Date: 20080131
Docket: IMM-1739-07
Citation: 2008 FC 128
Ottawa, Ontario, January 31, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
VERONICA
CASTILLO GONZALEZ
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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 23, 2007
concluding that the applicant, Veronica Castillo Gonzalez, is not a Convention
refugee or a person in need of protection, from domestic abuse in Mexico.
FACTS
[2]
The
applicant, a 41-year-old Mexican citizen, claimed a fear of domestic abuse from
her former common-law spouse, a career officer in the Mexican military, and a fear
of armed robbers in Mexico.
[3]
In
her Personal Information Form (PIF), the applicant alleges instances of
violence and abuse during her relationship with her former spouse; a
relationship that lasted from June 1998 until December 2004. The applicant alleges
the abuse began approximately one year after they began living together in
March 1999. Further, the applicant states that while the abuse initially began
as verbal abuse, it later escalated to include physical abuse, sexual abuse,
and threats of death and other bodily harm. Also in the PIF, the applicant
states that she was kidnapped by armed robbers in Mexico City, and feared
that if she stayed in Mexico, either her ex-spouse or robbers would
kill her. At the hearing, the applicant did not advance this latter claim.
[4]
The
abuse caused the applicant to leave her spouse in December 2004, at which time she
moved to her mother’s home a distance away in Tlalnepantla, Mexico. However,
the applicant testified that on the same day in which she fled to Tlalnepantla, her spouse
started phoning her and followed her to her mother’s home to convince her to
return with him to their home in Hermosillo. The applicant
testified her spouse only left her mother’s home after her sister began to call
the police, although no actual telephone call was ever placed.
[5]
The
applicant alleges that while living with her mother, her spouse continued to
harass and threaten her both by phone and twice in person. The applicant states
that her spouse’s constant harassment caused her to leave Mexico for Canada on June 5,
2005, which was four days after she was kidnapped and robbed in Mexico City.
[6]
On
August 10, 2005, the applicant filed a claim for refugee protection, which was
heard before the Board on March 6, 2007.
The applicant was kidnapped
by two armed robbers in Mexico City
[7]
The
Board’s decision and the memoranda from the applicant do not refer to the
applicant’s PIF at page 15, which describes her kidnapping and armed robbery:
On May 30, 2005 I was kidnapped by two
armed robbers when I took a taxi in Mexico City.
They drove me around for half the day, forcing me to withdraw small amounts of
money from bank machines. They took my identification cards and my shoes, and
threw me out of the taxi cab somewhere outside the city. I reported this to the
police. This incident made me think that, if I stayed in Mexico, either Alvaro or robbers
will kill me.
[8]
The
applicant left Mexico five days later and came to Canada. In the PIF,
the applicant states that being kidnapped made her think that if she stayed in Mexico either her ex-spouse
or the robbers would kill her.
Decision under review
[9]
The
Board accepted the applicant’s evidence that she was a victim of domestic
abuse. However, the Board found that the applicant was not credible with respect
to the basis for her continued fear and reason for seeking refuge in Canada. The Board
gave six examples in the applicant’s evidence that it found not credible. They
are as follows:
(i)
there is
an inconsistency between the PIF and the oral evidence of the applicant.
The applicant testified that her sister only started to call the police but
never completed the call to the police. In the PIF the applicant states: “The
police never showed up”. The Board asked the applicant about this inconsistency
and the applicant said that the PIF contained a mistake. There was an important
amendment made to the PIF prior to the hearing but this part of the PIF was not
amended;
(ii)
the
timelines for
the spouse to have discovered on December 8, 2004 that his wife, the applicant,
had left, and for him to make a number of telephone calls looking for the
applicant, make arrangements to buy an airline ticket, travel to the airport,
catch an airplane to travel to the applicant’s mother’s house, is all not
plausible within the alleged five-hour time frame;
(iii)
there is another
inconsistency between the PIF and the oral evidence. In the PIF, the
applicant states that she did not contact the police between 1999 and 2004 but
in her oral evidence she said she did go to the police, who advised her to
report her husband to the military authorities. This is a change in her
evidence, which she explained by stating that she was “confused”;
(iv)
there is another
inconsistency between the viva voce evidence and the PIF. In the PIF,
the applicant states that she went to the police after going to her mother’s
home on approximately December 8, 2004. In her viva voce evidence she
omitted any reference to going to the police at this time. When confronted with
the inconsistency, she explained that she omitted this reference about going to
the police because “the police did not do anything”;
(v)
after
going to her mother’s, the applicant took legal action to recover her
personal property from her ex-spouse; specifically her computer, her car
and her personal belongings. The Board found that if the claimant was truly:
…fearful for her life and wants her ex to
leave her alone, then I am satisfied that any lawyer would take very different
actions than a civil suit to recover lost property.
A complaint to recover lost property I
find does not advance the case that the claimant has been harmed by her ex in
the past and fears he will harm her in the future as a result of her leaving
him.
(vi)
there was another
inconsistency between the PIF and her viva voce evidence. In the PIF,
the applicant reported that her ex-spouse was watching her when she was working
outside her mother’s house. She did not mention this in her viva voce
evidence and explained that “she was nervous and forgot.” The Board stated at
page 4 of the decision:
I do not accept this. I asked twice if
there were other contacts and even to the second question she answered “no”. I
am satisfied that the claimant was given an ample chance to remember the
incident outside her home if such an incident occurred.
[10]
On
March 23, 2007, the Board concluded the applicant was not a Convention refugee
or a person in need of protection. The Board held the applicant lacked
credibility and that her testimony did not demonstrate she was “giving an
account of problems she personally experienced.”
[11]
In
reaching its conclusion, the Board addressed a psychological report and two
letters written by the applicant’s mother, which had been proffered in support
of her claim. The Board concluded that that evidence was unable to offset its finding
that the applicant lacked credibility. Accordingly, the Board rejected the
applicant’s claim.
ISSUE
[12]
The
issue in this application is whether the Board erred in concluding the
applicant was not credible in her evidence, and whether the Board erred in its
application of the psychological report and the Gender Guidelines.
STANDARD OF REVIEW
[13]
No
pragmatic and functional analysis is required with respect to the issue of the
standard of review of the Board’s credibility findings because the standard of
review is well settled in the jurisprudence as “patent unreasonableness.” In Chen
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1194, [2002] F.C.J. No. 1611
(QL), I held:
¶ 4 … Before a credibility finding
of the Board is set aside … one of the following criteria must be established …
:
1.
the Board
did not provide valid reasons for finding that an applicant lacked credibility;
2.
the
inferences drawn by the Board are based on implausibility findings that in the
view of the Court are simply not plausible;
3.
the
decision was based on inferences that were not supported by the evidence; or,
4.
the
credibility finding was based on a finding of fact that was perverse,
capricious, or without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
¶ 5 Credibility findings of the
Board are entitled to the highest degree of curial deference, and the Court
will only set aside credibility decisions, … in accordance with the criteria
outlined above. The Court should not substitute its opinion for that of the
Board with respect to credibility or plausibility except in the clearest of
cases. For this reason, applications seeking to set aside credibility findings
have a very heavy onus to discharge …
ANALYSIS
Issue: Did the Board err in
concluding the applicant was not credible in her evidence and in its
application of the psychological report and the Gender Guidelines?
The Board’s credibility
findings
[14]
The
applicant submits that the Board’s decision is patently unreasonable. For the
following reasons, the applicant has failed to show that the Board’s decision
was patently unreasonable.
1st basis for
credibility finding
[15]
The
Board first relied on an inconsistency and contradiction between the
applicant’s PIF narrative and her oral testimony at the hearing. In the PIF,
the applicant stated that her ex-common-law spouse appeared at her mother’s
house on December 8, 2004 just after the applicant had travelled there to seek
refuge. In the PIF, the applicant stated that her ex-spouse tried to force the
applicant to go with him but that the applicant’s sisters came to her aid. One
of her sisters called the police and when her ex-spouse saw the sister calling
the police, he left, threatening the applicant that he would get her one day
when she was alone. The PIF with respect to this subject concludes: “The police
never showed up.” The PIF narrative states:
… Rosaro (a sister) called the police
when Alvaro saw Rosaro calling the police, he left, … the police never showed
up.
At the hearing the applicant testified that
no telephone call was ever made to the police. The Board member asked the
applicant how it was possible for the police to respond to a call that was
never placed. In response, the applicant testified that her PIF was
misinterpreted and that:
I put that there because I’m making a
statement of what happened at that time. I was asked, “The police arrived?” And
I said, “No, the police didn’t arrive” because the phone call was never made.
The Board member then stated that if this
was, in fact, a misinterpretation, then the PIF narrative should have been
amended prior to the hearing.
[16]
The
applicant states she was unaware of any contradiction between her oral and
written testimony until confronted with it at the hearing. Further, the
applicant states that because her written testimony was prepared, read to her
in Spanish, and signed approximately 17 months prior to the hearing, she could
not reasonably be expected to amend the narrative at the start of the hearing.
Accordingly, the applicant submits the Board was patently unreasonable in
rejecting her credibility because she failed to amend her PIF narrative at the
start to the hearing.
[17]
However,
the applicant’s response in this regard defies the fact that she did amend her
PIF narrative at the start of the hearing to include a claim that she sought
the aid of a women’s shelter in December 2004, but could not afford the fee to
stay there. If the applicant was capable of recounting the fact that her
original PIF narrative did not include such a detail, it was reasonably open to
the Board member to find it prudent to amend her narrative regarding the
details of her sister calling the police. Accordingly, it was open to the Board
to conclude that the applicant provided inconsistent evidence regarding whether
the police were actually phoned on December 8, 2004, and also to conclude that such
inconsistencies impacted negatively on the applicant’s credibility.
2nd basis for
credibility finding
[18]
The
Board’s decision that the applicant was not credible was also based on several other
findings. Amongst these findings, the Board found the applicant’s evidence
implausible that the applicant’s ex-spouse could pursue the applicant from her
hometown of Hermosillo to her
mother’s hometown, Thalnepantla, on the day the applicant fled and arrive at
the applicant’s mother’s home by 5:00 p.m. that day. The Board stated at page 2
of its decision:
In addition, the timelines outline[d] for
the husband’s activities on December 8, 2004 are implausible. The claimant
testified that her husband started calling her at all hours as soon as she
arrived at her mother’s house. In oral evidence, she clarified this was
approximately 12:00 noon. However, she later testified he arrived at her
mother’s home at approximately 5:00 PM after a one and one-half hour flight.
I am satisfied that there is insufficient
time for the husband to make a number of phone calls to the claimant, make
arrangements to buy a ticket, travel to the airport, catch a one and one-half
hour flight, travel from the airport to the mother’s house, all in
approximately five hours. Certainly on the basis of the implausibility on its
own, I would not reject the incident; however, this, combined with what I am
satisfied is a change in testimony regarding the calling of the police,
satisfies me that this incident was created to advance a refugee claim.
[19]
The
applicant argues that the Board did not have the evidentiary basis upon which
to find that her spouse’s actions between 12:00 p.m. and 5:00 p.m. were
implausible. The applicant further argues that she was not confronted with the
Board’s implausibility concerns during her testimony or given an opportunity to
address such concerns. Accordingly, the applicant submits that such a finding
was patently unreasonable. In support, the applicant referred the Court to
Madam Justice Mactavish’s Judgment in Pulido v. Canada (Minister of
Citizenship and Immigration), 2007 FC 209, [2007] F.C.J. No. 281
(QL) at paragraph 37:
¶ 37 … it is well established in
making plausibility findings, the Board must proceed with caution, and that
such findings shall only be made in the clearest of cases, where, for example
the facts are either so far outside the realm of what could reasonably be
expected and the trier of fact could reasonably find that it could not possibly
have happened, or where the documentary evidence before the Tribunal
demonstrates that the events could not have happened in the manner asserted by
the claimant …
[20]
In
response, the respondent argues that the timelines provided by the applicant
created “cogent credibility concerns” about the applicant’s trip and her
spouse’s alleged pursuit. The respondent submits that the Board’s
implausibility finding was based on a view that the timelines were not in
harmony with the preponderance of the probabilities that a practical and
informed person would recognize as reasonable, rational, and commonsensical. I
agree with the respondent that the Board could reasonably make an adverse
finding of plausibility based on the applicant’s timelines, and that the Board’s
finding that the underlying incident was “created to advance a refugee claim”
was reasonably open to it. The plausibility finding was based on what the Board
found to be a clear case where the facts were outside the realm of what could
reasonably be expected.
3rd basis for
credibility finding
[21]
The
applicant also submits that the Board was patently unreasonable in finding contradictions
in the applicant’s written and oral testimony regarding whether the applicant notified
authorities about being abused between March 1999 and December 2004. The
applicant’s PIF narrative lists a number of reasons why she felt unable to notify
the police about her spouse’s abusive nature during this time, and states she
did not have any contact with the police until she arrived in Tlalnepantla. However, at
the hearing before the Board, the applicant stated that she did, in fact,
contact authorities prior to leaving Hermosillo on December 8, 2004. When
asked why she did not include such a detail in her PIF narrative, the applicant
stated that it was in the narrative and pointed to a detailed account of the
police report she filed against her husband on December 10, 2004, after
arriving in Tlalnepantla. When again
asked if she ever approached the authorities while living in Hermosillo, the
applicant recanted her initial testimony, stating that she had never contacted
the police in Hermosillo because of a
fear that her spouse would find out due to the connection between the police
and military.
[22]
Having
reviewed the record, I conclude that despite the applicant’s confusion
regarding the exact times when she may have approached the police, the
questions of both the Board member and the applicant’s counsel were clear in
referencing whether the applicant had contacted authorities before
leaving Hermosillo. For
example, in one exchange between the applicant and her counsel, counsel asked:
Q. You went to the police in Hermosillo? Is that what your evidence is,
that you went to the police in Hermosillo, yes or no?
A. Yes, and they told me – they said that
he belonged to the military and that I had to go to the military authorities.
Q. And when was that about? When did you
go to the police in Hermosillo?
A. That was around 2004. That was before
going back to my mother’s house.
[Emphasis added.]
Accordingly, based on the clear nature of
the questions proffered, I find that the applicant’s inconsistent and
contradictory testimony in this regard made it reasonable for the Board to draw
a negative credibility inference from her testimony.
4th, 5th,
and 6th bases for credibility findings
[23]
The
applicant raises a number of other findings of the Board that she alleges are patently
unreasonable. These include:
1.
that the
Board erred in concluding that the applicant omitted mentioning in her oral
testimony that she had gone to the police two days after the confrontation with
her spouse;
2.
that the
Board erred in finding that the lawyer would have taken action other than “a
civil suit to recover lost property” had the applicant truly feared for her
life. The Board found at page 4 of its decision:
A complaint to recover lost property I
find does not advance the case that the claimant has been harmed by her ex in
the past and fears he will harm her in the future as a result of her leaving
him.
3.
that the
Board erred in its treatment of the two letters from the applicant’s mother and
in failing to address the police complaint filed by the applicant’s father on
October 18, 2006. The Board found at page 5 of its decision:
The claimant’s mother has written
two letters. Both letters indicate that the claimant’s ex is trying to find her
to sign over the car. This is part of the civil matter. Further, there is no
record of the ex contacting the family between January 2005 and July 2006.
[24]
Having
reviewed the record, I conclude that these findings were reasonably open to the
Board on the evidence before it, and will not be interfered with by this Court on
judicial review. Accordingly, the Court concludes that the Board was not
patently unreasonable in impugning the applicant’s credibility on the
above-noted findings.
The
Board’s consideration and application of the psychological evidence and the Gender
Guidelines
[25]
Despite
concluding that the Board’s credibility findings were open to it on the
evidence, there are two other matters to be considered before reaching an
ultimate conclusion. First, the applicant argues the Board erred in failing to
assess her credibility in light of the psychologist’s report that was filed on
behalf of her claim. That report, conducted by Dr. J.E. Pilowsky and dated
August 18, 2006, concludes that the abuse suffered by the applicant has caused
her to become “very depressed” and “incapable of enjoying activities she used
to take pleasure in.” Further, it states the applicant “has frequent
ruminations about her abuse,” as well as nightmares and panic attacks. While the
applicant admits that the Board considered the psychological report, she
submits that it failed to apply the psychological evidence therein to its
assessment of her credibility as the Court required in Pulido, above, at
paragraph 35.
[26]
The
Court cannot agree. The depressed and anxious mental condition of the applicant
cannot explain or excuse the inconsistencies, contradictions, and
implausibilities upon which the Board relied in finding the applicant not
credible.
[27]
Second,
the applicant argues that the Board erred in its consideration of the Chairperson’s
1996 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (the
Gender Guidelines), which state that women refugee claimants face special
problems in demonstrating that their claims are credible and trustworthy. For
example, the Gender Guidelines state in Section D(3) :
Women refugee claimants who
have suffered sexual violence may exhibit a pattern of symptoms referred to as
Rape Trauma Syndrome, and may require extremely sensitive handling. Similarly, women
who have been subjected to domestic violence may exhibit a pattern of symptoms
referred to as Battered Woman Syndrome and may also be reluctant to testify. …
[28]
The
applicant submits that the Board was insensitive to how the “symptoms” of her
alleged abuse may affect her testimony as outlined in both the psychological
report and the Gender Guidelines. However, it is clear that in reaching its
decision, the Board was cognizant of the Gender Guidelines and, in fact, accepted
as true the applicant’s account of alleged abuse between March 1999 and
December 2004. Further, the Board stated at page 5 of its decision:
Areas where the claimant gave conflicting
evidence was canvassed to allow the claimant to spontaneously correct her
evidence before being confronted with the contradiction or omission. Again, it
was only when the claimant failed to spontaneously respond that her
inconsistencies or omissions became part of the analysis.
Accordingly, the Board adequately
considered the Gender Guidelines and the Court will not intervene in this
regard. As Mr. Justice Martineau stated in Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1168, [2005] F.C.J. No. 1408 (QL)
at paragraph 4, the symptoms outlined in the Gender Guidelines do not “excuse
contradictions or omissions of serious incidents in a claimant’s previous
statements.”
CONCLUSION
[29]
For
these reasons, I find that this application for judicial review must be
dismissed since the Board committed no reviewable error. In this case, the
Board accepted that the applicant was a victim of domestic abuse but rejected
as not credible the material parts of the applicant’s testimony upon which she claimed
a continued fear of her ex-spouse, which caused her to seek refuge in Canada.
CERTIFIED QUESTION
[30]
Both
parties advised the Court that this application does not raise a serious question
of general importance that should be certified for an appeal. The Court agrees
so that no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
A. Kelen”
Email this Content