Date: 20091102
Docket: IMM-277-09
Citation:
2009 FC 1118
Ottawa,
Ontario, November 2, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
Valentina
Esther HENRIQUEZ PINEDO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by
the Refugee Protection Division of the Immigration
and Refugee Board (panel), dated January 5, 2009, that
Valentina Esther Henriquez Pinedo (the applicant) is not a refugee within the
meaning of section 96 of the Act or a person in need of protection under
section 97.
[2]
The
application for judicial review will be allowed for the following reasons.
[3]
The
applicant, 56 years of age, is a citizen of Colombia. She is alleging that her common‑law
spouse of 20 years, with whom she has two children, physically and sexually
abused her for 16 years.
[4]
She stated
that she never went to the hospital or to a shelter for abused women. She never
filed a complaint with the authorities regarding the death threats made by her
spouse because he had privileged contacts with the police and paid them bribes.
[5]
The
applicant left her spouse in the beginning of 2007 and went to live with her
sister. She arrived in Canada on May 23, 2007, as a visitor.
A few months later, she filed her refugee claim.
Impugned decision
[6]
In its decision,
the panel noted that the applicant’s allegations of violence were not
corroborated by any documentary evidence. It also criticized her for not making
any effort to avail herself of protection from her family or from public agencies
that focus on domestic violence.
[7]
Referring to
the documentary evidence, the panel accepted that conjugal violence in Colombia was a serious problem in 2004.
However, it did not accept that the applicant did not go to the police.
Furthermore, it considered that the documentary evidence provided by the
applicant was in relation to the real estate transactions between her
common-law spouse and one of her daughters who lives in Canada as a permanent resident.
[8]
Assessing the
evidence is within the jurisdiction of the panel. Since Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, credibility findings made by the panel
regarding a claimant continue to be subject to deference by the Court and are
reviewable on the standard of reasonableness (Dunsmuir, at paragraphs
55, 57, 62 and 64; Rajadurai v. Canada (Minister of Citizenship and Immigration),
2009 FC 119, [2009] F.C.J. No. 147 (QL) at paragraph 23). Therefore, the
Court will intervene only if the decision does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir, at paragraph 47).
[9]
In the
case at bar, the applicant’s credibility is not in dispute. The panel did not
find any contradiction, inconsistency or implausibility in the applicant’s
account. Moreover, the respondent admitted at paragraph 7 of his supplementary
memorandum that the panel did not call into question the credibility of the
applicant’s statements.
[10]
The respondent argues that the
applicant’s failure to provide evidence in support of her allegations was a
fatal flaw under subsection 100(4) of the Act and section 7 of the Refugee
Protection Division Rules, SOR/2002-228, which require that documents be provided
in support of a claim.
[11]
He added
that the panel’s decision is not unreasonable merely because it noted that the
applicant had not made any effort to avail herself of protection from her own
family or from public agencies that assist abused women.
[12]
It is
important to recall that a claimant’s testimony is presumed to be true unless
there are implausibilities, inconsistencies or contradictions (Maldonado v.
Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302; Puentes
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1335, [2007] F.C.J.
No. 1729 (QL) at paragraph 16; Valtchev v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 776, [2001] F.C.J. No. 1131 (QL) at paragraphs 6
to 8).
[13]
A panel
cannot draw a negative inference from the mere fact that a party failed to
produce any extrinsic documents corroborating his or her allegations, except
when the applicant’s credibility is at issue (Ahortor v. Canada (Minister of
Employment and Immigration) (1993), 65 F.T.R. 137 (FCT); Nechifor v.
Canada (Minister of Citizenship and Immigration),
2003 FC 1004, [2003] F.C.J. No. 1278 (QL) at paragraph 6).
[14]
Here, as
the applicant’s credibility was not at issue, the Court believes that the panel
erred in requiring that she produce evidence to corroborate her allegations.
[15]
In other
words, under the particular circumstances of this case, the panel’s negative
inference drawn from the lack of evidence corroborating the abuse committed by
the applicant’s common-law spouse warrants the Court’s intervention.
[16]
It is also
true that the applicant filed documents concerning the real estate transactions
between her common-law spouse and her daughter. However, the panel did not
comment on the allegations of manipulation and threats by the common-law spouse
surrounding these transactions as set out in the applicant’s PIF (pages 24 and
25, Tribunal Record) or on the e-mail he sent her on March 21, 2007 (pages 84 and
85, Tribunal Record).
[17]
No
question for certification was proposed and this application does not give rise
to any.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed. The matter is referred back for
redetermination by a differently constituted panel. No question is certified.
“Michel
Beaudry”
Certified
true translation
Susan
Deichert,
Reviser
ANNEX
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
|
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; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
100.
. . .
(4)
The burden of proving that a claim is eligible to be referred to the Refugee
Protection Division rests on the claimant, who must answer truthfully all
questions put to them. If the claim is referred, the claimant must produce
all documents and information as required by the rules of the Board.
|
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;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
100.
(…)
(4)
La preuve de la recevabilité incombe au demandeur, qui doit répondre
véridiquement aux questions qui lui sont posées et fournir à la section, si
le cas lui est déféré, les renseignements et documents prévus par les règles
de la Commission.
|
Refugee
Protection Division Rules,
SOR/2002-228
|
7.
The claimant must provide acceptable documents establishing identity and
other elements of the claim. A claimant who does not provide acceptable
documents must explain why they were not provided and what steps were taken
to obtain them.
|
7.
Le demandeur d’asile transmet à la Section des documents acceptables pour
établir son identité et les autres éléments de sa demande. S’il ne peut le
faire, il en donne la raison et indique quelles mesures il a prises pour s’en
procurer.
|
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