Docket: IMM-5246-14
Citation:
2015 FC 557
Ottawa, Ontario, April 29, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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HAMZE ELMI
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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 by Hamze Elmi [the
Applicant] for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of the
Refugee Protection Division [RPD] dated May 9, 2014. The RPD held that the
Applicant was neither a Convention Refugee nor a person in need of protection
within the meaning of sections 96 and 97 of IRPA.
II.
Alleged Facts
[2]
The Applicant is a Djibouti national, born on
February 8, 1984.
[3]
He claimed to have been targeted by family
members because of his homosexual orientation. The alleged persecution is said
to be in the form of rape and physical humiliation in an attempt to cleanse him
of his “sin”. He claimed to have been arrested
and detained after being reported by his father to the police in December 2003.
[4]
The Applicant stated that following the December
2003 events, he hid at a friend’s house in another area of the city and then
moved, two months later, to stay with a friend’s family in Dikhil, two hours
away from the city of Djibouti. The Applicant claimed to have hid there for four
and a half years before returning to the city of Djibouti to apply for a United
States of America [USA] visa on June 5, 2009. He made an application to obtain
a USA visa on July 6, 2009. The visa was issued on July 9, 2009. He returned to
Dikhil on the same day.
[5]
On July 16, 2009, the Applicant alleged to leaving
Djibouti to go visit his mother in Somalia. He claimed to have stayed with her
for one week before returning to Djibouti.
[6]
He left Djibouti on October 15, 2009, for Egypt,
where he remained until October 27, 2009. On that date, the Applicant went to
the USA, where he stayed until February 10, 2010. He arrived in Canada on that
date and claimed refugee protection.
[7]
The RPD rejected the Applicant’s claim in a
decision rendered on May 9, 2014. This is the decision under review.
III.
Impugned Decision
[8]
The RPD identified numerous omissions and
contradictions between the Applicant’s narrative and his testimony, which undermined
his credibility. First, the RPD noted discrepancies with respect to dates when
he claimed to have been detained in December 2003, contradictions between what
happened to him during his detention and his sister’s affidavit and also with
regards to his school attendance.
[9]
The RPD also pointed out that no events were
mentioned in his narrative until the Applicant’s departure of Djibouti for
Somalia on July 16, 2009. The RPD also wrote that the Applicant had not written
in his narrative that he had returned to Djibouti after one week and stayed
there until October 15, 2009, before leaving his country. The RPD therefore
stated not to believe the Applicant’s allegations and his alleged fears.
[10]
The RPD also specified that it did not give any
probative value to the copy of the notice to appear issued by the authorities
in his country along with the Applicant’s sister’s affidavit. The RPD also did
not give credence to the Applicant’s brother’s testimony.
[11]
Finally, the RPD pointed out that the
Applicant’s conduct is inconsistent with his fear because before coming to
Canada, he stayed in Egypt and in the USA, where he did not claim asylum.
[12]
The RPD thus concluded that the Applicant was
neither a Convention Refugee nor a person in need of protection within the
meaning of sections 96 and 97 of IRPA.
IV.
Parties’ Submissions
[13]
The Applicant first submits that there was no
contradiction with regards to the period of his detention between the Applicant
Personal Information Form [PIF], which specifies that he was detained between
December 12 to 26, 2003, and his testimony before the RPD, where he stated that
he was detained at the end of December 2003. The Applicant adds that the RPD
also erred in its assessment of what happened to him while in detention. The
Applicant further states that the RPD misconstrued the facts in the Applicant’s
sister’s affidavit. He also submits that the contradiction regarding the dates
he attended school was adequately explained to the RPD. The Applicant also
argues that the RPD conclusion that his omission regarding his one week stay
with his mother should not have impacted the assessment of his credibility. The
Respondent however argues that the Applicant’s attempts to undermine the RPD
credibility findings and negative inferences are without merit, and that the
RPD is owed considerable deference on credibility findings. He adds that it is
not the role of this Court to reweigh the evidence.
[14]
The Applicant further submits that the RPD’s
rejection of the notice to appear issued by the authorities of Djibouti, of his
sister’s affidavit and of his brother’s testimony is unreasonable, because they
corroborated the Applicant’s story. The Respondent responds by saying that it
was reasonable for the RPD to give little value to the affidavit of the
Applicant’s sister and to the Applicant’s brother’s testimony given its
negative credibility determinations.
[15]
As for the Applicant’s stay in Egypt and in the
USA, the Applicant argues that he only remained in Egypt for eleven days, where
he went only to buy a cheaper plane ticket to travel to the USA, and that he
did not claim asylum in the USA, because his goal was to join his brother in
Canada. The Respondent replies by submitting that the RPD is entitled to decide
adversely on an applicant’s credibility based on the fact that he or she
delayed in claiming refugee status. In its reply, the Applicant disagrees with
the case law cited by the Respondent on this issue since the facts of the cases
presented by the Respondent differ from the facts of the case at bar.
V.
Issue
[16]
I have reviewed the parties’ submissions and
respective records and I state the issue as follow:
- Is the RPD’s
assessment of the Applicant’s credibility reasonable?
VI.
Standard of Review
[17]
Whether the RPD’s credibility assessment of the
Applicant is reasonable is mainly a factual determination (Salazar v Canada
(Minister of Citizenship and Immigration), 2013 FC 466 at para 36; Molano
v Canada (Minister of Citizenship and Immigration), 2011 FC 1253 at para
26; Ruiz v Canada (Minister of Citizenship and Immigration), 2012 FC 258
at para 20). This Court shall only intervene if it concludes that the decision
is unreasonable and falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para
47 [Dunsmuir]).
VII.
Analysis
[18]
Credibility determinations by the RPD are
afforded deference (Rahal v Canada (Minister of Citizenship and Immigration),
2012 FC 319 at paras 27 and 31 [Rahal]). Indeed, credibility
determinations are at the heart of the RPD’s jurisdiction (Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at para 7). This
Court will only intervene if the RPD “based its
decision or order on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it” (Khakh
v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 980, 116
FTR 310 at para 6; Rahal, above at para 35). The burden is on the
Applicant to establish that the negative credibility findings were perverse,
capricious or made without regard of the evidence (Houshan v Canada
(Minister of Citizenship and Immigration), 2010 FC 650 at para 19 [Houshan]).
In the case at bar, although not perfect, I found that the RPD decision to be reasonable.
[19]
The Applicant first takes issue with the RPD’s
conclusion that there is a contradiction between the Applicant’s testimony that
he was detained at the end of December 2003 compared to what he had stated in
his narrative, namely that he was detained between December 12 and December 26,
2003. I agree with the Applicant that this is not in itself a contradiction, given
that the last day of detention, December 26, is very close to the end of the
month. A contradiction in facts that are opposed to each other. In this case,
the facts are not. Having said that, this does not render the whole decision
unreasonable.
[20]
The Applicant also takes issue with the RPD’s
determination that there was a contradiction between his statement that he was
not subject to any suffering while in detention and that of his sister’s
affidavit (Applicant’s Record [AR] page 65), which seems to indicate that his
brother was badly injured when he returned home. The Applicant’s explanation
and that of his counsel at the hearing before the RPD was that his sister was
referring to the incident where the Applicant’s family members tortured him
under a tree, and that the affidavit should be read as a whole. However, based
on the presentation of the content of the Applicant’s sister’s affidavit, it
was reasonable for the RPD to conclude to a contradiction on this point.
[21]
The Applicant also argues that the RPD’s
conclusion regarding the dates of his school attendance was unreasonable. On
this matter, the Applicant wrote in his PIF that he attended school between
September 2001 and July 2004. He however mentioned in his narrative that he “escaped to another neighbourhood in Djibouti City”
(Applicant’s Record of August 5, 2014, [AR], page 58 at lines 144 and
following), where he stayed with a friend for two months after being tortured
by his family members, which took place after his detention in December 2003,
and did not attend school afterwards. When questioned on this contradiction
before the RPD, the Applicant explained that he had simply written the end of
the school year, July 2004, in his PIF because he was not asked for details at
the border (Certified Tribunal Record [CTR], transcript of the RPD hearing,
page 144). In essence, therefore, the Applicant did not go to school between
January 2004 and July 2004, for a total of six months, which is not what he
wrote in his PIF. It was reasonable for the RPD to conclude that the
Applicant’s record and his testimony contradicted themselves.
[22]
The Applicant also disagrees with the RPD
determination that the Applicant’s omission of mentioning his return to
Djibouti, after visiting his mother in Somalia for one week, negatively
affected his refugee claim. It was however open to the RPD to draw a negative
conclusion on this omission. Moreover, the RPD noted that the Applicant remained
in Djibouti for about two months before leaving for Egypt. Indeed, between June
5, 2009 and October 15, 2009, with the exception of the Applicant visiting his
mother in Somalia, the Applicant was living in Djibouti. The Applicant
explained that he spent this much time in Djibouti before leaving because of the
procedure to obtain his Egyptian visa (CTR, transcript of the RPD hearing, page
160). During that time, however, the Applicant did not allege to have suffered
any persecution. This again negatively affected his credibility as a person
fearing persecution based on his sexual orientation.
[23]
Although it was not discussed at the hearing
before the RPD, but discussed at the hearing of this judicial review, I noted
that the Applicant’s passport contains a stamp for his exit of Djibouti, dated
July 16, 2009, as well as a stamp regarding the Applicant’s entry to Djibouti,
dated October 2, 2009 (AR page 30). According to the Applicant’s record and
testimony before the RPD, the Applicant should have been in Djibouti before and
on October 2, 2009. No answer was given to explain these exist and entry before
this Court, but on its face, it contradicts the testimony of the Applicant when
he said that he was in Djibouti during all of that time.
[24]
I also noted that the Applicant testified before
the RPD that he made the decision to come to Canada in 2004, while he was in
Djibouti (CTR, transcript of the RPD hearing, page 132). The Applicant however
waited until May 2009 to ask for a passport (CTR, transcript of the RPD
hearing, page 129) and until July 2009 for a USA visa before finally arriving
in Canada in February 2010. The Applicant’s conduct and actions, since his
decision to leave Djibouti for Canada in 2004, are thus inconsistent with his
alleged fear based on his sexual orientation. Moreover, no events took place in
relation to the Applicant in Djibouti since his arrival in Canada, except for
his claim that all of his “family knows by now”
about his sexual orientation (CTR, transcript of the RPD hearing, pages 131-132).
The simple statement, namely that all of his family now knows that he is
homosexual is not enough to support the refugee claim.
[25]
The RPD also discussed how the Applicant stayed
in Egypt for eleven days in October 2009 and spent close to three months and a
half in the USA before arriving in Canada without claiming refugee protection.
The RPD was not satisfied with the Applicant’s explanation as to why he did not
claim refugee protection in either of those countries. This was a reasonable assessment
by the RPD since it is not required to accept the Applicant’s explanation (Karakaya
v Canada (Minister of Citizenship and Immigration), 2014 FC 777 at para 18;
Houshan, above).
[26]
The Applicant and the Respondent also disagrees
as to the impact of the Applicant’s decision not to claim refugee protection in
the USA. A similar disagreement occurred between the parties in Olaya v Canada (Minister of Citizenship and
Immigration), 2012 FC 913 [Oyala], where Justice O’Keefe said the
following at paragraphs 51 to 55:
51 The Board
found that the applicants' failure to pursue immigration efforts or asylum
claims in the U.S. prior to coming to Canada indicated a lack of subjective
fear. Although this was not a determinative finding, the applicants criticized
it for being made without regard to their specific circumstances. These
circumstances included the fact that their stay in the U.S. was legal (they
held valid visas) and brief (five days). They also never intended to stay there
but rather always planned to come to Canada where one of their relatives lives.
52 In
defending the Board's finding on this issue, the respondent submits that it is
trite law that a failure to seek asylum in a signatory country, through which
an applicant travels before arriving in Canada, is a relevant consideration in
rejecting a claim. This argument has judicial support (see Gilgorri v Canada (Minister of Citizenship and
Immigration), 2006 FC 559, [2006] FCJ No 701 at
paragraphs 24 to 27). One of the cases cited approvingly by Mr. Justice Michel
Shore in Gilgorri is Pissareva v Canada
(Minister of Citizenship and Immigration), 11 Imm LR (3d) 233, [2000] FCJ No 2001.
In Pissareva above, Chief Justice Edmond Blanchard explained (at paragraph 29):
As regards the plaintiff's failure to
claim refugee status in the U.S., where she lived for nearly a month before
setting foot on Canadian soil, this Court has many times said that the Refugee
Division must take claimants' behaviour into account. The
fact of passing through a country which is a signatory of the Convention
without claiming refugee status as quickly as possible may be one factor in
assessing the subjective aspects of her claim. [emphasis added]
53 More
recently, this Court has found that absent a satisfactory explanation for the
delay, such delay can be fatal to an applicant's claim, even where that
applicant's credibility has not otherwise been challenged (see Velez v Canada (Minister of Citizenship and
Immigration), 2010 FC 923, [2010] FCJ No 1138
at paragraph 28).
54 In this
case, it is notable that the applicants remained in the U.S. less than a week.
However, as they held six-month U.S. visitor visas, there was no legal
impediment to them staying longer and filing asylum claims there. Furthermore,
the mere fact that the applicants have one relative living in Canada is not a
sufficient basis to overcome the fact that they did not claim refugee status in
the U.S. "as quickly as possible" (see Pissareva above, at paragraph 29).
55 As the
Board did not ultimately render its decision on this issue, I find no fault in
the negative inference that it drew from the applicants' failure to file claims
in the U.S. Their failure to claim in the U.S. was a legitimate factor for the
Board to consider in assessing the subjective aspects of their claims. The
Board's finding on this issue was reasonably open to it based on the evidence
before it (emphasis in original).
[27]
In the case at bar, the Applicant spent more
than three months in the USA, thus more than the five days as was the case in Oyala,
above. Although it is not determinative, it is a factor that the RPD can take
into consideration in the refugee protection claim of the Applicant. Justice
O’Keefe also specified that having a relative in Canada is not sufficient to overcome
the fact that the Applicant did not claim refugee protection as soon as
possible. The same reasoning is applicable here as well. The RPD conclusion on
this issue is thus reasonable.
[28]
Lastly, the Applicant takes issue with the RPD’s
rejection of the Applicant’s sister’s affidavit, his notice to appear issued by
the authorities of Djibouti and of his brother’s testimony. The RPD pointed
out, with respect to the notice to appear, that it was not dated, that it was
not the original and also found it surprising that the Applicant did not know
who had received it. With regards to the Applicant’s sister’s affidavit, the
Applicant explained that he had requested the document from his sister in 2010,
and only received it in February 2014, four years later (CTR, transcript of the
RPD hearing, page 124). It was thus reasonable for the RPD to reject the
Applicant’s explanations with regards to those documents. Moreover, since the
RPD determined that the Applicant was not credible, it was reasonable for it
not to give probative value to this evidence and that of his brother’s
testimony (Nijjer v Canada (Minister of Citizenship and Immigration), 2009 FC 1259 at para
26; Gebetas v Canada (Minister of Citizenship and Immigration), 2013 FC
1241 at para 29; Sheikh v Canada (Minister of Employment and Immigration),
[1990] 3 FC 238, [1990] FCJ No 604 (CA) at para 9; Karakaya v Canada
(Minister of Citizenship and Immigration), 2014 FC 777 at para 18).
[29]
For the reasons above, the decision is
reasonable and falls within “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above).
VIII. Conclusion
[30]
Despite an unreasonable conclusion with regards
to the moment of detention of the Applicant in December 2003, the RPD decision,
read as a whole, is reasonable. The RPD draw adequate negative credibility
findings and the intervention of this Court is not warranted.
[31]
The parties were invited to submit questions for
certification, but none were proposed.
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