Docket: IMM-1409-16
Citation:
2016 FC 1244
Ottawa, Ontario, November 8, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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BANDESE
MUTATYAMA AARON
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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.
Introduction
[1]
The Applicant, Bandese Mutatyama Aaron [Mr.
Aaron], challenges a decision of the Refugee Appeal Division [the RAD] dated
March 24, 2016, that found he was not a refugee. Mr. Aaron had applied for
refugee status in Canada on the basis that he was persecuted for his sexuality
and due to his employment at an HIV/AIDS clinic in Uganda.
[2]
Mr. Aaron challenges the decision because the
RAD ignored evidence, did not give explanations or was not reasonable in their
assessment of his credibility. Mr. Aaron also argued that the RAD stated the
test correctly from Canada (Citizenship and Immigration) v Huruglica,
2016 FCA 93 [Huruglica], but then applied it incorrectly because they
just put a stamp on the Refugee Protection Division’s [RPD] decision without
saying why the RPD had an advantage when doing a credibility assessment.
[3]
This Judicial Review will be dismissed for the
reasons that follow.
II.
Background
[4]
Mr. Aaron is a citizen of Uganda. He worked in
Uganda as a medical professional at an HIV/AIDS clinic prior to his arrival in
Canada. Mr. Aaron was married to a woman and self-identifies as bi-sexual.
[5]
Mr. Aaron alleges that on March 21, 2015, he and
his male partner were attacked by a gang of approximately twenty people who
threatened to burn them alive because of their sexual orientation. Mr. Aaron
escaped but his partner was detained by police and remains in custody.
[6]
This incident lead to Mr. Aaron leaving his work
and going into hiding at which time his brother suggested he flee to Canada. His
brother helped Mr. Aaron obtain a visa under the pretence of attending an
HIV/AIDS conference in Vancouver, BC. He arrived in Canada on July 14, 2015,
and claimed refugee status on September 17, 2015.
[7]
The RPD rejected Mr. Aaron’s refugee claim on
the basis that he had failed to provide credible and trustworthy evidence to
support his claim and “was not credible.”
[8]
The RPD drew negative inferences based on the
following inconsistencies and omissions from his basis of claim form [BOC]:
- Mr. Aaron’s
undeclared visit to Kenya while in hiding;
- his conflicting
evidence as to who prepared his trip;
- his conflicting
testimony with respect to his marriage;
- banking
information demonstrating ongoing income despite testimony he was in
hiding;
- multiple bank
withdrawals despite allegedly hiding;
- alleged
statements by his wife and brother before the Ugandan Chief Magistrate
Court which admit to helping Mr. Aaron flee the country; and
- the forgotten
visit by the police on March 21, 2015.
[9]
No oral hearing was requested and no new
evidence was submitted by Mr. Aaron for the RAD.
[10]
The RAD identified the same omissions and
inconsistencies between Mr. Aaron’s BOC and his testimony before the RPD. It
reviewed the documentary evidence from both the National Documentation Package and
articles provided by Mr. Aaron and found that the RPD had taken these into
consideration.
[11]
Despite the negative credibility findings, the
RAD conducted a separate analysis under section 97 of the Immigration and
Refugee Protection Act, SC 2001 c 27 [the Act], finding that Mr. Aaron
would not face a personalized risk or danger due to his sexual orientation if
returned to Uganda.
[12]
The RAD concluded that Mr. Aaron had not
satisfied his burden of establishing a serious possibility that he would be
personally subjected to a risk to his life, or a risk of cruel and unusual
treatment or punishment, or a danger of torture in Uganda. Mr. Aaron’s appeal
was dismissed.
III.
Issues
[13]
The issues raised by Mr. Aaron on judicial
review are:
- Did the RAD correctly
engage in the standard of review stated in Huruglica?
- Did the RAD
reasonably conclude that Mr. Aaron is not a Convention refugee under
either sections 96 or 97 of the Act?
IV.
Standard of Review
[14]
In Huruglica, above, the Federal Court of
Appeal instructed the RAD to review the RPD’s findings of fact and law on a
correctness standard except in cases of credibility. The Federal Court of
Appeal also determined that this was not a true de novo appeal, as the
RAD proceeds on the record before the RPD, and also found that the RAD may
still defer to the RPD on credibility findings where the RPD enjoys a “meaningful advantage” based on the oral evidence that
it hears.
[15]
The parties agree that the standard of review
that this Court will review the decision is reasonableness (Dunsmuir v New
Brunswick, 2008 SCC 9).
V.
Analysis
A.
Legal Test Applied to the Facts
[16]
Mr. Aaron submits that the RAD set out the test
correctly in the decision but did not apply it correctly. His position is that
the RAD accepted the RPD’s credibility findings without saying why the RPD was in
a better position to make the determination. Further, he argued that if the RAD
had done an independent assessment they would have found that his testimony was
consistent with the documentary evidence. According to Mr. Aaron, the RAD has
to explain why the RPD was in a better position than they were to assess the
evidence.
[17]
In this case, the RAD did an independent
analysis of most of the credibility findings and all of the determinative
findings but found there were “numerous other credibility
findings made by the RPD” that they would rely on.
[18]
The following are a few negative credibility
findings that the RAD deferred to the RPD’s findings:
a.
Mr. Aaron used his home address in his BOC rather
than where he was allegedly hiding indicating he was not in fact hiding at all;
b.
Mr. Aaron claimed that he was reluctant to enter
an arranged marriage and sex felt totally unnatural but later testified that he
consented to the marriage and that he enjoyed having sex with his wife;
c.
Mr. Aaron claimed that his boss suspended him in
January 2015 because he noticed his sexual orientation yet his banking shows
that he was paid throughout January without interruption;
d.
Mr. Aaron claimed to be hiding as of March 2015
and to be continually paid for work he was no longer doing;
e.
Mr. Aaron admitted to making multiple small
withdrawals from his bank despite the severe risk he alleges. His explanation
of needing to pay back a taxi driver when he fled was not found credible. In
particular, Mr. Aaron’s visits to the bank while in hiding were similar in
frequency to the period before he went into hiding contradicting his assertion
that he was in hiding at all.
[19]
I do not agree with Mr. Aaron that the RAD did not
correctly engage in the standard of review stated in Huruglica. No oral
hearing was requested before the RAD and no new evidence was submitted. The RPD
was able to directly observe and ask questions over the course of two separate
hearings. The RPD was unquestionably in a more favorable position to determine those
credibility findings. Especially when the RAD did assess fully any determinative
credibility issues.
[20]
There is nothing wrong with the RAD deferring on
issues of credibility to the RPD (Huruglica at paras 70-73). Not stating
why the RPD was in a more favorable position seems obvious in this case though
there may be factually similar situations where the RAD should state why the
RPD has an advantageous position. I find the RAD’s application of Huruglica
and its deference to the RPD to be reasonable.
VI.
Reasonableness of sections 96 and 97 Analysis
[21]
Simply stated, Mr. Aaron was unable to persuade
the RAD that his fear of persecution was well founded under section 96 of the
Act. Similarly, he failed to demonstrate that he faced a personalized risk
under section 97 of the Act. Having heard the meticulous submissions of counsel
and being directed to the record, transcript and both RPD and RAD decisions during
their lengthy arguments, I am satisfied that the RAD decision was reasonable.
[22]
Mr. Aaron gave detailed arguments regarding
where the RAD and RPD made errors in some of the credibility findings. Mr.
Aaron relies on Maldonado v Canada, [1997] FCJ No 248, to argue that
statutory declarations should have been relied on as sufficient evidence to
substantiate his claim.
[23]
There is no reason to believe that the statutory
declarations were ignored. Mr. Aaron’s allegations were rebutted by the
contradictions and inconsistencies identified above which lead to adverse
credibility findings. The reasons provided by the RAD are articulated clearly
and demonstrate why it took issue with Mr. Aaron’s assertions that he would be
at risk if returned to Uganda.
[24]
The RAD supported its findings by conducting a
separate analysis under each of sections 96 and 97. In particular, it noted Mr.
Aaron’s failure in his BOC to mention a travel agent arranging his escape from
Uganda (despite it being in his schedule 12). The agent was central to his
later testimony and was alleged to have placed a fraudulent Kenyan visa in his
passport. The RPD accepted Mr. Aaron’s BOC and found that the travel agent
acted as just that, a travel agent. During the hearing, Mr. Aaron said it was
his brother that helped him get a passport and visa after the brother had
identified the conference in Vancouver. The RAD found Mr. Aaron’s testimony
inconsistent and not credible and formulated to disguise his travel to Kenya
and return to Uganda while allegedly in hiding.
[25]
The RPD accepted that he worked in the HIV/AIDS
field and that in Uganda workers in the field are sometimes mistreated. But the
RPD found that he was a clinician much more than an activist; had never been
targeted; worked for the Government Health Ministry that he would not be
mistreated because of imputed HIV/AIDS or imputed homosexuality from his work.
The RPD did not accept that the one husband being angry with him was enough.
The RPD determined Mr. Aaron would not be exposed to a possibility of
persecution under section 97.
[26]
It is established law that if one finding is
determinative then the errors with respect to the other findings are not
material. Even if the RAD had been as microscopic as counsel in their analysis,
the cumulative effect of the record would not make this decision unreasonable.
[27]
The RAD reasonably concluded that there was
insufficient credible evidence remaining. Mr. Aaron’s counsel offered
explanations and pointed to discrepancies that could have lead the RAD to
making different findings but it is not my role on judicial review to reweigh
the evidence. The findings of the RAD on both sections 96 and 97 are supported
by the evidence and the findings as a whole are determinative.
[28]
In sum, I conclude that the decision is
reasonable and the RAD did not err in its application of Huruglica. The
application for judicial review is dismissed.
[29]
No question was presented for certified question
and none arose.
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