Docket: IMM-5234-13
Citation:
2014 FC 418
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 2, 2014
Present: The Honourable Mr. Justice Noël
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BETWEEN:
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SOLANGE MUSEME ZAMASEKA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
I. Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA) of the decision made on
June 17, 2013, by Renée Bourque, Member of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board (IRB) of Canada, in which it was
found that the applicant is not a Convention refugee for the purposes of
section 96 of the IRPA, or a person in need of protection under subsection 97(1)
of the IRPA.
II. Facts
[2]
The applicant was born on July 17, 1979, and
is a citizen of the Democratic Republic of Congo (DRC).
[3]
The RPD hearing took place on April 23,
2013, and the applicant then submitted the following. In August 2010, she found
herself in a vehicle in which all the passengers went through an identity check
by the soldiers. When the soldiers learned that she was coming from Kinshasa, the applicant was arrested and questioned because she was suspected of being a
spy. She was assaulted and raped by a commander of the army (the Commander) while
she was held, but then she was let go. Afterward, she went to the police
station where, with the help of an attendant from a non-governmental organization
(NGO) that assists women, she filed a complaint against the Commander. The
Commander and the applicant were then directed to report to the police station.
Again in August 2010, soldiers visited the applicant’s family to threaten
her and she fled. In December 2010, soldiers also attempted to kidnap her,
but they apprehended her cousin by mistake. From December 2010 to February
2011, the applicant remained hidden.
[4]
She arrived in Canada and claimed refugee status
on February 4, 2011.
III. The impugned decision
[5]
The RPD began its analysis by explaining that it
respected the Chairperson’s Guideline 4 – Women Refugee Claimants Fearing
Gender-Related Persecution (Guideline 4) during the hearing.
[6]
Despite some concerns, the RPD finally declared
that it was convinced of the applicant’s identity, but that it nevertheless dismissed
her application on the ground that she gave testimony that was considered to not
be credible because of the inconsistencies, omissions and contradictions stated
below.
[7]
The RPD did not believe in the existence of the
alleged assailant, the Commander, because although she filed a complaint
against him with police, the applicant did not know his name. Moreover, according
to the RPD, it was not credible that the applicant simply pointed to the Commander
without asking the name of the Commander to the police officer who received her
complaint or the police officer mentioning the name. Further, the applicant was
accompanied by a member of an NGO that aims to assist women and who would
surely have suggested that she ask for her alleged assailant’s name.
[8]
The RPD also rejected the applicant’s allegation
that she was raped. In this respect, the applicant also omitted some details of
the alleged assault in her written story, especially as regards the presence of
other soldiers than the Commander. She stated that she was afraid that she had
contracted HIV/AIDS as a result of the rape, but she did not undergo screening tests
despite all the opportunities she had to do so. She also contradicted herself
with respect to the duration of her hospitalization following the alleged
assault and the RPD rejected the validity of the medical certificate, especially
because there was no letterhead and that the RPD did not believe that the
applicant had been raped.
[9]
The applicant’s stories were also contradictory
with respect to the addresses where she lived, since she stated in her questionnaire
that she remained in Kinshasa during the 10 years prior to leaving the
country, which contradicts the testimony that she lived in Zake, where the rape
allegedly took place. The RPD did not accept the applicant’s explanations in
this regard.
[10]
The RPD also assessed whether the applicant, if
she were to return to the DRC, would be at risk because of her membership in a social
class of women. It was found that the applicant’s profile did not correspond to
that of women who have been exposed to a greater risk of being raped and that,
as a result, there was no serious possibility that she would be persecuted.
[11]
Since the RPD did not believe that the applicant
was credible with respect to section 96 of the IRPA, it was also found
that she was not covered by paragraph 97(1)(b) of the IRPA. Further,
the evidence presented did not help establish the existence of a risk under
paragraph 97(1)(a) of the IRPA.
IV. Arguments of the applicant
[12]
The applicant argued that the RPD’s decision is
not reasonable for the following three reasons.
[13]
First, the RPD disregarded evidence that
corroborates the main allegations in support of the refugee claim, including the
fact that the applicant was raped, that she received assistance from an NGO, that
she was summoned by the police station, that the family had to move because of
the persecution she was subject to and that she presented the usual symptoms of
a woman who has been the victim of sexual assault.
[14]
Second, the RPD improperly analyzed credibility.
As regards the existence of the Commander, the circumstances related by the
applicant were not implausible. Moreover, the RPD’s findings on the circumstances
of the alleged rape were unreasonable, especially because it did not respect
Guideline 4 since the particular state of mind of the applicant resulting from
what she experienced was not considered. Also, the applicant in no way contradicted
herself with respect to her hospitalization and, with respect to the different locations
where she lived, the applicant provided real explanations, but they were not
considered.
[15]
Third, the RPD’s finding on the applicant’s
membership in the social class of women is not reasonable in particular because
the RPD did not address the evidence contrary to its findings because the
applicant’s family network is geographically remote and because, contrary to
what the decision confirms, the applicant lived with her aunt and not with her
spouse, from whom she is separated.
V. Arguments of the respondent
[16]
The respondent argued that the RPD’s decision was
completely reasonable and that the applicant, who simply disagrees with the findings,
is asking this Court to substitute its own opinion.
[17]
The RPD reached the conclusion that the
applicant was not credible by relying on sufficiently important reasons. The
applicant did not ask any questions about the identity of the Commander when
she filed a complaint against him with the police and the RPD further found that
the general process of taking complaints by the police was implausible. What is
more, according to the RPD, the applicant gave contradictory versions of the
number of people present at the time of the assault and of the locations where
she lived, her behaviour after the hospitalization was not consistent with her
own alleged fear and her testimony contradicted her own evidence. These
discrepancies as a whole, the assessment of which was under the RPD’s
jurisdiction, were more than sufficient to reject the applicant’s credibility.
[18]
In response to the applicant’s arguments, the
respondent argued that the RPD is presumed to have considered all the evidence
before it, but in the specific case of the medical certificate, the RPD was all
the more justified in setting it aside since it had already rejected the credibility
of the story on which it relied. In addition, the RPD demonstrated its
sensitivity to the applicant’s state of mind throughout the hearing and it thus
respected Guideline 4 and the case law applicable to this topic. Further, as
for the applicant’s membership in the social class of women, she had the burden
of establishing that she meets the profile of a woman who is at greater risk than
other women to be a victim of rape, which she did not do.
VI. Issue
[19]
Did the RPD err in finding that the applicant was
not credible?
VII. Standard of review
[20]
The RPD’s findings on the credibility of an
applicant are a question of fact that must be reviewed on the standard of reasonableness
(Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732, at para 4; Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir)). Therefore,
this Court should limit its review of the reasonableness of the decision to “justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”. (Dunsmuir,
above, at para 47)
VIII. Analysis
[21]
The RPD’s decision shows errors that make it unreasonable
and justify the Court’s intervention. The applicant’s record was not without
flaws, but because of the errors described below, it should still be referred
back before another RPD officer for redetermination.
[22]
The RPD rejected the applicant’s credibility, and
it was precisely in its appreciation of credibility that the RPD’s decision cannot
be considered to be reasonable.
[23]
First, the RPD found the applicant’s claims
regarding the identification of the Commander at the police station implausible.
The RPD was of the view that it was not plausible that the applicant did not
know the name of her assailant and that people simply called him “Commander”, that
she would not have found out his real name when she filed her complaint, despite
having been accompanied by a member of an NGO and that she had not been informed
of the name in question by the police officer who received the complaint. As the
applicant argued, reliance on findings of implausibility must be limited to the
clearest cases (Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776 at para 7, [2001] FCJ No 1131, (Valtchev)). The key decision
on this topic remains Valtchev, above, in which Justice Muldoon stated
the following, at para 7:
[7] A
tribunal may make adverse findings of credibility based on the implausibility
of an applicant’s story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that
the events could not have happened in the manner asserted by the claimant.
A tribunal must be careful when rendering a decision based on a lack of
plausibility because refugee claimants come from diverse cultures, and
actions which appear implausible when judged from Canadian standards might be
plausible when considered from within the claimant’s milieu. [see L.
Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992)
at 8.22]. [Emphasis added.]
Indeed,
the applicant’s explanations are eloquent and clearly establish that other scenarios
could reasonably justify her claims. Further, as the above passage in Valtchev
indicates, the administrative tribunal, in this case the RPD, must remain
sensitive to the cultural differences and ensure not to draw findings of
implausibility by applying strictly Canadian standards. Thus, the RPD should
have considered the conditions in the DRC, especially as concerns the judicialization
of complaints in cases of sexual violence and police and military culture in
the country, elements that are addressed by the national documentation on the DRC.
Considering this context, in the small village where the assault took place, which
was not the applicant’s village, was it plausible that the assailant, who had a
high military rank, could have been recognized among the population as the “Commander”
and recognized by the police officer by simply being pointed out by the
applicant? What is sure, these explanations are not implausible and nothing “demonstrates
that the events could not have happened in the manner asserted by the claimant”
(Valtchev, above, at para 7). It is not one of the clearest cases like
the case law requires. The RPD’s finding of implausibility in this regard is
not justified in particular because of this finding, the RPD states that it
does not believe in the assailant’s existence, which is an essential element in
the applicant’s claim.
[24]
The Court also believes that the RPD erred with
respect to the circumstances surrounding the applicant’s assault.
[25]
First, the RPD erred by finding that the
applicant contradicted herself with respect to the people present during her sexual
assault. In her Personal Information Form (PIF), the applicant stated that she
was raped by the Commander, although at the hearing, the applicant stated that
she had been raped by the Commander while the soldiers held her to the ground. The
Court noted that the two versions are more or less the same. One is simply more
substantial than the other. On this topic, the applicant’s intervener testified
that, at the time of preparing the PIF, the applicant was having [translation] “acute symptoms of distress”
because of the assault she experienced (see the letter from the intervener, in
the applicant’s record at p. 56), and since it is much more of an omission than
a contradiction, the RPD should have assessed the applicant’s testimony in
accordance with the Guidelines 4 and asked itself whether the gaps between the versions,
which are minimal, were not a result from psychological disorders related to
the assault:
[17] Instead
of exhibiting awareness of the Applicant’s possible difficulties in recalling her
past, the Board appears hypercritical of differences between the Applicant’s
testimony and PIF. This is despite that fact that the Board relies primarily on
omissions rather than contradictions (which are more troubling), and that the
Applicant explained at the hearing that she had emotional difficulty in
completing her PIF (see for example Certified Tribunal Record at p. 373).
[18] In my
view, with all of this in mind, the Board was obliged to consider whether the
discrepancies it identified and relied on to undermine the Applicant’s
credibility were the result of psychological difficulties and not of a desire
to fabricate evidence. While the Board was not bound to accept the testimony,
it was obliged, in this case, to weigh the evidence with the Gender Guidelines
in mind. In my view, it did not do so.
[Jones v Canada (Minister of Citizenship and Immigration), 2006 FC 405, [2006] FCJ No 591].
[26]
Second, after considering the applicant’s
conduct following her hospitalization, the RPD found that [translation] “the panel does not believe
that rape took place”. According to the RPD, if the applicant had truly been raped
and if she was afraid of being infected by HIV/AIDS, she would have had
screening tests. In this regard, as in the issue of the PIF, the Court is of
the view that the RPD did not respect the Guideline 4. A reading of the
documentary evidence shows that the applicant’s actions were entirely consistent
with those of numerous women who are victims of sexual assault, who hesitate to
receive treatment. The RPD should have been more sensitive to the applicant’s
state of mind before drawing a rather determinative conclusion of the assessment
of the application, i.e. that the rape had not taken place. Indeed, if the RPD does
not believe that the applicant was raped, the chances of the success of her
application are, as a whole, considerably reduced.
[27]
The RPD also erred in finding that the applicant
contradicted herself regarding to the duration of her hospitalization. Questioned
on this topic, the applicant clearly explained that she received treatment for
three days, but remained hospitalized for one week. Nothing in the applicant’s PIF
indicates that she had allegedly received treatment for one week. Therefore,
the applicant did not contradict herself and this finding of fact, in addition
to the others, unfortunately undermined the applicant’s credibility in the RPD’s
eyes.
[28]
Finally, the RPD rejected the applicant’s
medical certificate by not giving it any probative value, specifically [translation] “because it does not
believe that the rape occurred”. Since the Court already characterized the RPD’s
finding on the rape’s occurrence to be unreasonable, it goes without saying
that the finding on the rejection of the medical certificate must also be set
aside. The medical certificate may not be authentic, however the Court notes that
the RPD already formed the opinion that the rape had not occurred and, in
addition, that the tribunal record does not contain any document mentioning
that hospital documents must display the institution’s letterhead.
[29]
As for the applicant’s addresses, this Court also
found that reasonable explanations were provided at the hearing in this regard
and that the RPD merely relayed part of the explanations. Indeed, the applicant
stated that she did not properly understand the questions that the officer
asked her at the port of entry, but she specified that it was also because she
was exhausted, distraught and afraid of returning to the DRC, which the RPD did
not report in its decision. A more complete explanation would have been necessary
to support such a decision, which should have taken into account the applicant’s
responses.
[30]
However, I note that the RPD’s analysis
regarding the applicant’s membership in the social class of women is true: the
applicant did not establish that her profile is similar to a woman who is more
at risk than other women of being a victim of sexual assault (N.G.M. v
Canada (Minister of Citizenship and Immigration), 2013 FC 372 at para 15,
[2013] FCJ No 390).
[31]
The RPD’s errors stated above are fatal to its decision
to such a degree that it becomes unreasonable, so that, despite the deference that
the Court must show the RPD’s decisions, the errors committed nevertheless
require that the Court allow the application for judicial review in this case.
[32]
The parties were invited to present a question for
certification, but none was proposed.
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