Docket: IMM-2596-13
Citation:
2014 FC 1003
Ottawa, Ontario, October 22, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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NELLI AVAGYAN
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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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JUDGMENT AND REASONS
[1]
The Applicant (or Ms. Avagyan) seeks judicial
review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board of Canada (the RPD), dated March 6, 2013, which held that she had
not established that she was either a Convention refugee or a person in need of
protection within the meaning sections 96 and 97 of the Immigration and
Refugee Protection Act (S.C. 2001, c. 27) (the Act).
[2]
For the reasons that follow, Ms. Avagyan’s
judicial review application is dismissed.
I.
Background
A.
Ms. Avagyan’s Refugee Protection Claim
[3]
Ms. Avagyan is a citizen of Armenia. She left Armenia for Canada on September 12, 2011 and advanced a refugee protection claim
shortly thereafter. Her claim has two aspects which involve two former
partners.
[4]
First, she states that she fears a former
partner, a policeman (first former partner), with whom she had a relationship between
September 2008 and October 2009. She alleges that she put an end to the
relationship on October 21, 2009 after having discovered he had mistresses.
Ms. Avagyan claims that instead of letting her go when she told him she was
ending the relationship he locked her in their residence until she was “freed”,
three days later, by her mother and brother who, having had no contact with her
during those three days, decided to go and enquire at her residence.
[5]
Although he then allowed her to leave, taking
with her only a suitcase and a few belongings he threatened her should she ever
speak of the matter to anyone. In fear of these threats, Ms. Avagyan rented an
apartment located approximately 30 minutes away from her former residence.
[6]
Ms. Avagyan states that she did not hear from
the first former partner again until a few weeks after she filed a complaint
with the Prosecutor’s Office about the incident of October 21, 2009 (the
October incident). She alleges that, on November 18, 2009, he located her and
assaulted her to a degree requiring medical attention. Approximately one month
later, she filed a complaint with the Prosecutor’s Office in relation to the
November 18, 2009 incident (the November incident).
[7]
The Applicant testifies that, following the
November incident, she had no contact with the first former partner until March
2011 when she was visiting her then new partner (second former partner) who was
at a police station following his arrest during a political demonstration. Following
that encounter, according to Ms. Avagyan, there were two further incidents with
the first former partner. In June 2011, she received a phone call from him
wherein he threatened reprisal if she did not return to him. Second, in August
2011, he tried to force her into his vehicle.
[8]
The second aspect of Ms. Avagyan’s refugee
protection claim is related to the problems her second former partner, Mr.
Sargis Avagyan, was facing in Armenia before they both left for Canada in order to seek refugee protection. Mr. Avagyan, who had met the Applicant in
February 2010, was a doctor involved in exposing corruption in the government’s
health ministry and whose life, as a result, was allegedly threatened by people
who wanted him to stop that activity. Ms. Avagyan claims that she fears for
her safety, if she were to return to Armenia, from the enemies of her second
former partner. She also fears for the safety of her child, born to her and
Mr. Avagyan shortly after their arrival in Canada.
[9]
The Applicant and Mr. Avagyan parted ways a few
weeks before their arrival in Canada.
[10]
Mr. Avagyan also sought judicial review of a
decision by the RPD, dated March 6, 2013, rejecting his own refugee claim,
which judicial review was heard together with the present matter. For the
reasons outlined in file IMM-2232-13, released simultaneously with these
reasons, I have also dismissed Mr. Avagyan’s judicial review application.
B.
The Decision Under Review
[11]
Ms. Avagyan’s refugee protection claim was
dismissed by the RPD on the basis, mainly, that it was not credible based on
the evidence adduced.
(1)
The Fear of Abuse by the First Former Partner
[12]
The RPD made adverse credibility findings
regarding Ms. Avagyan’s testimony. The RPD found that the time gap between the
alleged incidents made her story unlikely to be true. That is mainly
considering that the first former partner, allegedly abusive and controlling,
would have had the resources, as a police officer, to contact or locate her,
when she left him in October 2009.
[13]
The RPD also found that Ms. Avagyan had not
provided sufficient evidence regarding her complaints to the Prosecutor’s
Office in 2009. First, she could not provide documentary proof of the
complaint allegedly made following the October incident. As for the complaint
related to the November incident, the RPD denoted that it would not have been
unreasonable for Ms. Avagyan to follow-up with the authorities considering there
was no evidence showing that the state was unwilling or unable to provide her
with adequate state protection and the fact that she remained in Armenia until September 2011.
[14]
With respect to the medical certificate adduced
to corroborate the injuries Ms. Avagyan suffered in the November incident, the
RPD noted that the certificate, which was dated December 18, 2009, did not
correspond with the date of the incident. Further, the certificate did not
indicate the source of the injuries.
[15]
The RPD found that there was little or no
credible evidence that the first former partner still had any interest in Ms.
Avagyan, considering the passage of time. The January 2013 emails adduced by
Ms. Avagyan as evidence that her first former partner was inquiring about her whereabouts
were given no weight by the RPD. Finally, the RPD noted that no evidence had
been adduced by family members, who, according to Ms. Avagyan’s testimony, freed
her after having been locked-up in her residence by her first former
partner in October 2009. According to the RPD, it would have been reasonable
to expect something from them attesting to the Applicant’s problems with that
former partner.
(2)
The Fear Related to the Activities of the Second
Former Partner, Mr. Avagyan
[16]
As indicated previously, Ms. Avagyan fears the
enemies of her second former partner, Mr. Avagyan. In the interview with the
RPD, Ms. Avagyan admitted that she was not targeted by Mr. Avagyan’s alleged
persecutors but claimed that these people would be aware of their relationship
and of the existence of their child.
[17]
The RPD rejected that claim. It found the
evidence unsatisfactory as the Applicant was not a target of Mr. Avagyan’s
enemies and that there was, as a result, no reason to conclude that her life
was at risk. In particular, it found no evidence that Ms. Avagyan was involved
in any way in collecting information for or with Mr. Avagyan in exposing
corruption or that she was remotely “on the radar” of Mr. Avagyan’s enemies
because of her relationship with him.
[18]
Also, the RPD gave no weight to a psychiatric
evaluation report filed by Ms. Avagyan stating she was suffering from Post
Partum Depression with psychotic features. This report recounted Ms. Avagyan’s
situation in Armenia but stated that she was
targeted by Mr. Avagyan’s persecutors. The RPD made a negative
credibility finding as a consequence of the contradiction between this
statement in the report and Ms Avagyan’s oral evidence that she was not
targeted.
[19]
Finally, the RPD considered the Gender
Guidelines and found that although they applied to some degree to Ms.
Avagyan’s claim they did not counterbalance the deficiencies in the evidence
and the previously drawn conclusion of adverse credibility.
II.
Issue and Standard of Review
[20]
The issue to be decided in this case is whether
the RPD, in concluding as it did, committed a reviewable error as contemplated
by section 18.1(4) of the Federal Courts Act, RSC, 1985, c F-7.
[21]
Generally speaking, determining whether a
foreign national is a Convention refugee within the meaning of section 96 of
the Act or a person in need on protection under section 97 of the Act is a
matter of mixed facts and law for which the RPD has expertise. As a result, it
is well settled that such determinations are to be reviewed through the lens of
the reasonableness standard of review (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 at para 53; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 89).
[22]
It is also well settled that when it comes to
the credibility or plausibility of a refugee claimant’s story, the RPD’s
findings are factual in nature and, given it’s role as a trier of fact, are
owed a significant amount of deference (Khosa at para 89; Camara v
Canada (Minister of Citizenship and Immigration), 2008 FC 362, at para 12; Lin
v Canada (Minister of Citizenship and Immigration), 2008 FC 1052, at para
13; Giron v Canada (Minister of Citizenship and Immigration),
2013 FC 7, at para 14; Dong v Canada (Minister of Citizenship and
Immigration), 2010 FC 55, at para 17, Lawal v Canada (Minister of
Citizenship and Immigration), 2010 FC 558, at para 11; Sanchez v
Canada (Minister of Citizenship and Immigration), 2011 FC 491, at para12).
[23]
What this means is that my role is not to
reweigh the evidence that was before the RPD and substitute my findings to
those of the RPD. My role is limited to the review of the RPD’s decision and
interfere with it only if it lacks justification, transparency and
intelligibility and if it falls outside the range of possible, acceptable
outcomes, defensible in fact and in law (Dunsmuir, at para 47).
III.
The Applicable Statutory Framework
[24]
In order to qualify as a Convention refugee
within the meaning of section 96 of the Act, the Applicant had to establish
that she was a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, political opinion or membership in a
particular social group, was outside her country of nationality and was unable
or, owing to such fear, unwilling to avail herself of the protection in
that country.
[25]
With respect to her claim that she was also a
person in need of protection within the meaning of section 97 of the Act, she
had to establish that her removal to Armenia would subject her either to a
danger, believed on substantial grounds to exist, of torture within the meaning
of Article 1 of the Convention Against Torture, or to a risk to her life or to
a risk of cruel and unusual treatment or punishment. In the latter case, she
also had to establish, inter alia, that she was unable or, because of
that risk, unwilling to avail herself of protection in Armenia, that she would
face that risk in every part of Armenia and that this risk is not one that is
faced generally by other individuals in or from that country.
[26]
Sections 96 and 97 of the Act are reproduced in
the Annex to this judgement.
IV.
Analysis
A.
Ms. Avagyan’s Position
[27]
Ms. Avagyan claims that the RPD decision is
vitiated by a number of unreasonable findings.
[28]
With respect to the first aspect of her refugee
protection claim, the fear of abuse by the first former partner, she contends
it was unreasonable on the part of the RPD:
a.
To discount her fear of her alleged former
abusive partner on the assumption that if he was as abusive and controlling as
she claims, he would have searched for her after she left him and done whatever
possible to get her back into his life;
b.
To discount the medical report related to the
November incident because it did not state the cause of the injuries and to
draw an adverse inference from the fact she did not follow-up with the
authorities in relation to her complaints to the Prosecutor’s Office;
c.
To reject her story regarding the first former
partner based on the lack of corroborative evidence from her
mother and brother on the existence and nature of that relationship; and
d.
To give no weight to the January 2013 emails
showing that the first former partner was making inquiries as to her
whereabouts.
[29]
Ms. Avagyan also claims that the RPD, by stating
that it was not “convinced” that the alleged
abusive former partner “did and would put her life at
risk in a forward looking analysis”, imposed on her a higher burden of
proof than that required by sections 96 and 97 of the Act.
[30]
With respect to the second aspect of her refugee
protection claim, the fear related to the activities of Mr. Avagyan, Ms.
Avagyan contends it was unreasonable for the RPD to draw a negative credibility
finding on the basis of a single contradiction in her evidence. She also
claims that it was unreasonable for the RPD not to consider the diagnosis in the
psychiatric evaluation report in the assessment of her overall credibility.
[31]
She also contends that the RPD applied the wrong
legal test in its analysis of her section 97 claim in requiring proof that she
would be tortured if she were to return to Armenia whereas what needs to be
proven is the danger of torture or the risk of mistreatment.
B.
Ms. Avagyan’s Fear of Abuse by the First Former
Partner
(1)
The Lack of Credibility of Ms. Avagyan’s
Allegations
[32]
As the Federal Court of Appeal stated in Sellan
v Canada (Minister of Citizenship and Immigration), 2008 FCA 381, an
adverse credibility finding will normally be dispositive of a refugee
protection claim unless the record contains reliable and independent
documentary evidence to rebut it (Sellan, at para 3).
[33]
This rule stems from the fact that assessing the
credibility of a refugee claimant is a question of fact that lies at the very
heart of the RPD’s jurisdiction and expertise. Indeed, as a specialized
tribunal, the RPD has complete jurisdiction to determine the plausibility of
testimony and in so doing, to gauge the credibility of an account and draw the
necessary inferences. This means that it is entitled to make credibility
findings based on implausibility, common sense and rationality and, as long as
the inferences drawn are not so unreasonable as to warrant the intervention of
the Court, the RPD’s findings in this regard are not open to judicial review (Aguebor
v Canada (Minister of Employment and Immigration), 160 NR 315, [1993] FCJ
No. 732 (QL) (FCA), at para 4; Divsalar v Canada (Minister of
Citizenship and Immigration), 2002 FCT 653, [2002] FCJ No. 875 (QL) at para
22; Dzey v Canada (Minister of Citizenship and Immigration), 2004
FC 167, at para 19; Abdul v Canada (Minister of Citizenship and
Immigration), 2003 FCT 260, [2003] FCJ No. 352 (QL) at para 15).
[34]
Here, the RPD found that the determinative issue
with Ms. Avagyan’s refugee protection claim was one of credibility: it did not
believe that she had a former abusive partner who put her life at risk or who
would present such a risk in a forward looking analysis, and found that the
documentary evidence submitted by Ms. Avagyan to corroborate her allegations
was unreliable and insufficient.
[35]
It is clear, when the decision is read as a
whole, as it is bound to be (Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708
at paras 14-15; Pena v Canada (Minister of Citizenship and Immigration),
2009 FC 616, 352 FTR 11 at para 70; Shire v Canada (Minister of Citizenship
and Immigration), 2012 FC 97, at para 54; Stuart v Canada (Minister of
Citizenship and Immigration), 2012 FC 1139, at para 28), that the RPD was
largely influenced by the fact Ms. Avagyan allegedly had only two encounters
with the first former partner between the moment she left him in October 2009
and her departure from Armenia in September 2011 and, no contact whatsoever for
a period of sixteen months. This, the RPD inferred, did not match the first
former partner’s profile of an abusive, controlling man, as claimed by Ms.
Avagyan.
[36]
Ms. Avagyan contends that this finding is pure
speculation, and therefore unreasonable. The Respondent says it is based on
common sense and, therefore, reasonable. The burden is on Ms. Avagyan to show
that the inference drawn by the RPD could not reasonably have been drawn (Aguebor,
at para 4).
[37]
Much has been said and written about inferences
and the distinction to be drawn between a permissible inference and
impermissible speculation. In a recent decision, Justice Peter Annis provided
a useful reminder of the general principles governing inferences (K.K. v
Canada (Minister of Citizenship and Immigration), 2014 FC 78). He
summarized these principles as follows at paragraph 61 of his judgement :
•
An inference is a conclusion that follows
logically and reasonably to a sufficient degree of probability from accepted
facts by the application of an inductive reasoning process that utilizes the
uniformity of prior human experience as his benchmark.
•
The facts that are said to provide the basis for
the inference must be established by the evidence and cannot be substituted for
by speculation.
•
Because there is no bright line, drawing a
distinction in degrees of probability between permissible reasonable inferences
and impermissible speculation is often a very difficult task.
•
Drawing inferences is not about possibilities,
nor is it a process of creating a hypothetical narrative, or applying
subjective imagination even where the circumstances permit an educated guess.
•
Inferences need not be obvious or the most
easily drawn; all that is required is that they be reasonable and logical.
[38]
In Zacarias v Canada (Minister of
Citizenship and Immigration), 2012 FC 1155, 419 FTR 135 Justice Mary J. L.
Gleason concluded, after reviewing this Court’s jurisprudence on the issue,
that it is open to the RPD to find a refugee claimant’s story not plausible
when it does not make sense in light of the evidence before it or when it is
outside the realm of what could be reasonably expected (Zacarias, at
para 11).
[39]
Applying these principles to the case at hand, I
am not persuaded that it was unreasonable on the part of the RPD to discount
Ms. Avagyan’s story as one could reasonably conclude that the central elements
of that story fell “outside the realm of what could be
reasonable expected”. These central elements, measured against Ms.
Avagyan’s allegation of the former partner being abusive and controlling, are:
a.
Ms. Avagyan was not upset when her mother and
brother came to “free” her from her three day
lock-up and only told them about the first former partner’s alleged abusive
behaviour about a week later although they had apparently been in a
relationship for a year;
b.
She did not hear from that partner again until a
month later, after she had filed a complain with the Prosecutor’s Office for
which she had no documentary proof;
c.
She then had no contact with the first former
partner until March 2011, that is sixteen months later, when she visited her
second former partner, Mr. Avagyan, at a police station, and there is no
indication on record that this encounter was anything other than purely coincidental.
d.
The last encounter with the first former partner
before Ms. Avagyan left for Canada occurred in early August 2011, four months
later, when he allegedly tried to force her into his car; this was at a time
where the two were living in different regions of Armenia and nearly two years
after their separation.
[40]
Based on that evidence, the RPD was entitled, in
my view, to make negative inferences as to the credibility of Ms. Avagyan’s
allegation that she had a former abusive partner who would seek to put her life
at risk if she were to return to Armenia. I agree with the Respondent that the
RPD’s credibility finding in this regard was properly based on implausibility,
common sense and rationality. In other words, it was based on permissible
inferences reasonably and logically drawn from a group of facts established by
the evidence, not from some process applying subjective imagination.
[41]
Thus, prior human experience will suffice to
logically draw reasonable inference and it would be wrong to assert that
supporting scientific evidence is needed when assessing human behaviour. In my
view, it was reasonably open to the RPD to find that Ms. Avagyan’s story did
not match the alleged profile of the first former partner, or in other words,
it was reasonable for the RPD to conclude that this story defied common sense
and rationality.
(2)
The Weight Ascribed to the Supporting
Documentary Evidence
[42]
It was reasonably open to the RPD, in such
context, to ascribe little weight to the documentary corroborating evidence
filed by Ms. Avagyan; the medical report allegedly related to the November
incident, the complaint filed with the Prosecutor’s Office in relation to that
incident, and the January 2013 emails indicating that the first former partner
was making inquiries as to her whereabouts.
[43]
As for the medical report, I agree that
expecting a statement as to the cause and the author of the injuries was too
much to ask on the part of the RPD. However, the RPD did note that the report,
which is dated thirty days following the alleged assault and indicates Ms.
Avagyan was discharged from hospital on December 3, 2009, some fifteen days
following the said assault, made no mention of the date Ms. Avagyan was
admitted into the hospital.
[44]
The onus was on Ms. Avagyan to establish, on a
balance of probabilities, the facts underlying her refugee protection claim and
the RPD’s factual findings in this regard, as indicated previously, are to be
owed a significant amount of deference (Owusu v Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 FC 635, at para 8; Delisa
v Canada (Minister of Citizenship and Immigration), 2010 FC 8, 362 FTR 268,
at para 33. As a result, in light of the discrepancies between the
dates in the report and the date the November incident allegedly occurred, and
the general lack of credibility of Ms. Avagyan’s story as a whole, it was, in
my view, reasonably open to the RPD to give this report little weight.
[45]
The RPD did not give much weight either to the
complaint filed with the Prosecutor’s Office in relation to the November
incident as there was no evidence of any kind of follow-up with the authorities
on the part of Ms. Avagyan in the nearly two-year span between the filing of
the complaint and her departure from Armenia, despite the Prosecutor’s Office
response that it had commissioned the government’s Special Investigation
Service to verify the authenticity of the facts alleged in the complaint. The
RPD found, as a result, that Ms. Avagyan had failed to show that the Armenian
authorities were not interested or able to provide her with adequate state
protection.
[46]
This, in my view, is a sound finding given the
current state of the law on state protection. As the Supreme Court of Canada
stated in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, refugee
protection is meant to be a form a surrogate protection, invoked only in
situations where a refugee claimant has unsuccessfully sought the protection of
his home state (Ward, at para 18). This means that, absent a complete
breakdown of the state apparatus, it is presumed that state protection is
available for a refugee claimant and that to rebut this presumption, the
claimant must provide clear and convincing evidence of the state’s inability or
willingness to provide adequate – not perfect - protection (Hinzman v Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, at para 43 and 44;
Carillo v Canada (Minister of Citizenship and Immigration), 2008
FCA 94, [2008] 4 FCR 636 at para 19; Ruzso v Canada (Minister
of Citizenship and Immigration), 2013 FC 1004, at para 29; Ward,
above at para 52).
[47]
What is required at this stage of the analysis
is evidence that all objectively reasonable efforts, though unsuccessful, were
made by the claimant to exhaust all courses of action reasonably available to
him or her before seeking refugee protection (Ruzso, above at para 32).
This was not done in the case at hand and it was therefore open to the RPD to
give little weight to the fact Ms. Avagyan had filed a complaint following the
November incident. Her evidence was simply insufficient.
[48]
Ms. Avagyan contends that there was no point in
following up with her complaint given evidence that domestic violence in Armenia is a problem for which police authorities in that country do not always assist
victims adequately. However, it bears noting that Ms. Avagyan allegedly
filed two complaints with the Prosecutor’s office. It cannot be alleged that
she was reluctant to avail herself of state protection by reason of her fear. Furthermore,
given the Prosecutor’s office response to her complaint concerning the November
incident, it cannot be said that the state was unable or unwilling to provide
adequate protection. Therefore, the RPD was entitled to expect some evidence
of follow-up from Ms Avagyan and, in the absence of such evidence, it was open
to the RPD to conclude as it did.
[49]
I find that it was open to the RPD to give no
weight to the January 2013 emails indicating that Ms. Avagyan’s first former
partner was making inquiries as to her whereabouts given its finding that she
had not established that that partner was an abusive partner who would seek to
put her life at risk. In any event, when one looks at the content of the said
emails, one can reasonably find that they hardly pose a threat in a
forward-looking analysis.
[50]
Finally, Ms. Avagyan takes exception with the
fact that the RPD found it would have been reasonable to expect some evidence
from her mother and brother, who came to “free” her in October 2009 to
establish the existence and nature of her relationship with the first former
partner. It is well-established that a refugee claimant's own assertions may
be insufficient to satisfy, on a balance of probabilities, the legal burden he
or she faces (Ferguson v Canada (Citizenship and Immigration), 2008
FC 1067, at para 23). This is especially the case when there are doubts about
the credibility of the claimant's allegations (Adu v Canada (Employment and
Immigration), [1995] FCJ No. 114 (QL) (FCA); Khan v Canada (Minister of
Citizenship and Immigration), 2002 FCT 400 at para 17; Bhagat v Canada
(Citizenship and Immigration), 2009 FC 1088, at para 9; Liu v Canada
(Minister of Citizenship and Immigration), 2012 FC 244, at para 28). Therefore,
sometimes, it is open to the RPD to expect some corroborative evidence to
assess whether that burden has been met. Here, I find it was reasonably open
to the RPD to have expected evidence from these relatives of Ms. Avagyan as
they appear to have been very close to her at the time she was in a
relationship with the first former partner. The RPD cannot be faulted for
saying that such evidence could have been helpful is establishing Ms. Avagyan's
fear of that former partner.
(3)
The Alleged Excessive Burden of Proof
[51]
Ms. Avagyan claims that the RPD, by stating it
was not “convinced” that her alleged abusive
former partner did and would put her life at risk in a forward looking
analysis, applied the wrong test in placing on her a higher burden of proof
than the one required by sections 96 and 97 of the Act.
[52]
I disagree. As contended by the Respondent, Ms.
Avagyan has failed to establish the existence of her alleged risks. The RPD
disbelieved her evidence that she had a former abusive partner who had put her
life at risk and would do so in the future as well. There was therefore no
factual basis for her refugee claim under sections 96 and 97 of the Act.
[53]
In any event, even assuming the RPD placed on
her an excessive burden of proof in this regard, Ms. Avagyan failed, as
indicated previously, to rebut the presumption that the state would be able and
willing to protect her. As a result, this argument, even if well-founded, is
of no assistance to Ms. Avagyan.
[54]
Finally, it bears noting that Ms Avagyan has not
raised any issue with the RPD’s application of the Gender Guidelines on Women
Refugee Claimants Fearing Gender-Related Persecution.
C.
The Second Aspect of Ms. Avagyan’s Refugee
Claim: The Fear Related to the Activities of Mr. Avagyan
[55]
Ms. Avagyan contends that it was unreasonable
for the RPD to draw a negative credibility finding on the basis of a single
contradiction between her evidence and the psychiatric evaluation report on the
issue of whether she was targeted by Mr. Avagyan’s alleged persecutors.
[56]
Given the importance of that issue in this
aspect of Ms. Avagyan’s refugee claim, it was reasonably open to the RPD, in my
view, to draw a negative credibility inference from that contradiction. This
is especially so in light of the RPD’s finding that there was no evidence of
Ms. Avagyan being involved in any way in exposing corruption practices in the
Armenian health ministry or being “on the radar” of Mr. Avagyan’s alleged
enemies because of her relationship with him.
[57]
I can find no reason to interfere with the RPD’s
finding that Ms. Avagyan did not establish she was facing one of the risks
contemplated by sections 96 or 97 of the Act as a result of her being in a
relationship with Mr. Avagyan. Again, this is a question of fact over which a
significant amount of deference is owed to the RPD.
[58]
Finally, Ms. Avagyan claims that the RPD failed
to consider the diagnosis in the psychiatric evaluation report of post-partum
depression with psychotic features in its assessment of her overall
credibility.
[59]
I agree with the Respondent that the RPD made no
reviewable error in not using this report to evaluate the Applicant’s
credibility. As Justice Michael Phelan said in Saha v Canada (Minister of Citizenship and Immigration), 2009 FC 304, at paragraph 16:
It is within the RPD's mandate to discount psychological evidence when the
doctor merely regurgitates what the patient says are the reasons for his stress
and then reaches a medical conclusion that the patient suffers stress because
of those reasons. This is particularly the case where the RPD rejects the underlying facts of the
diagnosis. In this case, there were no independent clinical studies performed
to support the psychological assessment and no other medical basis for the
diagnosis.
[60]
In Kaur v Canada (Minister of Citizenship and
Immigration), 2012 FC 1379, [2014] 2 FCR 3, Chief Justice Paul S. Crampton
cautioned against the use of this type of report in assessing credibility,
unless there is something in the report that “strongly
suggests” that an adverse credibility finding made by the RPD was
unreasonable (Kaur, at para 38). Such reports, in any event, cannot
possibly serve “as a cure-all for any and all
deficiencies” in a RPD decision (Khatun v Canada (Minister of
Citizenship and Immigration), 2012 FC 159, at para 94; Mahari v Canada
(Minister of Citizenship and Immigration), 2012 FC 999 at para 25; Rokni
v Canada (Minister of Citizenship and Immigration), [1995] FCJ No. 182
(QL)).
[61]
Here, Ms. Avagyan is said to suffer from
post-partum depression with psychotic features, a condition which does not
impact on the assessment of her testimony and credibility, and which is also
the result of events that occurred in Canada rather than in Armenia, where her claimed fear rests. As stated in Kaur, above, the Supreme Court of Canada
taught us, in recent decisions, that the reviewing court must not intervene
when there is a reasonable basis for the decision-maker to conclude as it did
(see Newfoundland Nurses, above, Alberta (Information and Privacy
Commissioner) v Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR
654 and Halifax (Regional Municipality) v Nova Scotia (Human Rights
Commission), 2012 SCC 10, [2012] 1 S.C.R. 364). Therefore, it would be
inconsistent with these decisions to overrule the RPD’s credibility findings on
the basis of the psychiatric report given the need for reviewing courts to give
respectful deference to the RPD’s finding on matters of credibility, which are
at the heart of its mandate (Kaur, at para 38).
[62]
In any event, Ms. Avagyan has not established,
with clear and convincing evidence, that adequate state protection would not be
available to her in Armenia. Therefore, even assuming she was at risk because
of her relationship with Mr. Avagyan before she left Armenia, this would be
insufficient to successfully avail herself of Canada’s protection under sections
96 and 97 of the Act.
[63]
No question of general importance has been
proposed by the parties. None will be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is
dismissed.
2.
No question is certified.
"René LeBlanc"
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