Portillo Romero v. Canada (Citizenship and Immigration)

Portillo Romero v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-12-12
Neutral citation
2011 FC 1452
File numbers
IMM-2510-11
Decision Content
Federal Court
Cour fédérale
Date: 20111212
Docket: IMM-2510-11
Citation: 2011 FC 1452
Ottawa
,
Ontario
, December 12, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
AIDA LUZ PORTILLO ROMERO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 23 March 2011 (Decision), which refused the Applicant’s claim for protection as a Convention refugee under section 96 or a person in need of protection under section 97 of the Act.
BACKGROUND
[2] The Applicant is a citizen of
El Salvador
. She has five children (three sons and two daughters) all of whom live in
Canada
. The Applicant currently lives with her son, Francisco, in
Toronto
.
[3] In
El Salvador
, the Applicant’s three sons, Francisco, Roberto, and Leo co-owned a restaurant. In March and April 2006, they were threatened with death in connection with extortion demands made of them by either the
Maras
gang or the El Salvadorian police. Roberto and Leo fled
El Salvador
on 1 May 2006. Francisco left
El Salvador
on 24 March 2007. The three brothers claimed refugee status in
Canada
. The RPD heard their claims together and, on 28 March 2008, granted them refugee status.
[4] The Applicant is afraid the people who extorted and threatened her sons will come after her for payment of her sons’ debts. Beginning before her sons left El Salvador for Canada, she travelled to the United States of America (USA) and returned to El Salvador five times, as follows:
From 4 October 2004 to 27 March 2005;
From 2 October 2005 to 5 March 2006;
From 22 October 2006 to 18 March 2007;
From 13 April 2008 to 19 June 2008; and
From 14 February 2009 to 6 July 2009.
[5] After she returned to
El Salvador
in 2009, the Applicant felt threatened several times. On 9 December 2009, someone called her home and asked for Roberto. When she told the caller Roberto was not home, he asked for Francisco or Leo; she told him that they also were not home, and the caller hung up. On 12 December 2009, the Applicant was outside her house watering plants when she saw a car with two men in it pull up in front of her house. She felt frightened and went into the house. The men parked in front of her house for a few minutes and then left.
[6] On 14 December 2009, while the Applicant was in her house, she heard someone knocking on her garage door. She looked out, saw the two men who had parked in front of her house, and did not answer the door. Eventually, the men left. On 17 December 2009, the Applicant received another phone call. The caller did not identify himself, but asked for Roberto. She told him Roberto was not home, so he asked for her other sons. When the Applicant informed the caller that they were not home, he told her that she would have to pay what her sons owed.
[7] When she arrived in
Canada
, the Applicant completed form IMM 5611 with the assistance of an interpreter. That form records the following under the heading “Why are you asking for
Canada
’s protection?”:
On December 17th, 2009, I received another phone call, “Ma’am is Roberto home”, I asked who is calling, “how about your other children”, no I would like to know who is calling, they said “look ma’am, you are going to pay for everything, your accounts and your childrens [sic] accounts”. That type of threats are to my life.
[8] In her PIF, the Applicant wrote that the caller “said that I would have to pay what my sons owed or they would kill me.” At the hearing, the Applicant said that “[The caller] told me, mother, you are going to pay for everything related to your children for the debt, if not we will kill you.”
[9] After this phone call, the Applicant called her brother, who told her that she had to make a report to the police so that there would be a record of what had occurred. The Applicant says that she did not want to because she thought that the police were involved in the extortion and threats against her and her sons. However, on 18 December 2009 she went to the police station with her brother and filed a report of the phone call with the Policia National Civil (PNC), the National Civil Police.
[10] After filing the police report, the Applicant left
El Salvador for the
United States on 11 January 2010, where she landed in
Atlanta ,
Georgia
. She travelled to
Buffalo ,
New York on the same day, and came to
Canada
on 14 January 2010. The Applicant claimed protection on 14 January 2010.
[11] The RPD heard the Applicant’s claim for protection on 17 March 2011. At the hearing, the Applicant, her Counsel, a Refugee Protection Officer, an interpreter, and the RPD panel member were present. Before the hearing commenced, the Applicant’s counsel conferred with the RPD panel member. Counsel had given notice that he intended to call Roberto as a witness to establish the Applicant’s claim; however, the RPD noted that Roberto’s narrative in his PIF seemed to conflict with the Applicant’s. Roberto had said that the people who had extorted him were the
Maras
gang, while the Applicant had said in her PIF that the people who had extorted her children were the police. The RPD said that, if Roberto testified and the RPD found that he had given conflicting evidence, this could expose him to the risk that his refugee claim would be vacated. Counsel elected not to call Roberto as a witness.
[12] After the hearing, the RPD made its Decision on 23 March 2011 and gave notice to the Applicant on 28 March 2011.
DECISION UNDER REVIEW
[13] The RPD determined that the Applicant was neither a convention refugee under section 96 of the Act nor a person in need of protection under section 97. It found that the Applicant’s story was not credible and that there was no persuasive evidence that the threats to which she had been subjected rose to the level of persecution. It also found that there was no persuasive evidence of a risk of harm to her under section 97 of the Act.
Allegations
[14] The RPD began by reviewing the Applicant’s allegations. It noted that she said at the hearing that she had travelled to the
USA four times out of fear, and that she had been contacted by unknown persons after she last returned to
El Salvador
. The RPD also noted the phone call where the caller demanded payment and that she had filed a police report.
Credibility
[15] The RPD said that the only determinative issue in the case was credibility. It found that the Applicant’s allegations that she had been threatened in
El Salvador and that people in
El Salvador
were looking to harm her were not credible.
Agents of Persecution
[16] The Applicant had, in oral testimony, alleged that she feared the police in
El Salvador
because they had extorted her sons. She testified at the hearing that she “Did not see it, [my sons] told me” and that no one other than the police had threatened her sons. The RPD said that, when asked if her sons had ever sought the help of the military or the police, she initially said “no” then changed her answer to “I don’t know.” The RPD also asked if she knew about a report Roberto had filed with the police, which she said she did. The RPD found that there was a contradiction between her statements that she did not know if her sons had made any denunciations but she did know about the police report her son had filed. The RPD said that that the Applicant left the contradiction unexplained.
[17] The RPD also noted that it had examined at the hearing the police report Roberto had filed with the PNC. It quoted the following portion of the report, which appears at page 116 of the Certified Tribunal Record:
[…] four individuals appeared with a gang-like appearance and tattoos in keeping with the Maras or Gang Eighteen, who showed weapons [emphasis in Decision]
[18] There was no mention in this report of any police involvement; the only people who were suspected of involvement in the threats against Roberto were the
Maras
gang. At the hearing, the Applicant was unable to explain why her sons would tell her that the police were extorting them, when Roberto had told the police it was the
Maras
.
[19] The RPD also noted that the Applicant had provided a letter from her nephew that said only that unknown persons had extorted her sons. The RPD found that no persuasive evidence had been placed before it which indicated that the police were involved in extorting her sons.
[20] The RPD then turned to the threats alleged by the Applicant. It noted the Applicant testified that, during the 9 December 2009 phone call, the caller had not identified himself or made any threats before he hung up. With respect to the incident on 12 December 2009, the RPD noted that the Applicant testified that the men who came to her door had not spoken to her or threatened her. She was also not sure that they were looking for her. The RPD said that, during the 14 December 2009 incident, the men who came to the Applicant’s house had knocked on her door and left after she did not answer the door. The RPD also noted that she had been called on 17 December 2009 by a person who would not identify himself and that she said he had threatened to kill her if she did not pay what her sons owed.
[21] The RPD said that none of the people involved in these incidents had been identified, and at no time was the Applicant threatened by any persons identifying themselves as police officers or wearing police uniforms. It found that her claim had nothing to do with the police in
El Salvador
.
[22] Though she feared the police, the Applicant attended at the police station and filed a report the day after she had been threatened. The RPD also noted that the report she filed did not mention that she had been threatened by the police and only said that she had been called twice and visited twice by unknown men. When asked why shy would go to the police station to file a report if she was being threatened by the police, the Applicant testified that her brother forced her to go to make a record of what had occurred. She also testified that she had not told the police officer taking the report that she suspected the police had threatened her.
[23] The RPD found that it was implausible that an elderly lady living alone, who believed that her three sons had been forced to flee the country because they were extorted by the police and believed that the police were going to kill her, would go to the same police and file a report. It pointed out that the Federal Court of Appeal, in Giron v
Canada
(Minister of Employment and Immigration), [1992] FCJ No 481, had upheld the reasonable findings of the RPD based on implausiblities, common sense, and rationality. Further, the RPD may reject evidence if it is not consistent with the probabilities affecting the case as a whole, even if that evidence is uncontradicted
[24] The RPD also said that the police report the Applicant filed was apparently pointless: though she feared that the police were extorting her, she went to them to file a report. She did not mention that she suspected the police. At the hearing, she testified that she filed the report so that there would be a record of what had happened; the RPD said that the report served no purpose because the Applicant testified she did not inform the police officer taking the report that she thought the police were involved. These actions, the RPD held, were implausible.
[25] The RPD found there was no persuasive evidence before it on police involvement; it reiterated its finding that the police were not involved.
Delay and Re-availment
[26] The RPD noted that the Applicant had testified that she was afraid that the people who had threatened her children would also come after her. She had also testified that, when she travelled to the
USA
, she had done so out of fear. When she travelled to the
USA , it was her practice to obtain a visa for six months, stay in the
USA for almost the full term of her visa, and then return to
El Salvador
. She would then apply for another visa and repeat the process.
[27] The RPD disagreed with the Applicant’s argument that she did not truly fear for her safety until the 17 December 2009 phone call. The Applicant had testified and written in her PIF that she had left
El Salvador
out of fear, yet she repeatedly returned after her sons had fled.
[28] Though she had travelled to the
USA
after her sons fled, the Applicant did not claim refugee protection there. The RPD said this showed that she did not have a subjective fear of persecution in
El Salvador
. Pointing to Caballero v
Canada
(Minister of Employment and Immigration), [1993] FCJ No 483, it noted that the Federal Court of Appeal has upheld the RPD in finding that re-availment is fatal to a claim for protection.
[29] The RPD found that the Applicant’s claim under section 96 of the Act failed because she could not demonstrate a well-founded fear of persecution.
Alleged Risk of Harm
[30] The RPD noted the following events:
The 9 December 2009 phone call, where a person called but made no threats before hanging up; and
The 12 December 2009 incident, where two men sat in a car outside her house, then left.
The 14 December 2009 incident, where the same two men knocked on her door, then left when the Applicant did not answer the door.
[31] The RPD found that none of these events demonstrated a risk of harm to the Applicant. Though she thought that they showed that the police were trying to kill her, this was pure speculation.
[32] The RPD also reviewed the 17 December 2009 phone call and said that, when the Applicant first described the call in form IMM 5611 she wrote that the caller said “look ma’am, you are going to pay for everything, your accounts and your childrens [sic] accounts.” The RPD said that this statement does not mention a death threat. In her PIF narrative, completed three weeks later, the Applicant wrote, “He then said that I would have to pay what my sons owed or they would kill me and hung up.” The RPD also quoted the police report the Applicant had filed on 18 December 2009 which contained the words, “look lady, you are also going to pay for the [matter] regarding your children and he hung up on her.” [addition in translation]
[33] At the hearing, the RPD asked the Applicant why the police report did not mention the death threat. She testified that she had told the officer taking the report about the omission, but he would not change it because the report had already been filed. When asked why she signed a report which was incomplete, the Applicant answered that “they are the authorities.” She had also testified that neither she nor her brother, who was with her at the police station, had spoken to a supervisor about the incomplete report.The RPD also asked why her PIF did not mention that the police report was incomplete, to which the Applicant answered that she forgot about it.
[34] The RPD rejected the Applicant’s allegation that she had received a death threat. It found that she did not mention the threat when she completed form IMM 5611 and had not mentioned the threat to the authorities in
El Salvador
. The RPD found that she had advanced a new allegation at the hearing that the police had not properly completed the report. The RPD rejected the Applicant’s assertion that she forgot about the report being incorrectly filled out. It said that, in Aragon v Canada (Minister of Citizenship and Immigration) 2008 FC 144, the Federal Court upheld the RPD when making a negative credibility finding from a new allegation advanced at the hearing without a reasonable explanation. This was a key element of her claim, so it was not reasonable for the Applicant to have forgotten this piece of information. The RPD found that no death threat had been made against the Applicant.
[35] The RPD also noted that the Applicant fled
El Salvador
shortly after the 17 December 2009 phone call. She did not return to the police station or speak to the police about the progress of the investigation. Noting Romero v
Canada
(Minister of Citizenship and Immigration) 2008 FC 977, the RPD found that there was no information to suggest that the police would not have investigated the Applicant’s allegation. It also said that there was nothing to suggest the PNC would not have investigated her complaint.
[36] The RPD also refers to my decision in Barbu v Canada (Minister of Citizenship and Immigration) 2010 FC 1251, for the proposition that low level assaults, such as telephone calls, which are not a real threat to life will not support a claim under section 97. The RPD held that there was no actual risk of harm to the Applicant.
Conclusion
[37] The RPD said that the onus is on claimants to establish their claims and found that the Applicant had not established hers. It said that there was no persuasive evidence, other than the police report she filed with the PNC, of persecution or risk of harm. The RPD also found that the Applicant’s testimony was without credibility with respect to material aspects of the claim and that there were unexplained discrepancies in her story. The Applicant had not established that it was more likely than not that she would face a risk to life or of cruel and unusual treatment or punishment if she were returned to
El Salvador
. There was no credible basis for any such risk, so she is not a Convention refugee or person in need of protection.
STATUTORY PROVISIONS
[38] The following provisions of the Act are applicable in this proceeding:
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
[...]
Person in Need of Protection
97. (1) A person in need of protection is a person in
Canada
whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning ­ of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[…]
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
ISSUES
[39] The Applicant raises the following issues:
Whether the RPD’s finding that she did not have a subjective fear of persecution is reasonable;
Whether the RPD breached her right to procedural fairness by denying her the opportunity to respond;
Whether the RPD’s credibility finding was reasonable;
Whether the RPD made a finding of state protection;
Whether any state protection finding the RPD made was reasonable.­
STANDARD OF REVIEW
[40] The Supreme Court of Canada in Dunsmuir v
New Brunswick
, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[41] In Cornejo v
Canada
(Minister of Citizenship and Immigration) 2010 FC 261, Justice Michael Kelen held at paragraph 17 that the standard of review on the question of a claimant’s subjective fear is reasonableness. Justice John O’Keefe, in Brown v
Canada
(Minister of Citizenship and Immigration) 2011 FC 585, also found at paragraph 24 that the standard of review on this issue is reasonableness. The standard of review on the first issue is reasonableness.
[42] In Elmi v Canada (Minister of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max Teitelbaum held that findings of credibility are central to the RPD’s finding of fact and are therefore to be evaluated on a standard of review of reasonableness. Further, in Hou v
Canada
(Minister of Citizenship and Immigration) 2005 FC 1586, Justice O’Keefe held at paragraph 23 that the standard of review on a finding of credibility was patent unreasonableness. Also, in Aguebor v
Canada
(Minister of Citizenship and Immigration), [1993] FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review on a credibility finding is reasonableness. The standard of review on the third issue is reasonableness.
[43] Justice Leonard Mandamin found in Lozada v
Canada
(Minister of Citizenship and Immigration) 2008 FC 397, at paragraph 17, that the standard of review with respect to a finding of state protection is reasonableness. He primarily relied on the Federal Court of Appeal decision in Carillo v
Canada
(Minister of Citizenship and Immigration) 2008 FCA 94. Justice Luc Martineau made a similar finding in Turna v
Canada
(Minister of Citizenship and Immigration) 2006 FC 202. The standard of review with respect to the fifth issue is reasonableness.
[44] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and
Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59.Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[45] The opportunity to respond to a decision maker’s concerns is an issue of procedural fairness (see Qureshi v
Canada (Minister of Citizenship and Immigration) 2009 FC 1081 at paragraph 31; Liao v
Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1926 at paragraph 17; and Rukmangathan v
Canada
(Minister of Citizenship and Immigration) 2004 FC 284). In Canadian Union of Public Employees (C.U.P.E.) v
Ontario
(Minister of Labour) 2003 SCC 29, the Supreme Court of Canada held that the standard of review with respect to questions of procedural fairness is correctness. Further, the Federal Court of Appeal in Sketchley v
Canada
(Attorney General) 2005 FCA 404 at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review on the second issue is correctness.
[46] In Canada (Attorney General) v Ward, [1993] SCJ No 74, the Supreme Court of Canada held at paragraph 45 that state protection is a crucial element in establishing the well-foundedness of a claimant’s fear. In Malik v
Canada
(Minister of Citizenship and Immigration) 2005 FC 1707, Justice Eleanor Dawson held at paragraph that it is not necessary for the RPD to consider state protection where it first concludes that there is no well-founded fear of persecution or risk of harm. Further, Justice Elizabeth Heneghan held in Kurtkapan v
Canada
(Minister of Citizenship and Immigration) 2002 FCT 1114 at paragraph 35 that the “failure to consider an objective basis for [a claimant’s] fear of persecution” was an error of law. This is the question raised by the fourth issue in this case; the standard of review on the fourth issue is correctness.
[47] As the Supreme Court of Canada held in Dunsmuir (above, at paragraph 50).
When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
ARGUMENTS
The Applicant
The RPD’s Subjective Fear Finding was Unreasonable
[48] The Applicant argues that the RPD’s finding that she did not have a subjective fear of persecution in
El Salvador was unreasonable because the RPD based this conclusion on the evidence that she had travelled to and from the
USA from
El Salvador
. She says that the RPD has conflated discreet elements of her evidence, contrary to Reyes v
Canada
(Minister of Citizenship and Immigration) 2011 FC 460.
[49] The Applicant notes that her first trip to the
USA
was in 2004. She says that she continued to travel to the
USA
after her sons were threatened because she was afraid that the people who were threatening them would come after her. She did not make a refugee claim until 2010 because she was not directly involved in her sons’ dealings. Only when she was threatened on 17 December 2009 did the Applicant truly fear for her life, flee
El Salvador , and claim protection in
Canada
.
[50] In Reyes, above, Justice Donald Rennie held that the RPD erred when it conflated two distinct fears in analysing re-availment. In that case, the claimant fled
Colombia to the
USA
after he was threatened by a gang. He later returned to
Colombia
, but fled again after he was threatened by a second gang. The RPD held he did not have a subjective fear of the second gang because he had returned to
Colombia
after he was threatened by the first gang.
[51] In this case, the RPD has conflated the Applicant’s two distinct fears: the fear that caused her to travel to the
USA
between 2004 and 2009 and the fear arising from the 17 December 2009 phone call, where she was threatened directly. Though Reyes, above, dealt with multiple agents of harm, the Applicant says that her two fears were separate and should not have been conflated by the RPD. When the Applicant travelled to the
USA
, she only had a low level of fear which would not support a refugee claim. Once she was threatened directly, she faced a greater objective risk of harm, so she fled to
Canada
.
[52] In addition to conflating the two distinct fears, the RPD ignored evidence going to the Applicant’s subjective fear. She says that the RPD ignored the statement in her PIF that she had travelled to the
USA
between October 2004 and March 2005 and between October 2005 and March 2006. Both of these trips occurred before her sons were threatened, which shows that she did not travel to the
USA
exclusively because she was afraid. She says that, in Reyes, Justice Rennie held that it was an error to ignore travels prior to a personal threat.
[53] Because it conflated evidence of distinct events and ignored the evidence of her travels to the
USA
before she was threatened, the Applicant says that the RPD’s finding that she did not have a subjective fear of persecution was unreasonable. This finding was central to the RPD’s credibility finding and credibility was the determinative issue in the claim. In Reyes, Justice Rennie quashed the decision and remitted the matter for redetermination, having found that the subjective fear finding was erroneous, but without commenting on other grounds for the RPD’s credibility finding. The Applicant says that Reyes stands for the proposition that an erroneous subjective fear finding that goes to credibility is enough to overturn a decision. The RPD made an erroneous subjective fear finding in this case, so the Decision should be overturned.
The RPD Breached the Applicant’s Right to Procedural Fairness
The RPD did not put Perceived Omissions to the Applicant
[54] The RPD breached the Applicant’s right to procedural fairness when it did not put the omissions and inconsistencies it observed in her testimony to her at the hearing and so deprived her of the opportunity to respond. She relies on Gracielome v Canada (Minister of Employment and Immigration), [1989] FCJ No 463, Malala v Canada (Minister of Citizenship and Immigration) 2001 FCT 94; Shaiq v Canada (Minister of Citizenship and Immigration) 2009 FC 149; Kumara v Canada (Minister of Citizenship and Immigration) 2010 FC 1172; and de la Cruz v Canada (Minister of Citizenship and Immigration) 2011 FC 259 for the proposition that the RPD cannot make a negative credibility finding without first giving a claimant the opportunity to respond to perceived inconsistencies.
[55] The RPD based its negative credibility finding in part on the statement in IMM 5611 that purported to be the words of a threatening caller to the Applicant; the RPD said that this statement does not include a death threat against the Applicant and, because the omitted threat later occurs in the Applicant’s PIF, the RPD drew a negative inference of credibility. The Applicant says that the RPD should have asked her about the perceived omission of the threat from IMM 5611. Its failure to do so violated her right to procedural fairness. She says her case is similar to that in Kumara, above, where Justice Hughes wrote at paragraph 3 that, by not putting a perceived contradiction to the claimant, “the Member simply lay in the weeds, waited till the hearing is over, then pulled out apparent contradictions and used them as the basis for disbelieving the Applicants' claim.” Had the RPD put the omission to the Applicant in the present case, she says she would have been able to point out the reference in IMM 5611 to the death threat she received to explain and clarify the perceived omission.
The RPD Denied the Applicant the
Opportunity to Respond to Concerns about her Oral Evidence
[56] At the hearing, the RPD asked the Applicant why she said she did not know if her sons had sought military or police help, when she later said that she knew about the police report her son had filed. The RPD said
Well madam just a second ago I asked did any of your sons ever try [sic] to get help from the army or the police, you said no, I do not know and yet you knew about this police report; so why did you say no, you did not know? So I want to be clear, did you know that your son Roberto made a police report in March of 2006? [see page 204 CTR]
[57] The Applicant says that, when the RPD asked “So I want to be clear, did you know that your son Roberto made a police report in March of 2006?” this denied her the opportunity to respond. This exchange put her on notice that the RPD only wanted to know if she was aware of the police report, not why she said she did not know if her sons had sought police or military help.
[58] Though the RPD questioned the Applicant about why she said she did not know her sons had sought help, she says that the phrasing of the question denied her the opportunity to respond. This breached her right to procedural fairness, as the RPD did not put the perceived inconsistency to her even though it based the Decision on that inconsistency.
The RPD’s Credibility Finding was Unreasonable
The RPD Misstates Evidence and Relies on Speculative Conclusions
[59] The Applicant also says that, when the RPD found that there was no evidence the police were involved in threatening the Applicant, it misstated the Applicant’s oral testimony. In the Decision, the RPD said that, when asked if her sons had ever filed a police report, the Applicant first said “no,” but then changed her answer to “I don’t know.” The RPD said that she did not respond when asked to explain the contradiction between “no” and “I don’t know.” This is a misstatement of the evidence because, as the transcript of the hearing shows, the Applicant did not change her answer; she said only “I don’t know about that.” (see page 203 CTR)
[60] The RPD also misconstrued the evidence when it said in the Decision that the Applicant “did not answer the question and the contradiction was left unexplained” when asked to explain why she said she did not know if her sons had gone to the police. She says that, when the RPD said “So I want to be clear, did you know that your son Roberto made a police report in March of 2006?” this precluded her from answering the first question. The RPD misconstrues the evidence because it found that she did not answer the first question without having actually given her a chance to do so. Had the RPD given her the chance to answer the question, it might not have come to the same conclusion on credibility.
The RPD’s Plausibility Finding was Unreasonable
[61] The Applicant says that, when the RPD found that it was implausible that she would file a report at the police station when she believed the police were involved in the threats against her, it made a finding which contradicted its other findings. This renders the implausibility finding unreasonable. In Valtchev v
Canada
(Minister of Citizenship and Immigration) 2001 FCT 776, at paragraph 7, Justice Francis Muldoon said that,
[…] 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.
[62] It was not clearly implausible that the Applicant would have filed a police report, so the RPD should not have made this finding. The RPD’s finding that her filing of the report with the police was implausible also contradicts its later finding that there was no information to suggest the police would not investigate her complaint. It was not reasonable for the RPD to find that it was outside the realm of what could reasonably be expected that she would file a report and also find that the police would have investigated her claim.
[63] Making a finding of this nature puts refugee claimants in an impossible position, given that they bear the onus of rebutting the presumption of state protection. By finding the Applicant not credible because she approached the police for protection and then finding that state protection would be forthcoming, the RPD made it impossible for her to establish her claim. She says that upholding this finding will discourage other potential refugee claimants from approaching their states for protection because those efforts might later be used against them in a refugee proceeding.
[64] The Applicant also says that the RPD’s finding that it was not plausible she would report to the police contradicts other findings it made. It contradicts the RPD’s finding that she would not tell the police she believed they were involved, and the finding that she did not speak to a supervisor at the police station when she noticed the report was incomplete. Contrary to the RPD’s finding, it is plausible that, fearing the police were extorting her, she would not tell them she believed they were involved in the threats against her. The RPD’s implausibility finding is not reasonable.
The RPD Misstated the Evidence in IMM 5611
[65] When the RPD drew a negative inference as to credibility based on the Applicant’s statement in IMM 5611, it fundamentally misunderstood the evidence before it. The RPD said that there was no mention of any death threat in IMM5611, but this is not correct. The relevant section of the form reads
On December 17th 2009, I received another phone call, “Ma’am is Roberto home”, I asked who is calling, “how about your other children”, no I would like to know who is calling, the said “look ma’am, you are going to pay for everything, your accounts and your childrens [sic] accounts”. That type of threats are to my life.[sic]
[66] The Applicant says that the sentence “That type of threats are to my life” is a reference to the death threat she received during the phone call. The negative inference as to credibility the RPD drew from this perceived omission was unreasonable.
[67] The RPD also ignored the evidence before it that suggested the form was not a complete record of the Applicant’s story. She notes that the form instructs claimants to “Please keep your answers short. You will have the opportunity to explain all the facts related to your claim to the Immigration and Refugee Board of Canada.” She also notes that, because the form is typed and written in English, while she only writes Spanish, it is clear that her answers were transcribed by someone else on her behalf. This evidence goes to the omissions the RPD perceived in the form on which it based its credibility determination. There is a possibility that the form was transcribed or translated incorrectly, especially since the form instructs claimants to keep their answers short. Credibility was the determining issue in her claim, so it was not reasonable for the RPD to neglect this evidence. The negative inference as to credibility the RPD drew was unreasonable because it was based on an erroneous understanding of the evidence.
The RPD does not Make a State Protection Finding
[68] Although the RPD discussed state protection in the Decision, the Applicant says that this discussion does not amount to state protection finding. The RPD says only that “there is no information to suggest that the police would not have made genuine and earnest efforts to investigate the claimant’s allegations and apprehend the perpetrator, had she pursued her complaint diligently.” The RPD said that the determinative issue in the case was credibility and did not find that she had not rebutted the presumption of state protection.
The RPD’s State Protection Finding was Unreasonable
[69] If the RPD made a state protection finding, the Applicant says that this finding was unreasonable. She says that the RPD did