Date: 20111031
Docket: IMM-7561-10
Citation: 2011 FC 1239
Ottawa, Ontario, October 31, 2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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LYSETTE YANEL SOLIS MORALES
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Applicant
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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
[1]
This
is an application for judicial review submitted pursuant to subparagraph 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of
a decision by the Refugee Protection Division of the Immigration and Refugee
Board (Board) dated November 29, 2010, that Lysette Yanel Solis Morales (applicant)
is neither a refugee under section 96 of the IRPA nor a person in need
of protection under section 97 of the IRPA.
[2]
For
the following reasons, this application for judicial review is dismissed.
I. Facts
[3]
The
applicant is a native and citizen of Mexico. She contends that she was
persecuted by her former spouse, Ruben Morales Rosier, an investigator with the
federal investigation agency. She is alleging the following facts. In April
2007, she completed her master’s degree in computer science. While she was
pursuing her studies, she was also working at the office of the Attorney
General of the Republic [AGR]. It was at that time that she moved in with Ruben
Morales Rosier and noted, over the following weeks, that her spouse was associating
with members of organized crime. In addition to being a violent man, he was
apparently involved in kidnappings. In October 2006, he assaulted her
physically. He also asked her to give him confidential information about her
work at the AGR. The applicant used various pretexts to avoid giving him
information.
[4]
She
also alleges that on May 2, 2007, her spouse cut her hand using an X-Acto-type
knife. She sought treatment the next day. At that point, she decided to leave
her spouse and move in with her parents. She states that she did not tell her
parents about the episodes of spousal abuse so as not to alarm them, given that
they were elderly and her father had diabetes. On May 4, 2007, the applicant
was allegedly followed by accomplices of her former spouse. Because she feared
him, she went back to live with him. She then asked her employer for a transfer
to another department to avoid giving information to her spouse. However, her
spouse asked her for information concerning her new job. The applicant
continued to use pretexts so as to avoid giving him the information requested.
She alleges that her former spouse beat her frequently and threatened her
daily. She resigned from the office of the AGR in July 2007. She arrived in Canada on August
16, 2007, and claimed refugee protection on her arrival.
[5]
The
Board found that the applicant had not discharged her burden of proving that
there is a serious possibility that she would face persecution on a Convention
ground or that she would be subject to a danger of torture or a risk of cruel
and unusual punishment if she were to return to her country.
[6]
The
Board specified that it took into account Guideline No 4, Women Refugee
Claimants Fearing Gender-Related Persecution (the Guidelines), since the
applicant alleges being a female victim of spousal abuse who could not obtain
state protection. The Board finds that the applicant did not credibly establish
the elements essential to support her refugee claim. The decision notes different
contradictions, additions and implausibilities in the testimony and in the
evidence submitted by the applicant to establish the essential facts justifying
her refugee claim.
II. The
applicable law
[7]
Section
96 of the IRPA reads as follows:
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.
III. Issue and
applicable standard of review
[8]
In
this case, there is only one issue: did the Board err in finding that the
applicant is not credible?
[9]
The
reasonableness standard applies to the assessment of the credibility of a
refugee claimant (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 90 at para. 47; Ramirez v Canada (Minister of
Citizenship and Immigration), 2011 FC 227, [2011] FCJ No 266 at para 12).
IV. Position of
the parties
A. Applicant’s
position
[10]
The
applicant is claiming that the Board erred in finding that she is not credible.
She also contends that at no time did the Board point out this problem to her.
[11]
According
to the applicant, it was not possible for the Board to find, based on her
testimony, that her relationship with her spouse was of short duration.
[12]
The
applicant is also contending that the Board could not state that the record did
not contain evidence to establish that she had left the family home and that
she was living with her former spouse. She adduced a copy of a lease and other
documents to attest to her conjugal relationship. The applicant also believes that
she provided sufficient explanations to satisfy the Board concerning the fact that
her parents’ address was still on her voter’s card.
[13]
According
to the applicant, the Board did not properly apply the Guidelines. The Board
had to take into consideration the fact that it is normal for a battered woman
to feel guilty and to try to conceal the behaviour of a violent spouse before
finding that it was implausible that the applicant did not talk about her relationship
problems to her family or relatives.
[14]
The
applicant is also criticizing the Board for having failed to inform her that the
additions made to the Personal Information Form [PIF] the morning of the
hearing adversely affected her credibility. She is also challenging the Board’s
finding that she did not credibly establish that she worked full time at the
AGR’s office from 2006 to 2007. In that regard, she relies on Exhibits R-2,
R-4, R-6 and R-13, as well as copies of cheques adduced in the record as
evidence.
[15]
The
applicant is also contending that the Board was not entitled to put itself in
the position of her former spouse to determine the plausibility of the
incidents of spousal abuse and pressure to obtain the information sought.
[16]
The
Board erred by not attaching any probative value to all of the medical evidence
submitted which, according the applicant, corroborates her testimony. She also
states that the Board did not have any medical expertise to find that the
treatment received after the incident with the X-Acto was not connected to the
alleged injury.
B. Respondent’s position
[17]
The
respondent began by responding that the Board explained in detail the reasons
for its finding that the applicant is not credible.
[18]
According
to the respondent, the applicant is asking the Court to substitute its own
assessment of the evidence for that of the Board. The Board is still in the best
position to assess the plausibility of testimony. In addition, the respondent
contends that it is perfectly acceptable for the Board to put itself in the position
of another person to assess the plausibility of certain allegations.
[19]
The
respondent also stresses that the decision clearly shows that the Board was aware
that it had to examine the file in light of the Guidelines. It is inaccurate to
claim that the Board did not take into account the applicant’s allegations that
she was the victim of spousal abuse in her country. The Board had sufficient
grounds for doubting the truthfulness of the applicant’s account.
[20]
The
respondent states that the Board was not required to inform the applicant of
all of its concerns about her credibility. The decision accurately reflects the
Board’s legitimate concern at the start of the hearing when the applicant, who
has been in Canada since August
2007, filed ten additional exhibits and made several additions to her initial
statement.
[21]
According
to the respondent, the applicant did not specifically show how the Board
disregarded the Guidelines.
[22]
As
for the applicant’s criticism that the Board did not attach probative value to
certain documentary evidence on the spousal abuse she suffered, the respondent
claims that the applicant’s allegations lack details and explanations and are
not sufficient in this case to warrant the Court’s intervention.
V. Analysis
[23]
The
case law of this Court is clear on the assessment of an applicant’s
credibility. The Court must show deference because the assessment of testimony
is at the very core of the Board’s power. The Court must intervene only if the
Board’s findings are perverse, capricious or made without regard to the
evidence in the record (Ortiz v Canada (Minister of
Citizenship and Immigration), 2011 FC 726, [2011] FCJ No 910 at para 8).
[24]
The
case law also establishes that the Board was not required to inform the parties
to the proceeding of all of its concerns regarding their credibility (Tekin v
Canada (Minister of Citizenship and Immigration), 2003 FCT 357, [2003] FCJ
No 506) at para 14:
[14] In addition, the Board did
not err by failing to specifically mention to the Applicant its credibility
concerns related to this omission from his PIF. The Board is not obligated by
the duty of fairness to put all of its concerns regarding credibility before
the Applicant (Appau v. Canada (Minister of Employment and
Immigration), [1995] F.C.J. No. 300
(T.D.) (QL); Akinremi v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 808
(T.D.) (QL); Khorasani v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 936, [2002] F.C.J. No. 1219 (QL)). In this case, the
Applicant was represented by counsel, the parties were on notice that
credibility was an issue and the inconsistency between the Applicant's PIF
narrative and his oral testimony was readily apparent. As a result, the Board
was not required to put this inconsistency to the Applicant and its failure to
do so was not a reviewable error (Ayodele v. Canada (Minister of Citizenship
and Immigration), [1997] F.C.J. No.
1833 (T.D.) (QL); Matarage v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 460
(T.D.) (QL); Ngongo v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 1627
(T.D.) (QL)).
[25]
A
reading of the hearing transcript clearly shows that the Board informed the
applicant several times about its concerns regarding her credibility. At the
start of the hearing, it noted its concerns about the late filing of new
documents, which it nevertheless allowed.
[26]
The
Board also asked the applicant why she did not inform her parents of her relationship
problems. It also questioned the applicant in order to understand how she could
have been working on her master’s degree at the same time as working full time
for the AGR.
[27]
The
Court cannot accept the applicant’s claim that the Board failed to inform her
of its concerns about her credibility. The Court therefore cannot intervene on
that ground.
[28]
According
to Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1425, 157 FTR 35 at para16, the Board is
presumed to have taken into account all of the evidence in the record; it is
not required to hypercritically read or explain its assessment of every piece
of evidence.
[29]
In
its decision, the Board referred to the lease signed by the applicant and her
former spouse but, because of the difference between the address indicated on
it and the address appearing on the various forms, it drew a negative
inference. This finding is part of the possible and reasonable outcomes in the
circumstances.
[30]
As
regards the applicant’s employment, the Board did not dispute that she had worked
for the AGR for a certain time, but found that she did not establish that she
had worked there full time for a year, from 2006 to 2007. The following
documentary evidence is in the record:
1) a business
card proving that she has a degree in administrative computer science;
2) proof of
employment indicating that she was assigned to the AGR from March 21 to March
28, 2007;
3) a letter
dated August 15, 2007, stating that she was leaving her employment; and
4) a 2007
identification card showing that she was employed at the AGR.
[31]
None
of this evidence clearly shows that the applicant worked there full time for a
year, from 2006 to 2007. The Board’s finding therefore cannot be characterized
as unreasonable.
[32]
The
Board is also permitted to attach to the pieces of documentary evidence
provided by the applicant to prove the alleged incidents of spousal abuse the
probative value that it believes appropriate. The following documentary
evidence is in the record:
1) a
prescription for an antibiotic eye solution and other nasal care products;
2) a
prescription for a dermatological ointment;
3) a medical
document indicating that a physician treated the applicant by applying a
bandage to her hand on May 3, 2007.
[33]
Did
the Board err by finding that this evidence did not clearly establish that the
applicant had been violently struck in the face several times and seriously
injured with an X-Acto-type knife? This assessment of the evidence does not
appear unreasonable or arbitrary to us.
[34]
Finally,
the Court finds that the Board took the Guidelines into account. Simply
mentioning in its decision that it did so is not sufficient. However, the Board
placed itself in the applicant’s situation. It questioned her on the quality of
her relationships with her loved ones and it closely examined her immediate
environment to weigh the truthfulness of the alleged facts. The case law of
this Court is clear: taking the Guidelines into account must not be a fetter on
the Board’s duty to assess the truthfulness of testimony. The Guidelines are to
be used instead to make the panel sensitive to the factors which may influence
the testimony of women who have been the victims of persecution (Newton v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 738, 182 FTR 294 at para 17).
In this case, the Court cannot concur with the applicant’s claim that the Board
did not follow the Guidelines.
[35]
In
short, the Court notes that the Board’s decision does not contain any finding
that is perverse, capricious or made without regard to the evidence in the
record. The Court’s intervention is unwarranted.
VI. Conclusion
[36]
For
all these reasons, this application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1. The application for judicial
review is dismissed.
2. There is no question of general
importance to certify.
“André
F.J. Scott”
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