Docket: IMM-2357-16
Citation:
2016 FC 1315
[ENGLISH TRANSLATION]
Ottawa, Ontario, November 28, 2016
PRESENT: The Honourable
Mr. Justice LeBlanc
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BETWEEN:
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ROSE MYRLINE CERISIER
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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 an appeal of a decision by the
Immigration and Refugee Board of Canada, Refugee Protection Division (RPD),
which, on May 16, 2016, denied the applicant’s claim for refugee
protection due to lack of credibility under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2]
The applicant is from Haiti. She lives in
Les Cayes. On May 29, 2015, she left Haiti with a United States visa
for what was supposed to be a 10-day training trip to the United States. Two days
after arriving in the United States, she went to Canada where she claimed
refugee protection. In support of her request, she alleged that she feared for
her life following an assault on May 1, 2015, by two unknown persons while
she was visiting her sister in Port-au-Prince and was alone in her sister’s
house.
[3]
According to the applicant’s Basis of Claim Form
(BCF), which she signed in support of the refugee protection claim, the two
assailants allegedly broke into the house, ordered her to give them all her
money and then beat and raped her. Two days later, on May 3, 2015, when
she was back at her home in Les Cayes, she apparently began to receive
anonymous calls on her cell phone. She was allegedly told that she had to pay
and die for her arrogance. On the same day, she reportedly consulted a doctor
who convinced her to file a complaint with the Port-au-Prince police, which she
allegedly did a few days later, on May 8. According to the BCF, the
threatening calls apparently became incessant, about 20 per day, until she
left for the United States on May 29, 2015. Starting on May 9, the
caller was also alleged to have complained that she had filed a report with the
police. The applicant apparently started hiding at a friend’s house on that
date. On May 20, 2015, she allegedly complained to the Les Cayes
police about the calls.
[4]
The applicant’s husband, an agronomist,
apparently did not follow the applicant to the United States and is still
living in Haiti.
[5]
The RPD denied the applicant’s claim for refugee
protection because of contradictions and omissions in the account of the events
that led the applicant to flee Haiti and the general implausibility of the
narrative.
[6]
The issue here is whether the RPD, in deciding
as it did, made an error justifying the Court’s intervention pursuant to
section 18.1 of the Federal Courts Act, R.S.C., 1985,
chapter F‑7. It is well-established that the RPD’s decision must be
reviewed on the standard of reasonableness, which means that in order to
intervene, the Court must be satisfied that the findings of fact or mixed law
and fact drawn by the RPD fall outside a range of possible acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 SCR 190, at paragraph 47).
In so doing, the Court must refrain from substituting its view of the facts for
that of the RPD. It must show deference to the conclusions reached by the RPD
with regard to the assessment of the refugee claimant’s testimony and credibility,
since this assessment process is at the heart of its mandate and expertise (Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] 1 SCR 339, at paragraph 89; Quintero Sanchez
v. Canada (Citizenship and Immigration), 2011 FC 491, at paragraph 12;
Touileb Ousmer v. Canada (Citizenship and Immigration), 2012 FC 222,
at paragraph 15; Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1425 (QL), 157 FTR 35,
at paragraph 14).
[7]
The applicant did not convince me that there is
a basis for intervening in this case. As the Court pointed out in Toma v.
Canada (Citizenship and Immigration), 2014 FC 121, the RPD may
make negative findings regarding a refugee claimant’s credibility “based on inconsistencies in testimony and perceived
implausibility, so long as they are based on reasonable inferences” and
thus evaluate a claim for refugee protection “on
plausibility, common sense and rationality” (Toma, at paragraph 11).
[8]
Here, the RPD identified a number of
inconsistencies in the applicant’s account, and I cannot say that these
observations are unreasonable. On the one hand, the RPD noted a discrepancy
between the BCF and the applicant’s testimony at the hearing on material
elements of her narrative, including the death threats to which she was
allegedly subjected during her assault on May 1, 2015, and in the
subsequent telephone calls. This assertion was not included in the BCF. There
was also an inconsistency regarding where she reportedly sought refuge starting
on May 9 to protect herself from her alleged tormentors, i.e. at a
friend’s place until she left for the United States, according to the BCF, and
in different places every night, according to her testimony. In the first case,
the applicant was unable to explain this difference between the BCF and her
version of the facts at the hearing. In the second, the RPD was not satisfied
with her explanation that she slept at different places every night during the
entire period before departing for the United States, while leaving her
belongings with that friend.
[9]
The RPD also noted a considerable difference
between the BCF and the applicant’s testimony as to the number of phone calls
that she allegedly received from her tormentors: about 20 per day
according to the BCF, which works out to a total of about 500 calls from
May 9 to 29 (2015), and a total of about 100 according to her
testimony.
[10]
In addition to these discrepancies between the
BCF and the testimony given at the hearing, the applicant testified that she
did not think it would be worthwhile to change her cell phone number, claiming
that it would have been pointless since her tormentors would have managed to
get it anyway. However, she could not say how her tormentors, complete
strangers, could have done so. The RPD also did not find that the applicant
provided credible testimony regarding the circumstances of her departure for
the United States when she was asked why she waited until the end of May (2015)
before leaving Haiti if she had been relentlessly hunted since the beginning of
the month. She said she had delayed her departure in order to get ready to
leave the country before travelling to the United States for training organized
by her employer. However, she could not provide the RPD with a satisfactory
explanation as to why the State of Iowa was the main destination of the trip,
when her airline ticket, which was purchased two weeks before the departure
date, made no mention of Iowa as the destination.
[11]
The RPD also expressed concerns regarding the
general plausibility of the applicant’s narrative. Ultimately, some might
wonder, as did the RPD, how a seemingly ordinary woman, living in a city other
than the one where she was allegedly assaulted, could have been targeted in
this way and then persecuted in her city of residence on the pretext that she
was pretentious and disturbingly arrogant in the eyes of her tormentors. The
applicant could not explain this and according to her counsel, it was
unreasonable for the RPD to demand an explanation since that would call for
speculation as to her tormentors’ motives. Nevertheless, and this is how I read
the RPD’s decision, it was up to the RPD—in the absence of any evidence that
the applicant was the sort of person likely to be subject to this type of
risk—to question the plausibility of this narrative. Moreover, in addition to
the applicant’s allegations that she filed a complaint with the Port-au-Prince
and Les Cayes police departments, the RPD noted the absence of any
corroborating evidence.
[12]
In light of the above, I find that the RPD had
sufficient evidence to conclude that the applicant’s account and the risk she
believed she was facing were inconsistent and generally lacking in credibility.
Again, the Court’s role is not to substitute its own view of the facts for that
of the RPD but rather to measure the reasonableness of the findings of fact and
mixed law and fact made by the RPD. In this respect, the RPD’s decision
appears, in this case, to be the result of reasonable inferences and thus
satisfies the standard of reasonableness.
[13]
The applicant also criticized the RPD for having
breached the rules of procedural fairness by failing to provide advance notice
of its intention to use its specialized knowledge in connection with the
medical certificate that she submitted as evidence. Since I have already
concluded that the RPD’s decision was reasonable, I do not find it necessary to
deal with this issue since it cannot on its own, even assuming it to be
well-founded, invalidate that decision. It is well established that the fact of
not providing such notice “is not sufficient to set
aside the panel’s decision if the other grounds raised to conclude that the
applicant’s account was implausible and non credible stand on their own”
(Munir v. Canada (Minister of Citizenship and Immigration), 2012 FC 645,
at paragraph 19; see also Toma, at paragraph 29). This is the
case here.
[14]
At any rate, the applicant was represented by
experienced counsel before the RPD, and no objection was raised when the
RPD relied on its specialized knowledge to question the probative value of
the medical certificate. Here, I would agree with the words of Justice Yves de Montigny,
now a Judge of the Federal Court of Appeal, in Linares Morales v. Canada
(Citizenship and Immigration), 2011 FC 1496:
[13] I note first of all that the
applicant was represented by counsel experienced in immigration law during his
hearing before the panel. She did not object to the panel’s use of its
specialized knowledge and did not even request clarification from the panel as
to the sources on which it relied in setting out what it considered to be
established practices. I will not go so far as to say that the applicant is now
barred from raising this issue before the Court, but the fact remains that this
issue is being raised late, and this can only undermine the seriousness of this
argument.
[15]
The applicant’s application for judicial review
will therefore be dismissed.
[16]
Neither party requested that a question be
certified for the Federal Court of Appeal. I do not see any questions to be
certified either.
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