Docket: IMM-2692-11
Citation: 2011 FC 1391
Ottawa, Ontario, November 30,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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TEFORN TARAN RICHARDS
AND NASHON DELON RICHARDS
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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 a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated March 29, 2011.
The Board determined that the Applicants were not Convention refugees or
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Background
[3]
The
Applicants, Teforn Taran Richards and Nashon Delon Richards, are minors and
citizens of Saint
Vincent and the Grenadines (St Vincent). They came to Canada in July 2009
with the assistance of relatives and made a refugee claim in September 2009. They
claimed to have been physically abused by their father, Nathaniel. Teforn has
suffered a brain injury that his mother, Denise Richards, claimed was the
result of this abuse.
[4]
The
Applicants’ mother also acted as their Designated Representative (DR) during
the refugee hearing. She came to Canada prior to the Applicants
in 1999. In her 2003 refugee claim, she alleged that she was abused by her
common law spouse and the Applicants’ father, Nathaniel. However, this claim
was refused in 2004.
II. Decision
Under Review
[5]
The
Board initially questioned why the DR delayed in bringing forward her sons’
claims, given that the same issue had significant consequences for her own
failed refugee claim. The Board found that if the DR truly feared for her children’s
safety at the hands of Nathaniel, she would not have made the same mistake for
them as she did for herself.
[6]
The
Board also highlighted some inconsistencies and embellishments in the DR’s
testimony. She claimed that Nathaniel would kill the children if they returned
to St
Vincent
but it appeared that he had facilitated the sons’ travel in signing for
passports. While the PIF stated abuse began in 1999, Nashon suggested that it
only started in 2007.
[7]
A
negative inference as to credibility was made based on the DR’s failure to
provide documentary evidence that would corroborate her allegations. There was
no evidence to confirm that Nathaniel was violent. The DR claimed that her
sons were beaten in front of the school but a letter from their Principal
merely referred to knowledge that there were problems at home, not any physical
abuse. There was also no medical evidence to support her claim that Teforn’s
brain injury was caused by his father punching him in the head. Based on these
negative credibility findings, the Board found that Nathaniel had not physically
abused the claimants.
[8]
In
addition, it was possible for the Applicants to live with their Aunt Cynthia if
returned to St Vincent, despite Nathaniel’s opposition. They had remained in
that country without the DR’s protection for eight years. There simple was not
enough credible evidence to support a refugee claim based on the threat posed
by Nathaniel.
III. Issues
[9]
This
application raises the following issues:
(a) Did the Board err in relying on
testimony of the Designated Representative?
(b) Did the Board err in making
negative inferences regarding the Applicants’ credibility?
(c) Did the Board err in ignoring
some of the Applicants’ documentary evidence?
IV. Standard
of Review
[10]
Questions
of fact and credibility are reviewed according to the reasonableness standard (Aguirre
v Canada (Minister of Citizenship and Immigration), 2008 FC 571, [2008] FCJ
no 732 at paras 13-14; Aguebor v Canada (Minister of Employment and
Immigration), [1993] FCJ no 732, 42 ACWS (3d) 886 (FCA) at para 4).
[11]
Reasonableness
is “concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” as well as “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (see Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Did
the Board Err in Relying on Testimony of the Designated Representative?
[12]
The
Applicants contest the Board’s emphasis on the testimony and credibility of
their mother as the DR. While only their claims were before the Board at the
hearing, negative credibility findings were made against her. The Applicants
insist that they are capable of expressing themselves and negative inferences
should not have been made from their lack of fulsome testimony.
[13]
The
Applicants’ submissions are not convincing. This Court has recognized a role
for the DR in providing evidence and acting as a witness (see Duale v Canada (Minister of
Citizenship and Immigration), 2004 FC 150, [2004] FCJ no 178 at para
17). The Board is entitled to weigh evidence provided by a minor child’s DR
(see Canada (Minister of
Citizenship and Immigration) v Patel, 2008 FC 747, [2008]
FCJ no 950 at 56). Negative inferences regarding credibility can therefore be
drawn from the testimony of a DR.
[14]
A
review of the transcript from the hearing shows that there was no objection to
the DR giving evidence. The DR understood that she would be speaking for her
sons and providing the majority of the evidence, given the nature of the
proceeding and her childrens’ age. She intimated that her older son, Nashon,
would want to speak and he was questioned by counsel during the hearing.
[15]
Though
most of the evidence emanated from the DR and there was a reference to her
having not been found credible in her previous refugee claim, the Board was
aware that it was assessing the Applicants’ narrative and evidence. Indeed, it
was noted at paragraph 14 of the decision that the Board “endeavoured to at all
times not unfairly prejudice the claimants’ claim based on extraneous
considerations regarding the DR.”
[16]
It
was reasonable for the Board to rely on the testimony of the DR. She had a recognized
role in providing evidence and the Board was cognizant of its primary
obligation to assess the credibility of the Applicants’ claim.
B. Did the Board
Err in Making Negative Inferences Regarding the Applicants’ Credibility?
[17]
Where
the Board makes a negative credibility finding, it must provide reasons in
“clear and unmistakable terms” (see Hilo v Canada (Minister of
Citizenship and Immigration) (1991), 15 Imm LR (2d) 199, [1991] FCJ no
228 (FCA)). This requirement was met in the present case.
[18]
The
negative inferences as to credibility were based on the testimony of the DR and
Nashon. The Board referred to specific examples from the evidence provided
that raised concerns. There was documentary evidence to contradict the DR’s
claim that Nathaniel did not assist the children in obtaining passports to come
to Canada. She also
implied that she went to the police regarding Nathaniel’s abuse of her children,
but had not mentioned this in the PIF and was unable to document the report. Nashon’s
testimony suggested that the timeline for the abuse differed from what was
stated in the PIF and he confirmed this a second time when asked by his
counsel.
[19]
The
Board is entitled to draw negative inferences from inconsistencies in evidence
at different stages of the refugee claim process (Eustace v Canada (Minister
of Citizenship and Immigration), 2005 FC 1553, [2005] FCJ no 1929 at para
10; Parnian v Canada (Minister of Citizenship and Immigration) (1995),
96 FTR 142, [1995] FCJ no 777 at para 10; Zaloshnja v Canada (Minister of
Citizenship and Immigration), 2003 FCT 206, [2003] FCJ no 272 at para 6).
C. Did
the Board Err in Ignoring Some of the Applicants’ Documentary Evidence?
[20]
The
Applicants also dispute the Board’s conclusion that they “would have expected
the claimant to be able to provide at least some documentary evidence of
physical abuse against the children, but there was not.” They argue that two
letters, from a relative and a neighbour, documenting the abuse were ignored by
the Board, despite the obligation to acknowledge and explain any rejection of
important contradictory evidence (see Cepeda- Gutierrez v Canada (Minister
of Citizenship and Immigration), 157 FTR 35, [1998] FCJ no 1425 at para 17;
Sierra v Canada (Minister of Citizenship and Immigration), 2009 FC 1048,
[2009] FCJ no 1289 at para 68; Sekeramayi v Canada (Minister of Citizenship
and Immigration), 2008 FC 845, [2008] FCJ no 1066 at para 25).
[21]
Unlike
the situation in Karayel v Canada (Minister of Citizenship and Immigration),
2010 FC 1305, [2010] FCJ no 1624, the Board did refer to documentation on
this issue, namely, a letter from Nashon’s Principal, but it did not
corroborate the DR’s claim that her son had been beaten outside of the school. It
simply referred to the Applicants as having problems at home.
[22]
Moreover,
the Board is “assumed to have weighed and considered all the evidence presented
to it unless the contrary is shown” (Florea v Canada (Minister of Employment
and Immigration), [1993] FCJ no 598 (FCA) at para 1). It is not required
to refer to every piece of evidence (Hassan v Canada (Minister of Employment
and Immigration) (1992), 147 NR 317, [1992] FCJ no 946 (FCA)).
[23]
The
failure of the Board to refer to some portions of the documentary evidence does
not amount to an error. It is entitled to prefer certain evidence presented
over other evidence (see Wijekoon v Canada (Minister of
Citizenship and Immigration), 2002 FCT 758, [2002] FCJ no 1022 at para
49). Since there were already concerns regarding the credibility of the testimony
by the DR and one of the Applicants, the Board was able to rely on the failure
to corroborate its claims with additional documentary evidence to draw a
further negative inference as to the Applicants’ credibility.
[24]
The
Board cannot be said to have erred since it referred to one letter but did not
find that this corroborated the specific claims in the DR’s testimony. In
addition, the Board was not required to refer to every piece of the evidence. While
the Applicants insist that the letters should have been specifically referred
to by the Board, this does not undermine its overall conclusion (see Nyathi
v Canada (Minister of
Citizenship and Immigration), 2003 FC 1119, [2003] FCJ no 1409 at para
18).
VI. Conclusion
[25]
The
Board reasonably relied on the DR in giving evidence on behalf of her sons and
reaching negative credibility findings as a result. Documentary evidence was
not ignored, but simply given limited weight by the Board.
[26]
Accordingly,
this application for judicial review is dismissed
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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