Docket: IMM-277-16
Citation:
2016 FC 1121
Ottawa, Ontario, October 6, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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RHOLEX AWAP
YONG N’KULY
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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
[1]
The Applicant seeks judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27, of the decision of the Refugee Protection Division of
the Immigration and Refugee Board (RPD), dated December 23, 2015, which found
that he was not a Convention refugee or a person in need of protection.
[2]
The RPD found that the Applicant was not
credible with respect to his claim that he is at risk of persecution in the
Democratic Republic of Congo (DRC) based on imputed political opinion. The RPD
also rejected the Applicant’s claim that he was harassed, threatened and
kidnapped for refusing to accept an artistic commission from DRC government
officials in 2009.
[3]
On judicial review, the Applicant argues that
the RPD’s credibility findings are unreasonable. Specifically, the Applicant
argues the RPD erred by: making plausibility findings without specific
reference to the evidence to support such findings; making an overall
credibility finding before independently assessing his corroborative evidence;
discounting the psychiatrist’s report; and, failing to address his claim that
he was kidnapped by authorities in 2013.
[4]
For the reasons elaborated upon below, I find
that the RPD did not err and the credibility findings are reasonable. As a
result, the application for judicial review is dismissed.
I.
Background
[5]
The Applicant, a citizen of the DRC, left the
DRC on October 17, 2014, for the United States (US) on a student visa. He
married a resident of Canada while in the US in February 2015. He withdrew his
claim for asylum in the US and, after arriving in Canada, claimed refugee
protection on September 22, 2015.
[6]
The Applicant recounts in his Basis of Claim
(BOC), and in his testimony to the RPD, that he is a well-known artist in the
DRC. In 2009, government officials offered him a commission for an art project
to honour the 50th anniversary of the DRC and to promote the vision
of President Joseph Kabila. He refused because he viewed the commission as
political activity, which is contrary to his religious beliefs as a Jehovah’s
Witness. He claims his refusal to accept the commission was regarded as a
signal of his opposition to the Kabila regime and that government officials
targeted and harassed him with threatening phone calls for the following two
years.
[7]
The Applicant recounts that, on January 3, 2012,
he was pulled from a bus, questioned about his political beliefs, tortured, and
then released by the Agence nationale de renseignements (ANR). He claims he was kidnapped by the ANR a second time in May
2013 and was released the following morning. He also claims that he feared for
his safety during Operation Likofi and took refuge at his aunt’s home in the
suburbs from February 2014 until he departed for the US in October 2014.
II.
The RPD Decision
[8]
The RPD found that the Applicant was not
credible due to contradictions and inconsistencies in his evidence. The RPD
also noted that his testimony lacked detail requiring the RPD to probe the key
aspects of his claim.
[9]
The RPD found that the Applicant’s account of
his alleged kidnapping on January 3, 2012, was not credible. The RPD found it
difficult to accept that the Applicant’s refusal of an artistic commission in
2009, resulted in an anti-political profile, noting that he had never
participated in anti-Kabiliste activities in the past. The RPD also found it
difficult to accept that the ANR would wait until 2012 to kidnap him, only to
release him the same day.
[10]
The RPD found that the medical certificate
describing the injuries the Applicant claimed to have suffered as a result of
the 2012 kidnapping was not genuine. Specifically, the certificate was a
pre-prepared form; it was not personally signed by the treating doctor; the
signature stamp bore the name of a different doctor; the certificate was dated
January 3, 2012, but stated that treatment was provided from January 3-17,
2012; and, it authorized 30 days of medical leave. The RPD noted that the use
of a false medical certificate resulted in a negative inference regarding the
Applicant’s general credibility.
[11]
The RPD concluded that the Applicant had not
been kidnapped by the ANR in 2012 and was not being sought for his imputed
political profile as anti-Kabiliste.
[12]
The RPD also noted that the Applicant worked in
the offices of a member of the Kabila party, despite his claim that he could
not leave his family home out of fear for his safety. The RPD rejected his
explanation that his work was not political and that the politician he worked
for was unaware of his problems with the ANR. The RPD found that the
Applicant’s conduct demonstrated that he did not fear persecution by reason of
his imputed political opinion and that he was not being sought by government
authorities.
[13]
Based on inconsistencies in the Applicant’s
testimony, the RPD did not believe that the Applicant was personally sought by
the authorities during Operation Likofi. Operation Likofi began in November
2013. The Applicant testified that he went into hiding because his former
colleague had been killed by the police in the Applicant’s neighbourhood in
November 2013. However, the Applicant did not leave his home and take refuge
with his aunt until February 2014. The RPD noted that if he had been in danger,
he would have fled earlier. The RPD again concluded that the Applicant was not
personally sought by the authorities during this period due to an imputed
anti-Kabiliste profile.
[14]
The RPD also noted inconsistencies in the
Applicant’s testimony regarding his delay in leaving the DRC.
[15]
With respect to the Applicant’s corroborating
documents, the RPD gave little weight to the letters from the Applicant’s
brother, aunt, and cousin, noting that these letters did not contain additional
evidence in support of his claims. The RPD found that two arrest warrants,
allegedly served at the Applicant’s home in February and May 2015, were not
genuine. In particular, the warrants did not indicate a location where the
Applicant was required to present himself, the February warrant was not
properly dated, and neither warrant complied with the form and content of such
warrants in the DRC.
[16]
The RPD noted that the Applicant speculated the
warrants were issued because one of his drawings, which could be perceived as
anti-Kabiliste, was entered into a contest via Facebook. The RPD found that the
Applicant provided no details about the contest and that the drawing would not
likely have come to the attention of the authorities based on a Facebook
transmission. The RPD concluded that the arrest warrants were not genuine and
the Applicant had not been sought by government authorities in the past, nor
was he being sought at present.
[17]
The RPD acknowledged Dr. Thirlwell’s psychiatric
report, noting that it described the same allegations set out in the
Applicant’s BOC. The RPD discounted Dr. Thirlwell’s conclusion that the Applicant
was a credible historian, but took into account Dr. Thirlwell’s opinion that
the Applicant’s mental condition could affect the delivery of his testimony.
The RPD ultimately found that the Applicant provided his testimony without
difficulty.
[18]
The RPD concluded that the Applicant had not
established a well-founded fear of persecution due to his imputed political
opinion. The RPD also found that he was not a person in need of protection.
III.
The Issues
[19]
The only issue is whether the RPD’s credibility
findings are reasonable. The Applicant raises four arguments to support his
position that the credibility findings are unreasonable. The Applicant argues
that:
- the RPD erred
by making credibility and plausibility findings without specific reference
to the evidence to support such findings;
- the RPD erred
by failing to consider and independently assess the corroborative evidence
before making an overall credibility finding;
- the RPD erred
in its treatment of the psychiatrist’s report, which should have informed
the RPD’s credibility findings; and,
- the RPD failed
to address his allegation that he was kidnapped a second time in 2013 and,
as a result, this allegation must be accepted as true.
IV.
The Standard of Review and Relevant Principles
Regarding Credibility
[20]
The standard of review of issues of
fact—including credibility—and mixed fact and law, is reasonableness. The RPD’s
decision should be given deference as long as the decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47, 53, 55,
[2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 59, [2009] 1 S.C.R. 339).
[21]
Boards and tribunals, such as the RPD, are best
placed to assess credibility (Aguebor v Canada (Minister of Employment and
Immigration), [1993] FCJ No 732 (QL) at para 4, 160 NR 315 (FCA)) and their
credibility findings should be given significant deference (Lin v Canada (Minister of Citizenship and Immigration),
2008 FC 1052 at para 13, [2008] FCJ No 1329 (QL); Fatih v Canada
(Minister of Citizenship and Immigration), 2012 FC 857 at para 65, 415 FTR
82; Lubana v Canada (Minister of Citizenship and Immigration), [2003]
FCJ No 162 (QL) at para 7, 228 FTR 43).
[22]
As the Respondent notes, the relevant principles
with respect to credibility assessments were summarized by Justice Donald
Rennie in Cooper v Canada (Minister of Citizenship and Immigration),
2012 FC 118 at para 4, [2012] FCJ No 135 (QL).
[23]
Justice Mary Gleason provided a similar summary
in Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319
at paras 41-46, [2012] FCJ No 369 (QL) [Rahal]. Justice Gleason first
highlighted the Court’s very limited role in reviewing credibility findings at
para 42:
[42] First, and perhaps most
importantly, the starting point in reviewing a credibility finding is the
recognition that the role of this Court is a very limited one because the
tribunal had the advantage of hearing the witnesses testify, observed their
demeanor and is alive to all the factual nuances and contradictions in the
evidence. Moreover, in many cases, the tribunal has expertise in the subject
matter at issue that the reviewing court lacks. It is therefore much better
placed to make credibility findings, including those related to implausibility.
Also, the efficient administration of justice, which is at the heart of the
notion of deference, requires that review of these sorts of issues be the
exception as opposed to the general rule. As stated in Aguebor at para
4:
There is no longer any doubt that the
Refugee Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position than the
Refugee Division to gauge the credibility of an account and to draw the
necessary inferences? As long as the inferences drawn by the tribunal are not
so unreasonable as to warrant our intervention, its findings are not open to
judicial review…
(See also Singh at para 3 and He v
Canada (Minister of Employment and Immigration), 49 ACWS (3d) 562, [1994]
FCJ No 1107 at para 2).
[24]
In summary, although the credibility findings of
first instance decision-makers are owed significant deference, such credibility
findings are not immune from review. Credibility findings may be found to be
unreasonable when, for example, inconsistencies or omissions relied on to draw
adverse inferences are insignificant or result from microscopic examination,
explanations are unreasonably discounted, or relevant information is not
considered.
[25]
With respect to
adverse credibility findings based on implausibility, Justice Gleason noted in Rahal
(at para 44) that, although the sworn
testimony of an applicant is presumed to be true in the absence of
contradiction, testimony may reasonably be rejected if the RPD finds it to be
implausible. However, a finding of implausibility must be rational, sensitive
to cultural differences, and clearly expressed.
[26]
In Zacarias v Canada (Minister of Citizenship and Immigration), 2012 FC 1155, [2012] FCJ No 1252 (QL), Justice Gleason reviewed
the jurisprudence on plausibility findings and (at para 11) reiterated the
principle in Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776 at para 7 [Valtchev] that an allegation may be found to be
implausible when it does not make sense in light of the evidence or when “the facts as presented are outside the
realm of what could reasonably be expected.”
Further, the RPD should provide an evidentiary base against which the
plausibility of an applicant’s evidence may be judged.
[27]
My assessment of the reasonableness of the RPD’s
credibility and plausibility findings has been guided by these principles.
V.
Are specific credibility and plausibility
findings unreasonable?
[28]
The Applicant disputes the RPD’s finding that
government agents would not have targeted him for refusing to accept an
artistic commission celebrating the 50th anniversary of the DRC. The
Applicant argues that this was a political event, and it is more likely than
not that his refusal was regarded as political opposition.
[29]
The Applicant also disputes the RPD’s
plausibility finding that it made no sense for the ANR to kidnap and
immediately release him two years after he refused the commission. According to
the Applicant, this ignores the evidence that he received threatening calls in
the intervening period. He adds that the RPD erred in looking for rationality
in the ANR’s actions.
[30]
The Applicant further argues that the RPD’s
finding that the medical certificate is fraudulent is based on speculation about
how such certificates should be written.
[31]
The Respondent submits that the RPD reasonably
doubted the plausibility of the Applicant’s claim that he was harassed for two
years following his refusal to take the artistic commission, and the claim that
authorities waited two years to kidnap him—although they knew his
whereabouts—only to promptly release him.
[32]
With respect to the medical certificate, the
Respondent submits that the RPD reasonably found it was fraudulent and clearly
explained why. As a result, the medical certificate failed to corroborate the
Applicant’s account of the 2012 kidnapping, which is central to his claim. The
Respondent also notes that the RPD determined the medical certificate was not
genuine before it made its credibility finding.
[33]
The Respondent points out that the Applicant has
not taken issue with the RPD’s other credibility findings, including that he
was not sought by the authorities during Operation Likofi, that he waited until
February 2014 to take refuge with his aunt (despite his claim that a friend had
been killed in November 2013), and that he claimed to be a successful artist in
the DRC yet lacked the resources to leave the DRC at an earlier date.
The specific credibility and
plausibility findings are reasonable
[34]
I find that the RPD’s specific credibility
findings are reasonable and arise from the Applicant’s inconsistent testimony,
as explained in the RPD’s reasons. For example, the RPD noted: the Applicant’s
delay in seeking refuge with his aunt; his delay in leaving the country; his
work for the government (despite his claim that he remained at home out of fear
for his safety); the inconsistency between his testimony about the injuries he
suffered in 2012 and the injuries described in the medical certificate
tendered; and, the use of a false medical certificate.
[35]
With respect to plausibility, the RPD is
entitled to rely on rationality and common sense.
[36]
Taking into account that the RPD should not
impose Canadian norms and standards in assessing rationality (Valtchev
at para 7), the RPD reasonably found that it was outside the realm of what
could reasonably be expected for the Applicant to be kidnapped two years after
his refusal to accept an artistic commission, only to be released almost
immediately after explaining that he was an artist and not a political
activist. The RPD also noted that there was no evidence that the Applicant had
been involved in previous political activity that would have led to a political
profile. The RPD did not ignore the allegations of threatening phone calls, but
reasonably questioned why the ANR would do so over this long period, without
taking any other action.
[37]
Agreeing to work for the same government that is
threatening your life is also outside the realm of what could be expected from
a reasonable person. The RPD reasonably rejected the Applicant’s explanation
that his work was not political, as this was inconsistent with the claim that
he was afraid to leave his home.
[38]
The RPD provided non-speculative reasons for
finding that the medical certificate was not genuine. In addition, the
Applicant’s testimony regarding his injuries was inconsistent with the
description of injuries in the medical certificate and also revealed that the
certificate was provided after he left the DRC. The RPD’s finding that the
certificate was not genuine is reasonable, as are the resulting adverse
credibility findings regarding the Applicant’s kidnapping and pursuit by
authorities.
VI.
Did the RPD err by not independently assessing
the documents tendered as corroboration?
[39]
The Applicant argues that his crucial
corroborating evidence was dismissed because the RPD had already made up its
mind that his allegations were not credible and that he had not been targeted
by and was not wanted by the Congolese security forces and the ANR.
[40]
The Applicant submits that his testimony is
presumed to be true. Corroborative evidence must be considered and
independently assessed when there is a reason to doubt credibility. Credibility
findings should not be made until all the evidence is considered.
[41]
The Applicant points to Nkonka v Canada
(Minister of Citizenship and Immigration) (13 January 2016), Toronto
IMM-2416-15 (FC) [Nkonka], where Justice Diner found that the RPD erred
by rejecting two corroborative documents on the basis of its earlier
credibility findings. Justice Diner stated that there is a greater onus on the
RPD to assess corroborative evidence where credibility is at issue and that
each piece of evidence requires an independent evaluation (at paras 7-8).
[42]
The Applicant argues that the letters from his
brother, aunt, and cousin corroborated different aspects of his claim,
including the May 2013 kidnapping, the stay with his aunt, and his cousin’s
assistance in obtaining a passport. The Applicant submits that the RPD
dismissed this evidence because it had already found his allegations lacked
credibility.
[43]
The Respondent submits that the corroborative
evidence repeated the same allegations set out in the Applicant’s BOC. The RPD
had credibility concerns, assessed the corroborative documents, and explained
why these did not resolve the credibility concerns.
The RPD assessed the corroborating
documents before making final credibility findings.
[44]
The RPD did not ignore or fail to assess the
Applicant’s corroborating documents. The RPD did not elaborate on the contents
of the three letters but did assess them, albeit briefly, and explained why it
attached little weight to them. It is not for the Court to re-weigh the
evidence. The RPD reasonably found that none of the letters provided additional
evidence to support the Applicant’s claims, which the RPD already had reason to
doubt.
[45]
The letter from the Applicant’s brother
recounted the same events set out in the Applicant’s BOC. The letter from the
Applicant’s aunt states that he stayed with her from February to October 2014
for safety reasons. This assertion was not the basis for a credibility finding.
Rather, the RPD pointed to the fact that the Applicant waited until February
2014 to leave his neighbourhood, despite his claim that a colleague was killed
in the same neighbourhood when Operation Likofi began in November 2013. The
letter from the Applicant’s cousin states that she worked for the government
and contacted a colleague to assist the Applicant to obtain a passport. The RPD
did not make any credibility findings regarding the Applicant’s statement that
he obtained a passport and visa to travel to the United States.
[46]
The RPD found that the arrest warrants did not
conform with authentic arrest warrants. The warrants did not provide a location
for the Applicant to report and did not state the reason for his arrest. The
RPD reasonably concluded that these arrest warrants could not corroborate the
Applicant’s allegation that he was wanted by the authorities for his imputed
political opinion.
[47]
I do not agree with the Applicant that Nkonka
dealt with analogous facts. In Nkonka, the RPD clearly rejected or
discounted a genuine arrest warrant and a notarized letter on the basis of
previous credibility findings, without independently assessing the evidence (at
paras 5, 8).
[48]
In this case, the RPD made several discrete
credibility findings before making an overall determination on credibility.
First, the RPD found that the medical certificate was not genuine. Second, the
Applicant’s account of being kidnapped two years after his refusal to take a
commission from the Government was found to be implausible. Finally, the
Applicant’s claim that he remained at home out of fear for his safety was found
to be inconsistent with his work for a member of the Kabila party, the agents
of his alleged persecution.
[49]
Based on these and other clear findings, the RPD
questioned the Applicant’s credibility and reasonably concluded that the
Applicant did not have an imputed political opinion and was not sought by the
authorities. None of these findings were addressed by or overcome by the
documents submitted to corroborate his claims.
VII.
Did the RPD err in its treatment of the
psychiatric report?
[50]
The Applicant argues that the RPD failed to
properly consider Dr. Thirlwell’s report and gave the report little weight
because the RPD had already made negative credibility findings. The Applicant
submits that the jurisprudence guides the RPD to consider the content of a
psychiatric report before making a final credibility finding. The Applicant
notes that the psychiatrist’s report is not tendered in support of the facts
underlying his refugee claim, but to establish his psychological state, which
should inform the RPD’s credibility findings (Joseph v Canada (Minister of
Citizenship and Immigration), 2015 FC 393 [Joseph]; Mico v Canada
(Minister of Citizenship and Immigration), 2011 FC 964 at paras 54-55).
[51]
The Respondent submits that the opinion
of the psychiatrist cannot usurp the fact finding role of the RPD (Budakh v
Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC
363). The RPD clearly explained why it rejected Dr. Thirlwell’s conclusions,
which reflect the guidance from the jurisprudence. The RPD ultimately found
that the Applicant was able to testify without difficulty, despite Dr.
Thirlwell’s opinion that the Applicant may have difficulty expressing himself.
The RPD did not err in its
assessment of the psychiatrist’s report
[52]
Dr. Thirwell’s report noted that she conducted
one interview with the Applicant and that he had completed the Post-Traumatic
Stress Disorder (PTSD) checklist. Dr. Thirlwell indicated that she had reviewed
the Applicant’s BOC and his clinical presentation was consistent with the
details outlined in the BOC. She added that he was a traumatized man and a “credible historian.”
[53]
Dr. Thirlwell stated that the Applicant suffered
from a major depressive disorder and exhibited signs of PTSD. Dr. Thirlwell
summarized her findings, noting that:
During the hearing he may have difficulties
expressing himself emotionally. He will likely display some of the PTSD
symptoms described above, such as memory problems and possibly become
emotionally flooded and /or emotionally shut down, causing him to have
difficulty answering questions.
[54]
The Applicant relied on several cases for the
proposition that a psychological or psychiatric report must be considered
before making credibility findings. However, all of this jurisprudence relates
to the need to consider an applicant’s state of mind, as it impacts on how an
applicant provides his or her testimony, before making credibility findings
based on inconsistencies, vagueness, improper sequencing, or omissions. That is
not the situation in the present case.
[55]
The RPD stated that it considered Dr.
Thirlwell’s opinion that the Applicant’s mental condition could affect how he
provided his testimony. The RPD found that he was able to provide his testimony
without any apparent difficulty.
[56]
In Khatun v Canada (Minister of Citizenship
and Immigration), 2012 FC 159, [2012] FCJ No 169 (QL), the applicant
similarly argued that the RPD had failed to take the applicant’s psychological
state into account before it assessed credibility. Justice Russell noted at
para 86 that:
Just because the Applicant may suffer from
cognitive and psychological problems does not mean that credibility is not an
issue or that all inconsistencies can be attributed to those problems. The RPD
must still assess credibility, and provided it takes into account the evidence
of cognitive or emotional impairment, the Court must be loath to interfere
because the Court does not have the advantage of seeing and hearing the witness
testify.
[57]
Justice Russell added that a psychological
report could not act as a cure-all for deficiencies in the applicant’s evidence
(at para 94).
[58]
Although Dr. Thirlwell stated that PTSD could
affect the Applicant’s ability to provide his testimony, the RPD ultimately
found that it did not do so. Despite the psychological report, the RPD was
still required to assess the Applicant’s credibility.
[59]
The Applicant also relied on Joseph. In Joseph,
the applicant had considerable difficulty giving her testimony and the RPD made
credibility findings based on her testimony. Justice Locke noted at paras
32-33:
[32] The RPD’s reasons
for decision show that the key negative inferences drawn by it are based mainly
on the inconsistency of the applicant’s story, her dissociation from the events
and her inability to explain the events in chronological order.
[33] While it is not for
an expert to determine if the inconsistencies in a refugee protection
claimant’s testimony can be excused by post‑traumatic stress syndrome (Diaz Serrato v
Canada (Citizenship and Immigration), 2009 FC176, at para 22), the
fact remains that caution must be exercised where there is a connection between the inconsistencies or
omissions identified by the RPD and the cognitive errors referred to in
a medical or psychological report (Garay Moscol v Canada
(Citizenship and Immigration), 2008 FC 657, at para 10).
[Emphasis added]
[60]
Justice Locke also noted that, in the case of a
claimant suffering from PTSD, medical evidence is important to assess
credibility as it helps explain the claimant’s memory problems (at para 36).
[61]
Joseph does not
change the principles established in the jurisprudence. It applies those
principles to the facts, which differ from the facts in the present case. In
this case, no connection existed between the information in the medical report
and the inconsistencies and implausibilities which led to negative credibility
findings. The RPD did not find that the Applicant had any apparent difficulty
giving his testimony. The credibility findings did not arise from memory
problems or errors in dates or chronology of events.
[62]
The Applicant appears to rely on the psychiatric
report to bolster the credibility of his version of events on the basis that
those events resulted in his PTSD or that PTSD is consistent with experiencing
such events.
[63]
The law is clear that events recounted to a
psychiatrist or other health professional cannot corroborate the same events
recounted to the RPD or another tribunal (see for example Moya v Canada
(Minister of Citizenship and Immigration), 2016 FC 315 at para 57, [2016]
FCJ No 335 (QL); Saha v Canada (Minister of Citizenship and Immigration),
2009 FC 304 at para 16, 176 ACWS (3d) 499)
[64]
It is not the psychiatrist’s role to assess the
credibility of events that form the basis of a refugee claim. That is the role
of the tribunal. The RPD clearly
stated « le tribunal n’accordera pas d’importance à la
conclusion du rapport présenté relativement à l’opinion du médecin pour ce qui
a trait à la crédibilité du demandeur, mais a tenu compte de ce rapport en ce
qui a trait à la capacité du demandeur à livrer son témoignage ». The RPD did
not simply discount or ignore the psychiatrist’s report. Rather, the RPD
reasonably placed no significance on the psychiatrist’s opinion that the
Applicant’s claims were credible.
VIII.
Did the RPD err in not addressing the 2013
kidnapping?
[65]
The Applicant argues that because the RPD failed
to address his claim that he was kidnapped a second time in May 2013, this
allegation must be taken as true. According to the Applicant, the second
kidnapping was a significant event and precipitating factor in his decision to
leave the DRC.
[66]
The Respondent submits that the May 2013
kidnapping is one of a series of alleged events that were triggered by the
Applicant’s refusal to take the artistic commission in 2009. Even if the RPD
failed to refer to the 2013 kidnapping, the RPD is presumed to have considered
all the evidence.
The RPD did not ignore the 2013
kidnapping
[67]
I do not agree that the RPD erred by failing to
specifically address the Applicant’s allegation that he was kidnapped in May
2013. The RPD acknowledged all the Applicant’s allegations, which included the
May 2013 kidnapping. The RPD also probed the Applicant’s testimony regarding
the 2013 kidnapping at the hearing.
[68]
The RPD made several reasonable credibility
findings and concluded that the Applicant had not been sought by the ANR as a
result of his imputed political opinion. Although the Applicant argues that the
RPD’s negative credibility findings were restricted to the 2012 kidnapping, in
my view, the RPD’s finding was broader. The RPD concluded that the Applicant
was not wanted by the ANR at that time nor was he wanted at the present time. This
conveys that the RPD did not accept that the Applicant was kidnapped in 2013
for the same reasons it rejected the allegation that he was kidnapped in 2012.
[69]
In addition to finding that the Applicant was
not kidnapped or sought by the ANR in 2012, the RPD also found that he did not
fear persecution based on imputed political opinion after 2012. This was based
on the inconsistency in the Applicant’s conduct in working for a member of the
Kabila government after his alleged kidnapping by the same government.
[70]
Similarly, the RPD found that the Applicant’s
delay in fleeing his home, despite his alleged fear for his safety, undermined
his credibility in general.
[71]
On the basis of several adverse credibility
findings, the RPD reasonably concluded that the Applicant did not have the
political profile he alleged and that he was not being sought by the ANR at any
time. In my view, this conclusion extends to the alleged 2013 kidnapping.
[72]
In conclusion, the RPD’s credibility findings
fall within a range of reasonable outcomes which are justified by the facts and
the law. The RPD provided clear reasons for its credibility findings which
reasonably led the RPD to find that the Applicant had not established that he
was a Convention refugee or person in need of protection. As a result, the
application for judicial review is dismissed.
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