Docket: IMM-6581-14
Citation:
2015 FC 933
Toronto, Ontario, July 30, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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RAJIC CAVIN
DOWANSINGH (A.K.A. RAJIV CAVIN DOWANSINGH) AND TAMARA DAMARIS DOWANSINGH
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Applicants
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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.
Overview
[1]
This is the judicial review of the denial of the
Applicants’ refugee appeal by the Refugee Appeal Division [RAD], pursuant to
section 110 of the Immigration and Refugee Protection Act (SC 2001, c
27) [the Act]. The Applicants, Rajiv and Tamara Dowansingh, are a married
couple from Jamaica fearing persecution by supporters of the Jamaica Labour
Party [JLP] because they refused to vote for the party in the 2011 national and
local elections.
[2]
The RAD upheld the rejection of the claim by the
Refugee Protection Division [RPD], concluding that there were no “palpable and overriding errors” relating to the
credibility findings by the RPD.
[3]
For the reasons below, I find the RAD’s
decision [Decision] to be reasonable, and dismiss the judicial review.
II.
Credibility Findings by the RPD
[4]
The Applicants are citizens of Jamaica who did
not vote in the national election in Jamaica in December 2011, or the local
election in March 2011. They allege that the neighbourhood in which they lived
was beset by organized gangs associated with the JLP, which had lost the
elections to the People’s National Party [PNP].
[5]
Mr. Dowansingh claims that in November 2012, he
was attacked by JLP thugs for failing to vote, thereby helping bring the PNP
into power. He allegedly reported the incident to the police, but no action was
taken.
[6]
At first instance, the RPD noted several
material irregularities in the Applicants’ narrative which undermined their
credibility.
[7]
For example, the claimants obtained Canadian
temporary visas which they used to visit Canada from October 9-26, 2012, and
March 22-April 14, 2013. The second visit, notably, came after the supposed
attack on Mr. Dowansingh, but a refugee claim was not made until January 2014,
a month after arriving in Canada for a third time. Further, when the Applicants
returned to Jamaica after their second trip in April 2013, they did not
relocate until their latest entry into Canada in December 2013. Rather, the
Applicants remained in the same house in the same district in which the assault
had taken place, despite having immediate family living in other districts and
sufficient financial means to remove themselves from danger (Application Record
[AR], p. 50-51).
[8]
Mr. Dowansingh also submitted a police letter
documenting the alleged assault he suffered in November 2012, but the RPD
determined that this was “not a trustworthy document”
for several reasons (AR, p.53). The document did not contain an original ink
signature, did not contain a file number, the crest appeared to have been
printed by an ink jet printer and the document’s date post-dated the e refugee
claim (AR, p. 50).
III.
Analysis
[9]
The Applicants’ argument that the RAD’s Decision
was unreasonable rests on the following premise - the RAD erred by applying the
standard of intervention of “palpable and overriding
error” to its review of the RPD’s conclusions.
[10]
More particularly, the decision maker should
have conducted an independent assessment of the police letter submitted by the
Applicants, and decided independently whether it was genuine. The fact that the
RAD did not do so tainted the remaining credibility findings, as the RAD’s view
of the Applicants’ narrative may have taken a different tone had it believed in
the veracity of the November 2012 assault.
[11]
I will begin by acknowledging that the
genuineness of a document must be independently assessed by the RAD. The RAD
should not defer to the RPD’s conclusions on such matters, because the RPD is
in no better a position to assess these documents than the RAD (Njeukam v
Canada (Citizenship and Immigration), 2014 FC 859 at para 14; Kurtzmalaj
v Canada (Citizenship and Immigration), 2014 FC 1072 at para 35; Sow v
Canada (Citizenship and Immigration), 2015 FC 295 at para 13).
[12]
Notwithstanding the RAD’s use of the standard of
“palpable and overriding error” in its review of
the entirety of the RPD decision, the RAD appears to have examined and come to
an independent assessment of the police report for itself:
[19] “….the RPD did not accept the police
report as being trustworthy, due to the numerous inconsistencies within the
body of the report and the quality of the report in general. The RPD, in its
reasons, cited clearly the concerns it had when looking at the police report. The
RAD has reviewed the evidence in this area concerning the police report, where
the RPD found it to be riddled with anomalies, and those were identified
clearly in its reasons; as such, the RAD finds the RPD finding regarding
the value of the police report to be reasonable in this circumstance.” (AR,
p.11, emphasis added)
[13]
As a general practice, the more detail the RAD
can provide in its reasons about its thoughts on the most salient issues
pertaining to personalized documentation and country conditions, as well as including
country condition evidence and whether it agrees with or differs from the RPD’s
assessment, the more likely a reviewing Court is to find that such evidence was
independently assessed by the RAD.
[14]
However, this does not mean that the RAD is
confined to a mechanistic process in which it must detail how it arrived at all
of its independent conclusions. Where the RPD’s factual findings are numerous,
plainly obvious, and well-articulated, as is the case here regarding the
authenticity of a document, then the RAD’s succinct acknowledgment of these
concerns may be enough to demonstrate that it has conducted independent
assessment.
[15]
At the other end of the spectrum, if the RPD’s
conclusions turn on other discrete observations, specialized expertise, and/or
novel findings, then there is a greater need for the RAD to detail how it
reached its conclusions on the evidence. In such cases, merely stating that the
evidence was examined and concurring with the RPD may not reflect that an
independent assessment has actually been conducted (Cepeda-Guiterrez v
Canada (Minster of Citizenship and Immigration), 157 FTR 35; Ali v
Canada (Citizenship and Immigration), 2015 FC 500 at para 9; Mestre v
Canada (Citizenship and Immigration), 2015 FC 375 at para 15; Shahini v
Canada (Citizenship and Immigration), 2012 FC 211 at para 15).
[16]
In this case, the RAD explicitly stated in its
reasons that it reviewed the evidence regarding the police letter, and noted
the RPD “identified clearly in its reasons” that
the letter was “riddled with anomalies”. In the
context of this case, I take this to mean that the RAD reviewed the evidence
and had the same concerns as the RPD regarding its authenticity. There is
neither any point nor requirement to parrot the words of the panel in arriving
at the same credibility-based findings.
[17]
In any event, the RPD’s conclusions regarding
the Applicants’ credibility rested on more pillars than merely the genuineness
of the police report submitted. The RAD found “there is
[sic] no palpable and overriding errors relating to the credibility
assessment by the RPD” and that “[t]he RPD
considered the Appellants’ delay in departure, their travel to Canada, and
their re-availment to Jamaica. It concluded that their actions speak to a lack
of subjective fear” (AR, p.11). The RAD further held that the negative
credibility findings made by the RPD extended to section 97, as they went “not only to subjective fear, but also to the
non-subjective fear concerns”.
[18]
I find the RAD’s conclusions to be reasonable.
Negative credibility findings made under section 96 may also affect the
validity of a claim under section 97, even though subjective fear is not part
of the assessment for the latter section (Mahadeva v Canada (Minister of
Citizenship and Immigration), 2006 FC 415 at para 15). While the RPD could
have performed a separate section 97 analysis, it would not have made a
material difference. Specifically, I agree with the RAD that the Applicants’
behaviour, including their delay in making a claim and their re-availment to
Jamaica, as well as implausibilities and inconsistencies in their narrative, so
seriously undermined their overall credibility that these findings were
applicable to both section 96 and section 97. The negative section 96
credibility finding obviated the need to consider the claim under section 97 (Restrepo
Mejia v Canada (Citizenship and Immigration); 2010 FC 410 at para 20; Reza
Gorostieta v Canada (Citizenship and Immigration), 2011 FC 343 at para 32; Nyathi
v Canada (Minister of Citizenship and Immigration), 2003 FC 1119 at paras
21-24; El Achkar v Canada (Citizenship and Immigration), 2013 FC 472 at
paras 38, 43-44).
[19]
The Applicants argue that the RAD erred in
assessing the RPD’s credibility findings on a “palpable
and overriding error” standard. I begin by noting that certain case law
holds this is indeed the standard of intervention on which the RAD should
review credibility findings (see for instance, Spasoja v Canada (Citizenship
and Immigration), 2014 FC 913 at para 40).
[20]
In what has become the pre-eminent case on the
standard of intervention by the RAD, Justice Phelan in Huruglica v Canada
(Citizenship and Immigration), 2014 FC 799 at para 55, concluded that the
RAD may “recognize and respect the conclusion of the
RPD on such issues as credibility” but is not limited to “to intervening on
facts only where there is a ‘palpable and overriding error’.” I endorsed
this approach in Brodrick v Canada (Citizenship and Immigration), 2015
FC 491 at para 34.
[21]
The Applicants argue that the RAD should have
been less deferential to the RPD’s credibility findings in this case. The RAD
should have “recognized and respected” the
credibility determinations by the RPD, not reviewed them for “palpable and overriding errors”. In other words, the
RAD wasn’t aware that it could have intervened in circumstances where the RPD
made an error in a credibility determination which wasn’t obvious (palpable) or
of crucial importance (overriding) (Canada v South Yukon Forest Corporation,
2012 FCA 165 at para 46).
[22]
However, I do not see what difference that would
have made in this case. This Court has repeatedly held that RPD’s conclusions
on issues of credibility based on testimony clearly warrant some measure of
deference (Denbel v Canada (Citizenship and Immigration), 2015 FC 629 at
para 31; Ali v Canada (Citizenship and Immigration), 2015 FC 500 at para
8; Ngandu v Canada (Citizenship and Immigration), 2015 FC 423 at
para 31). As a result of the numerous inconsistencies and implausibilities in
the Applicants’ narrative, I fail to see a reviewable error in the RAD’s
Decision not to intervene.
[23]
Despite the very able arguments of counsel for
the Applicants and best efforts to convince me that the matter needs to be
returned for reconsideration, I see no basis upon which to do so. I, therefore,
dismiss this application for judicial review.
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