Date: 20080221
Docket: IMM-1556-07
Citation: 2008 FC 224
Ottawa, Ontario, February 21,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
KRISTINA
MIKE
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 22, 2007
that the applicant is not a Convention refugee or a person in need of
protection due to the abuse by her former fiancé in Albania.
FACTS
[2]
The
applicant, an Albanian citizen, arrived in Canada on November
21, 2003 at the age of 19 years. She claimed refugee protection on December 10,
2003. Her claim is founded on a fear of abuse by her former fiancé.
[3]
The
applicant and her fiancé became engaged in December 2002, nine months after
they met. The applicant states their engagement was arranged by traditional
Albanian methods, and that her father approved of the relationship.
[4]
The
applicant states that the relationship deteriorated when her fiancé began using
drugs and alcohol. During the relationship the fiancé wanted the applicant to
become a prostitute in Italy. The applicant states that after
attempting to sever the relationship, her fiancé became abusive and beat her,
sometimes in public.
[5]
The
applicant remained in the relationship until September 2003 when she claims to
have been beaten so badly that she required hospitalization for three days. The
applicant states she went to the police, but was told that there was nothing
they could do to help her, and that she should “work it out” with her fiancé.
The applicant alleges that her fiancé threatened to kill her if she ever tired
to leave him. In response, the applicant’s parents became afraid for her life
and sent her into hiding with cousins. The applicant remained in hiding until
leaving for Canada.
Decision under review
[6]
On
March 22, 2007, the Board concluded that the applicant was not a Convention
refugee or a person in need of protection. Central to the Board’s conclusion
was the applicant’s credibility, which the Board addressed at page 2 of its
decision:
On considering the claimant’s evidence in
its entirety, the panel found certain instances that caused it to doubt its
truthfulness with respect to the material aspects of the claim.
[7]
Of
concern to the Board was the impact of two police reports filed in support of
the applicant’s claim. An authenticity check of the first report (which
required a two-year adjournment of the Board hearing) found it to be a false
document. A second report was then secured from the Albanian police. Its
authenticity was not verified. The Board found that regardless of the second
report’s authenticity, the content of the reports contradicted the applicant’s
assertion that the police failed to provide her with any assistance. The Board
stated at page 5 of its decision:
With respect to the police reports, … the
panel finds that both police reports contradict the claimant’s assertion that
the police did nothing but told her to resolve the matter between the families,
as both reports purport to attest to the police taking action. When she was
asked, the appellant could not provide an explanation why the original police
report would state that the case was still under investigation. Even if this
certificate is to be discounted because false, the fact remains that the
replacement certificate makes a similar assertion.…
Based on this information, the Board
concluded:
… Accordingly, the panel would give
little weight to both police reports, finding them to be of little assistance
in establishing the claimant as a credible and trustworthy witness.
[8]
In
addition to concern over the police reports proffered by the applicant, the
Board also based its decision on other inconsistencies in the applicant’s
testimony. These included:
1. the applicant
failed to present “objective evidence” of her engagement when it was reasonable
to expect such evidence;
2. the
applicant’s evidence regarding her courtship was “qualitatively different” from
that in her Personal Information Form (PIF);
3. the medical
report allegedly confirming her injuries and length of stay in the hospital
predated her release and was, accordingly, not credible;
4. the applicant
failed to report her fiancé’s planned trafficking of her person to the police,
which undermined her overall credibility; and
5. the applicant
failed to mention in her PIF that her fiancé threatened revenge if she left
him.
Accordingly, the Board concluded that the
applicant lacked credibility.
[9]
The
Board found that since the applicant was not credible with respect to the
central issue of her claim – i.e., that she was an abused woman being
denied state protection – it also concluded that she did not fall within a category
of persons contemplated by the Chairperson’s Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution.
ISSUE
[10]
The
issue in this application is whether the Board erred in concluding the
applicant was not credible in her evidence.
STANDARD OF REVIEW
[11]
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 at paragraphs 4-5:
¶ 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?
Police reports
[12]
The
applicant argues the Board erred in its treatment of the two police reports
proffered in support of her claim. The first report, which had been acquired by
the applicant’s father and was submitted when the hearing first began on
November 23, 2004, was found to be false by authorities from the Albanian Interior
Ministry. Once the first report was determined to be false, the applicant
obtained a second report, which was also procured by her father. The applicant
argues the Board, in reaching its decision, unreasonably inferred that because
the first report was false, then so too must be the second. In support, the
applicant points to page 3 of the Board’s decision, where it states:
The primary concern remains the police
certificate. Despite her counsel’s submissions, objecting to the verification,
the fact is that the original police certificate is false has not been
seriously challenged. Instead, the claimant’s father has simply gone out and
procured another. So that in the end, we have a second police certificate
obtained in the identical manner and by the same person as the first false
certificate. …
[13]
The
applicant submits the Board was patently unreasonable in finding the second
police report to be false because it was obtained by the same person and in the
same manner as the first. To that end, the applicant states there are key
differences between the two reports, thereby making such a conclusion unfounded.
The applicant also states that if the Board had concerns about the second
report’s authenticity, it was free to conduct an investigation into that
authenticity.
[14]
However,
the Board’s decision does not explicitly conclude that the second report was not
genuine. The Board found that regardless of either report’s authenticity,
little weight should be accorded since both reports contradicted the
applicant’s claim that her overtures to the Albanian police were met with
indifference.
[15]
The
Board adjourned the hearing on November 23, 2004 to verify the authenticity of
the first police report from the police chief in Albania and to ascertain
whether this police report is in the usual format of such documents issued by
them, i.e. no formal letterhead and hand-printed. This verification
process took one-and-a-half years. The first secretary for immigration at the
Canadian Embassy in Rome (which is responsible for Albania), met with
the Albanian Ministry of Interior in Albania, which confirmed that
the police report is false for the following reasons:
1. there is no protocol
number, which there would be if it was issued by any police station in Albania;
2. the person
who signed the police report did not occupy that position when the document was
dated; and
3. the seal
contains irregularities and is quite easy to falsify.
The Court commends the Board for having
adjourned the hearing to verify this document in an objective and definitive
manner. The hearing then resumed whereupon the applicant produced a second
police report, which did have a protocol number, was on letterhead (unlike the
first report), and was typed (also unlike the first report).
[16]
The
Court finds that the Board did have valid reasons for finding that the
applicant lacked credibility when she submitted a police report that was
objectively determined to be false.
The Board’s other credibility
findings
[17]
As
noted above, the Board’s conclusion that the applicant lacked credibility was
premised on a number of other findings. With respect to the Board’s finding
that there was an absence of objective evidence establishing the engagement,
the Board relied upon a patently unreasonable finding of fact that the
applicant said that she did not obtain the photographs because she did not want
her parents to see them. In fact, the applicant testified that she did not ask
for the photographs because she herself did not want to see them. With respect
to why the applicant did not produce the ring as evidence of the engagement the
Board dismissed the explanation of the applicant without giving any reasons. In
the Court’s view, the explanation was plausible. With respect to the
applicant’s testimony concerning her relationship with her fiancé, the Board
found an inconsistency between her PIF and her vive voce evidence. Upon
close examination, the Court finds that the Board’s finding in this regard was
patently unreasonable. There is no inconsistency.
[18]
With
respect to the hospital report which is dated a day before the applicant’s
discharge, the Board did provide valid reasons for finding that this report was
not credible. It is unusual for a hospital report in any country to refer to
the applicant’s date of discharge but be dated before the applicant is
discharged. This is a valid reason for finding that the report lacked
credibility and the Court should not substitute its opinion for that of the
Board. In any event, the Court found the medical report unusual in that it was
signed by three people at the hospital including the “Chairman” of the
hospital. I would not think that hospital reports in any country would need to
be signed by three people, and would not need to be signed by the Chairman of
the hospital. It is more appropriate for a hospital report to be signed by a
doctor or a nurse.
[19]
With
respect to the threats against the applicant and against the applicant’s father
by her former fiancé, the Board found that these threats were not contained in
the applicant’s PIF. On close examination, the Court finds that these threats
were set out in the PIF and that the Board made a patently unreasonable finding
of fact in this regard.
[20]
Counsel
for the applicant Mr. J. Norris Ormston, showed the Court that some of the
Board’s findings were patently unreasonable, and made a persuasive argument
about the police reports and the hospital report. However, the Court cannot set
aside the credibility findings of the Board with respect to the police reports
and the hospital report. These credibility findings were supported with valid
reasons and inferences that were plausible. Such credibility findings are
entitled to the highest degree of curial deference and the Court cannot
substitute its opinion for that of the Board on these material credibility
findings. For that reason, the Court must dismiss this application for judicial
review.
CONCLUSION
[21]
This
application turns on the Board’s credibility findings. While the Board did make
some patently unreasonable findings of fact, these findings of fact do not
offset the valid reasons the Board provided for finding that the applicant
lacked credibility, namely the first police report and the hospital report.
Moreover, the Board found that both police reports contradict the applicant’s
assertion that the police did nothing but told her to resolve the matter
between the families. The Board states at page 5 of its decision:
… both reports purport to attest to the
police taking action. … [This] is contradictory to the claimant’s allegations
that the police rebuffed rather than helped her.
[22]
For
these reasons, the Court must dismiss this application for judicial review.
[23]
Neither
party proposed a question for certification. Since this case turns on the facts
and the credibility findings, the Court is of the opinion that this case does
not raise any serious issue of general importance that ought to be certified
for an appeal.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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