Docket: IMM-3647-15
Citation:
2016 FC 248
Ottawa, Ontario, February 29, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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ROSA MARLENYS CORDERO PANIAGUA
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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]
This is a judicial review of a decision of the
Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] dated
July 21, 2015, determining that the Applicant is not a Convention refugee pursuant
to section 96 of the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA] nor a person in need of protection pursuant to section 97 of IRPA.
[2]
For the reasons that follow, this application is
dismissed.
I.
Background
[3]
The Applicant is a citizen of the Dominican
Republic. She alleges that from approximately 2001 until 2011, she was in a
relationship with a man [the Assailant] who abused her over the course of the
relationship. She had a daughter with him in 2004. She obtained a protection
order against him on December 20, 2011 but alleged that he continued to come to
her house, threaten and assault her.
[4]
The Applicant states that on January 2, 2012 she
made a report to the police, alleging that the Assailant came to her house and
assaulted her. She subsequently moved to the capital, Santa Domingo, and had no
further contact with him until April 25, 2015 when she alleges that he came to
her grandmother’s house, assaulted her and attempted to abduct their daughter.
The police were called and he left. Between that incident and the Applicant’s
departure to Canada where she claimed protection, the Applicant claims she
received phone calls from the Assailant threatening that he would kill her. The
Applicant’s cousin has informed her that he is still seeking her.
II.
RPD Decision
[5]
The determinative issues in the RPD’s decision
were credibility and state protection. The RPD also made a finding under
s.107(2) of IRPA that the Applicant’s claim had no credible basis.
[6]
The RPD found that the Applicant’s evidence
contained multiple contradictions, inconsistencies and omissions, particularly
as between her Basis of Claim [BOC] narrative and her testimony and the documentary
evidence. It did not find her explanations to be reasonable. With respect to
the police reports, based on their lack of detail combined with the RPD’s concerns
about the Applicant’s explanations in response to its questions, it concluded
these documents were not genuine.
[7]
The RPD noted inconsistencies or implausibilities
in the Applicant’s evidence surrounding the 2011 protective order and how she
obtained a passport but found these were not central to the claim and could
have been a reflection of the Applicant’s background and education.
[8]
No weight was given to what the RPD described as
letters in support of the claim, due to their general lack of detail and
inconsistency with the Applicant’s narrative and testimony. The RPD found that
these too were likely fabricated for purposes of the claim.
[9]
In considering state protection, the RPD found
that the documentary evidence supported that violence against women was
widespread in the Dominican Republic and there were concerns about the
effectiveness of the state’s efforts to address the problem. However, this was
outweighed by the evidence of the Applicant’s own experience. She had obtained
a protection order in 2011, and when the police were called in 2015, they came
and the Assailant left. There were some incidents she did not report to the
police, and the RPD found that the reports she did make were vague and provided
little information on the Assailant’s whereabouts or profile. The RPD found
that, even if the evidence presented by the Applicant was credible, it did not
rebut the presumption of state protection.
III.
Issues and Standard of Review
[10]
The Applicant’s written submissions state the
following issues for the Court’s consideration:
A.
Is the RPD’s no credible basis finding
reasonable?
B.
Is the RPD’s no credible basis finding
sufficient to set aside the entire decision?
C.
Is the RPD’s state protection finding reasonable
and made in accordance with the IRB Chairperson Guidelines 4: Women Refugee
Claimants Fearing Gender-Related Persecution?
[11]
At the hearing, the Respondent agreed with the
Applicant’s position that, if the Court were to set aside the no credible basis
finding under s.107(2) of IRPA, this would be sufficient to set aside the RPD’s
decision as a whole, not just that finding. This Court’s decisions in Levario
v Canada (Minister of Citizenship and Immigration), 2012 FC 314 [Levario]
and Pournaminivas v Canada (Minister of Citizenship and Immigration),
2015 FC 1099 [Pournaminivas] were cited as authority for this result,
from which I would see no reason to depart. The Applicant also acknowledged
that, if she were unsuccessful in challenging the no credible basis finding,
her state protection arguments could not result in success on this judicial
review. As such, the sole issue for the Court to consider in this application
is whether the RPD’s no credible basis finding is reasonable.
[12]
The parties take the position, and I concur,
that the standard of review applicable to the issues raised by the Applicant is
reasonableness (see Pournaminivas).
IV.
Submissions of the Parties
A.
Applicant’s Position
[13]
The Applicant argues that the RPD’s no credible
basis finding is not reasonable as it failed to have regard to all the
evidence. The documents that the Applicant submits were not properly considered
include: a letter from a court in the Dominican Republic confirming that a
protection order had been issued, a medical note confirming the Applicant’s
treatment for injuries, her daughter’s birth certificate corroborating her
relationship with the Assailant, and a letter from her daughter’s school noting
that her daughter was displaying depression, low self-esteem and aggression and
that the Applicant had attributed this behaviour to problems with the girl’s
father including aggression. The Applicant relies on Levario at paras
18-19 as authority that the RPD cannot make a no credible basis finding if
there is any credible and trustworthy evidence that could support a positive finding.
[14]
The Applicant refers to the recent decisions of
Justice Boswell in Pournaminivas, where the failure of the RPD to
consider the evidence of two witnesses meant that it had failed to properly
consider whether there was any credible evidence to support the claim, and of
Justice Zinn in Chen v Canada (Minister of Citizenship and Immigration),
2015 FC 1133 [Chen], which warns against conflating a finding that a
claimant is not credible with a finding that there is no evidence that could
support a positive decision.
[15]
Specifically, the Applicant submits that the
medical note corroborates one of the alleged incidents, as it refers to
treatment for trauma to the Applicant’s face on April 25, 2015, the date of the
alleged encounter with the Assailant and attempted abduction of their daughter.
The Applicant submits that the RPD similarly erred in not considering a letter
from the Court in San Jose de Ocoa, confirming the existence of a protection
order dated December 20, 2011, which the Applicant argues contains marks of
authenticity as well as official recognition of the threat. She argues that, if
this letter was accepted, it would have corroborated the Applicant’s testimony
and BOC in which she refers to reporting the violence in 2011. The Applicant
also submits that, by not considering the birth certificate of the Applicant’s
daughter or the report from her school, the RPD fails to recognize that the
certificate corroborates existence of the relationship and that the report corroborates
the father’s abuse.
[16]
The Applicant acknowledged that the RPD makes a
negative finding related to “letters in support of the
claim”, based on their general lack of detail and inconsistency with the
claimant’s narrative and testimony, but argues that this finding does not refer
to the medical note or the other documents the Applicant alleges were
overlooked. The Applicant also argues that, even if this finding does relate to
this evidence, the no credible basis conclusion was still unreasonable, as the
finding does not represent a meaningful analysis of this evidence
B.
Respondent’s Position
[17]
The Respondent argues that the no credible basis
finding was reasonable, as the Applicant did not demonstrate that there was
independent and credible documentary evidence in the record capable of
supporting a positive disposition of the claim.
[18]
The Respondent submits that the negative finding
related to “letters in support of the claim” is
a reference which includes the four documents that the Applicant says were not
considered. The Respondent notes that the RPD’s finding footnotes an exhibit
which includes all personal documents submitted by the Applicant.
[19]
However, it is also the Respondent’s position
that, even if these documents were not considered and rejected by the RPD, they
are not capable of sustaining a positive determination of the Applicant’s
claim. The medical note contains no commentary as to the origins of the
Applicant’s injury, the court letter contains little detail, and neither the
birth certificate nor the school report establishes a claim based on domestic
abuse.
V.
Analysis
[20]
Both parties refer to the Federal Court of
Appeal’s decision in Rahaman v Canada (Minister of Citizenship and
Immigration), 2002 FCA 89 [Rahaman] as explaining the circumstances
in which a finding of no credible basis can be made:
[28] Moreover, the wording of
subsection 69.1(9.1) provides that a "no credible basis" finding may
only be made if there was no credible or trustworthy evidence on which the
Board member could have upheld the claim. In other words, the Board member may
not make a "no credible basis" finding if there is credible or
trustworthy evidence before it that is capable of enabling the Board to uphold
the claim, even if, taking the evidence as a whole, the Board decides that the
claim is not established.
[29] However, as MacGuigan J.A.
acknowledged in Sheikh, supra, in fact the claimant's oral
testimony will often be the only evidence linking the claimant to the alleged
persecution and, in such cases, if the claimant is not found to be credible,
there will be no credible or trustworthy evidence to support the claim. Because
they are not claimant-specific, country reports alone are normally not a
sufficient basis on which the Board can uphold a claim.
[30] On the other hand, the existence
of some credible or
trustworthy evidence will not preclude a "no credible basis" finding
if that evidence is insufficient in law to sustain a positive determination of
the claim. Indeed, in the case at bar, Teitelbaum J. upheld the "no
credible basis" finding, even though he concluded that, contrary to the
Board's finding, the claimant's testimony concerning the intermittent
availability of police protection was credible in light of the documentary
evidence. However, the claimant's evidence on this issue was not central to the
Board's rejection of his claim.
[21]
I have considered whether the RPD’s finding,
that the “letters in support of the claim” should
be given no weight, relates to the four documents on which the Applicant’s
arguments are based. While I acknowledge that this finding footnotes a
documentary exhibit that identifies a list of documents including these four,
my conclusion is that the RPD was not intending to refer to these four
documents. The list of documents in the exhibit does include a number of
documents described as letters, but those relied on by the Applicant are
described in this list as certificates and reports.
[22]
More significantly, the RPD’s decision to give
the “letters” no weight is said to be “due to their general lack of detail and inconsistency with
the claimant’s narrative and testimony as set out above”. I agree with
the Applicant’s argument that this appears to be a reference to the preceding portion
of the RPD’s decision, in which its analysis of the Applicant’s evidence
includes consideration of letters from the Applicant’s neighbour and cousin and
identifies both inconsistencies and lack of detail with respect to those
documents. As such, my conclusion is that it is these letters to which the RPD
was referring.
[23]
However, it is still necessary to consider
whether the RPD’s failure to expressly assess these documents renders its no
credible basis finding unreasonable. As noted in paragraph 30 of Rahaman, such a finding will not be
precluded by evidence that is insufficient to
sustain a positive determination of the claim. This requires assessment of
whether the documents relied on by the Applicant could be sufficient to sustain
such a determination.
[24]
The birth certificate establishes only the
Assailant’s paternity of the Applicant’s daughter and is of little assistance
to the Applicant in establishing the basis for her claim. The letter from the
daughter’s school refers to the Applicant’s statement to the school principal
that her daughter’s behaviour is due to problems with the girl’s father
including aggression. However, this is at best a record that these statements
were made by the Applicant. At paragraph 16 of Chen, Justice Zinn refers
to the principle derived from Rahaman as being that, where a claimant
adduces independent and credible evidence that is capable of supporting a
positive decision, then the claim will have a credible basis even if the
claimant’s testimony is found not to be credible. In the context of the adverse
credibility finding made by the RPD with respect to the Applicant’s testimony,
the school letter’s recitation of the Applicant’s statements cannot be regarded
as independent evidence in support of the claim.
[25]
The medical report represents independent
evidence of an injury, but it contains no evidence of the cause of the injury.
The Applicant relies on Chen, in which the no credible basis finding was
set aside on the basis of the panel’s failure to consider a medical report
which corroborated the applicant’s story of mistreatment he suffered at the
hands of Cameroonian authorities. However, the decision does not describe the
information that was contained in this report or how it corroborated the applicant’s
story. I am therefore guided more by the decision in Marquez v Canada
(Minister of Citizenship and Immigration), 2013 FC 325, at paragraph 13 of which
Justice Snider concluded that the medical information in that case did not have
the probative value necessary to undermine a no credible basis finding, as it
provided no information other than the nature of the injuries, which could have
been caused in many different ways. I reach the same conclusion with respect to
the medical report in this case.
[26]
Finally, the Applicant relied on the certificate
from the court in the Dominican Republic, confirming that a protection order
had been issued on December 20, 2011. The Respondent argues that the RPD
addressed the protection order in its decision, noting that there were
inconsistencies regarding the claimant’s evidence on the process for obtaining
the order. I do not consider this to represent a rejection by the RPD of that evidence,
as the RPD goes on to note that this was not central to the Applicant’s claim
and may have been a reflection of her education and background. However, the
RPD’s reference to the 2011 protection order as not central to the Applicant’s
claim is consistent with its analysis, which focuses on the subsequent events
in 2012 to 2015, concluding with the finding that the Applicant had failed to
present any evidence which is credible or trustworthy on a balance of
probabilities to support her allegations of the events she reported occurred
from 2012 to 2015.
[27]
In Rahaman, the Federal Court of Appeal dismissed
the appeal of Justice Teitelbaum’s decision which, the Court noted at paragraph
30, had upheld the board’s no credible basis finding even though Justice
Teitelbaum concluded that, contrary to the board’s decision, the claimant's
testimony concerning the intermittent availability of police protection was
credible in light of the documentary evidence, the claimant's evidence on this
issue not being central to the board’s rejection of his claim. In the case at
hand, the RPD considered the 2011 protective order but concluded it not to be
central to the Applicant’s claim. As that conclusion was not, in my view,
unreasonable, the document confirming the issuance of the order does not
represent a basis to interfere with the RPD’s no credible basis finding.
[28]
My conclusion is that the four documents upon
which the Applicant’s positon relies, whether considered separately or together
as the Applicant advocates, would not be capable of sustaining a positive
determination of her claim. I therefore find that the RPD”s failure to assess
these documents does not render the RPD’s no credible basis finding
unreasonable.
[29]
Neither party proposed a question of general
importance for certification for appeal.
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