AB v. Canada (Citizenship and Immigration)

AB v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-09-18
Neutral citation
2014 FC 899
File numbers
IMM-7691-13
Decision Content
Date: 20140918
Docket: IMM-7691-13
Citation: 2014 FC 899
Ottawa, Ontario, September 18, 2014
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
AB, CD, EF
Applicants
And
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
INTRODUCTION [1] This is an application under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board [RPD or the Board], which refused the Applicants’ application to be deemed Convention refugees or persons in need of protection under s. 96 and 97 of the Act [Decision].
BACKGROUND [2] The Applicants are a husband [AB], wife [CD] and their child. They say they came to Canada after suffering abuses at the hands of the authorities in their home country, and out of fear that they would suffer further harm.
[3] AB claims he was detained and tortured by government authorities. Upon his release, he was forced to sign an undertaking promising not to participate in protests or political activity, or else he would be brought before the court.
[4] CD claims she was also detained and suffered abuses at the hands of the government authorities. She was also forced to sign an undertaking.
[5] When AB went to pick up CD after her detention, he shouted at the officers. They physically assaulted him, and then accused him of assaulting officers of the government. Both Applicants were released, but were informed that they would be summoned to court to answer charges.
[6] The Applicants say they feared extreme sanction given the earlier incident. AB was particularly afraid he would be imprisoned and tortured again. The Applicants left within days, travelling through a number of other countries with the aid of a smuggler before reaching Canada.
DECISION UNDER REVIEW [7] The RPD found that the Applicants were neither refugees nor persons in need of protection within the meaning of s. 97, because it found them not credible.
[8] The Board began by declaring CD a vulnerable person pursuant to Chairperson Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB, and noting that Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution was employed during the hearing and in rendering the Decision.
[9] The RPD noted that there were several medical reports stating that the Applicants are suffering from Post-Traumatic Stress Disorder [PTSD], and accepted that this was the case. However, the Board found that this condition could result from a variety of sources, and was not necessarily due to the events alleged by the Applicants. The RPD member found that she could not base her credibility findings on the conclusions of the medical professionals as to the etiology of the PTSD since the Applicants provided this information to those practitioners. The Board observed that the PTSD could have resulted from the trying experiences during the Applicants’ journey to Canada, including the trauma of having to flee their country, feeling betrayed and abandoned by their smuggler, running out of money and food with their infant child, “starving” during the trip, separating from CD’s family members (several of whom fled around the same time), and being received harshly in the home where they first stayed upon arriving in Canada.
[10] The Board then observed, with respect to the Applicants’ credibility (Decision, at paras 23-25):
The literature on trauma provided in this case does not support the proposition that traumatized individuals tell untruths or cannot recall events that are unrelated to the trauma. It is for this reason among others that adjudicators can determine whether a claimant has provided credible, reliable, and trustworthy evidence. And when I tested the claimants’ credibility in this case, being mindful of the trauma they have endured, I found that they did not provide credible and reliable evidence. There were material omissions and contradictions that were not adequately explained and a corroborating document I found not to be a genuine.
Because I chose not to examine the alleged traumatic events themselves as to safeguard the claimants from further trauma, I had to also include in my credibility assessment non-material aspects of their claims as part of the credibility assessment. There were multiple non-material omissions and contradictions contained in the claimants’ evidence that demonstrated collectively that they have been untruthful with Canadian immigration officials and with the IRB.
All told, I find on a balance of probabilities that the claimants have not provided reliable and trustworthy evidence in this case.
[footnotes omitted]
[11] The Board characterized two inconsistencies or contradictions in the Applicants’ evidence to be material to their claim. The first was the Applicants’ failure to disclose in their Personal Information Forms [PIF] that several members of CD’s family fled the country around the same time as the Applicants, and made successful refugee claims elsewhere. The Board found this information was material to the Applicants’ claim because the fact that these family members had allegedly suffered persecution in their home country would have impacted the Applicants’ own situation there. The Board found that the Applicants (Decision, at para 26):
[…] attempted to hide this information from the Tribunal and only disclosed limited information about these family members after the Minister disclosed information [regarding the family members].
The Board found that CD’s father and sister had been living elsewhere for two and a half months when the Applicants filed their PIFs, and that the Applicants had not amended their PIFs until confronted with the Minister’s evidence at the hearing.
[12] The Board rejected as not being credible CD’s explanation that despite communicating regularly during and after the journey with her mother, who was still in their home country at the time, she was not told that her other family members had fled and sought asylum elsewhere. Moreover, the Board found that the adult Applicants contradicted each other on this point as AB stated that they had no contact with CD’s family during the journey. AB also gave inconsistent answers regarding when he first learned CD’s family members had left their home country, stating variously that he learned only recently, over a year ago, fourteen or fifteen months ago, and twelve to thirteen months ago. The Board found that CD was untruthful when interviewed by an immigration officer after filing her PIF: she said her father and sister were still living in their home country, but asked the officer not to contact her father or mother, when in fact she would have known by then that her family was not there. The Board found that (Decision, at para 41):
[CD] did not want her mother or her father to be contacted by the officer because this would expose to the officer that she had just lied to the officer. These phone calls would have exposed the associate claimant in her intentional material omissions that were in her PIF.
[13] The Board found that when specifically requested to provide certain documents regarding the family members’ asylum claims, the Applicants failed to comply (Decision at paras 31-33):
And even when I explicitly told the claimants and their counsel on the first day of our hearing, that I want them to get from their family…all of the family’s refugee applications and decisions, the claimants did not obtain the documents. It must be noted that the associate claimant’s mother has now joined the associate claimant’s father and sister...
The claimants had no explanation for why the family…could not send them any of their asylum information in the almost one month time period that I had provided to them. They did manage to file other documents but not the documents that I had specifically requested.
The associate claimant’s father, sister, and brother-in-law were each given a copy of the interview they each had had with a[n]… immigration officer. This copy contained all of their allegations of why they were requesting protection. The copy they were provided contained their very own signatures affirming their congruence with the material garnered in the interview. And still the associate claimant’s did not send this information to the IRB or the claimants did not choose to put it in evidence.
[footnotes omitted]
[14] The Board also found that the Applicants introduced a document that was not genuine. They entered a photocopy of a summons for AB to appear, which was allegedly issued after the Applicants had fled. However, this document was not sent to the Applicants’ last address but to CD’s parents’ home. The Board found that AB had no real explanation for this. At her hearing, one month later, CD testified that this was because the Applicants had no post box at their home, and they would therefore have provided her parents’ address to institutions needing to contact them. The Board rejected this explanation as follows (Decision, at para 48):
I find all of the claimants’ explanation spurious. First the principal claimant himself could not remember that for years his phone bills, credit card statements, bank statements, and so forth did go [sic] directly to his own home but to his in-law’s home. The claimants did not produce any other documentation in the month they had between the hearings to corroborate that this was their modus operandus. I could not examine their passport pages to see if that corroborated their new allegation, as their addresses were not translated on the passports.
[footnote omitted]
The Board also noted that the documentary evidence indicated that warrants for arrest in their home country were to be served on the accused at their last known address, and that “the same kind of logic would apply to summons” (Decision, at para 49).
[15] Moreover, the Board noted that the Applicants had not mentioned this summons in their PIFs, and that this was a material omission. AB testified that he did not speak with CD’s mother, but only his own parents after his arrival in Canada, and CD testified that her mother did not tell her about the summons because she was already so traumatized. The Board rejected these explanations as being not credible. The Board found that the summons was sufficiently serious that CD’s mother would have told AB’s parents about it even if they were not close friends, and that AB’s parents would have told him. Moreover, the Board found that CD’s mother would have told her about the summons. CD’s mother was entrusted with obtaining documents and whatever else was needed for the Applicants’ and the other family members’ refugee claims, and under these circumstances she would not have acceded to her daughter’s alleged insistence not to tell her anything of substance in their communications.
[16] The Board found that the summons was a fraudulent document and that, without it, there were no corroborating documents that could independently support the Applicants’ allegations given the Board’s finding that they lacked credibility.
[17] The Board found that besides the material contradictions outlined above, there were a series of non-material contradictions that cumulatively indicated that “these claimants have no qualms about stating mistruths” (Decision, at para 57). CD told the immigration officer who interviewed her that she did not know the smuggler’s real name, but testified at the hearing that she did. When asked how they knew the man who housed them in Canada when they first arrived, CD told the immigration officer that he was a friend, when in fact he was a relative. The Board observed (Decision, at para 62):
This is just another instance of the associate claimant trying to hide the truth. And in so doing, I cannot tell which are the truths and untruths in this case.
[18] The RPD noted that the Applicants advanced a sur place claim on the basis that asylum seekers are interrogated if returned. The Board found that the documentary evidence did not state that “all asylum seekers are interrogated on return but only those who are political activists or who have tried to conduct propaganda abroad” (Decision at para 70). It found that there was no credible evidence that the Applicants had ever participated in any political activity, and that therefore they would not be interrogated if they returned.
ISSUES [19] The Applicants have raised the following issues in this application:
a. Did the RPD err by finding that the Applicants were not credible on the basis of immaterial or peripheral matters, while failing to give clear reasons for rejecting the core allegations of their claims?
b. Did the RPD member breach a duty of procedural fairness by indicating that she did not need to hear information on the traumatic events, and then concluding that the traumatic events had not occurred?
c. Did the RPD err by assessing the Applicants’ credibility without regard to the medical and psychological reports concerning the Applicants’ diminished capacity to testify?
d. Did the RPD err by failing to consider whether the Applicants were in need of protection even if they lacked credibility on specific matters?
STANDARD OF REVIEW [20] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] 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 settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[21] Issues a., c. and d. above relate to the Board’s assessment of the Applicants’ credibility and its conclusions based on the evidence. These matters are reviewable on a standard of reasonableness: see Cruz Herrera v Canada (Minister of Citizenship and Immigration), 2007 FC 979 at para 14; He v Canada (Minister of Citizenship and Immigration), 2010 FC 525 at paras 6-9; Lawal v Canada (Minister of Citizenship and Immigration), 2010 FC 558 at para 11; Aguebor v Canada (Minister of Employment and Immigration) (1993), 160 NR 315, [1993] FCJ no 732 at para 4 (CA)(QL) [Aguebor]. Issue b. raises a question of procedural fairness which is reviewable on a standard of correctness: see Mission Institution v Khela, 2014 SCC 24 at para 79; C.U.P.E. v Ontario (Minister of Labour), 2003 SCC 29 at para 100; Canada (Attorney General) v Sketchley, 2005 FCA 404 at para 53.
[22] 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 para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 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.”
STATUTORY PROVISIONS [23] The following provisions of the Act are applicable in these proceedings:
Convention refugee
Définition de « réfugié »
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,
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) 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
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;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
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
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) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
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) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(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) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
ARGUMENT Applicants Basing credibility findings on peripheral matters while failing to deal with the core allegations [24] The Applicants argue that the RPD based its assessment of their credibility on immaterial or peripheral matters while failing to address the core elements of their claim, which were both internally consistent and consistent with the medical and country evidence before the RPD. The RPD made a negative decision based on credibility, which was silent on the core allegations, despite having admitted the Applicants’ PIFs as sworn testimony, and deciding not to question them on the core allegations stated in the PIFs.
[25] The Applicants note that the Board based its credibility findings on the omission from their PIFs of information about CD’s family’s claims, and the failure to mention the summons or to explain why it was delivered to CD’s family’s home. They say the decision to base the credibility assessment on these elements of their testimony was unreasonable for several reasons:
a. The family’s asylum claims and the summons are non-material or peripheral elements in their claim;
b. The fact that CD’s father and sister claimed asylum in another country and were recognized as Convention refugees should, if anything, enhance and not detract from the Applicants’ credibility;
c. The Applicants cannot be faulted for failing to produce all the documents relating to these claims since those documents were outside of their control;
d. The RPD erred by impugning AB’s credibility on the basis of omissions from his wife’s PIF since the RPD knew that he had never seen his wife’s PIF; and
e. The RPD failed to explain why it disregarded the remaining evidence, including the core allegations, in clear and unmistakable terms.
[26] The Applicants acknowledge that the Board is entitled to make adverse findings of credibility based on inconsistencies, but they argue that not all inconsistencies can support such findings, which should not be based on a “‘microscopic’ examination of issues irrelevant or peripheral to the…claim”: Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at paras 10-11; Cooper v Canada (Minister of Citizenship and Immigration), 2012 FC 118 at paras 3-4 [Cooper].
[27] A material fact, the Applicants say, is one that goes to the foundation of the case (Pfizer Canada v Canada (Minister of Health), 2011 FCA 215 at paras 21-22), and neither of the primary issues identified by the RPD goes to the foundation of the Applicants’ claim for protection in Canada. It is both irrelevant and immaterial whether there were relatives who went to other countries to seek asylum, what the Applicants knew about those claims, and whether they were able to produce all of the documents relating to the relatives’ claims that the RPD requested. Similarly, it is both irrelevant and immaterial where the summons for AB was delivered and whether he knew the reasons for this. If there never was a summons it would not matter to the substance and genuineness of AB’s claim for protection as documents such as summonses are not required to be produced to corroborate refugee claims. Thus, the two matters on which the Decision rests are not material.
[28] While non-material matters can legitimately go to credibility, and the cumulative effect of a number of non-material matters may be determinative, the Applicants argue that it is an error to skip any analysis of the core allegations and proceed directly to a consideration of non-material elements. To do so, they say, is to fail to substantively and materially evaluate the basis of the claim. They cite Justice Rennie’s analysis in Cooper, above, at para 3:
I find that the Board's decision falls outside the scope or range of legally permissible outcomes given the facts and law and is unreasonable. Notwithstanding the concerns about the applicant's credibility, the decision fails to substantively analyze the claim. Instead of focusing on the factual issues that are material to a claim for protection, the Board focused its attention on matters that were immaterial and irrelevant to the claim for protection. In consequence, the Board undertook no analysis of the principle basis of the claim of risk.
[Applicants’ emphasis]
Similar to the Court’s finding in Tsyhanko v Canada (Minister of Citizenship and Immigration), 2008 FC 819 at para 16, the Applicants argue, the Board implicitly accepted, or did not question, the central elements of their claim, but then denied the claim based on inconsistencies on peripheral matters.
[29] The Applicants note that, at the RPD’s request, they filed documents confirming that CD’s relatives were granted asylum elsewhere. In keeping with the Board’s reasoning that persecution of CD’s relatives would impact on their own situation, the Applicants argue the fact that those relatives received asylum elsewhere can be viewed as a matter that supports, rather than undermines, their own claims in Canada. The RPD’s conclusion that the omission of this information from the Applicants’ PIFs supports a finding that the Applicants were not in need of protection is unreasonable. Common sense would lead one to ask why a claimant would suppress information that bolsters his/her claim, but the RPD never asked or considered this question.
[30] Furthermore, the documents requested by the RPD were not in the Applicants’ control. They asked CD’s relatives to forward evidence of their applications for asylum and filed the documents they received from the relatives. The RPD cannot fault them for failing to file documents which are outside their control. If the Board felt it needed the entire asylum file, it could have requested copies of documents from the authorities in that country.
[31] The Applicants argue that there was no reason for AB to include information about CD’s relatives in his PIF, and no basis for the Board to fault him for failing to include such information. The form asks for information about immediate family members (parents, siblings, spouse and children). It was neither required nor appropriate for AB to list information about CD’s family. The only area where he might have alluded to his wife’s family’s problems was in the narrative portion of the PIF, but he did not flee because of his in-laws’ problems with authorities. He fled because of his personal experiences. Impugning his credibility on the basis that he should have included information about his in-laws is unreasonable. Furthermore, AB would not at any point have been aware of the contents of his wife’s PIF, and the RPD was aware of the fact that he has never seen it.
[32] Finally, the Applicants argue that the Decision is unreasonable due to the Board’s failure to explain in clear and unmistakeable terms why it rejected the traumatic and core incidents on which the claims were founded: Hilo v Canada (Minister of Employment and Immigration) (1991), 130 NR 236, [1991] FCJ no 228 (CA)(QL); Martinez Caicedo v Canada (Minister of Citizenship and Immigration), 2011 FC 749. The reasons do not consider, much less analyze, the core elements of the claim. One must assume that they were rejected on the basis that they were not credible, but that is only an assumption.
Failure to inform the Applicants of intention to focus on non-material matters rather than core allegations [33] The Applicants note that the RPD breached a duty of fairness by allowing them to believe that it accepted the basic elements of their claims and then rejecting those allegations based on a general finding of non-credibility. As such, they were unable to know the case that was being built against them, to dispute, correct or contradict anything prejudicial to their position, or to present arguments and evidence addressing the concerns of the Board contrary to this Court and the Court of Appeal’s direction regarding the content of the duty of fairness in this context: Thamotharem v Canada (Minister of Citizenship and Immigration), 2006 FC 16 at paras 62-64 [Thamotharem (FC)]; Canada (Minister of Citizenship and Immigration) v Thamotharem, 2007 FCA 198 at para 37. Sworn testimony is presumed to be true in the absence of some reason to find otherwise (Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA) [Maldanado]), and if the RPD has no questions on an element of the claim, there is no need for the claimant to review what has been accepted in writing as the basis of the claim. The Applicants quote Justice Blanchard’s analysis in Thamotharem (FC), above, at para 50, quoting in turn Justice Pelletier’s analysis in Veres v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 124 (TD), relating to a decision of the Convention Refugee Determination Division (CRDD), the predecessor of the RPD:
Rather, Mr. Justice Pelletier stated that the unfairness arises where the Board in its reasons reproaches claimants for failing to provide some piece of evidence without putting the claimants on notice that they are at risk on that issue. At paragraph 28 of his decision, Mr. Justice Pelletier wrote:
It is clear that the CRDD is the master of its procedures. It is entitled to take economy of time into account in devising its procedures. It can equally direct which evidence it wishes to hear from the mouth of the witness and which it waives hearing. But when it says it does not need to hear from the witness, it cannot subsequently complain that it has not heard from the witness.
[Applicants’ emphasis]
[34] The Applicants say that they had no reason to suspect that the RPD doubted the core incidents of their claims as the Board accepted their PIFs as sworn testimony: Maldonado, above. Through preliminary discussion with counsel and through the approach she took to questioning the Applicants, the RPD member indicated that the core allegations forming the basis of the claims were not in issue. Counsel for CD raised the issue of areas of questioning the RPD would want to pursue, and the RPD member identified the areas in which she was interested. She never expressed any concern about the core incidents to counsel, nor did she question on those elements herself. Instead, the Applicants were questioned about events that were tangentially or peripherally related to the key events. This tangential information did not reveal any inconsistencies with the core claims.
[35] The Applicants say they were entitled, as a matter of procedural fairness, to respond to the RPD’s concerns before their case was decided. At the point at which the RPD member believed the Applicants not to be credible on peripheral matters, she should have advised them of her doubts about the core allegations. The failure to do so meant that the Applicants did not appreciate the need to establish their credibility on those events because, to their mind, the Board had no doubts. In other words, they were denied the opportunity to know the case they had to meet, and therefore the right to a fair hearing.
Assessing credibility without regard to the medical and psychological evidence and the literature on trauma [36] The Applicants note that they filed a medical report and a psychological report concerning CD, which indicate that she is severely traumatized and has a full range of PTSD symptoms, including poor concentration and memory, and that progress in Stage I PTSD treatment has been slow. A medical report diagnosed AB as suffering from PTSD, in partial remission, and as having symptoms of Severe Depression. The report cautioned that AB’s poor mental health, combined with the sedative effect of medication, would likely affect his memory and the proper sequencing of events.
[37] The Applicants acknowledge that medical practitioners cannot attest to the etiology of an illness developed in a faraway land, but they argue that the RPD missed the purpose of these reports, which was twofold: first, the medical and psychological conditions documented are consistent with the Applicants’ account of trauma and abuse; and second, they offer a possible explanation for inconsistencies and gaps in testimony.
[38] The Applicants say that the Board’s suggestion that CD’s PTSD could be due to the difficulties encountered on the journey to Canada is both speculative and shows a failure to understand the severity of the diagnoses, which went far beyond what might be occasioned by those difficulties.
[39] Moreover, the RPD made findings based on inconsistencies in the Applicants’ testimony without acknowledging the caution stated in each of the reports that the Applicants would likely have difficulty testifying at the hearing, would have difficulties with memory, and were likely to become confused about the sequence of events, times and dates. They point to AB’s inability to explain why the judicial summons was delivered to the home of his parents-in-law rather than his former address as an example of the type of difficulty testifying that can be explained by the medical evidence. AB’s bewilderment is clear in the testimony, they say, whereas it would be very simple to concoct a coherent explanation if he were trying to hide the truth. The RPD member failed to explain why the findings of the physician and psychologist had no bearing on the case, and her failure to consider their reports when assessing the Applicants’ credibility renders the Decision unreasonable: Mico v Canada (Minister of Citizenship and Immigration), 2011 FC 964 [Mico]; Sokhi v Canada (Minister of Citizenship and Immigration), 2009 FC 140; Atay v Canada (Minister of Citizenship and Immigration), 2008 FC 201; Owusu-Ansah v Canada (Minister of Citizenship and Immigration)(1989), 98 NR 312, [1989] FCJ no 442 (CA)(QL); Arslan v Canada (Minister of Citizenship and Immigration), 2013 FC 252 at para 36.
Failure to consider the need for protection even if the Applicants were lacking in credibility on some matters [40] Finally, the Applicants note that a refugee claimant may be in need of protection even if found to be lacking in credibility, and the RPD has a duty to examine all of the evidence to determine if protection is warranted: Kulasekaram v Canada (Minister of Citizenship and Immigration), 2013 FC 388. They argue that the RPD failed to state in clear and unequivocal terms the reasons for rejecting all of their evidence, if in fact such a rejection has taken place, and failed to consider whether they are in need of protection even if some of their testimony has been found to be lacking in credibility.
Respondent [41] The Respondent argues that the claim process unfolded appropriately, with the RPD member taking into account the Applicants’ vulnerabilities and their particular allegations of trauma, and that the Board came to a reasonable conclusion based on the inconsistencies, contradictions and implausibilities in the Applicants’ evidence.
Credibility findings [42] The Applicants’ arguments that the Board erred by making negative credibility findings based on peripheral matters and improper consideration of the medical evidence misapprehends the Board’s reasons, the significance of the multiple credibility issues identified, and the effect of the accommodation requests put forward by the Applicants themselves. On the evidence presented, the Board could reasonably find that the claims lacked credibility and should be rejected.
[43] The Respondent says that there is a well-established duty on all claimants to provide truthful information, and that the integrity of the refugee system requires that this duty be taken seriously: Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450 at para 28; Garcia Porfirio v Canada (Minister of Citizenship and Immigration), 2011 FC 794 at para 46. Where a refugee claimant fails to mention important facts in their PIF, this may legitimately be considered an omission that goes to a lack of credibility: Lopez Pineda v Canada (Minister of Citizenship and Immigration), 2007 FC 889 at paras 14-15; Sahi v Canada (Minister of Citizenship and Immigration), 2001 FCT 527 at para 18 [Sahi].
[44] In this case, the Respondent says that it was reasonable for the Board to find that the family’s claims were relevant to the Applicants’ claims in Canada given the relationship the Applicants had with CD’s parents, the role they played in the Applicants’ travel to Canada, and the fact that CD’s family left so soon after the Applicants’ departure. CD repeatedly stated that her family was in their home country when they were not, and the Board found her explanation that she was unaware of her family’s claim not to be credible. AB stated twice that he knew the family was in another country at least a year before the hearing. The Board appears to have been concerned about why the Applicants would hide the fact of the family’s asylum claims from Canadian immigration officials. They refused to provide any details to the Board as to the nature of the family’s claims or the reasons they were granted protection, despite a request for this information. The Respondent argues that it was reasonable for the RPD to request evidence about the claims, and reasonable to expect CD’s family to have access to such documents. In addition to not amending their PIFs until the hearing, the Applicants provided false evidence. This alone significantly undermined their credibility, and the Board was entitled to draw a negative inference: Li v Canada (Minister of Citizenship and Immigration), 2012 FC 998 at para 17; Ren v Canada (Minister of Citizenship and Immigration), 2009 FC 973 at paras 15-18.
[45] The summons submitted by the Applicants was found not to be genuine, the Respondent notes, and when combined with other testimony, provided a strong indication that the Applicants were not credible. AB’s PIF referred to the fact that they were told they would receive a summons, and it was the fear that AB would be incarcerated again that precipitated their flight. Yet, the summons was not mentioned in the Applicants’ PIFs, and this gave rise to serious concerns about its alleged service on CD’s family. The RPD found the Applicants’ story to be inconsistent, implausible, and not in accordance with the documentary evidence. Thus, it was reasonably open to the RPD to find that the summons was not genuine.
[46] As to the medical evidence, the Respondent says that both the reasons and the transcripts show that the Board explicitly considered the effect of the Applicants’ alleged trauma on their ability to testify. As observed by the Board, the evidence did not show that traumatized individuals tell untruths or would be unable to recall events unrelated to the trauma. The fact that the Applicants were afforded procedural accommodation in recognition of their vulnerability does not indicate that the Board accepted the credibility of their claim. The RPD respectfully and carefully proceeded with the hearing in light of CD’s Vulnerable Person designation and both Applicants’ alleged traumas. CD’s counsel explicitly stated that she did not wish to question her client as to the details of her alleged detention. The Applicants were questioned on key aspects of their claim, including events leading up to and emanating from their alleged detention, and key omissions and untruths that undermined their credibility.
[47] The Respondent argues that the Applicants did not simply misstate a sequence of events; they concealed material circumstances. There was no evidence that the Applicants suffered from symptoms that would cause them to tell material untruths such as the location of CD’s family and their claim for asylum. Moreover, they did not state that they “forgot” that the family was not at home, but that they were not initially told. Similarly, there is no evidence that would explain the production of a false document.
[48] The Board considered whether the medical reports were determinative of the Applicants’ credibility and found that they were not. The Board was entitled to find that any PTSD was not necessarily caused by the events alleged. The medical findings were based on the Applicants’ own statements to medical professionals, and since these allegations were determined by the Board to be unfounded, it was not required to accept findings that were based primarily on the Applicants’ self-reporting as to the cause of their difficulties: Benipal v Canada (Minister of Citizenship and Immigration), [1999] FCJ no 1491 at para 5 (TD)(QL); Sahi, above, at para 19.
[49] The Board also found a number of “immaterial” contradictions, and was entitled to conclude that, cumulatively, these contradictions and implausibilities contributed to the Applicants’ lack of credibility: Lawal v Canada (Minister of Citizenship and Immigration), 2010 FC 558 at para 25.
[50] In sum, the Respondent argues that the Board was entitled to analyze the Applicants’ claims based on rationality, common sense and i