Date: 20050131
Docket: IMM-5018-04
Citation: 2005 FC 147
Ottawa, Ontario, the 31st day of January 2005
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
MARTINE SUZANNE MATHURIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by Martine Suzanne Mathurin (the applicant), a citizen of Haiti, of a decision by the Refugee Protection Division (the panel or the RPD) on April 6, 2004, denying her refugee status.
[2] The panel did not believe her story because it "contains such significant inconsistencies and contradictions that it cannot, in my opinion, be true".
[3] Her account, as stated in her PIF, was as follows:
(1) she worked as a security officer for an airline service company: she was trained in the detection of fraudulent travel documents and had a good knowledge of x-rays and detection of unlawful drugs;
(2) she said her problems began in September 2002 when she was working for the HAT company: she quickly realized that several people in the company "were turning a blind eye to certain irregularities"; she told her superior, who did nothing about it;
(3) on September 16, 2002, she said she was attacked and raped in the HAT parking lot; she said that soon afterwards her mother received a call telling her that this attack was only a warning;
(4) on October 26, 2002, she was dismissed by HAT on a false pretext;
(5) following her dismissal, she resumed her voluntary activities in the Jeune Pouvoir Populaire, but said she found that [TRANSLATION] "their views were more political, tending to violence", which she told members, who she said threatened her following these comments;
(6) on January 4, 2003, her house was set on fire and her grandmother died from burns;
(7) the applicant left Haiti on March 23, 2003, with a Canadian visa.
[4] I set out the inconsistencies and contradictions mentioned by the panel. The panel put each of these points to the applicant and said that it was not satisfied with her explanations.
[5] First, the panel found an inconsistency between the applicant's PIF, completed on July 1, 2003, and her interview with an immigration officer on June 3, 2003.
[6] In this regard, the panel noted that in her interview with the immigration officer the applicant did not mention two significant problems which she said in her PIF she had suffered from (the rape and the fire).
[7] Secondly, the panel found that her rape story was inconsistent, as the PIF version was not the same as that given in testimony.
[8] Third, the panel also noted an inconsistency regarding her dismissal. While the applicant maintained that she was dismissed because of her inflexible attitude at work, her PIF indicated that it was for this very reason that HAT hired her in the first place.
[9] Fourth, the panel questioned whether the applicant belonged to the popular organization Jeune Pouvoir Populaire, given the fact that she had not provided any proof of her membership in that movement.
[10] In this connection, the panel also noted that the applicant had contradicted herself about the nature of the organization's activities. In the interview with the immigration officer, she stated allegedly that she was a member of a party; in her PIF, she simply stated that she was a member of a popular association; testifying before the panel, she maintained that the organization was for non-political youth.
[11] Fifth, the panel noted inconsistencies in the applicant's places of residence.
[12] Although she said in her PIF she had to"she had been forced to go into hiding and seek refuge elsewhere" after the fire of January 4, 2003, she submitted in Schedule 1 that she had lived at the same place from October 1999 to March 2003, when she left her native country to come to Canada. In a document entitled "General Information", she indicated that the last address she had in Haiti was that of the burnt-out house.
[13] Accordingly, the panel made six determinations:
(1) the applicant was never attacked;
(2) her residence was never burned down;
(3) she never changed her address after the fire in order to go into hiding;
(4) she did not establish a reasonable possibility of persecution if she were to return to Haiti;
(5) there is no basis for applying the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution;
(6) she did not establish that she was exposed to the risk of torture, a threat to her life or cruel or unusual treatment and punishment.
[14] The standard of review of a decision based on credibility is that stated in paragraph 18.1(4)(d) of the Federal Courts Act. The panel must have based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it, which is the equivalent of the patently unreasonable standard of review.
[15] In Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, L'Heureux-Dubé J., speaking for the Court, in paragraph 85 of her reasons issued a warning:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[Emphasis added.]
[16] Décary J. said the following about the tribunal's powers regarding the credibility of testimony, in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. 732, at paragraph 4:
¶ 4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[Emphasis added.]
[17] With reference to the transcript, counsel for the applicant sought to persuade the Court that the panel attached undue importance to these contradictions, omissions and inconsistencies.
[18] I do not agree with those arguments. In my opinion, the evidence in the record considered reasonably can support the panel's findings. In effect, what counsel for the applicant is inviting the Court to do is prohibited, namely to review and re-assess the evidence.
[19] I feel that the panel erred in not commenting on Exhibit P-7, a fire report by the Haitian authorities.
[20] On reflection, and after considering the evidence as a whole, I cannot find that that error was conclusive.
[21] There is no evidence linking the fire to the applicant's alleged persecuting agent. What is more, the panel did not believe that the applicant was part of the organization from which the threats came at that time.
ORDER
THE COURT ORDERS that:
This application for judicial review is dismissed. No question is certified.
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"François Lemieux"
J u d g e |
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5018-04
STYLE OF CAUSE: MARTINE SUZANNE MATHURIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 27, 2005
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Lemieux
DATED: January 31, 2005
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Lynne Lazaroff FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
Montréal, Quebec
John H. Sims FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec