Docket:
IMM-11754-12
Citation: 2013 FC 959
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, September
17, 2013013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN::
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ALHASSANE DIALLO
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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 July 26, 2012, wherein the RPD determined that the
applicant was neither a Convention refugee nor a person in need of protection
within the meaning of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA).
II. Facts
[2]
The applicant, Alhassane Diallo, is a citizen of
Guinea, born in 1967 in Conakry.
[3]
Mr. Diallo left Guinea for the United States on
June 23, 1999.
[4]
On April 5, 2007, Mr. Diallo married a U.S.
citizen, Sharon Powell. At the time, Mr. Diallo had been living in the United
States illegally. His spouse commenced sponsorship proceedings eight (8) months
after the wedding.
[5]
The couple separated on March 26, 2008,
following Ms. Powell’s move to Tampa, Florida, for work. For this reason, the
applicant’s sponsorship in the U.S. was never completed.
[6]
On November 1, 2010, the applicant arrived in Canada
with the help of a truck driver, claiming that he wanted to reunite with his
spouse, Mariame Drame, a former girlfriend from Guinea. The applicant filed a
claim for refugee protection on November 3, 2010, in Montréal, Quebec.
[7]
In his claim for refugee protection, the
applicant stated that he feared returning to Guinea because he was at risk of
being killed by his spouse’s ex-husband, Soriba Camara.
[8]
The applicant alleged that Mr. Camara, a member
of Guinea’s military, had made threats to his family that he would kill him if he
returned to Guinea because the applicant had had a child with his ex-wife in
2009.
[9]
The applicant further claimed that his spouse’s
family, her father in particular, had also threatened him prior to his leaving
Guinea in 1999, because he had continued seeing Ms. Drame despite the fact that
she had been offered to Mr. Camara by her father.
III. Decision under
review
[10]
In the case at bar, the RPD determined that the
applicant was neither a refugee nor a person in need of protection. According
to the RPD, the applicant’s testimony was not truthful and he had fabricated “a
number of scenarios” to support his refugee protection claim.
[11]
The RPD found the applicant’s claims implausible
for the following reasons:
a.
The RPD found it implausible that Mr. Diallo had
continued seeing Ms. Drame in spite of the fact that she had been offered to Mr.
Camara in 1999, and that her father had forbidden him to see her;
b.
The RPD found that it was not credible that Ms.
Drame’s parents would have threatened him to get him to stop seeing their
daughter, because she had not alluded to this love or friendship in her
Personal Information Form (PIF) when she herself claimed refugee protection in
Canada in 2006. The RPD pointed out that had his spouse’s father really
objected to their relationship, she would have mentioned it in her PIF;
c.
The RPD determined that the applicant’s lack of
credibility was due, in large part, to his claim that he was the cause of the
divorce between Ms. Drame and her ex-husband, Mr. Camara. The RPD concluded
that it was implausible that the applicant had caused the divorce, given the
fact that he had left Guinea four years before Ms. Drame had married Mr.
Camara. Furthermore, Ms. Drame stated in her PIF that she requested the divorce
because Mr. Camara had beaten and injured her, and not because she had been the
applicant’s “girlfriend”.
[12]
The RPD explained that since it did not “at all”
believe his testimony, the applicant failed to discharge his burden of proof.
The RPD therefore denied his claim for refugee protection.
IV. Issue
[13]
Did the RPD err in its assessment of the
applicant’s credibility?
V. Relevant
legislative provisions
[14]
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
[15]
The case law of this Court clearly establishes
that the Board’s findings with regard to credibility and plausibility are
questions of fact and are subject to review on a reasonableness standard (Aguebor
v Canada (Minister of Employment and Immigration) (1993), 160 NR 315,
[1993] FCJ No 732 (QL/Lexis) (FCA); Cekim v Canada (Minister of Citizenship
and Immigration), 2011 FC 177; Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
VII. Analysis
[16]
In this case, the applicant contends that the RPD’s
decision is unreasonable and that its credibility findings are not justified.
In particular, he claims that the RPD based its decision on secondary facts
which did not go to the core of his claim.
[17]
The respondent asserts that the RPD’s
credibility findings are reasonable and supported by transparent and
intelligible reasons. The respondent argues that the RPD was entitled to rely
on omissions and contradictions between the applicant’s PIF and his testimony
to assess his credibility, and that its credibility assessment does not warrant
the intervention of this Court.
[18]
It is settled law that the duty to provide
reasons for adverse credibility findings becomes particularly important when
such findings are based on implausibilities. The recent decision in Ansar
v Canada (Minister of Citizenship and Immigration), 2011 FC 1152, explains
the important distinction between credibility findings and those with respect
to plausibility:
[17] Initially, an
important distinction must be made between the RPD’s credibility findings and
its conclusion that the threat posed by Mr. Choudhry was “implausible”. The
panel must be mindful of the use of this term and its implications.
Implausibility findings must only be made “in the clearest of cases” (Valtchev
v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7,
[2001] FCJ 1131). The panel’s inferences must be reasonable and its reasons
set out in clear and unmistakable terms (R.K.L. v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at para 9, [2003] FCJ 162). As
Justice Richard Mosley explains in Santos v Canada (Minister of Citizenship
and Immigration), 2004 FC 937 at para 15, [2004] FCJ 1149:
[P]lausibility
findings involve a distinct reasoning process from findings of credibility and
can be influenced by cultural assumptions or misunderstandings. Therefore, implausibility
determinations must be based on clear evidence, as well as a clear
rationalization process supporting the Board’s inferences, and should refer to
relevant evidence which could potentially refute such conclusions
[Emphasis added.]
[Emphasis
added.]
[19]
In Zacarias v Canada (Minister of Citizenship
and Immigration), 2012 FC 1155, 419 FTR 135, Madam Justice Mary Gleason,
reviewing the case law on this subject, points out that:
[11] ... the
Board should provide “a reliable and verifiable evidentiary base against
which the plausibility of the Applicants’ evidence might be judged”, otherwise
a plausibility determination may be nothing more than “unfounded speculation”
(Gjelaj v Canada (Minister of Citizenship
and Immigration), 2010 FC 37 at
para 4, [2010] FCJ No 31; see also Cao v Canada (Minister of Citizenship and
Immigration), 2012 FC 694 at para 20, [2012] FCJ No 885 [Cao]).
[Emphasis added.]
[20]
After having reviewed the case law and the RPD’s
decision, the Court finds that the panel’s findings with regard to plausibility
completely justify the negative determination with respect to the applicant’s
credibility. There is no reason for this Court to intervene. The RPD’s
conclusions in this case are reasonable.
[21]
The Court finds that the RPD’s implausibility
determinations are based on reasonably clear evidence and on a reasonably
clear rationalization process supporting its inferences.
[22]
Ms. Drame’s refugee protection claim was founded
on the domestic violence she was subjected to while she was married to Mr. Camara
and included a number of supporting details that clearly and evidently
demonstrated the reasons for the divorce, but it did not contain any reference
to another underlying story.
[23]
The Court is of the opinion that the RPD’s
determination of implausibility with regard to the applicant’s testimony to the
effect that he was responsible for his spouse’s divorce is based on a reasoning
process which becomes evident by reading the details surrounding his testimony
and through an understanding of all of the evidence that was before panel.
[24]
The RPD reasonably concluded that the
applicant’s lack of credibility was based on his testimony about the divorce
because that claim contradicted his original claim the Mr. Camara wanted to
kill him because he and Camara’s ex-wife had had a child together.
[25]
It is difficult to reconcile the two
allegations, but in this case, it is obvious from reading the transcript that
the applicant fabricated the story of him being in danger of being killed by Mr.
Camara because he had had a child with his ex-wife. Acknowledging that when the
applicant first testified at the hearing he claimed that he had also received
threats relating to the divorce before the threats in 2009, this
evidence clearly shows a blatant lack of credibility in the applicant’s
testimony, as the RPD determined. Indeed, such an added fact is reason enough
to warrant the dismissal of the applicant’s narrative in its entirety (see
Transcript at page 51).
[26]
In its reasons the RPD explains that it realized
the applicant lacked credibility from this fact. This in turn led the RPD to
base its decision on the inherent lack of logic and perceived inconsistency in
the applicant’s testimony and to conclude that he had changed his version of
the facts and was not credible. Thus, the RPD decided to discount other pieces
of evidence, including the letter from the applicant’s sister, as a result of
this blatant lack of credibility. The Court is of the opinion that this
omission does not constitute a reviewable error.
[27]
All in all, the Court is fully satisfied that
the RPD properly weighed the evidence that was before it in this case, and that
it set out its reasons in clear and logical terms. In light of all of the
evidence, both oral and written, the RPD’s decision was not based on
speculation or conjecture. Accordingly, the Court is of the view that the RPD
made a reasonable finding with regard to Mr. Diallo’s non-existent credibility.
[28]
The reasons were clearly articulated and
demonstrated, on the evidence and in their inherent logic, the reasonableness
of the decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708). The Court specifically
stated that a decision must still be reasonable in terms of “the existence of justification, transparency and intelligibility within the
decision-making process [and] whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law:” (Dunsmuir, above, at para 47), all of
which was done.
[29]
The decision under review is transparent and intelligible;
and it provides justification for the result based on the entire record (see
trilogy of Supreme Court of Canada decisions (Dunsmuir, above; Newfoundland
and Labrador Nurses’ Union, above; Alberta (Information and Privacy
Commission) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654).
Therefore, the decision is reasonable.
VIII. Conclusion
[30]
For all of the above reasons, the application
for judicial review is dismissed.
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