Ottawa, Ontario, March 2, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) dated January 27, 2005, in which the Applicant (Paulina Rodriguez Martinez) was found not to be a Convention refugee. The IRB found the Applicant's story not to be credible and, in dismissing her claim, concluded that "[a]ccording to section 107(2) of the Immigration and Refugee Protection Act (Act), I am required to state that there is no credible basis for this claim".
[2] The Applicant had claimed that she was entitled to refugee protection on the basis of her fear of being persecuted through murder and/or repeated rape, threats or abduction by her former boss, due to her membership in a particular social group, female victims of violence.
[3] The IRB found that she was not credible for the following reasons:
· she was evasive in her responses;
· she put forth new grounds - that her boss was involved in illicit dealings of which she had knowledge - without satisfactory explanation for not disclosing this basis sooner;
· her story did not accord with common sense;
· her Record of Examination, PIF and oral testimony had significant inconsistencies; and
· the psychological report she submitted lacked veracity.
[4] Central to the basis for her fear was her kidnap and rape, in which she claimed that her former boss was involved. Initially, in her Record of Examination, when asked why she believed her boss was involved in her kidnapping, she replied that, after she left her job, strange events began occurring such as receiving threatening phone calls and her boyfriend being beaten up. Later, in her PIF and IRB testimony, she said that she knew her former boss was involved because she heard his voice when she was with the kidnapper.
[5] It is accepted that the standard of review of IRB credibility findings such as these is patent unreasonableness. (See Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A.) (QL).)
[6] In its decision, the IRB met the standards according to which a court will defer to the IRB's credibility finding:
· it provided valid reasons for finding a lack of credibility;
· the inferences drawn were based on plausible findings;
· the inferences drawn were supported by evidence; and
· the findings of fact were not perverse, capricious or without regard to the evidence.
(See Bains v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 (QL), at paragraph 11.)
[7] The IRB was more than reasonable in questioning the Applicant's credibility about the kidnapping. One would have thought that if the fear were based on the involvement of the Applicant's former boss, the Applicant would have immediately explained that she knew of his involvement because she had heard his voice during her kidnapping. Similarly, I cannot find any basis to challenge the other aspects of the IRB's overall credibility conclusions.
[8] The Applicant raised a legal issue in respect of s. 107(2) of the Act. Specifically, the Applicant accuses the IRB of committing an error of law since, before stating that there was "no credible basis for this claim", the IRB said "... I have insufficient credible and trustworthy evidence on which I could have made a favourable decision".
[9] S. 107(2) reads:
| 107. (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim. |
107. (2) Si elle estime, en cas de rejet, qu'il n'a été présenté aucun élément de preuve crédible ou digne de foi sur lequel elle aurait pu fonder une décision favorable, la section doit faire état dans sa décision de l'absence de minimum de fondement de la demande. |
[10] The gravamen of the Applicant's argument is that there is a significant difference between "insufficient" credible evidence and "no" credible evidence.
[11] At first blush, this argument has some theoretical attractiveness. However, a review of the decision, as a whole, shows that the IRB simply did not have before it evidence sufficient in law to sustain a positive finding of the claim. As Evans J.A. stated at paragraph 30 of Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537 (F.C.A.) (QL), "the existence of some credible or trustworthy evidence will not preclude a 'no credible basis' finding if that evidence is insufficient in law to sustain a positive determination of the claim".
[12] It is perhaps advisable to avoid the use of words such as "insufficient credible evidence" in the same breath as "no credible evidence". It may also be that the juxtaposition of sufficiency of credible evidence and the absence of credible evidence under s. 107(2) should be considered for certification but this is not the case upon which to ground such an analysis. Here there is simply no substantive basis for overturning the IRB's decision.
[13] For these reasons, this application for judicial review is dismissed.
JUDGMENT
IT IS ORDERED THATthis application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-889-05
STYLE OF CAUSE: Paulina Rodriguez Martinez
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 28, 2006
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
| Mr. Loftus Cuddy
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| Ms. Marina Stefanovic
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SOLICITORS OF RECORD:
| Gertler & Associates Barristers & Solicitors Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|