Docket: IMM-4479-15
Citation:
2016 FC 1023
Ottawa, Ontario, September 9, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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SHOGOUFEH
AMIRYAR
AHMAD RAMIN
SHIRZAD
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Applicants
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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]
The applicants, Ms. Amiryar and Mr. Shirzad are
citizens of Afghanistan who allege they were married without the approval of
Ms. Amiryar’s family in August 2014. They then fled Afghanistan as they fear
Ms. Amiryar’s family would kill them. On arrival in Canada in September 2014
they claimed protection.
[2]
The Minister of Public Safety gave notice of
intervention before the Refugee Protection Division [RPD] of the Immigration
and Refugee Board of Canada [IRB] on the basis of identity and credibility
concerns. In an addition to the notice the Minister concluded the applicants
had provided sufficient proof of identity but maintained the claim should be
rejected due to credibility concerns.
[3]
The applicants’ claim was heard in March 2015. At the outset of the hearing, the
applicants made several changes to the dates of events reported in their Basis
of Claim forms [BOCs]. The changes included the date they applied for Afghan
passports prior to fleeing Afghanistan, the date of their wedding and the date
they fled Afghanistan. The new dates advanced by the applicants were no longer
consistent with key documentary evidence submitted in support of the claim
including the applicants’ marriage certificate.
[4]
In April 2015, the RPD refused the claim on the
basis that the applicants’ testimony was not credible in relation to their
primary allegations and not consistent with documentary evidence they placed
before the RPD.
[5]
Ms. Amiryar and Mr. Shirzad appealed the RPD determination to the Refugee Appeal Division [RAD].
The RAD considered the RPD’s credibility findings and concluded some of the RPD’s
credibility findings were in error. However, it concurred with other negative
credibility findings, characterizing them as central to the applicants’
allegations and therefore capable of supporting the overall conclusion that the
applicants were not credible. The RAD dismissed the appeal.
[6]
In this application, the applicants ask that the
decision of the RAD be quashed and that the matter be returned for
reconsideration by a differently constituted panel. The applicants submit that
the RAD erred in dismissing the appeal by not addressing the cumulative impact
of the RPD’s flawed credibility findings and by drawing a negative inference as
a result of changes to the applicants’ BOCs. The applicants further argue that
the RAD erred by misapprehending, misstating and ignoring evidence in making
negative credibility findings and by attaching no evidentiary value to
documents confirming aspects of the claim. Finally, the applicants submit the
RAD erred by ignoring the gender-related aspects of the persecution alleged.
[7]
The application raises the following issues:
A.
Did the RAD err in addressing the RPD’s negative
credibility findings?
B.
Did the RAD err in addressing the applicants’
documentary evidence?
C.
Did the RAD err by failing to meaningfully apply
the Chairperson’s Guidelines on Gender-Related Persecution?
[8]
Having considered the applicants oral and
written submissions, I conclude that the RAD reasonably decided that the
applicants’ evidence was not credible. The RAD did not commit a reviewable
error in dismissing the appeal. The application is dismissed for the reasons
that follow.
II.
Standard of Review
[9]
Issues relating to the exercise of discretion
where a number of reasonable conclusions are available to a decision-maker or
that engage questions of fact and mixed fact and law are to be reviewed on a reasonableness
standard (Ngandu v Canada (Minister of Citizenship and Immigration),
2015 FC 423 at para 12). An alleged breach of procedural fairness or natural
justice is to be reviewed on a correctness standard (Juste v Canada
(Minister of Citizenship and Immigration), 2008 FC 670 at para 23 and Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 126 and 129 [Dunsmuir]).
[10]
The applicants submit that in misstating and
ignoring evidence, the RAD failed to observe the principles of procedural
fairness. I am not convinced. In advancing their arguments in respect of the
RAD’s treatment of the documents at issue, the applicants: (1) argue that the RAD
failed to address contradictory evidence; (2) dispute the findings on probative
value; and (3) allege that the RAD engaged in a microscopic analysis of the
evidence. This is not a case where the RAD refused to assess, ignored, or
otherwise failed to consider the documents in question. Rather, the issues raised
relate to the exercise of discretion and are questions of mixed fact and law to
be reviewed on a reasonableness standard.
[11]
The standard of review applied in considering
all issues raised by this application is reasonableness.
III.
Analysis
A.
Did the RAD err in addressing the RPD’s negative
credibility findings?
[12]
The applicants argue that the RAD erred in
drawing a negative inference from late BOC amendments and by failing to
consider the cumulative effect of errors identified in the RPD’s decision. The applicants
argue that credibility should not be impugned on the basis of BOC amendments
that are reasonably and plausibly explained.
[13]
The applicants also point to three negative
credibility findings made by the RPD that the RAD concluded lacked a sufficient
evidentiary basis. The applicants argue that the RAD erred in not considering
the cumulative effect of these errors on the final outcome.
[14]
I am not convinced by either argument.
[15]
The RAD undertook a detailed analysis of each of
the many negative credibility findings made by the RPD. In doing so it ultimately
concluded that the applicants were not credible witnesses on issues concerning
central aspects of their claim.
[16]
With respect to the late BOC amendments, the RAD
concurred with the RPD’s finding that the amendments negatively impacted on the
applicants’ credibility in relation to the actual dates of important events. In
reaching this conclusion, the RAD reviewed and addressed the applicants’ explanations
for the late amendments to their BOCs. The RAD also noted that the applicants
did not address the RPD’s reasons for rejecting the applicants’ explanations in
their appeal.
[17]
Important elements of a claimant’s narrative
that are not included in his/her BOC may impact on a claimant’s credibility. Similarly,
where amendments are made late in the process, particularly where those
amendments relate to important elements of a claimant’s narrative, it is open
to the RAD to draw a negative credibility inference (Zeferino v Canada
(Minister of Citizenship and Immigration), 2011 FC 456 at para 31). In this
case, the RAD considered the explanations advanced for the late amendments, and
set out its reasons for finding the explanations neither reasonable nor plausible.
In particular, it noted that “…the male Appellant’s
explanation that he had to find housing and therefore he could not make changes
to his BOC that go to the very heart of his claims strains credulity.”
[18]
The changes made to the BOC lead to the applicants’
credibility being further undermined. The marriage certificate they tendered
and a property transfer document, both of which the RAD found to be credible
and probative, indicated the applicants were married in Afghanistan and fled
later than what was alleged in their revised narrative. The RAD noted the
discrepancies between their narrative, the documentation tendered in support of
their claim and the fact that the RPD’s findings that they did not leave
Afghanistan on the date alleged was not addressed by the applicants in their
submissions to the RAD.
[19]
The RAD concluded that these “material credibility issues” overcame the errors the
RPD made in making the previously mentioned credibility findings. In rejecting
these findings, the RAD specifically turned its mind to the impact on the
overall assessment of credibility and in each instance concluded that the error
was not fatal to the overall credibility determination. This approach was fully
consistent with the RAD’s role of carrying out its own analysis of the record.
[20]
The applicants have not demonstrated that the
ultimate conclusions were unreasonable. There was an ample evidentiary basis upon
which the RAD could conclude that the applicants lacked credibility. In
reaching this finding, the presumption of truth no longer applied to the
applicants’ evidence (Hussain v Canada (Minister of Citizenship and
Immigration), 2004 FC 1186 at para 11). It was reasonable for the RAD to
conclude that matters central to their claim including their date of marriage,
the date they fled and their alleged pre-marital relationship, including the
allegations that Ms. Amiryar had engaged in premarital sex, were not credible.
B.
Did the RAD err in addressing the applicants’
documentary evidence?
[21]
The applicants argue that the RAD erred in
confirming the RPD’s conclusion that a letter and medical reports were of no
probative value due to the material credibility concerns. Specifically, the
applicants submit evidence was ignored, mischaracterized and microscopically
examined.
[22]
I am not persuaded by the applicants’ argument. The
documents in this case were before the decision-maker and were considered. In doing
so, the documents were found to be inconsistent with elements of the applicants’
narrative or lacking in sufficient detail to corroborate the claims being made.
These shortcomings, in conjunction with the finding that the applicants were
not credible on matters central to their claim lead to the conclusion that the
documents were of no probative value in corroborating the narrative, a
conclusion that was reasonably available to the RAD.
C.
Did the RAD err by failing to meaningfully apply
the Chairperson’s Guidelines on Gender-Related Persecution?
[23]
The applicants submit the RAD erred in ignoring
the Chairperson’s Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution [Chair’s Gender Guidelines] and concluding
that the RPD had considered them. Again, I disagree. There is no basis to
conclude that either the RAD or RPD were not sensitive to the particular
circumstances of women in Afghanistan. While the RAD’s decision did recognize
the plight of women in Afghanistan, it was ultimately based on reasonable and
fundamental credibility concerns relating to material aspects of the applicants’
claim. The Chair’s Gender Guidelines do not serve as a cure for these
credibility concerns (Karanja v Canada (Minister of Citizenship and
Immigration), 2006 FC 574 at para 5).
IV.
Conclusion
[24]
The issue before the RAD was credibility and it
is on that basis that the claim has been denied. The RAD reasonably found the
applicants not to be credible. The decision falls within the range of possible,
acceptable outcomes defensible in respect of the facts and law (Dunsmuir at
para 47).
[25]
The parties have not proposed a question for
certification and none arises.
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