III. Decision under review
[5]
The RPD was satisfied as to the Applicant’s
identity but rejected his claim, finding that the main allegations therein were
not credible, mostly for implausibility reasons.
[6]
The RPD was not satisfied, on a balance of
probabilities, that the Applicant, who is not an active member of the FDU Party
but a mere sympathizer of the organization, was arrested on two occasions by
the government. Even though the documentary evidence shows that the current
government in place has a very low tolerance for opposition, the only events in
which the Applicant took part (greeting Ms. Ingabire at the Kigali airport on
January 10, 2010 and helping the FDU Party in providing help in hospitals and
orphanages) are not sufficient to conclude that he would be an opponent likely
to be targeted by the government, which generally goes after leaders and really
active opposition members. Also, contrary to what the documentary evidence
suggests, the Applicant claimed that there were no court document to evidence
the charges, if any, he claimed were laid against him.
[7]
The RPD also found that the Applicant could not
have been the target of the Rwandan government; otherwise, he would not have
been able to leave the country so easily with his own passport. Lastly, the RPD
did not believe the Applicant’s explanations as to why he suddenly became so
interested in politics in 2010.
[8]
For all these reasons, the Panel concluded that
the Applicant failed to demonstrate that there was more than a mere possibility
that, should he return to Rwanda, he would be persecuted within the meaning of
section 96 of the Act, or that, on a balance of probabilities, he would be
personally exposed to a risk pursuant to section 97 of the Act.
IV. Applicant’s submissions
[9]
The Applicant argues that the RPD’s decision was
not reasonable because it erred in finding that his allegations were not plausible
and because it failed to consider contradictory evidence.
[10]
First, the RPD’s rejection of the Applicant’s
claim was based solely on findings of implausibility. According to case law and
to the Immigration Refugee Board’s guidelines, it is only open to the RPD to
make such findings in the clearest of cases. Further, these findings must be
based on reasonably drawn inferences and not speculation or conjecture, and
they must be substantiated in the reasons by specific evidence. In the present
matter, there was no evidence supporting the panel’s implausibility findings.
[11]
Second, the RPD ignored contradictory factual
and documentary evidence. Regarding the facts, the Panel drew a conclusion from
the Applicant’s testimony without referring to all the relevant facts he had
provided. The RPD never mentioned the difficulties the Applicant testified to
have faced while fleeing his country. In fact, the panel even went so far as
saying that it did not understand how he could have left Rwanda so easily. The RPD also misconstrued the facts surrounding the Applicant’s motivation to join
the opposition party in 2010 which he clearly set out in his testimony despite
being interrupted on numerous occasions. What is more, the Panel came to the
conclusion that a member of the opposition had to be active in order to be
targeted by the government without taking into account all the documentary
evidence with which it had been presented: several documents before the RPD
clearly stated that non-prominent members of the opposition, like the
Applicant, are also targeted by the Rwandan authorities. The RPD failed to
refer to this evidence.
V. Respondent’s submissions
[12]
For its part, the Respondent argues that the
RPD’s decision was reasonable.
[13]
The Applicant has failed to demonstrate in what
way the RPD ignored evidence with respect to his claim, and his arguments seem
to disregard the important distinction between being a member of the FDU Party
and a mere sympathizer of the opposition. That said, the Panel did acknowledge
in its reasons that according to documentary evidence, certain opponents of the
government, those that were very active, were arrested, beaten or even
murdered. The Applicant refers in his submissions to national documentary
package on Rwanda which speaks of “members” of the opposition parties being
victims of oppression, but counsel for the Applicant conceded at the hearing
that he was not a member of the FDU Party. None of the documentary evidence
relied upon by the Applicant sets out that mere sympathizers of the opposition
would be at risk in Rwanda. The RPD clearly identified all the facts on which
it made its implausibility findings, and it was certainly open for it to come
to this conclusion.
[14]
Moreover, the Panel did not build its decision
only on implausibility findings. The Applicant was vague in his answers on
important issues of his claim, particularly as it concerns his sudden interest
in politics, and the RPD reasonably drew a negative inference from this.
Despite being questioned on the subject and provided ample opportunity to do
so, the Applicant could not provide clear answers regarding his own and the FDU
Party’s political ideology. The Panel also drew a negative inference from the
fact that the Applicant failed to provide evidence to corroborate his allegations
that he was arrested by Rwandan police, and given that this is a central
element of the Applicant’s claim, it was reasonable for the RPD to come to this
conclusion. Lastly, the Respondent adds that the RPD is presumed to have taken
into consideration all the evidence with which it had been presented.
VI. Issues
[15]
The present case relates to the legality of the
RPD’s credibility finding that lead the Panel to conclude that the Applicant is
neither a refugee within the meaning of section 96 of the IRPA nor a person in
need of protection under subsection 97(1) of the IRPA, and it raises the two
following issues:
1. Did the RPD err in concluding that the Applicant’s allegations
were not plausible?
2. Did the RPD err in its assessment of the evidence?
VII. Standard of review
[16]
Although they disagree on the wording of the
issues to be addressed herein, the parties do agree, however, that the RPD’s
decision in the case at bar is to be reviewed under the standard of
reasonableness (see Saeedi v Canada (Minister of Citizenship and
Immigration), 2013 FC 146 at para 29, [2013] FCJ No 173 with respect to the
implausibility findings; see Flores v Canada (Minister of Citizenship and
Immigration), 2010 FC 1147 at para 25, [2010] FCJ No 1418 as it concerns
the appreciation of evidence).
[17]
As both issues are a matter of reasonableness,
this Court shall only intervene if it concludes that the Panel’s findings are
unreasonable to the point that they fall outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] SCJ No 9).
VIII. Analysis
A. Did the
RPD err in concluding that the Applicant’s allegations were not plausible?
[18]
This Court finds that the RPD did not commit an
error when it concluded that certain of the Applicant’s allegations were
implausible.
[19]
In his factum, the Applicant quotes this Court
in Saeedi v Canada (Minister of Citizenship and Immigration), 2013 FC
146 at para 30, [2013] FCJ No 173, where it was held that the RPD should give
clear explications for its implausibility findings, all of which should rest on
the evidence with which it had been presented:
[30] The RPD’s conclusion that the Applicant’s
allegations lack plausibility is unreasonable for the following reasons. The
duty to provide reasons for negative credibility findings becomes particularly
important when non-credibility determinations are based on perceived
implausibilities in the Applicant’s story. As stated by this Court in Santos v Canada (Minister of Citizenship and Immigration), 2004 FC 937 at para 15, 37
Imm LR (3d) 241, the RPD is required to clearly explain the rationales behind
its implausibility findings and they should be based on the evidence before it:
[15] It is clear
that plausibility findings are subject to the same deference as credibility
findings, that being patent unreasonableness: see Aguebor v Canada (Minister of Employment and Immigration) (1993), 160 NR 315 (FCA). However, as
stressed in Valtchev, supra, [2001] FCJ No 1131, plausibility 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. The
cautions set out in both Valtchev, supra, and Leung v Canada (Minister of Employment and Immigration), (1994), 81 FTR 303 are worth keeping
in mind in the Court’s review of plausibility conclusions. [Emphasis added.]
It is also true that the IRB has adopted
similar measures in this regard in its guidelines dealing with the assessment
of the credibility of refugee claimants (see Assessment of Credibility in
Claims for Refugee Protection, Legal Services, January 31, 2004, found at: http: //www.irb-cisr.gc.ca /Eng
/BoaCom /references /LegJur /Pages /Credib.aspx).
[20]
The Applicant’s reasoning fails, however, when
he claims that the Panel’s implausibility findings are not supported by
evidence.
[21]
In its reasons, the RPD found it implausible, in
its opinion, that the Applicant, who is merely a sympathizer of the FDU Party,
would have been targeted by the Rwandan government. This implausibility finding
is the most important one as it suffices to settle the entire claim. The RPD
clearly established a distinction between sympathizers of the opposition party,
who are not very active, like the Applicant, and the very active members of the
opposition and their leaders. The panel indicated to have taken this
distinction from documentary evidence, whereas the Applicant claims that this
documentary evidence in fact supports the opposite findings.
[22]
After having read the documentary evidence, this
Court finds that none of the documents identified by the Applicant actually
support its argument that sympathizers of the opposition could be the target of
government authorities in Rwanda. In fact, the evidence vastly and expressly
supports the RPD’s finding to the opposite effect. All the evidence speaks of
targeted people whose political status and/or implication level are
substantially different from the Applicant’s – very active political opponents
who have made public declarations or participated in demonstrations against the
government, journalists and other outspoken critics of the government, etc. In
addition, the documentary evidence relied upon by the Applicant largely
addresses the situation of “members of the opposition parties”, and the Applicant
conceded at hearing, through counsel, that he was not a member of the FDU Party
but a “low-profile sympathizer” of the organization. The Applicant never
publicly criticized the government and, to the extent of the Panel’s knowledge,
he took part in practically no public political events, except greeting the
leader of the FDU Party, Ms. Victoire Ingabire, at the Kigali airport on one
occasion.
[23]
And based on this, the RPD stated that it was
not satisfied that there was more than a mere possibility that the Applicant,
should he return to Rwanda, would be persecuted within the meaning of section
96 of the Act, or that, on a balance of probabilities, he would be personally
exposed to a risk pursuant to section 97 of the Act. It is true that
implausibility findings can only be made in the clearest of situations (Valtchev
v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7,
[2001] FCJ No 1131 [Valtchev]), and I find that such is the case in the
present matter as it concerns the implausibility of the Applicant being
targeted by the government. The RPD clearly expressed the rationale behind its
finding, laid out all the facts, and referred to relevant evidence as required
by Valtchev, above. This inference was not drawn from speculations or conjecture.
[24]
I find that this implausibility finding is
strong enough in itself to render the RPD’s decision reasonable. Indeed, if the
Applicant is not a target, there is obviously no persecution and no risk to his
life or a risk of cruel and unusual treatment or punishment to fear.
B. Did the
RPD err in its assessment of the evidence?
[25]
The second issue in this application relates to
the review of the evidence – both testimonial and documentary – by the RPD. The
Applicant claims that the RPD failed to consider and mention contradictory
evidence. This Court finds that the RPD made only one error in its overall
appreciation of the evidence relating to the Applicant’s difficulties in
fleeing Rwanda but further concludes that returning the claim for re-determination
would not result in a different outcome.
[26]
As a general rule, the RPD is presumed to have
given due consideration to all of the evidence before it and, as such, it does
not have the obligation of commenting every piece of evidence submitted (see Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA)
[Florea]). This presumption is nonetheless subject to certain limits. If
a decision-maker is silent on an important piece of evidence or if it ignores
contradictory evidence, this Court could tend to infer that the decision was
made without regard to the evidence (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at para 17):
[17] However, the more important the evidence
that is not mentioned specifically and analyzed in the agency’s reasons, the
more willing a court may be to infer from the silence that the agency made an
erroneous finding of fact "without regard to the evidence": Bains
v Canada (Minister of Employment and Immigration) (1993), 63 FTR 312
(FCTD). In other words, the agency’s burden of explanation increases with the
relevance of the evidence in question to the disputed facts. Thus, a blanket
statement that the agency has considered all the evidence will not suffice when
the evidence omitted from any discussion in the reasons appears squarely to
contradict the agency’s finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[Emphasis added.]
[27]
First, this Court will examine the issue of
testimonial evidence. In this regard, it is true that the Applicant testified
to the effect that he had been helped by a friend (as confirmed by the
Respondent’s counsel’s letter dated April 9, 2014) who worked at customs when leaving
Rwanda, in order to explain how the Applicant was able to leave his home
country. And it is also true that the RPD made no mention of this explanation
when stating that the Applicant would not have been able to leave the country
so easily had he really been targeted by the government. However, while this explanation
was important to consider and should have been mentioned by the RPD, the RPD
had already come to the conclusion that it was not plausible that the Applicant
was pursued by the Rwandan authorities because he is a simple sympathizer of
the organization. Looking at the big picture of the case, the finding
concerning the Applicant’s difficulties in leaving Rwanda, which appears at the
end of the decision, is of lesser importance as it was simply an additional
finding that confirmed the RPD’s opinion, but it was not central to the
determination of the case by the Panel. What is more, considering that this
Court has already upheld as reasonable this strong implausibility finding of
the RPD relating to the implausibility of the Applicant being the target of the
government, I have a hard time seeing how sending the matter back before
another panel for re-determination could result in a different outcome (see for
example Kamanzi v Canada (Minister of Citizenship and Immigration), 2013
FC 1261 at para 20, [2013] FCJ No 1368).
[28]
This Court further finds that the RPD properly
assessed the rest of the testimonial evidence. After having read the evidence
and the transcript of the hearing, I find that it was reasonable for the Panel
to consider the Applicant provided a vague testimony when questioned about the
basic principles of the FDU Party. The same goes for the answers he gave to
questions related to his sudden political motivations.
[29]
In any event, assessing the credibility of an
applicant through his testimony, including its vagueness, is at the heart of
the RPD’s expertise, and reviewing courts must afford a great deal of deference
in such findings (Zheng v Canada (Minister of Citizenship and Immigration),
2007 FC 673 at para 17, [2007] FCJ No 919).
[30]
Second, as for the documentary evidence, the
presumption in Florea stands. I have already found, in response to the
first issue, above, that contrary to the Applicant’s submissions, the RPD did
not omit to consider contradictory documentary evidence in making its
implausibility findings with respect to the Applicant. The same can be said
here. In addition, the Panel exposes at para 9 of its reasons the harsh reality
of certain really active members of the opposition in Rwanda. While recognizing the difficult situation of certain people, the RPD nonetheless reasonably
concluded that this was not the situation of the Applicant. The Applicant has
not satisfied this Court that the RPD has failed to consider or mention
contradictory evidence in its decision.
[31]
Finally, on the more general issue of
credibility, it must be noted that the Applicant failed to provide
corroborative evidence for his allegations that he was arrested and charged in Rwanda. This Court has previously found that it is reasonable for a tribunal to draw a
negative inference from the failure to provide corroborative evidence when it
relates to essential elements of an applicant’s claims, as it is the case here
(see Sinnathamby v Canada (Minister of Citizenship and Immigration),
2001 FCT 473 at para 24, [2001] FCJ No 742; Quichindo v Canada (Minister of
Citizenship and Immigration), 2002 FCT 350 at para 28, [2002] FCJ No 463).
And as my colleague Justice de Montigny observed in Jarada v Canada
(Minister of Citizenship and Immigration), 2005 CF 409 at para 22, [2005]
FCJ No 506, given that the RPD credibility finding with respect to the
Applicant relied on a number of elements and implausibilities, “the reasons of
an administrative tribunal must be taken as a whole in determining whether its
decision was reasonable, and analysis does not involve determining whether each
point in its reasoning meets the reasonableness test […].” This observation
applies to the present matter.
[32]
Consequently, having dismissed the Applicant’s
claims with respect to both issues, I find that the RPD’s decision was
reasonable and shall dismiss this application for judicial review as a whole.
[33]
The parties were invited to submit questions for
certification but none were proposed.
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