Docket: IMM-3171-11
Citation: 2011 FC 1455
Ottawa, Ontario, December 12,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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ROY ALLISTER, JANET IANA ALFRED,
ZENISHA BLADES AND ZENERTTI ALFRED
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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
[1]
This
is an application for judicial review of the April 8, 2011 decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada
(RPD) which found that the Applicants were not Convention refugees or persons
in need of protection.
[2]
The
Applicants are citizens of St. Lucia who made claims for
protection on the basis that Mr. Allister had witnessed his brother’s murder in
1994 and that he and his family had been threatened and harmed by the alleged
murderer and his associates before the alleged murderer’s trial and after his
release from incarceration following his conviction.
[3]
The
RPD considered both Mr. Allister’s written narrative and his testimony at the
hearing and found Mr. Allister was not a credible witness. Ms. Alfred’s claim,
as well as those of their children, was based on being at risk because Mr.
Allister was at risk.
[4]
A
preliminary issue was raised by the Respondent submitting the Applicants had
misled the Court by filing a false affidavit. On this point I find otherwise.
However, I am dismissing the application for judicial review because my review
of Mr. Allister’s evidence confirms the RPD’s conclusion was entirely reasonable.
Mr. Allister’s testimony is not believable and he has no credible documentary
evidence to support his claim of being at risk because he witnessed a brother’s
murder. My reasons follow.
Background
[5]
The
Applicants, Roy Allister, his wife Janet Iana Alfred and their children, Zenisha
Blades and Zenertti Alfred, are all citizens of St. Lucia.
[6]
Mr.
Allister alleged that he witnessed his brother’s murder in March of 1994. Mr.
Allister claimed he was threatened by the murderer and his associates both before
and after the murderer’s trial. Ms. Alfred alleged that her aunt’s home had
been burned and that Ms. Alfred had been kidnapped and sexually assaulted by
the murderer and his associates.
[7]
Ms.
Alfred arrived on May 24, 2004. Mr. Allister and Zenisha Blades arrived in Canada on September
25, 2004. Zenertti Alfred arrived on December 23, 2007. The Applicants made
their claim for refugee protection on February 7, 2008.
Decision Under Review
[8]
The
RPD found that the Applicants’ claim did not have a credible basis.
[9]
The
RPD considered both Mr. Allister’s written narrative and his testimony at the
hearing and found Mr. Allister was not credible. For example, the RPD noted
that Mr. Allister did not list the deceased as a sibling, could not give the
birth year for his deceased brother, provided different dates for the death in
written and oral testimony, had no documents showing the family relationship,
produced a death certificate with information that conflicted with other
evidence, and failed to provide a police report confirming he witnessed the
murder in his evidence. Given the serious credibility concerns with Mr.
Allister’s evidence, the RDP found Mr. Allister failed to provide sufficient
credible evidence that the deceased was his brother and that he and his family
was threatened and harmed by the murderer and his associates.
Legislation
[10]
The
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)
provides:
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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,
(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.
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
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(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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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.
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 :
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;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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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Issues
[11]
Two
issues arise in this case:
1) Did Ms.
Alfred mislead the Court?
2) Was the RPD’s
decision reasonable?
Standard of Review
[12]
The
RPD’s findings of fact and conclusions on questions of mixed fact and law are
to be assessed on the standard of reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. The credibility findings of the RPD are entitled to a high
degree of deference: Aguebor v Canada (Minister of
Citizenship & Immigration) (1993), 160 NR 315 (FCA) at paras 3-4.
Analysis
1) Did Ms.
Alfred mislead the Court?
[13]
The
Applicants were self-represented at the judicial review. Ms. Alfred filed an
affidavit declaring she feared to return to St. Lucia because of
being harmed because her husband, Mr. Allister, was a witness to the murder of
his brother. Ms. Alfred attested to being kidnapped and sexually assaulted in St. Lucia by the
murderer and his associates. She declared the RPD would not allow her to
testify as to what happened to her or what she feared in St. Lucia. She stated:
“The panel member was very rude and aggressive towards me when I asked to
testify and stated that he did not need to hear from me.” In the balance of her
affidavit, Ms. Alfred attempts to explain the contradictions in Mr. Allister’s
evidence.
[14]
As
a preliminary issue, the Respondent submits the Applicants mislead the Court by
claiming the RPD refused to allow Ms. Alfred to testify. The Respondent stated
the transcript of the hearing reveals otherwise. The Respondent submits their
application should be dismissed without hearing the merits and the Applicants
be required to reimburse the Respondent with costs, albeit in a modest amount
having regard to their circumstances.
[15]
The
transcript of the review hearing demonstrates Ms. Alfred was assisted by
counsel and given full opportunity to testify at the hearing. The RPD expressly
stated it did not need to hear details of the kidnapping and sexual assault. On
my review of the transcript, I infer the RPD did so to spare Ms. Alfred from
having to recount details of shameful and degrading treatment by the
kidnappers.
[16]
The
Respondent submits bad faith is established because the hearing transcript
contradicts Ms. Alfred’s testimony. The Respondent cites Mayorga v Canada (Minister of
Citizenship & Immigration), 2010 FC 1180 in support of its position.
[17]
I
begin by observing that, while verbatim transcripts of a hearing are reliable
evidence of what was said, one must exercise caution in extending the plain
meaning of the words on paper to how participants perceive the meaning of what
is said. Transcripts cannot convey demeanour or tone of voice. Nor do
transcripts readily reveal personality or cultural traits that come into play.
When people interact, they incorporate these factors into their understanding
of the meaning of the words said.
[18]
Ms.
Alfred’s strongest evidence was about her kidnapping and sexual assault. Being
told she need not testify about that experience could be understood by her as
denying her the opportunity to testify about her most important evidence. She
may well have interpreted the RPD’s words as a refusal to hear her testimony.
[19]
In
Mayorga, Justice Near found that the applicant had filed false evidence.
The facts were unequivocal: the applicant declared in an affidavit she had
filed an employment letter stating she worked taking care of disabled children
in a school. On investigation, the school authorities advised there were no
disabled students in the school and the school director had not written the
letter.
[20]
In
the case at hand, there is room for a subjective belief by Ms. Alfred that she
was not being allowed to testify. This belief is not necessarily inconsistent
with the objective transcript evidence. In these circumstances, I decline to
find Ms. Alfred engaged in misleading the Court.
2) Was the RPD’s
decision reasonable?
[21]
I
now turn to the merits of the judicial review application. In Canada (Minister of
Citizenship & Immigration) v Sellan, 2008 FCA 381, 76 Imm
LR (3d) 6, the Appeal Court stated:
[3] In our view, that question
should be answered in the following way: where the Board makes a general
finding that the claimant lacks credibility, that determination is sufficient
to dispose of the claim unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition of the
claim. The claimant bears the onus of demonstrating there was such evidence.
[Emphasis added]
[22]
At
the RPD hearing, the Applicants relied on Mr. Allister’s written narrative and
his oral testimony. Ms. Alfred’s claim, as well as those of their children, was
based on being at risk because Mr. Allister was at risk.
[23]
My
review of Mr. Allister’s evidence confirms the RPD’s conclusion was entirely
reasonable. Mr. Allister was not believable and he has no credible documentary
evidence to support his claim of being at risk because he witnessed a brother’s
murder. No amount of explaining by Ms. Alfred will make Mr. Allister’s
testimony believable. The RPD did not make any reviewable error in coming to
the conclusion it did.
Conclusion
[24]
This
application for judicial review is dismissed.
[25]
Neither
party submitted a serious question of general importance for certification and
I do not certify any question.
[26]
Finally,
counsel for the Respondent is to be commended. The Applicants appeared in court
without the Respondent’s memorandum and related materials notwithstanding they
had been personally served. The Respondent’s counsel took the time to make that
material available to the Applicants and his conduct and approach to these
unrepresented Applicants was exemplary.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
application for judicial review is dismissed.
2. No question
of general importance is certified.
“Leonard
S. Mandamin”
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