Docket: IMM-533-16
Citation:
2016 FC 1024
Ottawa, Ontario, September 9, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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SANDRA PESTOVA
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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
I.
Overview
[1]
Sandra Pestova is a citizen of the Czech
Republic of Roma ethnicity. She arrived in Canada in August 2014 to visit
relatives and to escape from her former husband who was physically and
emotionally abusive. Ms. Pestova claims the harassment and abuse continued
after her divorce in 2011 and that her former husband’s threats continued after
her arrival in Canada.
[2]
Ms. Pestova made an inland Convention refugee
claim in March 2015 after she was unsuccessful in obtaining an extension to her
visitor’s visa. Her claim was based on a fear of harm from her former husband.
In addition, she alleged that she faced discrimination and harm in the Czech
Republic on the basis of her Roma ethnicity.
[3]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada [IRB] heard her claim in four separate
sessions. The RPD ultimately rejected the claim. The RPD found that Ms. Pestova
lacked credibility as her Basis of Claim form [BOC] omitted significant detail,
her testimony before the RPD was inconsistent, and she had delayed in making
her claim. The RPD further concluded that Ms. Pestova had not established that
her personal circumstances linked her to the discrimination and persecution
faced by some Czech Roma.
[4]
Ms. Pestova appealed the RPD’s findings to the
Refugee Appeal Division [RAD] of the IRB in September 2015. The RAD upheld the RPD
decision, concluding that Ms. Pestova did not establish with credible and
trustworthy evidence that she faced discrimination or persecution in the Czech
Republic.
[5]
Ms. Pestova asks that this Court quash the
decision of the RAD and return the matter for reconsideration. Ms. Pestova
raises a number of issues in her written submissions, many relating to the RPD
decision not to the RAD decision, the subject of this application. In oral
submissions, Ms. Pestova’s counsel argued that the RAD’s credibility findings
were unreasonable and that the RAD erred in failing to link her personal
circumstances to the documentary country conditions evidence. Ms. Pestova also
submits the RAD erred in not conducting an oral hearing.
[6]
In considering the application, the following
issues shall be addressed:
A.
Were the RAD’s credibility findings reasonable?
B.
Did the RAD err by failing to consider Ms.
Pestova’s Roma ethnicity?
C.
Did the RAD err in not conducting an oral
hearing?
[7]
Having considered the oral and written
submissions of the parties, I conclude that the RAD did not err. The decision was
reasonable. Ms. Pestova’s application is dismissed for the reasons that follow.
II.
Standard of Review
[8]
This Court reviews decisions of the RAD that
engage questions of fact and mixed fact and law on a reasonableness standard (Canada
(Citizenship and Immigration) v Huruglica, 2016 FCA 93, at para 35 [Huruglica
FCA], Gabila v Canada (Minister of Citizenship and Immigration),
2016 FC 574 at para 21 and Lu v. Canada (Minister of Citizenship and
Immigration), 2016 FC 846 at para 18). Similarly a tribunal’s
interpretation of its home statute is reviewed on a reasonableness standard,
subject to certain specific exceptions none of which apply here (Dunsmuir v
New Brunswick, 2008 SCC 9 [Dunsmuir]).
III.
Analysis
A.
Were the RAD’s credibility findings reasonable?
[9]
Relying on Justice Michael Phelan’s decision in Huruglica
v Canada (Citizenship and Immigration), 2014 CF 799 [Huruglica FC], the
RAD noted that it “… will review all aspects of the
RPD’s decision and come to an independent assessment of the Appellant’s refugee
claim, recognizing and respecting the conclusion of the RPD on such issues as
credibility and/or where the RPD enjoys a particular advantage in reaching such
a conclusion.”
[10]
The RAD addressed four areas where the RPD made
negative credibility findings: (1) the delay in making the claim; (2) the evidence
relating to Ms. Pestova’s Facebook account; (3) the inconsistent testimony
before the RPD; and (4) the omissions from her BOC. In each case, the RAD conducted
a review of the evidence and ultimately concurred with the RPD’s credibility
findings.
[11]
Ms. Pestova argues that these negative
credibility findings were the result of an overly vigilant and unreasonably
microscopic examination of the evidence and represent a misconstruing of the
evidence without considering the Chairperson’s Guidelines on Women Refugee
Claimants Fearing Gender-Related Persecution [Chair’s Gender Guidelines].
She further argues that the RAD simply rubber-stamped the RPD’s credibility
findings. I cannot agree.
[12]
The RAD undertook an extensive review of the
evidence, individually addressing and considering the RPD’s credibility
findings. While the RAD recognized the need to be respectful of the RPD’s findings
where it enjoyed a particular advantage (Huruglica FCA at paras 69-70),
the decision reflects a full review of the record and consideration of the
evidence. The RAD turned its mind to the Chair’s Gender Guidelines and
the requirement to consider gender-based claims with sensitivity. As the RAD
noted, the Chair’s Gender Guidelines do not shield a claimant’s
testimony from scrutiny or preclude a credibility assessment (Karanja v
Canada (Minister of Citizenship and Immigration), 2006 FC 574 at para 5).
[13]
In this case, it was reasonably open to the RAD
to conclude that Ms. Pestova’s seven month delay in claiming protection undermined
both her subjective fear and overall credibility. The RAD considered that Ms.
Pestova based her claim on: (1) fear of a former husband who had stalked and
harassed her in various locations in the Czech Republic for more three years;
and (2) persecution based on her Roma ethnicity. The RAD also considered that
her explanation for the delay was a hope that things would settle down with her
former husband. The RAD rejected Ms. Pestova’s explanation and concluded that
the circumstances would reasonably lead to a claimant making an immediate claim
for protection.
[14]
I cannot find fault with this conclusion. The persecution
Ms. Pestova alleged related to a former-husband who she claims had pursued her
for years and her ethnicity which she claimed had caused her to be subjected to
persecution throughout her life. There was a solid evidentiary basis supporting
the RAD’s conclusion that Ms. Pestova’s delay in claiming protection undermined
her credibility.
[15]
Similarly, it was reasonably open to the RAD to
find that Ms. Pestova’s credibility was negatively impacted where she testified
that her Facebook account had been deleted prior to her RPD hearing. On this
issue, the RPD had requested verifications by the IRB Research Directorate
following the first sitting of the hearing. The research evidence confirmed that
the account had been deleted at some point subsequent to the RPD’s first
sitting, not prior to the hearing as Ms. Pestova had testified. The result of
the research was disclosed well in advance of the following sitting. The RAD
reasonably concluded that the research into Ms. Pestova’s Facebook use was not
unfair or a denial of natural justice. Similarly, it was reasonably open to the
RAD to draw a negative credibility inference based on the findings of the IRB
Research Directorate.
[16]
With respect to the inconsistencies in Ms.
Pestova’s testimony before the RPD and omissions from her BOC, the RAD reviewed
each of these findings. In reviewing the RPD’s findings, the RAD addressed Ms.
Pestova’s explanations, considered and weighed the evidence. In the
circumstances, it was reasonably open to the RAD to conclude that the
inconsistencies and omissions negatively impacted on Ms. Pestova’s credibility.
[17]
The RAD did not err in its credibility findings.
B.
Did the RAD err by failing to consider Ms.
Pestova’s Roma ethnicity?
[18]
Ms. Pestova argues that the documentary evidence
demonstrates that Roma in the Czech Republic are subject to discrimination and
that the discrimination rises to the level of persecution. She argues that the
RAD’s negative credibility findings are not a basis for failing to consider her
profile in light of the documentary evidence. Again, I disagree.
[19]
The RAD specifically addressed Ms. Pestova’s
ethnicity but noted that a finding of a lack of credibility may extend to all
evidence emanating from a claimant (Sheikh v Canada (Minister of Citizenship
and Immigration), [1990] FCJ No 604 at para 8). The RAD further noted her
delay in claiming protection, a delay that it had previously concluded
undermined her claim of subjective fear.
[20]
The RAD also considered Ms. Pestova’s evidence
as it related to efforts to obtain state protection. In this regard, the RAD found
her testimony to be inconsistent and the “… little, if
any, effort to obtain police reports from the Czech Republic” undermined
her credibility.
[21]
Contrary to Ms. Pestova’s submissions, the RAD
did address the issue of Roma ethnicity but concluded that there was
insufficient credible and trustworthy evidence to conclude that Ms. Pestova had
a well-founded fear of persecution under section 96 of the IRPA. Again, this
conclusion was reasonably available to the RAD in light of its previous
findings that Ms. Pestova had not satisfied her burden in respect of subjective
fear and state protection.
C.
Did the RAD err in not conducting an oral
hearing?
[22]
In written submissions Ms. Pestova submits that
the RAD erred in not conducting an oral hearing on the basis that the RPD
hearing was patently unfair. Ms. Pestova does not argue that the RAD
misinterpreted section 110 of the Immigration Refugee and Protection Act, SC
2001, c 27, [IRPA] but rather argues that the RAD erred because the RPD
hearing was patently unfair. There is no merit to this submission.
[23]
In addressing the request for an oral hearing
the RAD noted that it had admitted one piece of new evidence and that “[a]ccording to Section 110(6) of the IRPA, the RAD may hold
a hearing if, in its opinion, there is documentary evidence referred to in
110(3) that raises a serious issue with respect to the credibility of the
Appellant, that is central to the RPD’s decision, and that, if accepted, would
justify allowing or rejecting the refugee protection claim.”
[24]
The RAD considered the new evidence, noting it
addressed the treatment of Roma in the Czech Republic and that there was a
considerable amount of similar evidence in the record. The RAD concluded that
the evidence did not raise a serious issue with respect to credibility and,
having not met the threshold criteria, the RAD was not in a position to grant
an oral hearing. The request was denied.
[25]
The RAD’s treatment of the request was based on
a reasonable interpretation of section 110 of the IRPA and consistent with the
jurisprudence of this Court (Biftu Adera v Canada (Citizenship and
Immigration), 2016 FC 871 at para 57 notably citing Canada (Citizenship
and Immigration) v. Singh, 2016 FCA 96 at para 71 and Ajaj v
Canada (Citizenship and Immigration), 2016 FC 674 at paras 19-21).
[26]
The RAD did not err in denying the request for
an oral hearing.
IV.
Conclusion
[27]
The RAD’s credibility findings and overall
conclusion in considering Ms. Pestova’s appeal fall within the range of
possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir
at para 47).
[28]
Neither party has proposed a question for
certification, none arises.
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