Docket: IMM-2885-16
Citation:
2016 FC 1398
[ENGLISH TRANSLATION]
Ottawa, Ontario, December 20, 2016
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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SERGE KOUASSI
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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.
Nature of the matter
[1]
This is an application for judicial review under
paragraph 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of a decision by an officer of the Refugee Appeal Division [RAD] of
the Immigration and Refugee Board. On June 14, 2016, under subsection 111(1)
of the IRPA, the RAD dismissed the applicant’s appeal, confirming the decision
of the Refugee Protection Division [RPD] of August 21, 2015, according to
which he is neither a Convention refugee nor a person in need of protection
under sections 96 and 97 of the IRPA.
II.
Facts
[2]
The applicant, aged 38, is a citizen of Côte
d’Ivoire and is of Dida origin. He came to Canada as a visitor on May 28, 2015,
to dance in an arts festival (from 2007 to 2012, he was unemployed). The
applicant claimed refugee protection in the days following his arrival,
alleging that he was a victim of persecution because of his political opinions.
He has a spouse and a 6‑year-old son, who are still living in Côte
d’Ivoire.
[3]
According to the applicant, he was a militant in
the youth section of the Front populaire ivoirien [FPI] (Ivorian Popular Front)
party, for which he went door to door during the presidential election campaign
in 2010.
[4]
In August 2014, while out in the street wearing
clothing that exhibited his support for the FPI, the applicant was allegedly
violently manhandled by a group of individuals opposed to his political party
and with ties to the party in power, the Rassemblement des Républicains [Rally
of the Republicans]. The applicant claims he identified his attackers to the
police, but they did not deal with his complaint.
[5]
The applicant alleges that, in September or
November 2014, while he was on his way to a meeting for FPI supporters, he was
informed that the meeting was being raided by government forces. He therefore
avoided being forcibly arrested, unlike many of the supporters at the
gathering. As a result of these events, he quickly fled Abidjan and hid for 8 months
at a camp 3 km from the village of Agbahou, which is 250 km southeast of
the capital, Yamoussoukro.
[6]
After his arrival in Canada, individuals looking
for the applicant allegedly harassed his spouse on two occasions in June and
July of 2015. She was beaten and subsequently filed a complaint with the authorities.
III.
Decisions
A.
Decision of the RPD dated August 21, 2015
[7]
The RPD dismissed the applicant’s claim for
refugee protection because he lacked credibility and because he had an internal
flight alternative in Côte d’Ivoire.
[8]
The RPD found that the applicant’s account was
not credible. First, the panel faulted his inability to provide information on
his party’s political platform, as he gave only vague and generic answers.
Second, when questioned about the day his fellow party members were arrested
and the day he fled Abidjan—September 20 or November 20, 2014—the
applicant could not explain the contradictions in his Basis of Claim form [BOC]
to the panel’s satisfaction. Finally, the RPD concluded that his spouse’s
complaint following the alleged events was, in fact, fabricated, given that it
contained little information on the victim, but a great deal of information on
the applicant.
[9]
In the alternative, the RPD believed that there
was an internal flight alternative in Côte d’Ivoire for the applicant, in the
village of Agbahou. First, the panel judged that there was no serious
possibility of his being persecuted in Agbahou. The applicant apparently lived
and worked there for several months without being recognized or bothered, and
his political profile was too low for him to be persecuted there. Moreover, the
objective evidence showed that, in 2014, the opposition parties had very few
problems with the authorities. Second, the panel took into consideration that
given his age, education and health, it would be possible for the applicant to
live and work in this area.
[10]
The applicant appealed the RPD’s decision on
September 11, 2015.
B.
Decision of the RAD dated June 14, 2016
[11]
The RAD confirmed the RPD’s decision to reject
the applicant’s refugee protection claim under subsection 111(1) of the
IRPA. After examining the reasons, listening to the recording of the RPD
hearing of August 10, 2015, and analyzing all the evidence on file, the
RAD concluded that the RPD had not erred in its decision.
[12]
The RAD assessed the documents submitted as new
evidence by the applicant under subsection 110(4) of the IRPA. It
concluded that some documents could not be considered to be new evidence
because they predated the RPD’s rejection of the claim and because the
applicant did not provide any explanation as to why these documents had not
been submitted to the RPD. The RAD also concluded that the documents admitted
as new evidence did not warrant holding a hearing under subsection 110(6)
of the IRPA because they concern circumstances irrelevant to the applicant’s
situation. The documents were therefore not central to the RAD’s decision, nor
could they justify allowing or rejecting the refugee protection claim.
[13]
Given the applicant’s limited involvement with
the FPI, the RAD concluded that the RPD had committed a non-determinative error
by drawing a negative inference regarding the applicant’s credibility from his
inability to give precise information on the party’s political platform.
Nevertheless, the RAD found that the applicant’s contradictions concerning the
date of the incident in Abidjan in the fall of 2014 as well as the fact that he
hesitated several times when replying to the RPD supported the RPD’s
conclusions regarding his credibility, which the RAD supported. Finally, the
RAD confirmed the RPD’s decision to give no probative value to the complaint by
the applicant’s spouse to the police in 2015 because of its content—the
complaint contains little information on the circumstances of the alleged
incidents and focuses on the applicant. The applicant could neither explain the
delay between the incidents and the filing of the complaint by his spouse nor
give information on the treatment she received afterwards. Furthermore,
although the applicant criticized the RPD for assessing the credibility of the
Ivorian complaint by Canadian standards, he did not present any documentary
evidence to support his argument.
[14]
The RAD supported the conclusions of the RPD
that there was an internal flight alternative for the applicant in Côte
d’Ivoire and concluded that his allegations were not sufficient to prove the
contrary. The RAD found that the applicant had been a mere activist and not
been very active within the FPI, apart from going door to door in 2010. The RAD
also considered the fact that the applicant had never had any trouble until the
incident in the street in August 2014 while he was dressed in clothing
linking him to the FPI, which was an isolated act. Since it did not believe the
fall 2014 incident or the 2015 complaint by his spouse, the RAD concluded that
the applicant’s allegations that his political enemies would find him were mere
speculation. Finally, the applicant did not sufficiently support that there was
no internal flight alternative, given that he is educated and was able to live
and work in Agbahou for many months without being bothered.
[15]
Finally, the RAD did not accept the applicant’s
claims that it would be risky for him to return to Côte d’Ivoire given the
intercommunal conflicts brought by land disputes and the exploitation of natural
resources because these concerns were not mentioned in his BOC and did not
affect his region. The RAD therefore found that the applicant would not
personally be subjected to a danger of torture, to a risk to his life or to a
risk of cruel treatment should he return to Côte d’Ivoire. The RAD rejected the
applicant’s claims that he would be personally subjected to food insecurity,
crime and jihadist attacks because these were generalized risks in the country.
IV.
Parties’ submissions
A.
Applicant’s submissions
[16]
The applicant is of the opinion that the RAD
erred in its decision.
[17]
First, the applicant claims that the RAD
unreasonably minimized the probative value of the new evidence presented and
excluded this evidence without justification and without applying the criteria
in Raza v Canada (Citizenship and Immigration), 2007 FCA 385 [Raza].
He claims that the RAD erred in its interpretation of subsection 110(4) of
the IRPA.
[18]
Then, the applicant alleges that the RAD
misassessed his credibility. The applicant insists that a refugee protection
claimant’s testimony should be presumed true and can only be rebutted on
reasonable grounds which are not based on speculations and assumptions. The
applicant deems his testimony to have been faithful and clear, but the panel
speculated, misinterpreted the facts of the refugee protection claim and spent
too much time on details that were not important to the case.
[19]
Finally, the applicant argues that the RAD was
wrong in concluding that the applicant had an internal flight alternative and
faced no personalized risks in Côte d’Ivoire. The RAD’s decision was
essentially based on its negative assessment of the applicant’s credibility and
on the disproportionate weight given to details.
B.
Respondent’s claims
[20]
The respondent argues that the RAD’s decision to
reject certain documents as new evidence was reasonable and complied with
subsection 110(4) of the Immigration and Refugee Protection Act and
subsection 29(3) of the Refugee Appeal Division Rules, SOR/2012-257
[RADR]. The applicant failed to meet his burden of providing a reasonable
explanation as to why the new evidence was not available or why he could not
present it in a timely manner for the RPD hearing. At this stage of the Federal
Court judicial review, this evidence would be irrelevant (Figueroa v Canada
(Citizenship and Immigration), 2016 FC 521 at paras 39–46 [Figueroa]).
[21]
The respondent submits that the RAD’s decision
regarding the applicant’s lack of credibility is reasonable. Before dismissing
the appeal, the RAD carefully reviewed the RPD’s decision, examined each one of
the applicant’s allegations, and took into account all the evidence and the
applicant’s testimony. The RAD was right in drawing a negative inference from
the inconsistencies in the evidence and in doubting the truthfulness of the
applicant’s claims. Moreover, the respondent emphasizes that the applicant is
attempting, during the judicial review, to present arguments based on evidence
that was never attached as an exhibit to his affidavit to the Federal Court or
the RAD.
[22]
The respondent submits that the RAD, in light of
all of the evidence, reasonably concluded that there was a valid internal
flight alternative for the applicant in Côte d’Ivoire, and this, in putting
aside its considerations about the applicant’s credibility. Since the applicant
did not present reliable evidence corroborating his allegations of fear, he did
not discharge his burden of demonstrating, on a balance of probabilities, the
existence of a serious possibility that he would be at risk of persecution
anywhere in Côte d’Ivoire. The respondent also submits that the RAD was
justified in deciding that the applicant did not meet the criteria of sections
96 and 97 of the IRPA and did not establish a personalized risk.
V.
Issues
[23]
In this case, the Court must address the
following issues:
1.
Did the RAD err in refusing certain new
evidence?
2.
Did the RAD err in its assessment of the
applicant’s credibility?
3.
Did the RAD err in concluding that the applicant
had an internal flight alternative?
[24]
The first issue, concerning the RAD’s
interpretation of the IRPA provisions on the admissibility of new evidence, is
subject to the standard of reasonableness (Canada (Citizenship and
Immigration) v Singh, 2016 FCA 96 [Singh]).
[25]
The second issue is one of fact, subject to the
standard of reasonableness. The Court must show deference to the assessment of
the applicant’s credibility by the specialized tribunals (Cortes v Canada
(Citizenship and Immigration), 2015 FC 1325; Rahal v Canada (Citizenship
and Immigration), 2012 FC 319 at para 46).
[26]
The third issue, mixed in fact and law, is also
subject to the standard of reasonableness (Cruz Pineda v Canada (Citizenship
and Immigration), 2011 FC 81).
VI.
Relevant provisions
[27]
In the present case, the applicable provisions
are as follows.
[28]
With respect to Convention refugee status and
the status of a person in need of protection, sections 96 and 97 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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[29]
With respect to the dismissal of the applicant’s
appeal by the RAD, subsection 111(1) of the IRPA:
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Decision
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Décision
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111. (1)
After considering the appeal, the Refugee Appeal Division shall make one of
the following decisions:
(a) confirm the determination of the Refugee Protection Division;
(b) set aside the determination and substitute a determination
that, in its opinion, should have been made; or
(c) refer the matter to the Refugee Protection Division for
re-determination, giving the directions to the Refugee Protection Division
that it considers appropriate.
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111. (1) La Section d’appel des
réfugiés confirme la décision attaquée, casse la décision et y substitue la
décision qui aurait dû être rendue ou renvoie, conformément à ses
instructions, l’affaire à la Section de la protection des réfugiés.
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[30]
With respect to the admission and rejection of
new evidence, subsection 110(4) of the IRPA and subsection 29(3) of the RADR:
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Evidence that may be presented
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Éléments de preuve admissibles
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(4) On appeal, the person who is the subject of the appeal may
present only evidence that arose after the rejection of their claim or that
was not reasonably available, or that the person could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection.
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(4) Dans le cadre de l’appel, la personne en cause ne peut
présenter que des éléments de preuve survenus depuis le rejet de sa demande
ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient,
qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment
du rejet.
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Documents — new evidence
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Documents — nouvelle preuve
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(3) The person who is the subject of the appeal must include in an
application to use a document that was not previously provided an explanation
of how the document meets the requirements of subsection 110(4) of the Act
and how that evidence relates to the person, unless the document is being
presented in response to evidence presented by the Minister.
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(3) La personne en cause inclut dans la demande pour utiliser un
document qui n’avait pas été transmis au préalable une explication des
raisons pour lesquelles le document est conforme aux exigences du paragraphe
110(4) de la Loi et des raisons pour lesquelles cette preuve est liée à la
personne, à moins que le document ne soit présenté en réponse à un élément de
preuve présenté par le ministre.
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VII.
Analysis
[31]
For the following reasons, the application for
judicial review is dismissed.
A.
Did the RAD err in refusing certain new
evidence?
[32]
The RAD’s decision to reject certain new
evidence was reasonable. Not only were the documents filed with the RAD either
predating the RPD’s decision or undated, but also no explanation of being
unable to access them in a timely manner was submitted by the applicant. Under
these circumstances, none of the requirements in subsection 110(4) of the
IRPA were met, and the RAD did not have residual discretion to consider the Raza
factors, as outlined by Madam Justice Strickland of this Court in Deri
v Canada (Citizenship and Immigration), 2015 FC 1042, and Figueroa,
above. The Federal Court of Appeal, in the recent Singh decision, above, states
the following regarding the decision-making flexibility of the RAD:
[63] However, subsection 110(4) is not
written in an ambiguous manner and does not grant any discretion to the RAD. As
mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh
evidence before the RAD is subject to strict criteria and neither the wording
of the subsection nor the broader framework of the section it falls under could
give the impression that Parliament intended to grant the RAD the discretion to
disregard the conditions carefully set out therein. Moreover, this approach
complies perfectly with this Court’s decision in Raza. The criteria
set out in that decision regarding paragraph 113(a), which, moreover, are not
necessarily cumulative, do not replace explicit legal conditions; rather they
add to those conditions to the extent that they are “necessarily implied” from
the purpose of the provision, to reiterate this Court’s words at paragraph 14
of Raza. Otherwise, this would mean ignoring the conditions set out
at subsection 110(4) and then delving into a balancing exercise between Charter
values and the objectives sought by Parliament. In the absence of a direct
challenge to this legislation, it should be given effect and the RAD has no
choice but to comply with its requirements.
[33]
In this case, the applicant did not meet the
requirements of the legislation. It was reasonable that the RAD did not accept
the newly submitted evidence.
B.
Did the RAD err in its assessment of the
applicant’s credibility?
[34]
Both the RAD and the RPD drew adverse inferences
from several elements of the applicant’s testimony.
[35]
It is settled law that the Court must
demonstrate great deference toward the panels that have evaluated first-hand
the credibility of refugee claimants, as Mr. Justice Teitelbaum reminds our
Court in Hernandez Cortes v Canada (Citizenship and Immigration), 2009
FC 583:
[28] It is already well established
that the Board’s decisions on questions of credibility and assessment of
evidence are entitled to great deference by the Court: Zavala v. Canada
(Minister of Citizenship and Immigration), 2009 FC 370, at paragraph 5;
Mugesera v. Canada (Minister of Citizenship and Immigration), 2005
SCC 40, at paragraph 38. The panel is in the best position to assess the
explanations submitted by claimants for any perceived inconsistencies and
implausibilities. The role of this Court is not to substitute its judgment for
the panel’s findings of fact relating to the credibility of claimants: Martinez v.
Canada (Minister of Citizenship and Immigration), 2009 FC 441, at paragraph 11.
The Court will intervene only if the panel’s decision does not fall within a
range of acceptable and rational solutions (Dunsmuir, at paragraph 47).
[36]
In this case, even though the RAD accepted the
fact that the applicant could be an FPI activist despite his limited knowledge
of the FPI’s electoral platform, it did not find him to be credible. The
contradictions surrounding the date of the police raid that caused the
applicant to flee Abidjan in 2014; the complaint of the applicant’s spouse in
2015, which seemed to be a document of convenience; and the applicant’s
hesitation when given the opportunity to explain these gaps are elements that
led the RAD to conclude that the applicant was not credible.
[37]
The Court is aware of the importance of not
imposing Western standards and concepts on cultural situations to which they do
not apply (Nahimana v Canada (Minister of Citizenship and Immigration),
2006 FC 161). However, it is not enough to denounce the assessment of a document
according to Canadian standards—in this case, the complaint made to the Ivorian
authorities in 2015. It is still necessary to formulate an argument and support
it with evidence.
[38]
Consequently, the RAD’s decision regarding the
applicant’s lack of credibility is reasonable.
C.
Did the RAD err in concluding that the applicant
had an internal flight alternative?
[39]
The Court notes the following from the RAD’s
assessment of the internal flight alternative: the panel concluded that the
August 2014 attack against the applicant in the street was an isolated act. The
applicant failed to convince the RAD that he would be persecuted outside
Abidjan for his political opinions, and that he risked being found by his
political enemies in Côte d’Ivoire. He failed to prove on the balance of
probabilities that the village of Agbahou and its surroundings were unsafe for
him. The neighbouring population is also of the Dida ethnic group, and the
applicant lived and traded there for many months.
[40]
In Figueroa, above, resuming the principles
established by the Federal Appeal Court in Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706, 140 NR 138, [1991] FCJ No.
1256 (QL), 31 ACWS (3d) 139, and Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1994] 1 FCR 589, 1993 CanLII 3011 (FCA),
Strickland J. recalls the burden of proof that lies on refugee protection
claimants:
[52] The burden is on the Applicants to
establish on objective evidence that relocation to the IFA is unreasonable (Argote
v Canada (Citizenship and Immigration), 2009 FC 128 [Argote]. As
stated by Justice Zinn in Argote:
12 The applicants submit that
the Board erred in its analysis because it failed to consider their unique
circumstances and whether it was reasonable that they relocate. In my view, the
applicants’ submission is entirely misguided. Whether the relocation to the IFA
is unreasonable is an objective test and the onus is on the applicants to
establish on objective evidence that the relocation to the IFA is unreasonable.
It is not for the Board to prove that it is reasonable, as the applicants
suggest…
(see also Pidhorna v Canada (Citizenship
and Immigration), 2016 FC 1 at paras 40-42; Alvarez v Canada
(Citizenship and Immigration), 2009 FC 1164 at paras 10, 15 [Alvarez];
Multani v Canada (Citizenship and Immigration), 2012 FC 734 at para. 13
[Multani]).
[41]
Consequently, the Court believes that the
applicant did not discharge his burden of proof and concludes that the RAD’s
decision that an internal flight alternative exists for the applicant in Côte
d’Ivoire is reasonable.
VIII.
Conclusion
[42]
For the reasons set out above, the application
for judicial review is dismissed.
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