Docket: IMM-2729-14
Citation:
2015 FC 8
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 5, 2015
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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NZOLANI MWANAMP JULIO
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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
[1]
This is an application for judicial review of a
decision by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board, dated February 28, 2014, which found that the applicant was
neither a Convention refugee nor a person in need of protection under sections
96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
[Act].
[2]
The applicant is a citizen of Angola. This young
man worked as a businessman in his country. In his testimony he explained that
he had never been involved in politics, but on September 3, 2011, on the
invitation of some students, he attended a political demonstration as part of
300 participants who denounced the lack of freedom of expression and the
extreme poverty suffered by the population. He was arrested by the police,
along with several other demonstrators. However, the applicant was allegedly
held at the headquarters of the National Direction of Criminal Investigation (Direction
nationale des enquêtes criminelles) for over three months, during which he was
tortured and interrogated, his torturers demanding to know the names of the
demonstration’s organizers. On December 10, 2011, after his hospitalization, he
managed to escape and seek refuge at his uncle’s home. That same month he made
efforts to obtain a U.S. visa. In May 2012, he travelled to the United States
and remained there until August 10, 2012, when he claimed refugee status at a
Canadian border crossing.
[3]
The applicant’s credibility is at the heart of
the decision under review. The RPD concluded that the applicant’s narrative was
“a fabrication” and rejected his claim for refugee protection. The applicable
standard of review in this case is reasonableness. This application for
judicial review must be dismissed.
[4]
The RPD found a certain number of contradictions
and implausibilities. One major contradiction noted by the RPD was that the
applicant testified that he had been detained for three months, but indicated
in his Claim for Refugee Protection Form that he had been detained for a little
over one month. The applicant attributed this apparent contradiction to a
mistake made by the interpreter, but in the absence of evidence that the
translation was inaccurate, it was open to the RPD to disregard the applicant’s
explanation.
[5]
But there is more. The RPD doubted that the
applicant had been tortured for 3 months, as other demonstrators who had been
arrested had simply been convicted after a quick trial. On its face, the RPD’s
implausibility finding is not gratuitous and is based on the evidence in the
record. A newspaper article filed by the applicant describes 17 demonstrators
who were arrested and who were all convicted and sentenced to 45 days in jail,
while the Country Reports on Human Rights Practices for 2012 in the
National Documentation Package indicates that detainees are informed of the
charges against them and of their rights. The applicant was provided with an
opportunity at the hearing to explain why he would have been treated more
harshly than the other demonstrators who had been arrested by the police, but
was unable to come up with a reasonable explanation. His testimony was no more
convincing when he affirmed that no member of his family was concerned about
his disappearance or made any effort to locate him in the three months during
which he was allegedly detained. It was open for the RPD to find implausible
his explanation that his family knew that he was often away on business trips
(which were generally for one month according to his testimony).
[6]
The applicant’s learned counsel today claims
that the RPD erred in determining that it was not plausible that the applicant
was detained and tortured for 3 months. Even if the article in question speaks
of 17 demonstrators who were arrested and convicted, it is possible that other
persons had been arrested and that these people had not all been given trials.
The RPD further erred by considering only that part of the documentary evidence
which indicated that detainees are informed of the charges against them within
five days, without taking into account that part of the evidence indicating
that illegal and arbitrary arrests and detentions remained a serious problem. The
applicant concludes that the RPD’s analysis is incomplete and erroneous, which
would warrant the intervention of this Court.
[7]
Before the Court, the applicant’s counsel is
only reiterating the same explanations provided by his client to the RPD and he
is for all intents and purposes asking the Court to substitute its judgment for
that of the RPD. However, the RPD is in the best position to determine the applicant’s
credibility (Aguebor v Canada (Minister of Employment and Immigration),
160 NR 315, [1993] FCJ No 732 (FCA) at para 4). This Court sits in judicial
review. This is not an appeal and it is not the role of the Court to re-weigh
the evidence (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12
at paras 61 and 64; Canada (Attorney General) v Almon Equipment Limited,
2010 FCA 193 at para 62; see Mugesera v Canada (Minister of Citizenship and
Immigration), 2005 SCC 40 at paras 35-38; Nimer Obeid v Canada (Citizenship
and Immigration), 2008 FC 503 at paras 9-11; Trevino Zavala v Canada (Citizenship
and Immigration), 2009 FC 370 at para 5; Hernandez Cortes v Canada (Citizenship
and Immigration), 2009 FC 583 at para 28).
[8]
The applicant has not demonstrated that the RPD’s
findings were unreasonable. For these reasons, the application for judicial
review must be dismissed. No question of general importance was proposed by
counsel and none is certified by the Court.
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