TA8-02743

RPD File No. / N° de dossier de la SPR : TA8-02743 TA9-15999 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX) XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX XXXXX) Demandeur(e)(s) d'asile Date(s) of Hearing April 29, 2010 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision Date de la décision June 8, 2010 Panel Edward C. Robinson Tribunal Counsel for the Claimant(s) Johnson Babalola Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer V. Currie Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX) ("the claimant") and XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX XXXXX) (the minor claimant) claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 ALLEGATIONS [2] The claimant alleged the following: [3] She met her former common-law partner, XXXXX XXXXX, in 1999. In XXXXX 2001 they started dating. In 2003 she gave birth to their daughter. Sometime around the following year they moved in together. She alleged that at first he was very nice to her but things changed in XXXXX 2006 when he started making more money in his job as a XXXXX. He began drinking more heavily, would smoke marijuana and cocaine. [4] In the XXXXX XXXXX of 2006 the claimant alleged that her ex-partner beat her up for the first time because someone told him she was seen with her former lover. She alleged that later in the relationship she was mentally and sexually abused also. [5] Several reports were made to the police but because her ex-partner has friends in the police force and he also works renovating police stations no action was taken against him. He even threatened her that if she went back to the police station he would kill her. In one of the incidents of assault against the claimant in XXXXX 2006, one of her hands was broken and she had to be hospitalized. [6] The claimant alleged that her ex-partner would also abuse her son, the minor claimant, by another father. She alleged that she tried leaving her ex-partner several times but he always went back for her. In fact, she left and went to XXXXX in XXXXX 2007 to stay with a friend. She was told that in XXXXX the police don't offer protection for victims of domestic violence. In fact, she alleged witnessing her friend's boyfriend assaulting her. [7] However, the claimant alleged that while in XXXXX her mother called and told her that her ex-partner went to her and apologized, told her he had changed and he was asking her daughter to return to him. The claimant alleged that she returned to St. Lucia, but in XXXXX 2007 he started up his abusive behavior again. She left and went into hiding staying with a friend until she came to Canada on XXXXX XXXXX, 2007 and filed for refugee protection on XXXXX XXXXX, 2008. Her son, the minor claimant, came to Canada to join his mother on XXXXX XXXXX, 2008 and filed for refugee protection on August 5, 2009. DETERMINATION [8] The panel finds that the claimants are not Convention refugees, as they do not have a well-founded fear of persecution in St. Lucia. The panel also finds that the claimants are not persons in need of protection in that their removal to St. Lucia would not subject them personally to a risk to their life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. ANALYSIS Identity [9] The panel is satisfied by reason of certified copies of their passports2 that the claimants are citizens of St. Lucia. Credibility [10] The panel, in considering the credibility of the claimant, made an assessment of all the evidence, both oral and documentary.3 The evidence was also assessed as a whole so it could be treated in a consistent manner.4 However, not every piece of evidence will be referred to, but those the panel finds relevant to its decision.5 Even if a piece of evidence is not referred to, the panel carefully considered it as part of the evidence.6 The panel is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.7 [11] The central elements in this claim are that from sometime in 2006 to XXXXX 2007 the claimant was repeatedly beaten by her ex-partner and sexually assaulted. On one occasion he broke one of her arms. She testified that he burnt her over her body with cigarettes including her breast.8 She also testified that her son, the minor claimant, was repeatedly beaten by her ex-partner too. Although she and her mother tried to seek help from the police, it was not forthcoming. She testified that she went twice to the police who were friends with her ex-partner, but they did not believe her and did not take her report seriously. She was told to go home and give him more sex and make him happy. [12] The claimant said she tried to leave her ex-partner but he would force her to return. On one occasion when she left him and went to XXXXX, he apologized, said he had changed and she returned to him voluntarily, but about two months after she returned the beating started again. She said her siblings spoke to him but he threatened to blow their heads off with his licensed firearm if they got involved. They got scared and left him alone. She said not only were her siblings afraid of him but everybody was. The claimant said her ex-partner threatened to kill her and she fears him because he has a gun and has a temper and she has not received protection in St. Lucia. She also said that as a XXXXX XXXXX he would work XXXXX police stations, thus he became friends with several police officers and would drink with them. [13] The panel believes that the claimant has a child (daughter) for XXXXX (ex-partner) and they may have lived together in a common law relationship but it does not believe that the claimant was a victim of domestic violence and that she sought police protection but was denied it. The panel believes that the allegations of domestic abuse and violence are exaggerations and embellishments to bolster her claim for refugee status. In coming to its conclusion, the panel examined the evidence before it carefully. The claimant met XXXXX, a XXXXX XXXXX around the XXXXX of 1999 and began dating in XXXXX 2001. She became pregnant and had their daughter in 2003. About six months later they moved in together. She took her son from a previous union to live with them. Around XXXXX of 2006, XXXXX, who was a drinker and drug user before, begun drinking heavier and had even graduated from smoking marijuana to using cocaine, and had physically assaulted the claimant for the first time. The reason he assaulted her was because she had spoken to him about spending too much money on the use of drugs. He got angry and started hitting her. She said she did not go to the hospital. After that first beating, according to her testimony, from then on he would beat her for anything she did that he didn't like. [14] The panel notes that the claimant started to have difficulty with her testimony when she was asked if the first assault against her was when someone told her ex-partner that she was seen talking to a former boyfriend or if it was the second. Normally this piece of evidence would not be significant of and by itself, but because it has to do with when she went to the police, this piece of evidence takes on added meaning. For example, she said in her Personal Information Form (PIF)9 narrative that the first incident of abuse occurred when her ex-partner was told by someone that she was seen talking to her former boyfriend and he got angry and beat her up. [15] In her oral testimony, however, she said that this was the second incident of abuse. When she was asked to explain the discrepancy, she said she got a little mixed up with the dates. The panel finds it undermines her credibility, especially when her testimony is still very vague as to whether it was the first or second incident of physical abuse. [16] The panel notes that the most severe beating the claimant received was in XXXXX 2006 which landed her in the hospital. She said that her ex-partner had choked her and fractured one of her arms. However, while she was in the hospital, the police attended. Importantly, the claimant testified that if the doctors suspect that a patient is the victim of a crime, they will call the police and the police will question the patient. Documentary evidence indicates that police officers have received training to investigate crimes against women.10 In this case, the hospital staff must have notified the police for the claimant testified that that the police attended and questioned her. But instead of telling the police what her ex-partner had done to her, she told them that she had fallen. Asked why she told the police she had fallen, she said because her ex-partner had threatened that if she said anything about him, he would kill her. [17] However, while the panel takes into account the gender guidelines11 and her possible state of mind, it notes that the claimant testified that she went to the police and made at least two reports to them about her abuse even after she had been threatened by her ex-partner. So, the claim that she didn't tell the police, that her ex-partner was responsible for her injuries because he had threatened her not to say anything to the police makes absolutely no sense. [18] For example, in her testimony, she went to file a report to the police on two occasions, once with her mother and another time with her sister, but the police did not take her reports. She was asked why she went to the police. She said because she feared for her life, which means that because she feared her ex-partner she went to seek help from the police, but at the same time she also testified that she didn't seek help from the police because she feared her ex-partner. The panel finds the claimant's allegations confusing and inconsistent with common sense and rationality and finds that they undermine her credibility. [19] For example, the claimant testified that she went to the police who refused to take her report, more than once, but the panel notes that when the police came to her to take her report at the hospital she was the one who refused to report the assault. Why, when the opportunity to inform the police, especially when they were the ones who approached the claimant for her story, and when she had the hospital staff as support, she did not tell the police what her ex-partner had done to her? Her explanation for not telling the police the truth was that her ex-partner had threatened to kill her if she did, which the panel could understand. [20] But the panel also notes that her explanation for going to the police to make subsequent reports were because she feared her ex-partner too. This confuses the panel, which finds that when in this case a third party makes the report to the police about the claimant's apparent injury the police respond with obvious professionalism, but when the claimant makes a report, even in the company of her mother and sister respectively, the police refused to take action. This, in the panel's view, does not make sense. [21] The panel therefore finds the claimant's allegations that she tried to make reports to the police, but they did not take her reports, to be fabrications to enhance her claim for refugee status. Why would the police seek her report when they are called by the hospital but not take her reports when she comes to the police station? As was stated before, it makes absolutely no sense to this panel. As such, the panel further finds that if indeed the claimant was abused, state protection not only existed but she would have received it if she had sought it and her allegations that the police were unhelpful are embellishments and exaggerations which further undermine her credibility. [22] The panel also notes that nowhere in the claimant's PIF narrative12 did she mention that she was hospitalized for several days after her ex-partner broke her arm in XXXXX 2006 and that the police were called by hospital officials and they attended and interviewed her and that she told them that she had fallen. She only said that "He broke my arm in XXXXX 2006 and I had to be hospitalized".13 [23] As such, the panel finds that the omission from her narrative that she was interviewed by police after the hospital had called them and especially the fact that she told the police that she had fallen and broke her arm, was to mislead the panel which undermines her credibility. For example, the arrival or response of the police when they were apparently called by the hospital and the police efforts to investigate how the claimant sustained her injuries would show that the police were doing their job well. The panel finds that is not the picture the claimant wants to portray; to the contrary, the claimant wants to portray the police as corrupt and in inept. But in this particular case, the allegation of a corrupt and inept police force does not correspond with objective evidence before this panel. [24] For example, the panel notes that the objective evidence before it is that the hospital called the police and they responded and were willing to investigate, which the panel finds that the claimant had selectively omitted from her PIF narrative. This information only inadvertently came to light in oral testimony. But she made sure to include in her PIF narrative that she went to the police twice but they refused to take her report seriously. The panel therefore rejects her allegations that she went to the police and they did not take her reports. [25] With reference to the assault in which her arm was broken, etc., the claimant was asked why she failed to report the most serious physical assault to the police, but reported the less serious assaults. She said at the time her arm was broken, that was the time he threatened her. Because the panel found the answer vague and confusing, it reminded the claimant that she testified that she had also gone to the police on two occasions after her ex-partner had also threatened her. She said that was because she couldn't take the beating any more. The panel still found the claimant's response vague and confusing and rejects her allegation that she was fearful of her ex-partner and he had threatened her. And if she was not threatened or fearful of her ex-partner she has no subjective basis. The Federal Court has held that the claimant must establish that the fear has a subjective basis.14 The panel finds that the claimant did not establish that her alleged fear of persecution had a valid basis,15 and as such, did not find that the evidence showed "good grounds" for the claimant to fear persecution.16 [26] The panel also finds that the claimant's allegations that her ex-partner, because he is a XXXXX XXXXX and had XXXXX police stations, he had made many police friends who have become his drinking buddies and had become so well-known to the police to the extent they didn't believe her that he was being abusive to her, and also that the police had told her to be nicer to her ex-partner, as embellishments and exaggerations to enhance her claim for refugee protection. [27] The panel does not believe that the on one hand, police officers who had shown a willingness to assist the claimant when they were summoned to the hospital, would now be finding excuses now that she has approached them for help. As such, the panel finds that the claimant made no report to the police despite the opportunity to do so when she was at the hospital. [28] The panel also notes that not only has the police approach to gender based violence been improved as demonstrated in their response to the claimant's abuse reported by the hospital officials, it also indicates that the authorities have obviously taken their participation as a signatory to the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women in 1994 seriously.17 [29] The panel, in examining the evidence before it, finds that state protection in this case was available to the claimant but for whatever her reason was she did not access it. Instead she has taken a set of facts and through embellishments and exaggeration concocted a story to bolster her claim for refugee status. She has also brought her son into the web of embellishments and exaggerations. For example, the claimant testified that in the beginning her ex-partner was good to her. She was happy to have him which, in the panel's view, meant that he was also good to her son because she said she was happy. But she would have the panel believe that her ex-partner was always beating her son. When she was asked why she didn't include in her narrative her son's beatings, which she testified was as often as every other week, she said she was sorry she didn't include it. The panel finds that if her son was beaten once every two weeks by her abusive ex-partner she would have included the information in her PIF narrative. [30] The panel further notes that the claimant's son is included in the claim because he was being beaten by the claimant's ex-partner but she didn't include his experience of physical abuse in her original story even though she did say that her ex-partner was nasty to her son, e.g. he called him a bastard. Thus, the panel finds that the omission undermines the claimant's credibility. The panel believes that had her son been physically abused as she now claims at least she would have included it in her narrative; if only to support her own story that she and the children were being abused. [31] In her narrative18 she mentioned that her son and daughter cried daily because they missed her. Her son, according to the claimant, was doing poorly in school because he missed her. There is nothing about his stepfather physically abusing him in her narrative19 or her son's original narrative20 which is the claimant's story, but in her son's amended narrative21 dated February 18, 2010 and signed by his mother, the abuse of the minor claimant by his stepfather is introduced for the first time, a little more than two months before the hearing which occurred on April 29, 2010. [32] The panel also notes that the minor claimant arrived in Canada on XXXXX XXXXX, 2008 but his claim was only made on August 5, 2009 and, as previously indicated, the amended narrative22 done on February 18, 2010. The panel does not believe that the minor claimant was abused and finds that the minor claimant's story of abuse was added in as part of the strategy of fabrication, embellishment and exaggeration in this claim. [33] The delay in claiming refugee protection for the minor claimant and the late introduction of the story of his abuse also undermine the claimants' credibility and the panel rejects the allegation that the minor claimant was abused. [34] The panel notes the claimant was asked where is her daughter; she said back home, which means in St. Lucia. She was asked why her daughter is still in St. Lucia. The claimant said because he doesn't want her. The panel finds the answer vague and evasive and does not make sense. It finds that it also undermines her credibility as she did not answer the question why her daughter is still in St. Lucia when she and her son are here. She was asked why her ex-partner doesn't want his daughter. She said he told her that she is just like her mom. The panel notes that this child is about seven years old but the claimant would have the panel believe that her father is accusing his daughter for being just like her mother. The panel does not believe this allegation and rejects it as inconsistent with common sense and rationality, especially in light of the evidence at exhibit C-5.1 which seems to contradict her testimony that alleged that the ex-partner doesn't even go see his daughter. [35] The panel finds that the claimant and her ex-partner's daughter, based on the evidence in exhibit C-5.1 are doing fine. Any allegation that seems to imply that their daughter is not fine in St. Lucia, the panel finds, is embellishment to bolster the claimants' claim for refugee status. If the daughter was not doing fine, in the panel's view, the claimant would have taken her. The panel notes the evidence of alleged injuries indicated in the photographs of the body of the claimant23 and finds that there is no independent corroborative evidence that the injuries occurred the way the claimant said they did. [36] In addition, the panel notes the photographs,24 one with the claimant's ex-partner smoking and the other with him presumably drinking and finds that even if they were staged for the benefit of the claim, e.g. to support the allegation that he is a heavy drinker and drug user, there is no way for the panel to know that the smoking and drinking depicted in the photographs are not of a socially accepted level. Therefore, the panel assigns no weight to them, especially as the claimant, in the view of this panel, has serious credibility problems. [37] The panel notes that if these other incidents the claimant alleged to have happened to her didn't occur then she has no objective and subjective basis for her claim. The Federal Court has ruled that the claimant must subjectively fear persecution, and this fear must be well-founded in an objective sense. Thus, a lack of evidence going to the subjective element of the claim is in itself sufficient for the claim to fail.25 This appears to be so even when there is evidence that an objective basis for the fear exists.26 [38] At the same time, the panel is cognizant of the principle established by the Federal Court in Maldonado27 that "when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true, unless there be reason to doubt their truthfulness." The Federal Court of Appeal has also pointed out in Orelien28 that, "One cannot be satisfied that the evidence is credible or trustworthy unless satisfied that it is probably so, not just possibly so." [39] Case law also exists to support that a panel may reject testimony even if it is uncontradicted if that evidence does not accord with the probabilities affecting the case as a whole. In this respect the British Colombia Court of Appeal stated in Faryna vs. Chorny29 that, "In short the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." [40] The panel also looked at delay in claiming and finds that it is recognized by the Federal Court as an important factor in assessing the claimant's credibility and her subjective fear. It is reasonable to assume that persons with a well-founded fear of persecution will attempt to apply for refugee protection without unreasonable delay.30 The delay in this matter is not necessarily substantial but significant for if she was fleeing persecution to escape a tyrannical spouse approaching the Canadian authorities immediately with her story would demonstrate a fear of what she is running from and that she faces serious harm in St. Lucia if she were to return. While delay in making a refugee claim is not in itself decisive, it is a relevant factor to be considered when assessing the overall viability of the claim.31 [41] What adds to the significance of the delay is that she arrived in Canada on XXXXX XXXXX, 2007 and filed for refugee protection January 15, 2008, less than a month but her son, on the other hand, for whom the claimant must take responsibility because he is a minor, the delay is substantial. He arrived in Canada on XXXXX XXXXX, 2008; exactly a year after the claimant arrived, but did not file for refugee protection until August 5, 2009, over eight months after he arrived. [42] The panel notes that the claimant explained her delay in claiming that when she arrived she stayed with a friend but the friend was pregnant and not feeling well, so the friend advised the claimant to wait a while until she felt better after which they contacted a lawyer on XXXXX XXXXX, 2009. However, with the minor claimant, the claimant now had a lawyer dealing with her claim. Her son was being abused in St. Lucia, yet she waited over eight months to file for refugee protection for her son, risking deportation from Canada of her son because there is no evidence that he sought and was granted a visa extension. The panel finds that the claimant's behaviour does not reflect that of a person with a subjective fear basis and finds that the delay undermines the claimants' credibility. [43] The panel examined carefully the documentary evidence32 before it, including those provided by the Board33 along with counsel's submissions and finds that there are basis of objective fear given the serious problems of domestic violence in St. Lucia and child abuse. And even though the authorities are making some serious efforts to address the problems, there is still evidence of domestic violence and children being abused in that country. However, the panel notes that the Federal Court finds that where a claimant is found to be lacking in credibility, as in this case, the panel can legitimately find that there is no subjective fear basis for the claim. In such cases, it is very difficult, if not impossible, to find credible evidence of a claimant's subjective fear notwithstanding the existing evidence of human rights violations in the claimant's country.34 [44] Given the problems with respect to major issues, the panel finds that the claimant was generally lacking in credibility. The panel simply does not believe, on a balance of probabilities, that any of the significant events that the claimant alleged happened to her, actually happened, and therefore the claim, pursuant to section 96 of the IRPA fails. There being no other persuasive evidence that would indicate that the claimant is, on a balance of probabilities, subject to the risks enumerated under section 97 of the IRPA, the claim pursuant to that section fails as well. [45] The panel finds that pursuant to subsection 107(2) of the IRPA, that there was no credible or trustworthy evidence on which a favourable decision could be made and therefore there was no credible basis for the claim. CONCLUSION [46] For all these reasons, the Refugee Protection Division therefore rejects the claims. The claimants are not Convention refugees or persons in need of protection. (signed) "Edward C. Robinson" Edward C. Robinson June 8, 2010 Date REFUGEE PROTECTION DIVISION / GENDER / DOMESTIC VIOLENCE / DELAI IN MAKING A CLAIM / CREDIBILITY / STATE PROTECTION / FEMALE / DAUGHTER / NEGATIVE / SAINT LUCIA 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit R/A-2, certified copy of the claimants' passports provided by Citizenship and Immigration Canada (CIC). 3 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. 4 Bosiakali, Mbokolo v. M.C.I. (F.C.T.D., no. IMM-4948-00), Nadon, December 14, 2001 FCT 1381. 5 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 16, 1998. 6 Hassan, Jamila Mahdi v. M.E.I. (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). 7 Alizadeh, Satar v. M.E.I. (F.C.A., no. A-26-90), Stone, Desjardins, Décary, January 11, 1993. 8 Exhibit C-10, photographs. 9 Exhibit C-1. 10 Exhibit R/A-1, Item 5.2, LCA101665.FE, 13 October 2006, para. 2, last line. 11 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 12 Exhibit C-1, PIF narrative. 13 Exhibit C-1, PIF narrative, para. 1, p. 11. 14 Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.). 15 LAI, Kai Ming v M.E.I. (F.C.A., no A-792-88), Marceau, Stone, Desjardins, September 18, 1989. Reported: Lai v. Canda (Mininster of Employment and Immigration) (1989), 8 Imm. L.R. (2nd) 245 (F.C.A). 16 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.).[0] 17 Exhibit R/A-1, Item 5.2, LCA101665.FE, 13 October 2006, para. 4, last sentence. 18 Exhibit C-1, PIF narrative. 19 Exhibit C-1, PIF narrative. 20 Exhibit C-1a, PIF narrative. 21 Exhibit C-1b, amended PIF narrative. 22 Exhibit C-1b, amended PIF narrative. 23 Exhibit C-10. 24 Exhibit C-5.2 25 Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999. 26 Sinora, Frensel v. M.E.I. (F.C.T.D., 93-A-334), Noel, July 13, 1993. 27 Maldonado v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 220 (F.C.T.D.). 28 Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.). 29 [1952] 2 D.L.R. 354 (B.C.C.A.) at 357. 30 Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 31 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 32 Exhibits C-2, C-5, C-8, C-9. 33 Exhibits RA/3, Item 5.1-5.5, and Exhibit RA/1. 34 Amaniampong, Kofi v M.E.I. (F.C,A., no. A-1326-87), Heald (dissenting), Hugessen, Mahoney, May19, 1989. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA8-02743 TA9-15999 RPD File No. :TA8-02743 TA9-15999