2011 FC, 2011 FC 1189

Federal Court Cour fédérale Date: 20111027 Docket: IMM-7586-10 Citation: 2011 FC 1189 Ottawa, Ontario, this 27 th day of October 2011 Before: The Honourable Mr.

Justice Pinard BETWEEN: Kimbeca Vethtic KYDD and Jason Romell KYDD Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review of a decision of a member of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, (the “Act”) by Kimbeca Vethtic Kydd (the “applicant”). The other applicant is Jason Romell Kydd, the applicant’s 3-year-old son.

The Board held the applicants were neither Convention refugees nor persons in need of protection under sections 96 and 97 of the Act. [ 2 ] The applicants are citizens of St. Vincent and the Grenadines . The applicant is a 25-year-old female of limited education who lived with a man by the name of Mello Brown since she was roughly 13 years of age. Mr. Brown is the father of three of her children. He is not Jason’s father. The applicant alleges that she was in an abusive relationship with Mr. Brown.

However, this application for refugee status under sections 96 and 97 of the Act is based on a specific incident of aggression that would have occurred in 2008. [ 3 ] On September 28, 2008, Mr. Brown saw the applicant talking to one of his friends and got very jealous. When the applicant returned home that day, Mr. Brown physically and verbally abused her - striking her to the head with a machete. The applicant was hospitalized for a week. Once released from the hospital, she returned to Mr. Brown’s home. That same night, she was sexually and physically abused.

Finally, having had enough, on November 1, 2008, while Mr. Brown was at work, she grabbed her things from his home and moved in with her aunt. Two days later, Mr. Brown went to the applicant’s aunt’s house where he threatened to shoot them and burn the house down if the applicant did not return to him. The aunt called the police, but no action was taken.

[4] Afterwards, the applicant’s mother contacted a friend in Canada, to arrange for the applicant to stay with her. On December21, 2008, the applicant left St. Vincent and arrived in Canada. She claimed refugee protection on January 13, 2009 because of her fear ofMr. Brown. Her son, the other applicant, arrived in Canada on June 3, 2010 and claimed refugee protection on June 7, 2010. * * * * * * * * [5] The Board’s decision was largely based on the applicant’s lack of credibility. There were numerous problems with theapplicant’s testimony with regards to the timeline of the main events.

The applicant claimed her confusion was due to her limitededucation. The Board did not accept this excuse: the applicant was able to fluidly read her Personal Information Form (“PIF”) and dideasily recall certain dates such as birthdays. [6] Despite the Board’s attempts at aiding the applicant recall dates by making associations to the various events she did easilyrecall, the applicant was unable to establish a timeline of her relationship with Mr. Brown or the incidents of abuse.

The sequence ofevents did not make sense. [7] Moreover, there were numerous contradictions in her testimony with the information contained in her PIF and theinformation she provided at her interview with Citizenship and Immigration Canada as to the dates of main events, namely: - different years were used in describing the beginning and end of her relationship with Mr. Brown; - she claimed her worse case of abuse was when she was cut once with cutlass in 2001, but there was a hospital report with such anincident occurring in 2008; - the dates she was hospitalized; - when she went to live with her aunt.

In her PIF she said she moved out on November 1, 2010. However, in her testimony she wentto her aunt’s the day she was released from the hospital. [8] The applicant could not provide any explanation for these discrepancies. Therefore, the Board did not find her testimonycredible. In addition, when asked why she came to Canada, the applicant did not mention fear: she said it was to help her mother andobtain an education. When asked why she left her three other children with Mr.

Brown, she responded that it was more comfortable at hishome than at her mother’s. [9] Consequently, based on these discrepancies and her responses, the Board found a lack of subjective fear on the part of theapplicant. The Board thought she was attempting to modify her story to make her fear “more current”. The Board dismissed theapplicants’ claim because the applicant failed to establish a well-founded fear of persecution: the applicants were not facing a seriouspossibility of persecution based on a Convention ground under

section 96 of the Act. Moreover, since the applicant had not seen Mr.Brown the weeks prior to her departure to Canada, the Board concluded the applicants would not face a risk to their lives or cruel andunusual treatment under

section 97 of the Act: if Mr. Brown was really after her, he would have came for her then. * * * * * * * * [10] The applicable standard of review to the Board’s findings of credibility is reasonableness (Dunsmuir v. New Brunswick, 2008SCC 9 , [2008] 1 S.C.R. 190). The Board’s findings must only be disturbed if its reasoning process was flawed and the resultingdecision falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para47).

Although there may be more than one possible outcome, as long as the Board’s decision-making process was justified, transparentand intelligible, a reviewing court cannot substitute its own view of a preferable outcome (Canada (Citizenship and Immigration) v.Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339 at para 59). [11] The applicant claims the Board committed a reviewing error by not considering the evidence before it, specifically threeletters. First, the Board would have ignored the discharge letter from the hospital which clarifies the dates.

The Board would have alsofailed to consider two other letters, one dated October 18, 2009, from the applicant’s aunt which describes the events of November 1,2008 when Mr. Brown came to her house and threatened them; and another undated letter from the applicant’s mother which states thatthe applicant was in an abusive relationship with Mr. Brown, and that the applicant was hospitalized and threatened at the aunt’s house.It is the applicant’s view that these letters should have been analyzed and addressed by the Board because they are evidence contrary tothe Board’s findings.

[12] Inversely, the respondent takes the position that the Board is under no obligation to mention every piece of documentaryevidence on which it relies or rejects (Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (F.C.A.) atpara 1). The respondent adds that the Board is in no way obligated to give weight to documentary evidence that substantiates allegationsthat are not considered credible (Ahmad v. Minister of Citizenship and Immigration, 2003 FCT 471 at para 26; Hamid v. Canada(Minister of Employment and Immigration), [1995] F.C.J. No. 1293 (F.C.T.D.) at para 18).

Finally, the respondent submits that theapplicant’s lack of credibility regarding the main elements of her story constitutes a finding by the Board that there was no credibleevidence to substantiate her claim (Obeng v. Minister of Citizenship and Immigration, 2004 FC 636). [13] Although in Mladenov v.

Minister of Employment and Immigration (1994), 74 F.T.R. 161, the Board’s failure to considerletters warranted the intervention of this Court in allowing an application for judicial review, these letters were the latest evidencerelating to events since the applicant’s departure, thereby going to the issue of fear of persecution, contrary to the letters now before theCourt. While, like in Mladenov, there is no way of knowing whether or not the Board considered the letters, in the case before me, theletters do not disclose any new facts.

The Board does not doubt that the applicant was hospitalized, in an abusive relationship andthreatened. [14] The case at hand can also be distinguished from the other authorities relied on by the applicant where adverse findings ofcredibility by the Board led to judicial review: in the case before the Court today, the Board did provide reasons as to why it did notconsider the applicant’s testimony credible (contra to Armson v.

Minister of Employment and Immigration (1989), 101 N.R. 372). [15] In my view, although the Board did not even include in its decision a boilerplate sentence that it considered all of the evidencebefore it (Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), (FC), 157 F.T.R. 35 atpara 16), it did not commit a reviewable error by not explicitly addressing the aforementioned letters in its decision. The Board didprovide reasons as to why it found the applicant’s testimony lacked credibility and it did consider documentary evidence.

The Board doesnot negate any of the facts summarized in the letters.

The letters do not establish anything new and the Court should not infer from theBoard’s silence that it made an erroneous finding of fact without regard to the evidence before it (Cepeda-Gutierrez, above, at para 16).Ultimately, the Board was not required to refer to every piece of evidence that was contrary to its findings (Cepeda-Gutierrez at para 16)and great deference is owed to its findings of fact. [16] Accordingly, the standard of review being reasonableness, the Board did not commit a reviewable error in not explicitlyaddressing the letters submitted by the applicant. * * * * * * * * [17] For the above-mentioned reasons, the application for judicial review is dismissed. [18] I agree with counsel for the parties that this is not a matter for certification.

JUDGMENT The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board,determining that the applicants were neither Convention refugees nor persons in need of protection under sections 96 and 97 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27, is dismissed. “Yvon Pinard” Judge

FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-7586-10 STYLE OF CAUSE: Kimbeca Vethtic KYDD and Jason Romell KYDD v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal , Quebec DATE OF HEARING: September 21, 2011 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: October 27, 2011 APPEARANCES : Me Arash Banakar FOR THE APPLICANTS Me Thi My Dung Tran FOR THE RESPONDENT SOLICITORS OF RECORD : Arash Banakar FOR THE APPLICANTS Montréal, Quebec

Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada