Date: 20110609
Docket: IMM-5907-10
Citation: 2011 FC 659
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 9, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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DJIDDA MAHAMAT ACHE,
ALKHALI MAHAMAT SALEH,
HABABA MAHAMAT SALEH,
ZENABA MAHAMAT SALEH,
MAHAMAT AL MOUKHTAR MAHAMAT SALEH,
MOHAMAD AMINE MAHAMAT SALEH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (RPD), dated September 17,
determining that the principal applicant and his family are not refugees or
persons in need of protection within the meaning of sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
The claim for refugee protection was refused on
the basis that the credibility of the principal applicant and, in certain respects,
that of his wife were found to be problematic. In this regard, the RPD noted
inconsistencies, contradictions and omissions in the principal applicant’s
testimony and in the documentary evidence.
[3]
The alleged persecution of the applicant stemmed
from the actions of the national security agency (ANS) of Chad, the applicants’ country of origin.
The principal applicant was vice-president of Chad’s chamber of commerce. On the way back from a conference in Quebec, the principal applicant stopped
over in Paris, to attend a
meeting and then visit his cousin. His cousin is Acheck Ibn Omar, an exiled
Chadian dissident supposedly involved in subversive activities against the
government of Chad. Because of
his renewed contact with his cousin, the principal applicant was allegedly
taken aside by the ANS upon his
return from Paris. He was
allegedly imprisoned, mistreated, beaten and even tortured.
Issues and
Standards of Review
[4]
The applicants submit three determinative issues
that allegedly taint the RPD’s decision. First, they submit that the assessment
of the applicant’s credibility contains errors, inter alia because of
the principal applicant’s recognized status as a “vulnerable person”. The
assessment of the credibility of a refugee protection claimant is a question of
fact on which the Court must defer to the RPD. Accordingly, that decision is
assessed according to the standard of reasonableness, by which the decision
must fall within the range of decisions that are defensible in fact and law (Dunsmuir
v New Brunswick, 2008 SCC 9; Semextant v Canada (Citizenship and
Immigration), 2009 FC 29; Bunema v Canada (Citizenship and Immigration),
2007 FC 774). More specifically, this issue has two components in this case.
First, did the RPD fail to consider the applicant’s “vulnerable person” status
when assessing his testimony? There is also the issue of whether or not an
interpreter was present at the port of entry and how this affected the
assessment of credibility.
[5]
The applicants also submit that beyond the
assessment of credibility, the RPD failed to address the issue of whether they
were persons in need of protection within the meaning of section 97 of the
IRPA and that, for this reason, the decision should be varied. In light of the
arguments raised and given the decision of the RPD, this is a question of law,
namely, whether the RPD must analyze the possible grounds under section 97
if it has already decided that the applicants’ credibility is lacking. This
aspect is assessed on the standard of correctness (see Meija v Canada (Citizenship and Immigration), 2010 FC 410 and Plancher v Canada (Citizenship and Immigration), 2007 FC
1283 for examples of how this question of law has been dealt with).
Analysis
Credibility
of the applicants
[6]
The RPD’s decision deals almost exclusively with
this issue. The Member of the RPD noted the following incongruities, among
others, and was not satisfied with the answers given by the applicant and his
wife:
i.
The principal applicant attended a conference in
Washington during the period he
was allegedly being detained in Chad. The explanations for failing to mention this trip at the
port-of-entry interview and for taking two months to tell his counsel about it
were deemed to be unsatisfactory. This trip was described as being [translation]
“important” in his narrative but was not included until the PIF was amended for
the second time.
ii.
The allegations of the principal applicant’s
wife and the information provided by the principal applicant in his narrative
contradicted each other regarding the circumstances of the departure of the
applicant and his children from Chad.
iii.
The principal applicant originally stated that
he had been alone with his cousin during his stay in Paris. Later, when questioned, he revealed that several other people had
visited his cousin’s apartment during that period.
iv.
There were contradictions regarding the role the
director of the ANS played in
his interrogations and abuse in Chad.
v.
The plausibility of the applicant’s narrative
was called into question in several respects.
[7]
Are these findings of fact regarding the
applicants’ credibility reasonable, according to the applicable standard of
review?
[8]
The RPD’s decision is long, detailed and
reasonably based on the testimonies of the applicants, the documentation they
filed in support of their refugee protection claim and the refugee protection
claim process itself as it unfolded. The decision is reasonable, even
exemplary, in its assessment of credibility and in its supporting reasons for
this assessment.
[9]
Thus, two questions arise. First, did the absence
or presence of a translator at the port-of-entry interview warrant the
intervention of the Court and the rejection of the reasons supporting the
assessment of credibility? This is relevant for the principal applicant, as he
alleges that stress, having to travel with children and the circumstances meant
that his port-of-entry interview was not the most reliable and therefore should
not be regarded negatively, particularly as regards his failure to mention that
he had travelled to the United States.
[10]
It is indeed risky for the Court to make a
ruling regarding the presence of a translator, given the material in the
documentation. Thus, the issue is not really whether the applicant understood
everything or whether he could express himself well enough to explain his
narrative. On the contrary, it is more a question of what was not said regarding
his presence in the United States when he was supposedly in detention. Whether it was in Chadian
Arabic or in French, the applicant did not address this in the interview and
did not correct the oversight until much, much later, in a second amendment
to his PIF. What is more, the explanations he gave were deemed to be
insufficient. The Court is satisfied that the RPD’s decision is reasonable in
this regard.
[11]
The principal applicant was later determined to
be a “vulnerable person” within the meaning of the applicable directive.
However, it appears that procedural accommodations were in fact made by the
Member: the hearing began with the applicant’s counsel, there were frequent
recesses throughout the hearing to check on the applicant’s state, and help was
offered during testimony. Moreover, the RPD’s decision indicates that
vulnerable person status was in fact taken into account.
[12]
First of all, the RPD is not bound by such
directives, and the failure to follow a directive is not in itself a
ground for judicial review (Munoz v Canada (Citizenship and Immigration),
2006 FC 1273; Balasingam v Canada (Citizenship and Immigration), (1998)
157 FTR 143 (FC); Sy v Canada (Citizenship and Immigration), 2005 FC
379). As the reasons for decision clearly indicate that the applicant’s
psychological vulnerability was considered, this is not a ground for review
that the Court can accept in the present case. The principal applicant’s vulnerability
and psychological state in this case do not make up for the serious
shortcomings that were uncovered in the assessment of his credibility.
[13]
The findings regarding the applicants’
credibility are therefore upheld.
Section 97 analysis
[14]
It was argued that the RPD failed to conduct an
analysis with respect to section 97 of the IRPA. In the applicants’
opinion, this analysis had to be done, and the decision is tainted by the
failure to do so. Thus, the risks incurred because of family ties with Acheck Ibn
Omar and the applicants’ ethnic origins had to be analyzed.
[15]
However, it is trite law that a “negative
credibility finding in relation to section 96 will often obviate the need to
consider section 97” (Meija, above, at para 20, citing Plancher,
above, and Emamgongo v Canada (Citizenship and Immigration), 2010 FC
208). In the case at bar, it appears that the section 97 analysis was
implicit in the reasons. Accordingly, the RPD found that the absence of threats
before June 2008 and the applicant’s successful career supported the fact that
he was not likely to experience any risks within the meaning of
section 97.
[16]
This issue is therefore not a question of law;
rather, what we have here is a challenge of negative inferences regarding
credibility and their impact under a section 97 analysis. A
section 97 analysis was done, albeit in a cursory manner; however, because
of the concerns regarding credibility and other factual aspects, this analysis
was not more in-depth. This is reasonable in fact and correct in law.
Conclusion
[17]
The decision of the RPD is therefore reasonable
in terms of the findings made and rests on a well-established legal foundation.
Accordingly, the application for judicial review is dismissed. No question was
proposed for certification.
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