Docket: IMM-2233-16
Citation:
2016 FC 1247
[ENGLISH
TRANSLATION]
Ottawa, Ontario, November 8, 2016
PRESENT: The Honourable Justice
Martineau
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BETWEEN:
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DIENEBA KOITA
alias ALIMA DIAWARA
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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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DECISION AND REASONS
[1]
This is an application for judicial review of a
decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board [IRB] rendered on May 10, 2016, dismissing the applicant’s application
and confirming the Refugee Protection Division’s [RPD] decision that the
applicant is not considered a Convention refugee or a person in need of
protection under Sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 [IRPA].
[2]
The applicant, who is originally from Mali, left
her country to seek refuge in Canada on March 22, 2015. On June 4, 2015, she
filed an application for refugee protection on the grounds that her life would
be in danger if she were forced to return to Mali. The applicant, who was
forced to be married at 15 years of age, fears that her father will kill her
for having left her husband. Neither the RPD nor the RAD believed her story or
her subjective fear of persecution.
[3]
There is no need to revisit the detailed grounds
of the RPD’s rejection, but the following important elements should be
emphasized. First, the RPD pointed out that throughout all her testimony, the
applicant gave evasive answers, in particular regarding the reason that drove
her to flee her marital home in June 2013. The member also found that the
applicant’s testimony was sometimes vague, imprecise and lacking in depth. For
example, the RPD revisited the fact that the applicant erred several times in
her testimony about the address where she had lived with her husband, even
after the member had told her she was mistaken. The applicant’s contradictions
were all the more surprising because the address of her marital home appeared
on her identity card, which was filed in the Court record. It became clear to
the member that the applicant tended to adjust her testimony depending on the
circumstances and the questions she was asked. Also, the member was not
convinced that the applicant had taken appropriate steps to leave Mali or that
she even had a subjective fear of being persecuted by her father. The member
found it difficult to understand why the applicant, who said she feared for her
life, willingly decided to return to live in Bamako, the very city where her
father lived, to complete an eight-month internship. When asked whether it was
more important for her to save her life or to learn, the applicant was unable
to provide a clear and consistent answer. Finally, the member found that the
testimonies provided by her mother, her friend and even the letters of the doctors
were not sufficient to allay significant doubts raised as to the applicant’s
credibility. Although the RPD does not doubt that the applicant had to deal
with very troubling incidents involving her father and her husband, her general
testimony and all of her evidence were not deemed sufficiently credible to
grant her refugee status.
[4]
After reading the file and listening to the
recording of the hearing, the member of the RAD essentially confirmed all of
the RPD’s findings on the applicant’s lack of credibility and her testimony’s
weak probative value. Furthermore, the member noted an additional contradiction
in the applicant’s testimony. At the hearing before the RPD, the applicant said
that she had left her marital home in June 2013 following several years of
physical and psychological abuse from her husband, after which she never heard
from him again. However, based on the information on her national identity card
issued September 1, 2014, he appears to have remained in the marital home. The
member then considered this contradiction as major and sufficient to reject the
entire application for refugee protection. Although it was keenly aware that
the applicant found it difficult to testify about her violent conjugal past,
the RAD confirmed the RPD’s decision and dismissed the applicant’s appeal.
[5]
In light of the evidence and the submissions of
the parties, I am of the opinion that this application for judicial review of
the RAD decision on appeal is without merit and must be dismissed, the
applicant not having convinced me in this case that the decision under review
is unreasonable or that the RAD has otherwise breached a principle of
procedural fairness.
[6]
First, we should bear in mind the applicant’s
arguments regarding procedural fairness. She contests the fact that the member
of the RAD raised a new ground attacking her credibility, without giving her
the opportunity to respond. Insofar as the contradiction regarding the
registration of her identity card had not been formally accepted by the RPD,
the member of the RAD breached the principles of procedural fairness by citing
it as an additional ground to dismiss her appeal. In my view, this argument is
without merit.
[7]
According to case law, only a new issue can
infringe upon procedural fairness, i.e. an issue that “raises a new basis for
potentially finding error in the decision under appeal” (Sary v. Canada
(Citizenship and Immigration), 2016 FC 178, [2016] FCJ No. 182 at
para 30 [Sary], citing Kwakwa v. Canada (Citizenship and
Immigration), 2016 FC 600, [2016] FCJ No. 619 at para 25 [Kwakwa]).
In this case, the place and time where the applicant resided with her spouse
and where she resided after she had left the marital home were at the heart of
the RPD’s concerns. In the decision under review, the member referred to the
Research Directorate’s report in the National Documentation Package for Mali, a
document that is part of the Court record, as is any document that could
provide the administrative decision-maker with information on the situation in
Mali. There is no question here of a new argument or review of extrinsic
evidence. Consequently, the member is not referring to a “new issue” when he
notes the contradiction in the applicant’s testimony regarding Mali’s
particular identity card registration process. The member of the RAD was
therefore under no obligation to challenge the applicant regarding this matter.
I believe that by acting in this manner, the member of the RAD complied with
the rules of procedural fairness.
[8]
In terms of the reasonableness of the RAD’s
decision, the applicant essentially raised the same arguments that were raised
in the appeal of the RPD’s decision. Firstly, the applicant attributed all her
contradictions to her nervousness. She maintained that addresses had no real
importance in Africa, so much so, that some cities did not have any. The errors
in her testimony were at most minor and simply occurred because she was
nervous. Consequently it was unreasonable for the RPD and the RAD to grant them
so much importance and to conclude that she lacked credibility.
[9]
Secondly, the applicant contested the negative
inferences drawn by the RPD and the RAD on her subjective fear or her behaviour
based on the simple fact that it took her several years to leave Mali. On this
point, the applicant noted that after having left the marital home, she
repeatedly attempted to obtain a visa to go live in France. Unfortunately, all
her visa applications were rejected, which explained why she remained in Mali
for several years. When she met a woman from Nigeria at the end of her
internship in Bamako, she was finally able to obtain a false passport and a
visa to come to Canada. Consequently, the RPD and the RAD erred in considering
that she was voluntarily postponing her attempts to leave Mali in order to
complete her internship. Although the applicant greatly valued the experience
acquired during her internship, this did not change the fact that she never
ceased to seek a way to escape her father.
[10]
Finally, in response to the new contradiction
raised by the member, the applicant explained that when she renewed her
identity card on September 1, 2014, she simply returned her old card which
indicated her former address where she used to live with her husband.
Consequently, it was unreasonable for the RAD to find that there was a new
contradiction in her testimony.
[11]
Based on all the arguments mentioned above, I am
of the view that there is no reason to intervene.
[12]
Firstly, at the RPD hearing, the member tried to
make the situation more comfortable and reassured the applicant whose
nervousness was apparent. Nevertheless, the applicant repeatedly contradicted
herself during her testimony. Having listened to the audio recording of the
hearing, the member of the RAD never perceived that the applicant had
difficulty providing her testimony due to her nervousness or emotions. He noted
the same contradictions as the RPD did and came to the same conclusions
regarding the applicant’s lack of credibility. This Court recognized that even
if some elements raised by the RPD or the RAD do not appear to be sufficient
when taken individually or in isolation, the accumulation of contradictions,
internal inconsistencies or omissions pertaining to crucial elements of a
refugee claimant’s story may serve as a basis for a negative credibility
finding (Sary at para 20). In light of the applicant’s testimony,
which was, to say the least, nebulous on several aspects of her past, the RAD
could therefore reasonably confirm the findings of the RPD regarding her lack
of credibility.
[13]
Secondly, the conclusions of the RAD regarding
the evaluation of the evidence and facts in this case appear to me transparent
and intelligible in all regards. We must bear in mind that the applicant, who
was then living in a secure location with one of her friends in Koulikoro, voluntarily
chose to return to Bamako where her father lived, the very man who was
threatening her life. The evidence and her testimony therefore tend to
demonstrate that she gave precedence to her eight-month internship over her
security. This Court recognized that the lack of a convincing or reasonable
explanation as to why the applicant postponed leaving the country can
negatively affect the credibility of her application for refugee protection (Rivera
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1292, [2003]
FCJ No. 1634 at paras 29 and 30). In this case, the applicant merely
provides the same reasons that she presented to the RAD to explain why she was
unable to leave the country before the end of her internship. However, these
explanations have already been rejected by the member of the RAD, and the
applicant has not convinced me that her findings were tainted by any reviewable
errors.
[14]
Neither do I see any grounds that would allow me
to question the member of the RAD’s reasoning concerning the applicant’s
contradictions regarding the renewal of her identity card. The applicant
maintains that her card was simply renewed based on her old identity card,
whereas the evidence on the record clearly shows that she needed to report to
her commune office and submit a statement of the complete address. In short,
the applicant did not raise any reviewable errors that could taint the
reasonableness of the decision rendered by the member of the RAD. Rather, the
applicant is basically expressing her disagreement with the assessment of the
evidence made by the decision-maker. However, the findings of the RAD are
intelligible, transparent and within a range of possible acceptable outcomes
given the evidence on the record and applicable law.
[15]
This application for judicial review is
therefore dismissed. No questions of general importance were raised in this
case.
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