the gang would come around to their
home in Vieux Fort and threaten them, but noted that in the 28 months between
when the incident occurred and the time Francita left for Canada the gang made no effort to come into the family home or follow through on their threats.
Throughout this whole time only two incidents occurred: the gang approached Shanam
at work with a gun and they came into the family’s home and grabbed Francita’s
arm. If the Mal Tete was legitimately trying to harm the Applicants they could
have done so at either of these moments.
[32] Further,
Edison was in St. Lucia for two years after Francita left and he was not
mistreated by the gang during this time. He was also experiencing medical
issues, which would have made him a vulnerable target for the gang if they
truly intended to harm him. Edison was generally unclear about everything that
happened in St. Lucia, besides specific sections of the Amended Narrative. He
clearly remembered his son getting stabbed, but he became forgetful around
issues such as police reports and their residence. He was also unclear as to
why the gang wanted to kill him. In the absence of documentation attributing
these difficulties to his medical issues, it seemed to be more of a “convenient
memory.”
[33] The
RPD stated that aside from Edison’s memory issues, it did not appear the Mal
Tete gang was as able to, or interested in, harming the Applicants as they
claimed. It found that on a balance of probabilities the Applicants had not
established that they faced a risk to their lives or a risk of cruel and
unusual treatment or punishment if returned to St. Lucia. It concluded the
Applicants are not Convention refugees or persons in need of protection, and
rejected their claims.
ISSUES
[34] The
Applicants raise the following issue in this case:
1.
Whether
the RPD erred in making its credibility findings by failing to apply the RPD
Chairperson’s Guideline on Gender and by failing to consider the report
submitted on Francita’s psychological state;
2.
Whether
the RPD erred in its consideration of the Applicants’ delay in claiming and
subjective fear.
STANDARD
OF REVIEW
[35]
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.
[36] In Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732
(FCA) the Federal Court of Appeal held at para 4 that the standard of review on
a credibility finding is reasonableness. Further, in Elmi v Canada (Minister
of Citizenship and Immigration), 2008 FC 773, at para 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. Finally, in Wu v Canada (Minister of Citizenship and
Immigration) 2009 FC 929, Justice Michael Kelen held at para 17 that the
standard of review on a credibility determination is reasonableness. The
standard of review on the first issue is reasonableness.
[37]
In
Cornejo v Canada (Minister of Citizenship and Immigration) 2010 FC 261,
Justice Michael Kelen held at para 17 that the standard of review on the
assessment of subjective fear of persecution was reasonableness. Justice John
O’Keefe made a similar finding at para 20 in Brown v Canada (Minister of Citizenship and Immigration) 2011 FC 585. The standard of review on
the second issue is also reasonableness.
[38]
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
para 47, and Canada (Minister of Citizenship and Immigration) v
Khosa 2009 SCC 12 at para 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.”
STATUTORY
PROVISIONS
[39] The
following provisions of the Act are applicable in this proceeding:
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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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ARGUMENTS
The
Applicants
Psychologist’s
Report
[40] The
Applicants argue that in conducting its credibility assessment the RPD ignored
the psychologist’s report that spoke to Francita’s trauma and memory problems.
The Applicants submit that this was a critical piece of evidence about Francita’s
credibility, and the failure of the RPD to consider it constitutes a reviewable
error.
[41] The
Applicants say that where an applicant submits a medical report which speaks to
problems he or she may have giving testimony, the RPD is duty bound to consider
this evidence and use it as a lense through which to view the evidence
provided. See Kuta v Canada (Minister of Citizenship and Immigration),
2009 FC 687 (Kuta) at paras 6-7; C.L.J. v Canada (Minister of Citizenship and Immigration), 2011 FC 387 at para 7. The
Applicants further submit the Kuta decision establishes the RPD ought to
have considered Guideline 4: Women Refugee Claimants Fearing Gender-related
Persecution: Guidelines issued by the Chairperson pursuant to section 65(3) of
the Immigration Act in rendering its Decision.
[42] A
letter from a psychologist was admitted as evidence stating that Francita
presents with numerous symptoms which may make it difficult for her to testify
at a refugee hearing. The Applicants submit the RPD’s failure to consider this
evidence renders the Decision unreasonable. The Applicants further assert that Cortes
v Canada (Minister of Citizenship and Immigration), 2011 FC 329 at
para 6 establishes that once the RPD made a negative finding on
credibility it was unable to make any alternative findings because there were
no facts upon which to base these alternative findings. Thus, regardless of any
other findings made by the RPD, the unreasonableness of its credibility
findings means the Decision must be set aside.
Delay
[43] The
Applicants also argue that the RPD provided insufficient reasons for its
finding that the Applicants’ delay in claiming refugee protection negatively
impacted their credibility. The Applicants state that the RPD is required to
consider any reasonable explanation offered for the failure to claim refugee
status at an earlier date (Hue v Canada (Minister of Employment and
Immigration), [1988] FCJ No 283 (FCA)).
[44] The
Applicants cite Gyawali v Canada (Minister of Citizenship and Immigration),
2003 FC 1122, where Justice Danièle Tremblay-Lamer found at para 18 that
where an individual has a valid temporary status, his or her credibility should
not be impugned for failing to initiate a refugee claim upon arrival in Canada. The Applicants submit the RPD did not properly consider their reason for the delay,
nor did it provide an adequate explanation for rejecting it. The adequacy of
reasons is a factor that goes to the reasonableness of a decision (Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[45] Francita
also stated that she was not educated and did not understand the refugee
system, but this was not taken into consideration. The Applicants cite Justice
Donald Rennie in Pena v Canada (Minister of Citizenship and Immigration),
2011 FC 326, where he said at para 4:
The failure to claim elsewhere is not, in and of itself,
determinative. However, the Board must carefully consider any explanation
provided by the applicant and give reasons for rejecting it. Given that the
Board accepted that the applicant was abused, and that her testimony as to why
she did not claim while in the U.S. was not challenged, the Board was under an
obligation to give considered reasons for rejecting the explanation; Owusu-Ansha v. Canada (Minister of Employment and Immigration)
[1989] F.C.J. No. 442 (C.A.); Bobic v Canada (Minister of
Citizenship and Immigration) 2004 FC 1488. In this case, the explanation
before the Board was consistent with the existence of subjective fear, and its
unilateral dismissal, was, without more, in error. The Board’s rejection of
this explanation informed much of its approach to the balance of the applicant’s
testimony and cannot be considered immaterial to the outcome.
[46] The
Applicants submit that the sum of these errors is that the Decision is
unreasonable, and that it ought to be quashed and sent back to a different
panel of the RPD for redetermination.
The
Respondent
Reasonable
Credibility Finding
[47] The
Respondent argues that the RPD reasonably concluded that the Applicants were
not credible because it reasonably relied on inconsistencies in the Applicants’
Original Narratives, Amended Narratives, PIFs, and oral testimony, as well as
their failure to produce corroborating police reports and their significant
delay in claiming refugee protection.
[48] The
RPD elaborated on a number of specific reasons why it did not find the
Applicants credible. For example, the RPD pointed out inconsistencies as to the
following facts: when the beating took place (June 2007 vs. March 2005),
whether or not their home and vehicle was riddled with bullets, how many of
their pets were killed, the number of times they contacted the police, the
number of times they relocated, and whether they were located by the gang
members at these other places.
[49] The
RPD did not accept that the Applicants could simply blame their previous
counsel for the discrepancies without providing any evidence. It also concluded
that their attempts to obtain police reports from St. Lucia were “half-hearted,”
even after it came up at the first hearing. The Respondent asserts that the RPD
was clear and cogent in its explanation of why it did not find the Applicants
credible.
[50] The
Respondent submits that a credibility determination is reasonable so long as it
is made in clear and unmistakable terms (Hilo v Canada (Minister of
Employment & Immigration), (1991) 130 NR 236 (FCA)). The RPD’s
reasons were not vague and general; they pointed out specific instances that
indicated the Applicants were not credible. The case law demonstrates that
inconsistent, implausible and contradictory evidence, evidence of a lack of
persistent persecutory treatment, and delay in leaving the country and making a
refugee claim are all well- founded reasons for doubting an applicant’s
credibility (see Sheikh v Canada (Minister of Employment and Immigration),
(1990) 11 Imm LR (2d) 81 (FCA); Leung v Canada (Minister of Employment and
Immigration), (1990) 74 DLR (4th) 313 (FCA)).
Psychologist’s Report
[51] The
Respondent further states that the RPD did not ignore the psychologist’s report;
it simply did not need to mention it because the credibility findings had
nothing to do with Francita’s ability to testify at the hearing. The report
explained problems she may have giving testimony, but problems in her oral
testimony had little bearing on the RPD’s credibility finding. The majority of
the credibility findings had nothing to do with her testimony or her demeanour
while providing oral evidence. The report would not have provided an
explanation for the contradictions in the Narratives, nor the inconsistent oral
evidence given by the other two Applicants. The Respondent submits that the
report was not required to be mentioned in the Decision because it had little
relevance, and the absence of a review of the report in the Decision does not
render it unreasonable.
Delay
[52] The
Respondent says the RPD’s finding on delay was not an alternative finding to
its finding on credibility; it was part of the credibility finding. Delays in
leaving the country, as well as a delay in making a claim, are both
well-founded reasons for doubting an applicant’s credibility (Sheikh,
above; Leung, above). The Applicants’ allegation that the RPD did not
provide adequate reasons for rejecting the Applicants’ explanation for the delay
is without merit. The RPD did provide reasons, and explained how the delay
impacted the Applicants’ credibility. The RPD stated, on page 15 of the
Reasons, that it drew an adverse inference from the Applicants’ delay in
claiming refugee protection, and this went to their credibility. This further
supports the Respondent’s submission that the RPD’s credibility finding, and
Decision, was reasonable.
Conclusion
[53] The
Respondent also submits that even if the evidence is believed, the RPD
reasonably found that the Applicants are still not in need of section 97
protection. The gang made no effort to follow through on their threats, and Edison
remained in St. Lucia over the years 2008-2010, but was not mistreated by the
gang.
ANALYSIS
[54] The
RPD provided a range of cogent reasons for rejecting the Applicants’ claim on
the basis of credibility. The Applicants only take issue with some aspects of
the RPD’s credibility finding, so the Court must conclude that they accept the
balance of the reasons.
The Psychologist’s Report and Medical
Evidence
[55] The
Applicants say that the Decision is unreasonable because the RPD ignored the
psychologist’s report by Dr. Devin’s which speaks to the various traumas and
memory problems that Francita is experiencing, as well as the medical evidence
regarding Edison’s condition. A reading of the CTR reveals that the RPD was
fully alive to Edison’s problems and took them into account. It stopped the
hearing, and appointed Francita as Edison’s personal representative, and she
provided many of the answers to the questions he was asked. So there was no
procedural unfairness by the RPD with regard to Edison.
[56] Dr.
Devin’s report about Francita speaks of difficulties that are “exacerbated
under pressure, such as arises in the high-stakes context of a refugee
hearing.” The report has no relevance to the inconsistencies that the RPD found
between the PIF narratives. A reading of the Decision as a whole reveals that
the credibility assessment was not based upon problems with testimony. The
credibility assessment was based upon (i) inconsistencies, exaggerations or
embellishments between the PIF narratives and amended narratives, (ii) the
failure to produce any corroborative police reports, (iii) contradictions
between amended PIF narratives and oral testimony, and (iv) significant delay
in making claims for protection in Canada.
[57] In
detail, and as the Respondent points out, the credibility assessment was based
upon the following cumulative factors:
a.
There
was a number of inconsistencies, exaggerations or embellishments between the
information in the Applicants’ original PIF narratives and their amended
narratives, such as: when the beating of the young man by the gang member took
place (June 2007 vs March 2005), whether or not their home or vehicle was
riddled with bullets; how many of their family pets were killed by the gang
members; the number of times the police were contacted; the number of times they
relocated to avoid persecution and whether they were located by gang members in
these other places;
b.
The
RPD did not believe the Applicants’ explanation for their inconsistent evidence
in their narratives. While they blame their previous counsel, they provided no
evidence that they had pursued a complaint against him. It was not enough to
simply blame previous counsel and not provide evidence that former counsel has
been given an opportunity to respond;
c.
The
Applicants failed to provide copies of any of the police reports that they
alleged they had made, and the evidence of their attempts to obtain these
reports was “half-hearted”;
d.
In
oral testimony, all three Applicants stated that they never followed up with
the authorities on any matter. However, Francita’s amended narrative indicates
that they did follow up following the stabbing of Shanam;
e.
While
the Applicants claimed that they moved to different locations in St. Lucia to avoid the gang, none of these moves were listed in their PIFs;
f.
In
all three amended narratives, the Applicants indicated that the gang would go
to their relatives’ homes asking for their whereabouts. However, in oral
testimony, none of the Applicants mentioned that the gang was actively seeking
them in other locations;
g.
It
was not plausible that the Applicants would have returned to their home where
they were in greatest danger if their lives were truly being threatened;
h.
An
adverse inference was drawn from Francita’s and Shanam’s delay in seeking
protection in Canada for 15 months and one year, respectively, despite being at
risk of removal. An adverse inference was also drawn from Edison’s failure to
claim protection on his second attempt to enter Canada, since by the time of
this attempt, his wife and son had already claimed protection. His explanation,
that he forgot, was rejected as not being reasonable.
[58] The
inconsistencies between the PIF narratives were blamed by Francita upon the
actions of former counsel, not upon her own psychological problems. No mention
of Dr. Devin’s report, or the Guidelines, was required to deal with this.
[59] The
Applicants also say, however, that in addition to the different PIF narrative,
the RPD went on to assess the evidence as given in their amended narrative, and
this is where Dr. Devin’s report and the guidelines do become relevant.
[60] When
I review this aspect of the Decision, the following is clear:
1.
Failure
to provide copies of police reports and information from the authorities in St. Lucia had nothing to do with any problems Francita’s might have testifying at the
hearing;
2.
The
issues in regards to the Applicants’ move around St. Lucia have nothing to do
with difficulties in testifying at the hearing. The Applicants had simply
failed to list the different addresses on the form. The RPD points out that
Francita “is consistent about her residence in Vieux-Fort on her initial form,
as well as her PIF.” The inconsistencies occurred because of discrepancies
between the accounts given by the three Applicants;
3.
The
third principal reason for undermining the Applicants’ subjective fear is
delay. Here again, there is little to suggest that this factor was affected in
any way by Francita’s problems in testifying at the hearing.
[61] In
fact, when I review the CTR as a whole, Dr. Devin’s assessment of Francita’s
problems is not convincing. She does not, generally speaking, have problems
testifying, and even becomes the personal representative for Edison and
protects him by providing clear and unequivocal answers. Francita says twice at
page 308 of the CTR that she finds the refugee claim process stressful and
sometimes forgets things. However, this appears to be her explanation as to why
she did not make a formal complaint about her former counsel, and not an
explanation for an inability to answer questions put to her by the RPD. She has
no problem answering other questions and does not suggest she cannot remember.
The CTR also makes clear (p. 405) that the RPD takes full note of the
psychologist’s report and of the fact that Francita has been receiving
counselling.
[62] I can
find no reviewable error with this aspect of the Decision.
Delay
[63] The
Applicants argue that the RPD used delay as an “alternative finding” to deny
the claim. This is clearly not the case. The RPD says at para 23 of the
Decision that delay is one of the many factors that are taken into account when
assessing credibility: “To further discount the claimants’ credibility, there
was a significant delay in making their requests for protection.”
[64] The
RPD’s reasons are fulsome and clear, and the Applicants’ explanations were
fully considered and pronounced upon.
Conclusions
[65] The
Applicants have raised nothing that shows the Decision lacks justification,
transparency and intelligibility, or that it falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. Most — if not all — of the credibility issues have nothing to do with any
problems that Francita might have as a female or as someone under stress, and
the RPD was careful to recognize Edison’s problems and took them fully into
account. I can find no procedural unfairness or other reviewable errors in the
Decision.
[66] Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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