Date: 20110111
Docket: IMM-1714-10
Citation: 2011 FC 24
[UNREVISED CERTIFIED ENGLISH
TRANSLATION]
Montréal, Quebec, January 11, 2011
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
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ANGIE AYMED VARGAS FLORES
KEVIN ALVAREZ
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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 ORDER AND ORDER
[1]
This is an
application for judicial review, filed by the principal applicant, Angie Aymed
Vargas Flores (the applicant), a citizen of Peru, and her son Kevin Alvarez, an
American citizen, under subsection 72(1) of the Immigration and Refugee
Protection Act (IRPA). The applicants are challenging the decision rendered
on March 9, 2010, by the Refugee Protection Division (RPD) of the
Immigration and Refugee Board that they are not Convention refugees or persons
in need of protection, within the meaning of sections 96 and 97 of the
IRPA.
[2]
For the
following reasons, the Court finds that this application must be dismissed. In
this case, the RPD primarily based its decision on the principal applicant’s
lack of credibility and her counsel did not persuade me that the RPD had erred
by finding numerous contradictions and inconsistencies in the applicant’s
testimony.
THE FACTS
[3]
The applicant
alleges having begun a conjugal relationship when she was 16 years old with a
Peruvian man who worked as a police officer. In 2001, they apparently lived
together for four months. Shortly after their cohabitation began, the spouse
apparently became violent toward the applicant, who had become aware of his
addiction to alcohol, drugs and gambling.
[4]
After
leaving her first spouse, the applicant alleges that she met another man with
whom she left Peru in 2002 while she was pregnant with her son. Once they
arrived in the United States, they parted ways.
[5]
The
applicant says that she met a third spouse in early 2007. She submits that he
threatened her life and that she complained to the police. The man was apparently
arrested, but continued to threaten the applicant even while he was in custody.
[6]
The applicant
sought refuge in Canada with her son in 2006. The fear alleged by the son is
entirely based on the mother’s fear.
IMPUGNED DECISION
[7]
The RPD
noted several contradictions between the applicant’s testimony and her Personal
Information Form (PIF). The RPD first pointed out that the applicant had stated
in her PIF that she discovered that most of her first spouse’s income came from
sources other than his job as a police officer, whereas at the hearing, she initially
testified that her spouse did not have any other source of income. When the applicant
was confronted with this contradiction, she explained that she had been [TRANSLATION]
“confused” and that it was only at the end of their cohabitation that she allegedly
discovered suspicious things without being certain that her spouse was involved
in the drug trade. The RPD did not accept this explanation.
[8]
In her
PIF, the applicant also noted that her first spouse abused her when he came
home under the influence of drugs. However, at the hearing, she was much less
categorical; when she was questioned as to whether he would come home under the
influence of substances other than alcohol, she answered that she could not say
because she did not know the effects of drugs. When confronted about this
contradiction, she then added that friends had told her that her spouse used
drugs. The panel did not accept this explanation.
[9]
When
questioned as to whether her former spouse had vices other than drug and
alcohol use, the applicant answered no. However, she had stated in her PIF that
her first spouse gambled. The applicant tried to explain this inconsistency by
saying that she had forgotten to mention it when she was questioned at the
hearing. The RPD did not accept this explanation either.
[10]
At the
hearing, the applicant stated that her grandmother had told her in 2002 and in
2005 that her former spouse was still looking for her. However, this important
information was not found in her PIF. Again, the RPD was of the view that such
a discrepancy undermined her credibility.
[11]
The panel
noted another discrepancy between her testimony and her PIF, this time related
to the number of times she had contacted the police. During the hearing, she
said that she had gone to the police only once, although she wrote in her PIF that
she had gone twice. When she was questioned about these two inconsistent
accounts, she said that she did not remember what she had written in her PIF. The
RPD refused to believe this explanation.
[12]
In the
applicant’s statement at the point of entry, the applicant stated that she
feared the person she had met in the United States and had sent to jail, but
did not say anything about her former Peruvian spouse. However, in this same
statement, she claimed that she feared returning to Peru and not to the United
States. Therefore, the applicant could not have [TRANSLATION] “confused” the
name of the former spouse in Peru with that of the one who lived in the United
States as she claimed, since she understood that she had to identify the person
she feared in Peru.
[13]
Finally, there
were several contradictions concerning the applicant’s cohabitation with her
agent of persecution. The applicant indicated during her interview at the port
of entry that she had lived with her former spouse for one year, but testified
that this relationship had lasted only 5 to 6 months. In addition, the applicant
never indicated in her PIF where she allegedly cohabited with her former spouse
and instead gave her grandmother’s address under the pretext that she did not
think it was necessary to give the address where she had cohabited with her
former spouse since it was for a short time. Further, the applicant specified
in her PIF that she had become the common‑law partner of her agent of
persecution on January 1, 2001, although according to her testimony, she
met him only in March or April 2001.
[14]
Given all
these contradictions and inconsistencies, the RPD found that the applicant was
not credible and, as a result, found that she was not a Convention refugee or a
person in need of protection. As for her son, no evidence was provided regarding
a fear of returning to the United States, his country of nationality.
ISSUE
[15]
The only
issue raised in this application for judicial review is whether the RPD erred
in finding that the applicant lacked credibility.
ANALYSIS
[16]
According
to case law, there is no doubt that the findings of a panel with regard to a
person’s credibility must be assessed on the standard of reasonableness. Moreover,
this standard was not called into question by the parties. Thus, the Court will
only intervene if the panel’s findings were made in a perverse or capricious
manner or without regard to the evidence: Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration)
v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
[17]
The
applicant noted in her memorandum that the RPD failed to consider panel’s
Guideline entitled “Women Refugee Claimants Fearing Gender-Related Persecution”
in assessing the applicant’s credibility. Counsel for the applicant argued that
the applicant’s emotional and psychological fragility and the domestic abuse
she had suffered explained her evasive answers during the hearing and why her
testimony was rife with contradictions.
[18]
This
argument was not raised during the hearing before this Court and, I think, for
good reason. First, the RPD explicitly noted at paragraph 6 of its reasons
that it took this guideline into consideration. Further, there was no evidence
in the record to demonstrate that the panel lacked sensitivity to the applicant’s
situation.
[19]
Second,
the contradictions that were identified by the panel do not relate to the
attacks the applicant allegedly suffered and might have involuntarily
forgotten, but to the fact that her testimony was more detailed in writing than
at the hearing. Moreover, the guideline did not prevent the panel from drawing
negative inferences about the applicant’s credibility from the contradictions
between her past statements and her testimony during the hearing. As this Court
noted in Higbogun v. Canada (Minister of Citizenship and Immigration),
2010 FC 445, at paragraphs 48-49:
[48] The Gender Guidelines are to be
considered by the RPD in the context of a gender-based claim. However, the
Guidelines are not binding on the RPD. The Guidelines state that a claimant
must demonstrate that the harm feared is “sufficiently serious to amount to
persecution.”
[49] In this case, there was no
psychological evidence of battered women’s syndrome, rape trauma syndrome, or post-traumatic
stress disorder. As such, the Guidelines were not applicable. Even where there
has been evidence of rape trauma syndrome, the Court has determined that the
mere existence of the syndrome “does not excuse contradictions or omissions of
serious incidents in a claimant’s previous statements.” See Kim v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1168, [2005] F.C.J. No. 1408, at
paragraph 4.
[20]
The RPD
raised a number of contradictions and inconsistencies between the statements
made by the applicant before the hearing and her testimony at the hearing. Every
time she was confronted with the discrepancies between her different accounts,
she would change her testimony in an attempt to adjust it so as to minimize the
discrepancies between the stories she had told at different times. After
examining her testimony in light of the entire record, the RPD found that the
applicant was not credible. In doing so, the RPD did not act unreasonably, but
made a finding of fact that is abundantly supported by the evidence in the
record.
[21]
The assessment
of the credibility of a refugee claimant’s testimony is central to the RPD’s
duties. After all, members of the RPD are in a much better position than the
Court to assess the credibility of a witness and to draw the necessary
inferences (Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315 (F.C.A.); Allinagogo v. Canada (Minister of
Citizenship and Immigration), 2010 FC 545).
[22]
Thus, for
the foregoing reasons, I am of the view that this application for judicial
review should be dismissed. No question was submitted for certification and
none arises.
ORDER
THIS COURT ORDERS that this application for judicial
review be dismissed. No question is certified.
“Yves de Montigny”
Certified true
translation
Catherine Jones,
Translator
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