Docket: IMM-6379-14
Citation:
2015 FC 1110
Ottawa, Ontario, September 24, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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MAHER DAWOUD
and
ALI MOHAMMAD
ALI DAWOUD
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants’ claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada [the Board]. They now apply for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicants are Palestinians who resided in
the West Bank. They owned a company together called Kofi Net Everest, providing
secured wireless internet for distribution from an Israeli engineer named Ori
Levy.
[4]
The applicants would meet Mr. Levy for payment
and equipment exchange in an area between Palestine and Israel adjacent to the
checkpoint in north Qalqilya.
[5]
On February 3, 2012, a car stopped in front of
the applicants’ company and a person got out and fired his gun at them. About
two or three days later, they found flyers distributed around a mosque accusing
them of being Israeli spies. They allege that they were targeted by a militant
group called Horsemen of the Night.
[6]
On May 18, 2012, the applicants traveled to the
United States [U.S.] on business visas. While they were in the U.S., they
contacted a Canadian lawyer about getting protection in Canada because they
felt the U.S. was not safe. They then applied for a Canadian visa, but were
refused.
[7]
On September 18, 2012, the applicants crossed
into Canada illegally and made refugee protection claims alleging that they
were targeted by a militant group due to their association with Mr. Levy.
II.
Decision Under Review
[8]
In a decision dated August 14, 2014, the Board
refused the applicants’ refugee claim finding that they were not Convention
refugees or persons in need of protection as defined under sections 96 and 97
of the Act.
[9]
The Board accepted the claimants’ identities as
Palestine residents and their former roles as operators of a computer business.
Although the Board observed the applicants’ testimony was consistent, it
determined that the central elements of the applicants’ claim were not
credible. It based its finding on the following omissions and inconsistencies.
[10]
First, the applicants provided insufficient independent
documentary evidence about the militant group, Horsemen of the Night. The Board
acknowledged that there is a presumption of truthfulness for a claimant’s sworn
testimony; however, it noted in Adu v Canada (Minister of Employment and
Immigration), [1995] FCJ No 114, 53 ACWS (3d) 158 (FCA) [Adu], the
Federal Court of Appeal found this presumption is rebuttable and may be
rebutted by the failure of documentary evidence to mention what one would
normally expect it to mention. Here, only a Facebook page was provided in
support and none of the other independent documentary evidence had reference to
this militant group.
[11]
Second, the applicants’ Personal Information
Forms (PIF) omitted a number of key details in the applicants’ evidence:
i.
Phone calls made to Maher Dawoud’s brother’s
cell phone demanding to know the applicants’ whereabouts;
ii.
Palestinian police visiting Ali Mohammed Ali
Dawoud’s parents asking about the applicants’ whereabouts; and
iii.
A consultation with a mokhtar, a tribal elder,
for assistance.
[12]
Here, the applicants explained that because no
one asked these questions, they did not include this information in the PIFs.
The Board found this explanation was not satisfactory, given instructions on the
PIF were very clear that all the events and reasons that have led the claimants
to claim refugee protection should be included. The Board relied on Castaneda
v Canada (Minister of Citizenship and Immigration), 2010 FC 393, [2010] FCJ
No 437 [Castaneda], finding that it is reasonable to draw a negative
credibility inference in light of the lack of corroborating evidence and the
lack of reasonable and credible explanations for the failure to produce that
evidence.
[13]
Third, the Board determined that the applicants
lack subjective fear because they travelled in the U.S. for four months but did
not make a claim for protection in that country. It did not accept the
applicants’ explanation and found if the applicants were fleeing for their
lives, it was not reasonable for them to analyze the crime rate in Canada and the
U.S., two very safe countries.
[14]
Fourth, the Board observed the applicants failed
to provide corroborating evidence such as an alleged police report and the flyer
distributed at the mosque and the Board was not satisfied with the applicants’
explanation for not providing them.
[15]
Therefore, the Board rejected the applicants’
claims.
III.
Issues
[16]
The applicants raise the following issues:
1.
Whether the Board failed to give due
consideration to all the evidence before it when it refused the applicants’
claims.
2.
Whether the Board breached procedural fairness
by basing its determination regarding the applicants’ credibility in part on
the absence of evidence relating to the agent of persecution without first
providing notice to the applicants the agent of persecution would be an issue.
[17]
The respondent raises the following issues:
1.
Was the decision reasonable?
2.
Was there a breach of procedural fairness?
[18]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Was the Board’s decision reasonable?
C.
Did the Board breach procedural fairness?
IV.
Applicants’ Written Submissions and Further
Memorandum
[19]
The applicants submit the standard of
reasonableness should apply to the first issue (Lappen v Canada (Minister of
Citizenship and Immigration), 2008 FC 434 at paragraph 13, [2008] FCJ No
566) and the standard of correctness should apply to the second issue (Xiang
v Canada (Minister of Citizenship and Immigration), 2013 FC 256 at
paragraph 13, [2013] FCJ No 281).
[20]
First, the applicants submit the Board erred by
not performing a separate section 97 analysis. They argue the Board failed to
consider the evidence surrounding the applicants’ interaction with Mr. Levy. It
did not assess whether these actions would be sufficient to create a perception
that they were collaborating with the Israelis. The Board failed to account for
this credible evidence. They argue they would be considered as “economic collaborators”. The applicants submitted to
the Board that they would face persecution on the basis of their membership in
the group of “perceived collaborators”. They
provided country evidence in support. However, the Board failed to conduct an
analysis of the evidence after it had accepted the applicants’ business
relationship with Mr. Levy. Therefore, despite the Board’s negative credibility
findings in other aspects, it committed a reviewable error.
[21]
Second, the applicants submit the Board’s
finding with respect to subjective fear was unreasonable. They argue delay in
making a claim for refugee protection should not be fatal to the claim where
the delay is supported by a reasonable explanation. In the present case, the
applicants had lawful status in the U.S. and there was no urgency for them to
claim. Also, it was not implausible about wanting to seek the safest refugee
protection possible. The applicants submit where a claimant does not have to
seek protection when outside the country of persecution because he/she is safe
from being forced to return, not making a refugee claim at the first
opportunity should not be held against the claimant (Abawaji v Canada
(Minister of Citizenship and Immigration), 2006 FC 1065 at paragraph 16,
[2006] FCJ No 1344).
[22]
Also, the applicants argue the lack of
subjective fear would have been irrelevant to an assessment of risk under subsection
97(1) of the Act, where the inquiry is whether the applicants would be
perceived as Israeli collaborators. Here, the analysis should be forward-looking.
[23]
Third, the applicants submit the Board breached
procedural fairness because the Board’s screening form did not have “agent of persecution” checked. They argue the Board did
not identify it as an issue and did not raise this concern during the
proceedings. The Board only inquired whether there was other independent
documentary evidence. The applicants argue the Board failed to meet its
obligation to provide them with notice that this would be an issue for their
claim (El-Bahisi v Canada (Minister of Employment and Immigration),
[1994] FCJ No 2 at paragraph 6, 72 FTR 117 [El-Bahisi]; and Islas v
Canada (Minister of Citizenship and Immigration), [1994] FCJ No 1901 at
paragraph 2, 52 ACWS (3d) 393 [Islas]). They submit it was unreasonable
for the Board to assume that each cell, militia and faction would be
specifically named in the National Documentation Package (NDP). They noted the
disclaimer at the beginning of the NDP that NDPs are not and do not purport to
be exhaustive with regard to conditions in the countries surveyed.
[24]
Here, the absence of any reference in the
country documentation of the agent of persecution was an essential basis for
the Board’s negative credibility finding. Therefore, the Board made a
reviewable error. The applicants submit “an
unreasonable mistake causes a break in the chain and casts doubt upon the
Decision as a whole” (Song v Canada (Minister of Citizenship and
Immigration), 2008 FC 1321 at paragraph 52, 337 FTR 72).
V.
Respondent’s Written Submissions and Further
Memorandum
[25]
The respondent submits the standard of review
applicable to the Board’s consideration of the evidence and whether a separate
section 97 analysis was required is the standard of reasonableness. The
standard of review on the question of procedural fairness is the standard of
correctness (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraphs 46, 59, 61 and 63, [2009] 1 S.C.R. 339 [Khosa];
and Velez v Canada (Minister of Citizenship and Immigration), 2010 FC
923 at paragraphs 22 and 23, [2010] FCJ No 1138 [Velez]).
[26]
First, the respondent submits the Board’s
decision was reasonable. Credibility findings are the “heartland
of the Board’s jurisdiction” (RKL v Canada (Minister of Citizenship
and Immigration), 2003 FCT 116 at paragraph 7, [2003] FCJ No 162 [RKL]).
Although the Board accepted the applicants’ evidence regarding their business
relationship with Mr. Levy, it did not accept their allegations regarding the
militant group and drew negative inferences from the applicants’ failure to
provide corroborating documents. These were the core elements of the
applicants’ refugee protection claim.
[27]
Further, the Board was reasonable to conclude
the applicants lacked subjective fear. Here, in light of its negative
credibility findings, the Board examined the circumstances and did not accept
the applicants’ explanations for waiting four months to make a claim and not
making a claim in the U.S. The respondent argues the applicants’ arguments
regarding delay are contradictory. On one hand, the applicants’ reason for the
delay was they felt the U.S. was unsafe so they wanted to claim in Canada; on
the other hand, they argued delay was reasonable because they were safe in the
U.S. Also, the delay was only one of the negative credibility findings which contributed
to the Board’s conclusion that the applicants lacked subjective fear.
[28]
Second, the respondent argues a separate section
97 analysis was not required because the credibility and factual findings made
by the Board were entirely dispositive of the case. It argues the present case
is analogous to Lopez v Canada (Minister of Citizenship and Immigration),
2014 FC 102, [2014] FCJ No 123 [Lopez]. In that case, two young brothers
who alleged to be at risk of gang violence failed to claim protection in the U.S.
This Court found a separate section 97 analysis was not required because the
documentary evidence addressed only a generalized risk faced by some young
males in El Salvador, but did not provide objective and credible evidence of a
personalized risk faced by them (at paragraphs 41 to 46).
[29]
In the present case, the applicants established
that they had a business relationship with Mr. Levy, but failed to establish
that they had ever received any threats or were subjected to any risk.
Therefore, given the lack of credible evidence that anyone perceived the
applicants to be collaborators, the Board did not have to conduct a separate
section 97 analysis.
[30]
Third, the respondent submits the Board did not
breach procedural fairness. It argues the Board’s findings regarding the agent
of persecution went to credibility and subjective fear, which the screening form
had identified as being at issue. In the present case, the Board directed the
applicants to whether or not there was more corroborating evidence on the
Horsemen of the Night during the hearing. Further, the applicants have not
indicated any other evidence they would have provided had the issue been marked
on the Screening Form. The respondent argues even with further independent
evidence, it would not have affected the result because the Board did not
believe many central elements of the applicants’ claim. Here, the applicants
are asking this Court to prefer form over substance. Both subjective fear and
credibility were marked on the screening form and the discussion regarding the Horsemen
of the Night in the decision went primarily to the credibility of the
applicants’ subjective fear of this group.
[31]
Further, the respondent argues both El-Bahisi
and Islas can be distinguished from the present case. In these two
cases, the Board erred in relying on changing circumstances in the claimants’
home country without this issue being raised at the hearing. This is not the
case here because the Board in the present case asked for more documentary
information during the hearing and the applicants failed to provide more.
[32]
Therefore, the Board’s decision was reasonable
and it did not breach procedural fairness.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[33]
With respect to the standard of review for the
Board’s decision, I agree with the parties that the standard of reasonableness
should apply. The issues concerning the Board’s consideration of the evidence
and whether a separate section 97 analysis was required involve questions of
fact and questions of mixed fact and law. They generally attract the standard
of reasonableness (Velez at paragraphs 22 and 23). This means that I
should not intervene if the decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190). As the Supreme Court held in Khosa
at paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
[34]
With respect to the issue of procedural
fairness, I agree with the parties that the standard of review is correctness.
This means I must determine whether the process followed by the decision maker
satisfies the level of fairness required in all of the circumstances (Khosa
at paragraph 43).
B.
Issue 2 - Was the Board’s decision reasonable?
[35]
I find the Board’s decision was reasonable.
[36]
First, I find the Board’s credibility findings
were reasonable.
[37]
It is trite law that credibility findings are
the “heartland of the Board’s jurisdiction” (RKL
at paragraph 7). Here, the Board found that the central elements of the
applicants’ claim were not credible based on omissions and inconsistencies. It
was not satisfied with the applicants’ explanation of why some of the
corroborating evidence was not produced. In Castaneda, this Court found
it is reasonable to draw a negative credibility inference in light of the lack
of corroborating evidence and the lack of reasonable and credible explanations
for the failure to produce that evidence.
[38]
As for the rest of the applicants’ argument
surrounding the NDP regarding the agent of persecution, in my view, this
amounts to a disagreement with the Board’s assigned weight of the documentary
evidence. It is not my role to reweigh the evidence when determining the
reasonableness of the Board’s decision. Here, I find the Board was not
unreasonable to prefer the documentary evidence over the applicants’ submitted
Facebook evidence.
[39]
In Adu, the Federal Court of Appeal found
the presumption of the truthfulness for sworn testimony may be rebutted by the
failure of the documentary evidence to mention what one would normally expect
it to mention. I find the Board was within its right to conclude the lack of
corroborating documentary evidence on the agent of persecution undermined the
applicants’ credibility as there was no mention of the Horsemen of the Night.
Therefore, the Board’s credibility findings were reasonable.
[40]
Second, I find in light of the negative
credibility findings, the Board was not unreasonable to find the applicants
lacked subjective fear.
[41]
Although the failure to claim refugee status in
another country is not determinative of a lack of subjective fear, it is a
relevant factor which also affects credibility.
[42]
Here, the Board was not satisfied with the
applicants’ rationale in delaying to file for their refugee claims. It reasoned
if the applicants were fleeing for their lives, they would not be comparing
crime rates between the U.S. and Canada. This was not an unreasonable analysis.
Further, the delay was only one of the negative credibility findings which all
contributed to the Board’s conclusion that the applicants lacked subjective
fear. Therefore, the Board’s determination that the applicants lacked subject
fear was not unreasonable.
[43]
Third, I find the Board did not err in not
conducting a separate section 97 analysis.
[44]
I agree with the respondent’s reliance on Lopez.
In that case, Madame Justice Catherine Kane clearly found at paragraph 46 that “negative credibility findings are sufficient to foreclose
the section 97 analysis unless there is independent objective evidence to
support that the particular applicants would face a personalized risk.” She
explained in paragraph 42 that documentary evidence provides support for
generalized risk, but not personalized risk which is required under
subparagraph 97(1)(b)(ii) of the Act:
The applicants rely on documentary evidence
which indicates that young Salvadorian males in Maras-controlled neighbourhoods
are at risk of gang violence. These documents seek to demonstrate a generalized
risk experienced by all young Salvadorian males in neighbourhoods controlled by
the Maras. However, personalized risk, as opposed to generalized risk, is
required under subparagraph 97(1)(b)(ii) of the Act.
[45]
I find the present case is analogous to Lopez.
Here, although the applicants provided country evidence to support there would
be a risk of persecution if one is perceived to be an economic collaborator,
this evidence established generalized risk. However, the applicants failed to
establish personalized risk because their evidence with respect to the shooting
attempt and the contents of the flyer was not accepted.
[46]
In the case at bar, the applicants established
that they had a business relationship with Mr. Levy; but in light of the Board’s
negative credibility findings, they did not establish that they had ever
received any threats or that they were subjected to any personal risk.
Therefore, I find the Board did not commit a reviewable error by not conducting
a separate section 97 analysis.
C.
Issue 3 - Did the Board breach procedural
fairness?
[47]
The applicants allege the Board breached
procedural fairness because the Board’s screening form did not have “agent of persecution” checked. The respondent submits
the applicants’ argument focuses on form over substance because the agent of
persecution went to issues of credibility and subjective fear, which the screening
form had identified as being in issue.
[48]
Here, I agree with the respondent. Although the
Board did not check off “agent of persecution”,
it did bring up the question on whether or not there was more corroborating
evidence on the Horsemen of the Night during the hearing.
[49]
With respect to the applicants’ reliance on El-Bahisi
and Islas, I agree with the respondent that these two cases can be
distinguished from the present case. In these two cases, this Court found the
Board breached procedural fairness because the Board based its decision on
changing circumstances in the claimants’ home country without raising this
issue at the hearing. However, in the present case, the Board asked for more
documentary information regarding the agent of persecution during the hearing.
[50]
In my view, although this inquiry was brief, it
satisfied the Board’s procedural obligation to put the applicants on notice.
Therefore, I find the Board did not breach procedural fairness.
[51]
For the reasons above, I would deny this
application.
[52]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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