Docket:
IMM-3070-15
Citation: 2015 FC 1399
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 18, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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DJASSAHOU O
KOLAWOLE LALEGBIN
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for leave and for judicial
review pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA), of a decision by the Refugee Appeal
Division (RAD) of the Immigration and Refugee Board of Canada, dated June 3,
2015, rejecting the applicant’s claim for protection as a refugee or a person
in need of protection within the meaning of sections 96 and 97 of the IRPA.
II.
Facts
[2]
The applicant, Djassahou O Kolawole Lalegbin, is
a citizen of Burkina Faso. He was born in Benin of Beninese parents.
[3]
The applicant alleges that he was the president
and founder of the Association pour la promotion de la formation aux métiers et
à l’apprentissage (APFMA) [association for the promotion of trades training and
learning], an association created in 2008 in Ouagadougou, Burkina Faso.
[4]
On February 22, 2011, the applicant, as
president of the APFMA, participated in a march to protest impunity and the
high cost of living. On May 2, 2011, the applicant was taken to a building,
beaten and tortured by people whom he believed were the presidential guard’s special
military personnel because of his participation in the march on February 22,
2011.
[5]
Then, on July 29, 2013, there were “clandestine” arrests of youth association leaders in
connection with a demonstration that had taken place that same day and that the
applicant did not participate in. That evening, he learned from his wife that
individuals had come to his house while he was at the office. The next day, the
applicant was called from an unknown telephone number and told that he was
being sought.
[6]
On September 19, 2013, with a visitor’s visa,
the applicant left Burkina Faso and arrived in Canada on September 20, 2013, following
a stopover in France. The applicant’s refugee claim was filed on November 13,
2013.
[7]
In a decision dated June 13, 2014, the Refugee
Protection Division (RPD) rejected the applicant’s refugee claim, finding that
he was not a Convention refugee or a person in need of protection.
[8]
The applicant appealed the decision to the RAD.
The RAD, after ordering a new hearing, accepting new evidence and applying a
standard of review similar to that of an appeal de novo, upheld the RPD
decision in a decision dated June 3, 2015.
III.
Impugned decision
[9]
In its decision, the RAD determined that it is
and was within the applicant’s control to acquire Beninese citizenship, but that
he did not demonstrate any willingness to take the necessary steps to acquire
Beninese citizenship. Second, the RAD rejected the applicant’s allegations that
he would be subjected to a risk to his life or to a risk of cruel and unusual
treatment or punishment if he had to appear before the Beninese authorities to
make a statement to acquire Beninese citizenship. Third, the RAD found that the
applicant had not rebutted the presumption of state protection in Benin.
IV.
Issues
[10]
The Court is of the opinion that there are two
determinative issues:
(1)
Did the RAD err in determining that it was
within the control of the applicant to become a citizen of Benin and that he
did not rebut the presumption of state protection in Benin?
(2)
Did the RAD err by upholding the RPD’s findings with
respect to the applicant’s lack of credibility?
V.
Position of the parties
A.
Position of the applicant
[11]
The applicant states that it would be contrary
to the spirit of the Geneva Convention to compel him to request any identity
document from Benin because he has stated that he has a well-founded fear in
that country. The applicant maintains that he submitted several documents and
explanations as to why he feared returning to Benin and why he did not apply
for Beninese citizenship. The applicant relies on, in particular, El Rafih v
Canada (Minister of Citizenship and Immigration), 2005 FC 831, to state
that the fact that he was unaware that he was entitled to dual citizenship
should not undermine his credibility. The applicant states that the RAD did not
look at whether he could live safely in Benin and disregarded the political
context in Africa. Furthermore, the applicant contends that it would be
contrary to the spirit of the Geneva Convention regarding an internal flight
alternative to state, as the RAD did, that the applicant had an internal flight
alternative in Burkina Faso and in Benin, or in Benin rather than in Burkina Faso
(Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC
706; Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589).
[12]
The applicant also argues that the RAD should
have admitted the new evidence demonstrating that he is at risk in Benin. In
its analysis of the applicant’s credibility, the RAD could not simply follow
the analysis of the RPD, which dwelled on “details”
and not on the substance of the claim in its interpretation of the evidence (Jamil
v Canada (Minister of Citizenship and Immigration), 2006 FC 792 at para
25). Thus, the RAD did not conduct an independent assessment of the applicant’s
credibility, which would be an error in law (Iyamuremye v Canada (Minister
of Citizenship and Immigration), 2014 FC 494 at para 41).
B.
Position of the respondent
[13]
The respondent contends that the RAD reasonably
considered all of the material submitted by the applicant to determine its
admissibility as new evidence under subsection 110(4) of the IRPA.
[14]
Regarding the issue of the applicant’s Beninese
citizenship, the respondent argues that the RAD was correct when it stated that
the applicant had, by birth, Beninese citizenship, and, that he took no steps
to acquire it even though he was able to do so. The RAD then properly looked at
the fear of persecution or the risk of cruel and unusual treatment in Benin. It
was necessary for the applicant to assert his identity in each of his potential
countries of nationality (Canada (Attorney General) v Ward, [1993] 2 SCR
689 (Ward); Canada (Minister of Citizenship and Immigration) v
Munderere, 2008 FCA 84; Williams v Canada (Minister of Citizenship and
Immigration), [2005] 3 FCR 429, 2005 FCA 126 at para 20 (Williams)).
It was unnecessary for the RPD to rule on the applicant’s fear of persecution
in Burkina Faso given that he could have obtained citizenship from another
country, Benin. The applicant’s failure to claim refugee protection in another
country that offers that possibility may be fatal to the claim (Sainnéus v
Canada (Minister of Citizenship and Immigration), 2007 FC 249).
[15]
Regarding the issue of a lack of evidence of
fear of persecution and of risk, the respondent argues that the applicant never
stated before the RPD that he feared the Beninese authorities and did not
submit any evidence as to why he did not acquire that citizenship. The RPD was
entitled to use its expertise to assess all of the evidence and select the
evidence it deemed most appropriate (Hassan v Canada (Minister of Citizenship
and Immigration) (1992), 147 NR 317, 36 ACWS (3d) 635 (CA); Kumar v
Canada (Minister of Citizenship and Immigration), 2012 FC 30 at para 39; Singh
v Canada (Minister of Citizenship and Immigration), 2009 FC 1304 at para
21). The applicant did not demonstrate a personalized risk in Benin, and,
furthermore, the applicant’s passport demonstrated that he went to Benin
several times. In short, the applicant merely disagrees with the RAD’s
assessment of the evidence and is asking this Court to substitute its opinion
for that of the RAD—which is not the role of this Court (Paradi v Canada (Minister
of Citizenship and Immigration), 2013 FC 996 at para 40; Cina v Canada (Minister
of Citizenship and Immigration), 2011 FC 635 at para 67).
VI.
Standard of review
[16]
The standard of reasonableness applies to
findings of fact made by the RAD regarding the applicant’s ability to acquire
Beninese citizenship (Williams, above, at para 17), and regarding the
applicant’s credibility (Canada (Minister of Citizenship and Immigration) v
Kabunda, 2015 FC 1213 at para 17).
[17]
The standard of reasonableness also applies to
the RAD’s finding that the applicant’s failure to avail himself of Beninese
citizenship is fatal to his refugee claim; the RAD interpreted a statute
closely connected to its functions, the IRPA (Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, [2011] 3 S.C.R. 654,
2011 SCC 61 at para 30).
VII.
Analysis
A.
The applicant’s Beninese citizenship
[18]
The applicant argues before this Court that he was
not required to take the necessary steps to acquire Beninese citizenship; he
also argued that even if he had taken the necessary steps and had acquired
Beninese citizenship, he would be at risk in Benin because there is no state
protection in that country.
[19]
The Court notes that the case law, as the
respondent pointed out, is clear that claimants must assert their identity in each
of their potential countries of nationality (Ward, above; Williams,
above at para 20). When a refugee claimant’s claim is rejected on the ground
that he or she could have acquired citizenship in another country, two issues
must be assessed by this Court: (i) whether it was within the claimant’s
control to acquire the citizenship from the third country; and (ii) whether there
is a well‑founded fear of persecution in that country (Petrov v Canada
(Minister of Citizenship and Immigration), 2014 FC 658 at para 18).
[20]
To the first question, the Court finds that it
was within the control of the applicant to acquire citizenship in Benin.
Namely, the RPD, in its decision, showed that it had reviewed Benin’s
citizenship law (Dahomean Nationality Code, Act No. 65-17, June 23,
1965, at Articles 7 and 8), considered that the applicant’s mother and
father were born in Benin, and considered that the applicant was also born in
Benin; and, the RPD and the RAD found that the applicant had not submitted
sufficient evidence to determine that he could not have applied for citizenship
in Benin. In essence, the RAD conducted an in-depth analysis that led it to
reasonably conclude that the applicant could apply for Beninese citizenship.
[21]
Regarding the second question, that is, the
well-founded fear of persecution in Benin, the applicant stated that the
authorities in Benin and Burkina Faso have close ties because some members of
the former regime in Burkina Faso now apparently live in Benin, and accordingly,
the applicant is purportedly at risk in Benin. Furthermore, he states that the
RAD failed to consider the documentary evidence submitted.
[22]
The Court is of the opinion that the RAD conducted
a reasonable assessment of the evidence in the record. In its decision, the RAD
demonstrated that it took the evidence before it into account and explained why
it was rejecting the applicant’s arguments:
[76] I agree with the arguments put forward
by the Minister’s representative. I listened closely to the appellant’s
testimony during the hearing on May 6. I took into consideration the evidence
on record as well as the submissions presented following the hearing. My
conclusion is as follows. The appellant did not establish that his mother’s
family in Benin, even with the power of voodoo on their side, have the desire
or the power to persecute him if he were to relocate to that country. He did
not establish that it is more likely than not that he would be personally
subjected to a risk to his life or to a risk of cruel and unusual treatment or
punishment if he were to move to that country.
[80] Again, I agree with the arguments put
forward by the Minister’s representative. In my opinion, the appellant’s
testimony and the documentary evidence submitted on appeal do not establish
that today, in Benin, former dignitaries from Blaise Compaoré’s regime, or even
the current authorities who are governing Burkina Faso, have the desire or
ability to in any way target individuals who, in the past in Burkina Faso,
opposed Blaise Compaoré’s regime. Consequently, I am of the opinion that the
appellant did not establish that he has a well-founded fear of persecution or
that it is more likely than not that he would be personally subjected to a risk
to his life or to a risk of cruel and unusual treatment if he were to live in
Benin.
(RAD Decision, paragraphs 76 and 80)
[23]
In short, the applicant disagrees with the RAD’s
assessment of the evidence and is asking this Court to re-weigh the evidence
and to substitute its findings for those of the RAD; that is not the role of
this Court. It was reasonable for the RAD to find that the applicant did not establish
a well-founded fear of persecution in Benin.
[24]
Given that the applicant had the opportunity and
ability to acquire Beninese citizenship and that he did not establish a
well-founded fear in Benin, the RAD was not required to assess the issue of the
risk of persecution in Burkina Faso. Moreover, as stated in Ward of the
Supreme Court of Canada, the RPD was entitled to reject the applicant’s refugee
claim given that the applicant did not establish a fear in that country.
B.
The applicant’s credibility
[25]
The applicant submits that the RAD erred by
finding that he is not credible in every respect. According to the applicant,
the RAD could not accept, as it did, the RPD’s assessment because the RPD did
not rely on the substance of his claim to find him not credible, but simply “details”. The Court cannot agree with that argument.
The RPD, in its decision, identified several significant contradictions on the
part of the applicant:
•
He stated that he never travelled with his
passport before coming to Canada and that the passport that was presented was
the only one he had ever obtained. However, the stamps in his passport issued
on October 10, 2012, show that he went to Benin with that passport several
times;
•
In a visa application signed on August 13, 2013,
the applicant states that his parents reside in Benin, but at the RPD hearing
he stated that they live in Burkina Faso;
•
The applicant testified before the RPD that his
parents have lived in Fada N’Gourma, Burkina Faso since 1995, whereas in his
refugee claim form the applicant states that his father and mother live in Ouagadougou,
Burkina Faso; and,
•
The applicant testified before the RPD that his
daughter was born in Burkina Faso, but in his refugee claim at the immigration
office he noted that she was born in Sakété, Benin. Furthermore, his daughter’s
birth certificate also states that she was born in Sakété, Benin.
[26]
It is clear that the contradictions identified
by the RPD are not “details”. They are
significant contradictions that tend to demonstrate a lack a credibility on the
part of the applicant. It was completely reasonable for the RAD, which owes
deference to the RPD’s credibility findings, to find that the applicant was not
credible because the contradictions identified by the RPD were real as opposed
to illusory:
[43] Second, contradictions in the
evidence, particularly in a refugee claimant’s own testimony, will usually
afford the RPD a reasonable basis for finding the claimant to lack credibility,
and, if this finding is reasonable, the rejection of the entire refugee claim
will not be interfered with by the Court (see e.g. Rajaratnam v Canada
(Minister of Employment and Immigration) (1991), 135 NR 300, [1991] FCJ No
1271 (FCA); Mohacsi v Canada (Minister of Citizenship and Immigration),
[2003] 4 FC 771, [2003] FCJ No 586 at paras 18-19 [Mohacsi]). That
said, the contradictions which underpin a negative credibility finding must be
real as opposed to illusory. Thus, the tribunal cannot seize on truly trivial
or minute contradictions to reject a claim (see e.g. Attakora v Canada
(Minister of Employment and Immigration) (1989), 99 NR 168, [1989] FCJ No
444 at para 9; Mohacsi at para 20; Sheikh v Canada (Minister of
Citizenship and Immigration), (2000) 190 FTR 225, [2000] FCJ No 568 at
paras 20-24).
(Rahal v Canada (Minister of Citizenship and
Immigration), 2012 FC 319 at para 43)
VIII.
Conclusion
[27]
Consequently, the application for judicial
review is dismissed.
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