Docket: IMM-1002-13
Citation: 2013 FC 1059
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, October 22,
2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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MOHAMED CONDE
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Applicant
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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
I. Introduction
[1]
This is an application for judicial review of a
decision by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board dated January 9, 2013, in which the RPD concluded that the
applicant was neither a Convention refugee within the meaning of
section 96 nor a person in need of protection within the meaning of
section 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
II. Facts
[2]
The applicant, Mohamed Conde, born in Conakry in
1986, is a citizen of Guinea. He is of Malinke origin.
[3]
The applicant explained that, after leaving
school in 2008, he became a merchant in Conakry to provide for his family. On
September 10, 2010, he started having problems with another merchant (of
Peul origin) called “Guirguis”. He allegedly reported Guirguis to the
authorities for selling poisoned water in his community.
[4]
At the same time, the applicant explained that a
basketball team associated with the Guinean armed forces [ASFAG] attempted to
recruit him, but he refused to join the team as he thought it was an attempt to
get him to join the Guinean army.
[5]
On September 15, 2010, Guirguis’s family
came to his home uttering death threats. At that point, he decided to leave the
country.
[6]
The applicant allegedly left Guinea the night of
September 28, 2010, on board a merchant ship. He stated that he lived in a
small cabin on this ship for almost five months, without being able to go
outside.
[7]
The applicant allegedly arrived at an unknown
port in Canada on February 26, 2011, and did not encounter any Canadian
officials on leaving the ship. He claimed refugee protection two days later.
[8]
On January 9, 2013, the RPD rejected the
applicant’s refugee claim.
III. Decision
under judicial review
[9]
The RPD found that the applicant was not
credible because of omissions in his Personal Information Form (PIF), and
implausibilities or contradictions in his testimony.
[10]
In particular, the RPD concluded that the applicant
had failed to mention a key fact in the narrative supporting his allegation that
he was afraid of the police in Conakry. The applicant did not mention in any of
the immigration documents submitted with his claim for refugee protection that
his mother had received two notices asking him to report to the police station
in August 2011. In the absence of a satisfactory explanation for this
omission, the RPD noted that the applicant was possibly attempting to exaggerate
his narrative by introducing this information at the hearing.
[11]
The RPD also found that the applicant’s
allegations against the Guinean army carried little weight. The RPD concluded
that, since military service is not mandatory in Guinea, it was unlikely that
the applicant would be obliged to participate or play in a team associated with
the army.
[12]
The RPD further concluded that it was unlikely
that the applicant succeeded in having the water vendor arrested by the police
but was then unable to report the death threats made against him by the same
person to the police. The RPD therefore made a negative credibility finding
regarding the applicant’s fear of the water vendor.
[13]
The RPD noted that it had “serious doubts” about
the applicant’s credibility with regard to the itinerary of his trip to Canada.
The RPD noted, for example, that it was unlikely that the applicant would be
able to cross the territorial limits of the port he arrived at without encountering
any Canadian officials.
[14]
In light of these adverse findings regarding the
applicant’s credibility, the RPD concluded that the applicant had not
discharged his burden of establishing a well-founded fear of persecution. For
this reason, the RPD rejected his claim.
IV. Issue
[15]
Was the RPD’s credibility analysis reasonable?
V. Relevant
statutory provisions
[16]
Sections 96 and 97 of the IRPA apply to this
case:
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Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
Person in need of protection
(2) A person
in Canada who is a member of a class of persons prescribed by the regulations
as being in need of protection is also a person in need of protection.
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Définition de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
Personne à protéger
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées
au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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VI. Standard of
review
[17]
Past decisions of this Court clearly establish
that RPD credibility and plausibility findings are questions of fact and are
therefore reviewable against a standard of reasonableness (Aguebor v
(Canada) Minister of Employment and Immigration (1993), 160 NR 315 (FCA)).
[18]
When the standard of reasonableness applies, the
Court may intervene only if the RPD’s reasons are not “justified, transparent
or intelligible”. To satisfy this standard, a decision must fall in the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47).
VII. Positions
of the parties
[19]
The applicant alleges that the RPD made many
reviewable errors in its assessment of his credibility, particularly in the
assessment of the evidence filed regarding his fear of the police, the Guinean
army and the water vendor.
[20]
The respondent submits that the RPD did not err
in its assessment of the facts. The respondent submits that the applicant was
not credible: there were major gaps in his evidence and several implausibilities.
Furthermore, the respondent argues that the applicant’s fear is not supported
by any documentary evidence and is not compatible with some of his allegations.
VIII. Analysis
[21]
Following a review of the documentary and
testimonial evidence, the Court is of the opinion that the RPD’s assessment
that the applicant’s version of the facts lacked credibility was reasonable.
[22]
Contrary to the applicant’s submissions, the RPD
considered all of the evidence and all the explanations provided by the
applicant, in addition to explaining clearly why it did not find him credible.
[23]
First, the RPD concluded that the applicant’s
omission to mention before the hearing that his mother had received two notices
for him to report to the Conakry policy seriously undermined his credibility. The
RPD also found it unlikely that the applicant would be required to participate
or play in a basketball team associated with the army given that military
service is not mandatory in Guinea. Moreover, the RPD concluded that it was unlikely
that the applicant could not report the death threats made by the water vendor
to the police given that the police had already dealt with him very
effectively. The RPD added that it had “serious doubts” that the applicant
arrived in Canada in the manner he explained, without encountering any Canadian
officials. He had, after all, arrived on a merchant ship.
[24]
The Court finds this assessment of the evidence
to be reasonable, especially without any evidence to the contrary. The RPD was
entitled to rely on the omissions and implausibilities in the applicant’s
narrative to draw an adverse conclusion regarding the applicant’s credibility (Cortes
v Canada (Minister of Citizenship and Immigration), 2009 FC 583; Tejeda
v Canada (Minister of Citizenship and Immigration), 2009 FC 421; Peti v
Canada (Minister of Citizenship and Immigration), 2012 FC 82). The Court
cannot intervene simply because the applicant disagrees with the RPD’s
decision.
[25]
It is not this Court’s role to substitute its
own appreciation for that made by the RPD (Martinez v Canada (Minister of
Citizenship and Immigration), 2009 FC 441). The RPD is a tribunal that is
specialized in assessing the credibility and plausibility of the facts
described by refugee claimants. The Court therefore cannot amend a decision of
the RPD unless this decision was based on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it (Bobic c Canada (Minister of Citizenship and Immigration),
2004 FC 1488, at para 3; Jabbour v Canada (Minister of Citizenship and
Immigration), 2009 FC 831).
[26]
In addition, the Court may not dissect the RPD’s
decision as the applicant did in the matter at bar. The decision must be viewed
as a whole, taking into account the context of the evidence and the record (Singh
v Canada (Minister of Citizenship and Immigration), 2009 FC 644; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708; Leahy v Canada (Minister of Citizenship and
Immigration), 2012 FCA 227 at paras 120-21), as the Court ruled in Borate
v Canada (Minister of Citizenship and Immigration), 2005 FC 679:
[1] Just as a
specialized tribunal must not examine facts out of context, simply eager to
point out contradictions with “microscopic zeal”; a party at a judicial
review hearing must not dissect each sentence in the reasons of a decision
of a specialized tribunal. [Emphasis added.]
[27]
In the matter at bar, the RPD’s general finding
that the applicant lacked credibility meets the test of reasonableness. The
intervention of this Court is therefore unwarranted.
IX. Conclusion
[28]
For all of the above reasons, the application
for judicial review is dismissed.
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