Date:
20110729
Docket: IMM-244-11
Citation: 2011 FC 933
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 29, 2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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DANIEL GRATINI SANTANA and YUDELKA
MARGARI RAMIREZ HENRIQUEZ
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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
A.
INTRODUCTION
[1]
The
applicants are seeking judicial review of the decision by the Refugee Protection
Division of the Immigration and Refugee Board (Board) dated December 6, 2010, in
accordance with paragraph 72(2)(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). In that
decision, the Board rejected the applicants’ refugee claim and found that they
are not refugees or persons in need of protection under sections 96 and 97 of
the Act.
B. THE
FACTS
[2]
The
applicants are spouses and citizens of the Dominican Republic. Their conjugal
and marital relationship began in March 2006.
[3]
The
female applicant’s father persecuted them because the male applicant is mulatto
and the female applicant is white. He apparently put both psychological and
physical pressure on the applicants to try to end their relationship.
[4]
On
June 24, 2006, the female applicant’s father convinced one of his employees, a
man named Pedro, to attack the male applicant. The male applicant was then lacerated
in his right kidney and shot in the hand. Hospitalized, he filed a complaint
with police upon his release. The police received his complaint but did nothing
because the female applicant’s father has a great deal of financial influence
in the city.
[5]
The
female applicant then became pregnant. When her father found out, he forced her
to take medication so that she would abort. She purportedly had an emergency
caesarean in her fifth month of pregnancy in May 2007.
[6]
The
applicants left the Dominican Republic for Antigua in August 2007. They left
for Canada in September, when they found out that they had been discovered by the
female applicant’s father. They arrived in Canada on September 8, 2007.
[7]
On
July 15, 2008, the female applicant gave birth to a girl, a Canadian citizen by
birth in the country.
C. BOARD’S
DECISION
[8]
The
Board did not find the applicants credible. Consequently, it did not find that
they are Convention refugees or persons in need of protection. When questioned
by the Board, the male applicant could not explain what the female applicant’s
father does for a living. Furthermore, the Board noted that his account of the
facts surrounding his attack and hospitalization varied. The male applicant could
not explain why there are two contradictory versions of the attack by Pedro. The
Board noted discrepancies between what was indicated at the hearing and what is
stated in the police report. The male applicant’s Personal Information Form fails
to mention his alleged follow‑up with police to inquire about news on his
complaint. Furthermore, the Board found that the male applicant’s testimony on
his employment history was evasive and that he contradicted himself.
[9]
The
Board did not attach any probative value to the police report produced by the
male applicant because it contains no identity number, complaint number, file
number or signature and also because it fails to mention the date or the
location of the attack.
[10]
In
its decision, the Board makes no mention of the medical report describing the
male applicant’s injuries as a result of the attack.
[11]
The
Board also found that the female applicant is not credible because her
testimony fluctuated with respect to the circumstances surrounding her
pregnancy and abortion. The Board also rejected the statement written by the
female applicant’s mother and the medical report because they differ.
[12]
The
Board found that the applicants did not establish the essential elements that
would enable it to allow their refugee claim.
D. APPLICABLE
LAW
Immigration and Refugee
Protection Act,
S.C. 2001, c. 27:
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Convention
refugee
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Définition
de « réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person
in need of protection
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Personne
à protéger
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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
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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 :
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(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
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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;
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(b) to a risk to their life
or to a risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(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,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(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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Person
in need of protection
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Personne
à protéger
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(2) A
person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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E. ISSUES
AND STANDARD OF REVIEW
[13]
There
are three issues in this application:
a) Are the
findings with respect to the applicants’ credibility reasonable?
b) Did the Board
properly consider the documentary evidence submitted by the applicants?
c) Did the Board
properly apply the Guidelines on Women Refugee Claimants Fearing Gender-Related
Persecution (Guidelines)?
[14]
The
standard of review applicable to the three issues raised in this application
for judicial review is reasonableness (Kar v. Canada (Minister of
Citizenship and Immigration), 2009 FC 143 at paragraph 31; Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 53 (Dunsmuir)).
[15]
The
Court must therefore examine the justification, transparency and intelligibility
of the decision and “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47).
F. ANALYSIS
a)
Are the findings with respect to the applicants’ credibility reasonable?
Position of
the applicants
[16]
The
applicants contend that the Board asked unreasonable questions about the facts
they allege. The Board’s finding on their credibility therefore becomes arbitrary,
even capricious. According to them, the Board should have contacted the female
applicant’s father if it wanted to know what he does for a living. Furthermore,
it should have made inquiries of the female applicant’s mother if it wanted to
know why she wrote curettage instead of caesarean in her sworn statement.
[17]
In
their reply, the applicants add that the circumstances surrounding their
situation are not normal. They therefore cannot confirm what the female
applicant’s father does for a living. The Board was unreasonable to doubt their
credibility because they did not know what the female applicant’s father does
for a living.
[18]
The
applicants also argue that credibility and implausibility findings must be
drawn clearly and precisely. In their case, they are erroneous because they are
deficient and vague. The applicants cite two decisions to support this: Isakova
v. Canada (Minister of Citizenship and Immigration), 2008 FC 149 and Valtchev
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, 208 F.T.R.
267.
[19]
In
their reply, the applicants also claim that the Board should have verified in
what context the word “curettage” is used in the Dominican Republic before drawing
a negative inference from it with respect to their credibility. The applicants
maintain that the Board cannot penalize them because it did not make an effort
to research this [translation]
“crucial” point. The applicants also claim that the Board disregarded the
submissions by their counsel on the use of the word “curettage”, and that even
the Board’s interpreter did not know how to translate the word “curettage”, which
was used in a piece of documentary evidence submitted before the Board.
[20]
The
applicants also note that the male applicant’s employment is not directly
related to their refugee claim. It is unreasonable for the Board to use the
male applicant’s testimony on this point to determine that he is not credible.
Position
of the respondent
[21]
The
respondent submits that the applicants are now presenting new explanations that
were not before the Board.
[22]
The
respondent claims that it is normal for the applicants to know what the female
applicant’s father, their persecutor, does for a living. Because the applicants
must establish the merits of their claim, the Board may ask such a question. The
respondent cites several decisions in support of this, namely Gill v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1498, 148 A.C.W.S. (3d)
297 at paragraph 25, and Samseen v. Canada (Minister of Citizenship and
Immigration), 2006 FC 542, 148 A.C.W.S. (3d) 780 at paragraph 14.
[23]
The
respondent notes that the female applicant stated in her testimony that she
underwent a medical procedure when she was 3 or 4 weeks pregnant. The Board was
able to therefore reject her explanation because she contradicted her own
medical report.
[24]
In
his supplementary memorandum, the respondent states that the applicants never
complained about the quality of the interpretation at the hearing. They cannot
now complain of a breach of the duty of procedural fairness. The respondent cites
the decision by the Federal Court of Appeal in Geza v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 124, 267 D.L.R. (4th) 54, which
specifies the following, at paragraph 66: “Parties are not normally able to
complain of a breach of the duty of procedural fairness by an administrative
tribunal if they did not raise it at the earliest reasonable moment.” Furthermore,
the respondent questions why the female applicant used two different terms to
describe her surgical procedure if she does not know the meaning of the terms
used.
[25]
In
reply to the applicants’ argument that the Board should have done research to
clarify the use of the word “curettage” in the Dominican Republic, the
respondent claims that the Board was not required to do so. The respondent
cites El Jarjouhi v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 466, 48 A.C.W.S. (3d) 790, 1994 CarswellNat 2253, which
specifies that applicants cannot count on the Board to make their case.
[26]
The
respondent claims that the reasons stated in the Board’s decision in finding
that the applicants lack credibility are clear, precise and well articulated.
According to him, the applicants’ allegations were unproven. The applicants are
not credible because they contradict each other. The respondent cites Hossain
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 160,
102 A.C.W.S. (3d) 1133 at paragraph 6, and Tcheremnykh v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1310, 99 A.C.W.S. (3d)
306 at paragraph 9, which state that, in the presence of contradictory evidence
and implausible explanations, the Board can attach no probative value to
certain pieces of evidence and determine a lack of credibility.
[27]
The
respondent contends that the Board may doubt the male applicant’s account on
his follow-up with police because those statements were omitted in his Personal
Information Form. Hammoud v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 251, 1999 CarswellNat 970, supports this finding.
[28]
According
to the respondent, even if the male applicant’s employment was not at issue in
his refugee claim, the Board was still entitled to consider the quality of his
testimony on this point. Given the other shortcomings in the applicants’ record,
it was reasonable for the Board to consider this testimony evasive and
contradictory and to determine that the applicants lack credibility (Qasem v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1182, 118 A.C.W.S.
(3d) 705).
Analysis
[29]
The
Board must make a judgment and assess the true value of the testimony and other
evidence submitted before it in support of a refugee claim under the Act. In
this case, the Board based its finding that the applicants lack credibility on
several inconsistencies and implausibilities in their testimony.
[30]
The
applicants are dissecting and analyzing in isolation each of the
implausibilities noted and criticisms made in the Board’s decision. However,
the Board did not base its decision with respect to the applicants’ credibility
on each element taken in isolation, but rather on an overall finding. The
applicants’ arguments are relying on a false reading of the Board’s decision.
The Board was not concerned with what the female applicant’s father does for a
living, but rather with the fact that the male applicant could not explain why
he did not know what his persecutor does for a living, even after living with
the female applicant for several months. The same can be said for the use of
the word “curettage”. It is not the use of this word that led the Board to find
the female applicant’s account implausible, but rather the contradictions in
her testimony with respect to the timing and the nature of her procedure.
[31]
The
Court cannot agree with the applicants’ argument that there was a breach of the
principles of procedural fairness because their counsel did not have the
opportunity to explain why she used the word “curettage”. The applicants were
represented by counsel for the entire hearing, even if it was by two different
counsel. The applicants chose to change counsel after the first day and before
counsel could explain her choice of words. The Board had nothing to do with that
situation.
[32]
The
reasons for the decision are clear and the finding that the applicants lack
credibility is reasonable under the circumstances.
b) Did
the Board properly consider the documentary evidence submitted by the
applicants?
Position of
the applicants
[33]
The
applicants claim that the Board erred by rejecting the police report because it
stated that the male applicant appeared without an identity card. In their reply,
the applicants add that the Board should have informed them if it did not
attach any probative value to the report. They state that this lack of notice
by the Board prevented them from adequately responding to its questions.
[34]
According
to the applicants, the Board must consider all of the evidence, including the
fact that abortions are illegal in the Dominican Republic, which may have explained
the use of the word “caesarean” in the female applicant’s medical report. In their
reply, the applicants reiterate the same argument and add that this therefore
explains the use of the word “curettage” because abortion, a practice that is apparently
illegal, is not to be mentioned.
[35]
The
applicants also make another criticism of the Board. Its decision does not
explain why it excluded the medical report written after the male applicant was
attacked. According to the applicants, this error vitiates the Board’s
decision, which makes it unreasonable as a result. They also claim that the
Board disregarded the evidence submitted on the violence and corruption in the
Dominican Republic. In reply to the respondent, the applicants state that it is
impossible for a doctor to determine the cause of injuries in a report. The
Board is not entitled to exclude evidence on the ground that a testimony is not
credible. They cite Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (Cepeda-Gutierrez)
in support of this.
Position of
the respondent
[36]
The
respondent acknowledges the Board’s error with respect to the police report,
but claims that it does not change the reasonableness of the decision. The
respondent also notes that the description of the attack in the male applicant’s
Personal Information Form contradicts the version in the police report. Under
these circumstances, this report cannot be determinative with respect to the
refugee claim. The respondent also argues that the Board is a specialized
tribunal that has some experience in assessing the documentary evidence before
it.
[37]
The
respondent contends that the female applicant’s credibility is tainted by the
quality of her responses to the questions on the nature of her medical
procedure rather than on the illegality of abortion in the Dominican Republic. The
respondent adds that the applicants did not establish a connection between the
objective documentary evidence and their personal situation, citing Al‑Shammari
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 364, 23 Imm.
L.R. (3d) 66 at paragraph 24. In reply to the argument that the illegal nature
of abortion explains the different terms used to describe the surgical
procedure performed on the female applicant, the respondent maintains that it
is speculation to claim that doctors would not use the word “abortion” because it
is a crime.
[38]
According
to the respondent, the Board could have rejected the evidence on this point
because the statement by the female applicant’s mother specifies that it was a curettage,
while the medical report talks about a caesarean.
[39]
The
respondent maintains that the Board considered the medical report submitted by
the male applicant because it mentions it in its decision. According to him,
the Board did not err by not directly addressing its probative value. He cites Ahmad
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 471, 122 A.C.W.S.
(3d) 533. The respondent also relies on Singh v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 472, 2001 CarswellNat 971, which
specifies that a finding of lack of credibility may extend to all documents
emanating from a testimony. The respondent also notes that the report does not
mention the cause of the injuries. Again, he relies on Singh v. Canada (Minister
of Citizenship and Immigration), 2004 FC 426, 2004 CarswellNat 4431, more
specifically at paragraph 15, which states the following: “A medical
certificate that reports certain injuries does not prove that they are the
result of the persecution described by an applicant.”
Analysis
[40]
A
close reading of the Board’s decision convinces us that it should have
considered all of the evidence submitted by the applicants. In our opinion, the
Board was not entitled to disregard the police report as it was not
contradicted by the male applicant’s statements in his Personal Information
Form. On the contrary, the versions are the same except for some minor
differences. Furthermore, the male applicant explained why his identity number does
not appear. Under these circumstances, this decision by the Board seems
unreasonable.
[41]
The
medical report and the contradictions between the various pieces of evidence on
the nature of the female applicant’s surgical procedure allowed the Board to
weigh their probative value. The same can be said for the medical report on the
male applicant’s injuries (see Cepeda‑Gutierrez, above). As these
elements are at the very heart of the applicants’ submission, the Board had to
clearly explain the probative value that it attached to them. These errors are
sufficient for us to allow the application for judicial review.
c) Did
the Board properly apply the Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution (Guidelines)?
Position
of the applicants
[42]
The
applicants claim that the Board did not take the Guidelines into account when
the female applicant testified before it. The Guidelines require that the Board
be particularly sensitive to women who suffer from trauma as a result of a rape
or an assault. In her affidavit, the female applicant stated that she had the
impression that the Board became angry with her. The applicants also cite the
Supreme Court of Canada decision in R. v. Lavallée, [1990] 1 S.C.R. 852,
108 N.R. 321, which describes the battered woman syndrome.
[43]
The
applicants submit that the Board lacked sensitivity with respect to the female
applicant, particularly during her examination, in which it asked her the
difference between a curettage and a caesarean, and what her mother meant when
she talked about curettage. The applicants cite Kaur v. Canada (Minister
of Citizenship and Immigration), 2006 FC 1066, 163 A.C.W.S. (3d) 444 and
submit that, contrary to its claims, the Board did not consider the Guidelines.
Consequently, the Board’s decision is unreasonable.
Position of
the respondent
[44]
In
reply, the respondent maintains that, even if the female applicant experienced
traumatic events, it was reasonable for the Board to expect her to explain her
condition, the progress of her pregnancy and the nature of the surgery
performed.
[45]
The
respondent notes that the applicants were represented by counsel before the
Board. He cites Arthur v. Canada (Attorney General), 2001 FCA 223, 111 A.C.W.S.
(3d) 240 at paragraph 8, which states that an allegation that the Board was not
impartial must be supported by “material evidence demonstrating conduct that derogates from
the standard.”
The respondent criticizes the applicants for citing no specific example from
the hearing transcript to support their statements.
[46]
In
his supplementary memorandum, the respondent also highlighted the fact that the
applicants did not submit any concrete evidence to establish that the female
applicant suffered from post-traumatic shock. The respondent also claims that
the gaps and contradictions that taint the female applicant’s credibility can
be found not only in her testimony but also in the documentary evidence
submitted before the Board. The respondent notes that the purpose of the Guidelines
is not to rectify the deficiencies in the evidence of a refugee claimant.
Analysis
[47]
The
decisions cited by the applicants do not apply in this case. In fact, a close
reading of the transcript of the female applicant’s testimony does not reveal
any hint of bias or unacceptable conduct by the Board. The Board can and must
question seemingly contradictory evidence. That is its duty. There is no
evidence that the Board lacked sensitivity in this case.
G. CONCLUSION
[48]
Because
the Board erred in assessing the documentary evidence submitted by the
applicants, the application for judicial review is allowed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that:
1. It
allows the application for judicial review.
2. There
is no question of general interest to certify.
“André
F.J. Scott”
Certified
true translation
Janine
Anderson, Translator
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