Date: 20091217
Docket: IMM-2354-09
Citation:
2009 FC 1284
Ottawa, Ontario, December 17,
2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
MARIAMA
DJELO BAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, dated April 20, 2009,
rejecting the applicant’s refugee protection claim based on her homosexuality.
After having carefully examined the record submitted by the applicant as well
as the transcript of the hearing before the RPD, I am of the view that the RPD
was entitled to reject her claim on the basis of her lack of credibility.
I. Facts
[2]
The
applicant is a citizen of the Republic
of Guinea and is of the Muslim faith.
She alleges having always been more attracted to women than to men since
childhood. She nonetheless hid her sexual orientation from her family and
friends because homosexuality is taboo and very much frowned upon in her
country. The applicant subsequently married a man who held a high-ranking
position in the Guinean civil service so as to not attract attention to
herself, and had four children with him (three of whom have Canadian
citizenship because the applicant came to Ottawa to give birth). She claims the marriage
left her with a great deal of freedom, due to the fact that her husband had
another wife and travelled frequently.
[3]
The
applicant, who is now 51 years old, states that she was about 10 years old when
she had her first sexual touching experience with another girl, and that her
half-sister had walked in on them. Following her parents’ divorce, she
apparently went to live with an aunt, where she allegedly once again met
another girl her own age (named Mamie) who had the same sexual orientation.
This girl, with whom she stated that she had regular sexual relations,
apparently stayed with her, working as a housekeeper for her husband until she
left for Canada. She claimed to have confided
in her half-sister, telling her about her relationship with Mamie.
[4]
The
applicant states that she left Guinea in March 2006 for China to look after her children, who were
then living with their father, who was ambassador to China and who had just
been recalled to Guinea. She apparently stayed in China until June 2006 to allow her children to
complete their school year.
[5]
While the
applicant was in China, her half-sister purportedly
revealed her sexual orientation to one of her uncles. This was done out of
revenge, after the applicant refused to pay for the half-sister’s trip so that
she could accompany her to China.
[6]
The
applicant alleges that, in June 2006, one of her brothers told her over the
telephone that there was a rumour going around about her homosexuality. The
applicant apparently denied everything.
[7]
In July
2006, the applicant’s uncle purportedly revealed the applicant’s homosexuality
to his friend, who was the minister of transportation. It would appear that the
minister, who was the applicant’s employer, immediately relieved her of her
duties as coordinator of a joint Guinean-Norwegian maritime transportation
company. The uncle is also said to have told the applicant’s father about the
rumours about his daughter. It would appear that the father, upon hearing this
news, suffered a heart attack and died a few weeks later in August 2006.
[8]
In
November 2006, the applicant returned to Guinea. During this stay, another of her
uncles, who was the imam of a mosque and a devout Muslim, apparently invited
her to a family gathering, ostensibly to offer her his condolences following
her father’s death. However, the applicant supposedly learned from her brother
that the true purpose for the gathering was to confront her about the rumours
that were circulating about her and to attack her. Since she had not shown up
at that gathering, her uncles allegedly made an arrangement with the police
commissioner to have him send her a notice ordering her to report to the police
station.
[9]
Upon
learning about this notice, the applicant made arrangements to leave Guinea on November 30, 2006. She
arrived in Montréal on December 3, after a stopover in Paris, and claimed refugee protection in March
2007.
II. Impugned decision
[10]
The RPD
relied on several implausibilities and contradictions in the applicant’s
narrative in determining that her claim should be rejected. First, the panel
did not find it very credible that the applicant’s uncle would have revealed
her sexual orientation to the minister of transportation but said nothing to
her husband, who had also been appointed as a minister after he returned from China in 2008. In a society where
homosexuality is repressed and is a source of shame, the RPD considered the
applicant’s explanation that it would have been far more humiliating to reveal
her homosexuality to her husband and family rather than to her employer, who
is, moreover, a well-known public figure, to be highly implausible. The
applicant explained that the purpose of revealing this to the minister of
transportation was to have her dismissed from her duties and thus force her to
return to Guinea; the RPD did not find this
story to be credible either.
[11]
The RPD
also confronted the applicant about certain parts of her narrative. In
particular, the applicant stated that she had returned to Guinea in November 2006 in spite of
her fear about the rumours that were circulating about her. Furthermore, in
spite of the fact that she claimed to have suddenly fled her country after
having been invited to a family gathering the consequences of which she feared,
it took her more than three months before claiming refugee protection in Canada. The explanations provided by
the applicant did not satisfy the RPD, which stated that the applicant’s
behaviour was inconsistent with the fear of someone who claims to be persecuted
or threatened.
[12]
In fact,
the applicant maintained that she had returned to Guinea in November 2006 to receive condolences
upon the death of her father, as well as to help with the transition of her
successor at the transportation company where she had worked. The applicant
also claimed that she had not known the extent of the problem caused by her
half-sister’s revelations until the time of the invitation to the family gathering.
When asked about the delay in claiming refugee protection after arriving in Canada, she responded that she had
preferred to wait, in the hope that her uncles might leave her alone and that
the situation might improve. She finally decided to claim refugee status when
her brother confirmed to her over the telephone that the situation was not
improving. The RPD did not find these explanations credible.
[13]
The RPD
also faulted the applicant for certain contradictions in her story. As such,
the applicant stated that she lived with her husband, her half-sister, some of
her husband’s nieces and Mamie, with whom she was having a relationship that
was kept hidden from the others. In her testimony, the applicant changed her
version regarding what she had revealed to her half-sister about the
relationship. She had initially stated that her half-sister had walked in on
her and Mamie, then she stated that she had only been caught in a compromising
position with her childhood friend and never with Mamie. She also stated that
she had only given her half-sister the broad strokes of her relationship with
Mamie without going into too much detail; yet she later explained having
revealed, to her half-sister, the nature and frequency of her sexual relations
with Mamie.
[14]
The RPD is
also surprised that the applicant never tried to seek asylum in one of the many
Convention signatory countries she stayed in on several occasions, in spite of
the alleged longstanding problems with her husband because of her
homosexuality.
[15]
The RPD
found another contradiction in the applicant’s testimony, relating to the
moment when the situation worsened. During her interview with an immigration
officer in April 2007, she stated that she found out about her half-sister’s
revelations in August 2006. Yet, she testified that she had been informed by
her brother in early June 2006 about what her half-sister had said. Asked to
explain this contradiction, the applicant explained that things started to get
really tense in August 2006; people had apparently started to accuse her of
killing her father. The RPD noted that this information was nowhere to be found
in her statements made at the port of entry, or later, in her Personal
Information Form. The RPD also wondered why she would have returned to Guinea in November, given the
serious accusation that had been levelled against her.
[16]
Finally,
the RPD did not believe that the applicant was homosexual and questioned her
sincerity, given that she had filed an application for permanent residence in Canada on humanitarian and
compassionate grounds at the same time. The panel speculated about whether the
applicant may have lost her job for reasons other than those given (perhaps
because of her long absence from the country, for example), and that she might
have been looking to divorce her husband.
[17]
In the
final analysis, the RPD found the applicant’s testimony not to be credible, and
concluded that the applicant had failed to discharge her burden of proving that
there was a serious possibility of persecution on one of the Convention
grounds. It also found that the applicant had failed to show, on a balance of
probabilities, that she would be personally subjected to a risk of torture or
to a risk to her life or to a risk of cruel and unusual treatment or punishment
were she to return to Guinea.
III. Issue
[18]
The only
issue in this case is whether the RPD erred in finding that the applicant
lacked credibility.
IV. Analysis
[19]
It is
settled law that the findings as to an applicant’s credibility are deemed to be
questions of fact, and should therefore be accorded great deference upon
judicial review. Consequently, the question this Court must ask itself is not
whether it would have reached the same conclusions, but rather whether the
RPD’s finding is reasonable. To quote the Supreme Court in Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9, ‘‘In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law’’ (paragraph 47).
[20]
The
applicant first claimed that the RPD was unduly influenced by the parallel
application for permanent residence on humanitarian and compassionate grounds
that she had filed a few days after claiming refugee protection in Canada. According to the applicant,
the existence of this application would have weighed heavily in the balance and
led the RPD to unfairly doubt her credibility.
[21]
This first
argument strikes me as being completely without merit. Far from making it a
ground for its decision, the RPD referred to this parallel application only at
the very end of its reasons, after it had pointed out several contradictions
and implausibilities in the applicant’s narrative. In fact, the member wrote,
in the paragraph immediately preceding this reference to the application for
residence on humanitarian grounds:
[34] The claimant’s story lost all
credibility because of this major contradiction on a central point of this
claim for refugee protection—the moment she supposedly learned that her
homosexuality had been exposed—combined with an omission that has a direct
impact on her alleged story. The fact that the claimant’s testimony is devoid
of all credibility means that the panel does not believe that she is homosexual
either.
[22]
It appears
that from that point on the panel made its findings with regard to the
applicant’s credibility, before even considering her application for permanent
residence. The paragraph that follows, in which the member refers to this
application and speculates on the applicant’s true motives for claiming refugee
protection, is quite unnecessary. Since it adds nothing to the decision and is
based on conjecture, it would have perhaps been better advised and more prudent
not to have included it in the decision. That being said, this would not be
sufficient to vitiate the decision. The RPD’s conclusion that the applicant was
not credible is not based on the fact that there was a parallel application for
permanent residence.
[23]
The
applicant cited the decision of the Federal Court of Appeal in Orelien v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592
(C.A.), [1991] F.C.J. No. 1158, in support of her argument that her credibility
could not be doubted simply based on the fact that she sought to immigrate to
Canada. That matter, however, has nothing to do with this case. Unlike the case
at bar, there was, in Orelien, much evidence whose credibility was not
in doubt.
[24]
The
applicant also alleged in her memorandum that the RPD had applied an
inappropriate standard of proof to the question of credibility when it
considered the possibility rather than the probability of a piece of evidence
relating to credibility. At the hearing, counsel for the applicant admitted
that this was an error on his part, given that probability is more exacting
than mere possibility. To the extent that the RPD might have applied the
standard of possibility (which had not been established in any way), it could
only have benefited the applicant.
[25]
Lastly,
the applicant claimed that the panel’s decision was based more on
implausibilities than on contradictions, and that the inferences drawn by the
RPD were unreasonable. Yet, a careful analysis of the decision shows that the
panel did not believe the applicant for a number of reasons. As mentioned
earlier, one omission and several contradictions and implausibilities had been
found. The applicant’s behaviour was also found to be inconsistent with a
subjective fear of persecution.
[26]
It is well
established that the panel may consider contradictions in the evidence to cast
doubt on an applicant’s credibility. The case law also recognizes that a panel
could find that a claimant lacked credibility by relying on the implausibility
of his or her narrative, provided that the inferences drawn were reasonable.
[27]
In this
case, the RPD carefully considered the explanations given by the applicant when
she was confronted with the contradictions and implausibilities in her
narrative. The panel also took into account the specific context of Guinea as well as the scorn and
rejection homosexuals are subjected to in that country. In light of all the
evidence submitted, the RPD found that the applicant’s story was not credible.
This was a ‘‘possible acceptable outcome’’ with regard to the facts that were
brought to its attention.
[28]
This is
not to say that this Court would have reached the same conclusions. As such,
some of the contradictions identified by the RPD were perhaps not
contradictions in the full sense of the word, in light of the applicant’s
explanations. However, the decision is founded on an accumulation of real
contradictions and implausibilities, as well as a long delay in claiming
refugee protection. When considered as a whole, the RPD’s decision does not
strike me as unreasonable and is certainly defensible with respect to the
evidence. Furthermore, the challenges raised by the applicant are not
sufficient to set aside the decision.
[29]
For all of
the foregoing reasons, this application for judicial review must be dismissed.
The parties did not propose any question for certification and this application
does not give rise to any.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
‘‘Yves
de Montigny’’
Certified
true translation
Sebastian
Desbarats, Translator
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