Docket: IMM-1318-15
Citation:
2015 FC 1145
Ottawa, Ontario, October 7, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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BADRA ALY
DIARRA
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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.
Overview
[1]
As the allegations of the Applicant clearly
lacked credibility as per the evidence before the Refugee Protection Division
[RPD], the Refugee Appeal Division [RAD], in its analysis of the evidence as a
whole before the RPD, deferred to the determination of the RPD as per the RAD’s
mandate under its constituting legislation as interpreted by the jurisprudence.
II.
Introduction
[2]
The Applicant seeks judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, LC 2001,
c 27 [IRPA], of a decision by the RAD of the Immigration and Refugee Board,
wherein the RAD upheld a decision from the RPD in which the Applicant’s claim
for refugee protection was rejected.
III.
Background
[3]
The Applicant is a 30-year-old citizen of Mali
and has been living in the province of Quebec since 2009.
[4]
In March 2012, the President of Mali, Amadou
Toumani Tour, was ousted during a coup by the army of General Amadou Sanogo. At
the time of the coup, the Applicant’s step-father, Mr. Will Honders, was a
successful businessman who had contracts with the Government of Mali; and, he
was allegedly well-connected with important individuals of the Government.
[5]
During the coup in March 2012, Mr. Honders
allegedly received death threats, was intimidated and his house and offices
were ransacked by soldiers due to his implications with the previous
government.
[6]
Fearing for his family’s security, Mr. Honders
left Mali and returned to the Netherlands at an unspecified date. Hoping that
the situation in Mali may have improved, Mr. Honders went back to Mali in July
2013; however, he faced the same threats as he did previously and was accused
of corruption by soldiers under General Amadou Sanogo. Ultimately, Mr. Honders
decided to leave permanently Mali in July 2013, and he returned to the
Netherlands to live with his family at an unspecified date.
[7]
Following the July 2013 incident, the Applicant
was told by Mr. Honders that he could not return to Mali; and, if he chose to
do so, his life would be in danger due to his relationship as that of step-son
to Mr. Honders.
[8]
On September 25, 2013, the RPD rejected the
Applicant’s refugee claim on the basis of Mr. Honders’ return to Mali in 2013.
The return of Mr. Honders did not correlate with a fear of persecution, as the
Applicant did not file any corroborating documents to support his allegations
of persecution. Subsequent to the RPD’s decision, the Applicant did submit a
letter to the RPD from Mr. Honders in which he did corroborate the Applicant’s
allegation. The Applicant unsuccessfully appealed the RPD’s decision before the
RAD. The Applicant then applied for judicial review at the Federal Court.
[9]
The Federal Court quashed the RAD’s decision on
the grounds that the RAD applied the wrong standard of review (Diarra v
Canada (Citizenship and Immigration), 2014 FC 1009). On February 19,
2015, the RAD re-examined the Applicant’s claim and decided to uphold the RPD’s
decision. It is this decision that is before the Court for review.
IV.
Decision under Review
[10]
The RAD held that the letter from Mr. Honders was
admissible but nonetheless rejected the Applicant’s refugee claim. The RAD
found the letter from Mr. Honders to be authentic and reliable but raised
several contentious issues, thereby refusing the Applicant’s refugee claim.
[11]
The RAD acknowledged that an appeal before its
tribunal is not a judicial review (Djossou v Canada (Minister of Citizenship
and Immigration), 2014 FC 1080 at para 37 [Djossou]); and, as a
result, applied the standard of review of that of an hybrid approach:
[J]e dois effectuer ma propre évaluation de
l’ensemble de la preuve, analyser la décision de la SPR, faire preuve d’une
certaine déférence face à ses conclusions concernant la crédibilité de
l’appelant et en arriver à ma propre conclusion quant à savoir s’il a la
qualité de réfugié ou de personne à protéger.
(RAD’s Reasons at para 54)
[12]
The RAD found that the Applicant lacked
credibility; and, that his testimony did not corroborated his own evidence.
Firstly, before the RPD, the Applicant testified that his step-father had
stayed in Mali for nine months subsequent to the coup in March 2012; and, he
later returned to Mali in July 2013; however, subsequent to his testimony
before the RAD, the RAD found the Applicant’s testimony to be vague in respect
of the precise dates on which his step-father had remained in Mali.
[13]
Secondly, the RAD found that the “Attestation
de prise en charge”, a
notarized document allegedly signed in Sikasso, on February 20, 2013, as
well as a “Déclaration de soutien financier” contradicted the Applicant’s testimony that Mr. Honders was no
longer able to pay for the Applicant’s academic
tuition; and, Mr. Honders had left the Netherlands in December 2012. Thirdly,
in the “Attestation de prise en charge”, it is stated that Mr. Honders’ occupation is that of “Directeur-associé
de la Société INTERAGRO, société à responsabilité limitée au capital de
3.500.00 F. CFA”; the
RAD found that the information in the “Attestation de prise en charge” contradicted the Applicant’s
testimony that Mr. Honders lost everything during the coup in March 2012. As a
result, the RAD found that the Applicant was not credible.
[14]
Furthermore, the RAD found that the Applicant
did not prove, on the balance of the probabilities, that Mr. Honders had a
well-founded fear of persecution for reasons of political opinion. Mr. Honders
was persecuted for his work with the previous government and in respect of the
allegations of corruption that were made in his regard. The RAD also found that
the Applicant was not a person in need of protection as the Applicant did not support
his case with objective evidence that his step-father had been accused of
corruption and had received death threats, if he would not leave Mali by March
2013.
[15]
Finally, the RAD found that the Applicant did
not rebut the presumption of state protection.
V.
Issues
[16]
The central issues to be determined by this
application for judicial review are:
1)
Was it unreasonable for the RAD to uphold the
RPD’s finding on credibility?
2)
Did the RAD err in finding that the Applicant
had not rebutted the presumption of state protection?
VI.
Legislation
[17]
The following are the relevant legislative
provisions of the IRPA:
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Convention refugee
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Définition de « réfugié »
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96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A person in need of protection
is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
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97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du
pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VII.
Position of the Parties
[18]
In respect of the question of credibility, the
Applicant submits that it was unreasonable for the RAD to find that the
Applicant was not credible. Firstly, the Applicant submits that his
recollection could not have been entirely accurate because the events did not
happen to him but to his step-father. Secondly, it was unreasonable for the RAD
to find that it was implausible for Mr. Honders to stay in Mali for several
months after the March 2012 coup although he had received death threats. The
Applicant submits that tribunals have to be cautious in finding that an
Applicant’s claims are implausible (Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at paras 6-7); and, therefore
must take for consideration the explanation provided by the Applicant (Okoli
v Canada (Minister of Citizenship and Immigration), 2009 FC 332 at para
31). Furthermore, the Applicant states that it was only in July 2013 that he
feared a return to Mali. It was also in July 2013 that his step-father lost
most of his wealth; as a result, it was unreasonable for the RAD to conclude
that the “Attestation de prise en charge”, signed in February 2013, contradicted the Applicant’s testimony.
Thirdly, it was unreasonable for the RAD to infer that the “Attestation
de prise en charge”
proved that Mr. Honders was in Mali in February 2013. The Applicant submits
that the document was prepared by a notary in Mali but that Mr. Honders signed
the document in the Netherlands. Finally, the Applicant submits that it is only
secondary to his claim that he does not have a document which demonstrates that
Mr. Honders has been accused of embezzling funds; it is the multiple death
threats and the ransacking of Mr. Honders’ home and office by members of the
military which the Applicant considers as primary indices of persecution that
Mr. Honders faced.
[19]
Conversely, the Respondent submits that it was
reasonable for the RAD to conclude that the Applicant’s allegations lacked
credibility. Firstly, the Respondent submits that given that Mr. Honders is a
very powerful and financially successful businessman, the Applicant should have
been able to provide documentary evidence that Mr. Honders had been formally
accused of corruption in Mali (Amarapala v Canada (Minister of Citizenship
and Immigration), 2004 FC 12 at paras 9-12). Secondly, the Respondent
submits that the Applicant’s disagreement with the assessment or weight, given
by the RAD to the evidence, is not a sufficient ground by which to grant
judicial review (Obeng v Canada (Minister of Citizenship and Immigration),
2008 FC 754).
[20]
Regarding the question of state protection, the
Applicant submits that the RAD’s findings regarding the availability of state
protection were selective and unreasonable because the RAD selectively quoted from
paragraphs of reports which supported the argument that state protection existed
for him in Mali.
[21]
The Respondent submits that the RAD did consider
the evidence as a whole in its decision as the RAD had reviewed evidence
submitted, that includes the Applicant’s testimony and the objective
documentary evidence.
[22]
The Respondent submits a presumption exists that
the tribunal has considered all of the evidence submitted at a hearing (Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ 598 (FCA));
and, the tribunal is entitled to prefer certain documentary evidence; and, it
does not have to refer to all of the evidence (Hassan v Canada (Minister of Employment
and Immigration), [1992] FCJ 946; Martinez v Canada (Minister of
Citizenship and Immigration), 2005 FC 1050), specifically, where the
Applicant does not file objective documentation in support of allegations (Zvonov
v Canada (Minister of Employment and Immigration), [1994] FCJ 1089 [Zvonov]).
The Respondent states that when a decision of a tribunal on state protection is
reasonable, it is unnecessary to consider other errors as alleged by an Applicant
(Osipenkov v Canada (Minister of Citizenship and Immigration),
IMM-5424-03, at p 2, para 3; Rodriguez v Canada (Minister of Citizenship and
Immigration), 2005 FC 153 at para 36; B.M.(1) v Canada (Minister of
Citizenship and Immigration), 2004 FC 399 at para 8).
VIII.
Standard of Review
[23]
Determinations of fact and, also, of mixed law
and fact by the RAD, such as in matters of credibility and adequacy of state
protection, are reviewable under the standard of review of reasonableness (Hamidi
v Canada (Minister of Citizenship and Immigration), 2015 FC 243 at para 20
[Hamidi]; Yin v Canada (Minister of Citizenship and Immigration),
2014 FC 1209 at para 34; Nahal v Canada (Minister of Citizenship and
Immigration), 2014 FC 1208 at para 25; Kanto v Canada (Minister of Citizenship
and Immigration), 2012 FC 1049 at para 23 [Kanto]).
IX.
Analysis
[24]
The Court recognizes that the decision in review
before the Court is primordially one bearing on significant credibility
concerns. The RAD, in its determination of the RPD’s decision, as per the
jurisprudence in respect of its mandate (Djossou, above; Geldon v
Canada (Minister of Citizenship and Immigration), 2015 FC 374; Sajad v
Canada (Minister of Citizenship and Immigration), 2014 FC 1107), concludes
that the RAD as specified in the legislation as interpreted by the
jurisprudence did review the RPD’s decision reasonably (Hamidi, above; Kanto,
above) by having reviewed the evidence as a whole.
[25]
The RAD had analyzed the evidence as a whole as
presented before the RPD; and, found key point by key point, that the
contradictions, ambiguities and vague responses in respect of needed
corroboration and precisions were indeed clearly missing (Zvonov,
above).
[26]
The decision, in respect of state protection, is
reasonable due to explanations as given by the RAD in respect of the new
political situation in Mali subsequent to the most recent elections; and, it is
reasonable, as per the jurisprudence cited by the Respondent (as seen in Sarfaz
v Canada (Minister of Citizenship and Immigration), IMM-4874-02,
September 9, 2003).
X.
Conclusion
[27]
Consequently, the application for judicial
review is dismissed.
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