Docket: IMM-2726-15
Citation:
2016 FC 368
Ottawa, Ontario, April 1, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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ALMUATASEM M S
ALEMARI
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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]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of a Member of the Refugee Protection
Division [RPD] of the Immigration and Refugee Board of Canada, rejecting the
applicant’s refugee claim after finding he was neither a Convention refugee nor
a person in need of protection pursuant to sections 96 and 97 of the IRPA
respectively. The RPD based this conclusion on a finding that the applicant was
not credible.
[2]
For the reasons that follow the application is
dismissed.
I.
Background
[3]
The applicant is a citizen of Libya born on May
5, 1993 in that country. He arrived in Canada on December 26, 2010 as a
student.
[4]
On February 17, 2011 the applicant began protesting
[the Protests] against the Gaddafi regime in front of the Canadian Parliament
buildings.
[5]
The applicant alleged that in March of 2011 he
received a call from his father informing him that Gaddafi’s men threatened to
kill him and that his brother Malik, was taken by armed men in Libya because of
the applicant’s involvement in the Protests. The applicant alleged he then lost
contact with his family because of the war in Libya.
[6]
The applicant applied for refugee protection on
August 16, 2011 and submitted a Personal Information Form [PIF] signed on
September 6, 2011. Subsequently, the applicant alleged that he learned that his
father, a high profile medical doctor and academic was forced to perform
surgery on one of Gaddafi’s sons. The applicant also alleged that he learned
that a person he knew was kidnapped with others in March, 2015. Finally,
notwithstanding Gaddafi’s death, the applicant alleged in his updated narrative
submitted on May 1, 2015 that due to his involvement in the Protests against
the Gaddafi regime, pro-Gaddafi groups in Libya would want to harm him.
II.
Decision under Review
[7]
The RPD rejected the applicant’s claim, finding
too many inconsistencies existed in the applicant’s evidence and concluded that
the applicant was not credible.
A.
Identity Accepted
[8]
The RPD accepted the applicant’s identity
through his testimony and supporting documentation, including his Libyan
passport.
B.
Subjective Fear
[9]
The RPD characterized the applicant’s claim as
primarily based on his main fear that should he return to Libya today, militias
from either side of the Civil War might stop him at their checkpoints and inquire
about his allegiance. The applicant feared either side in the Civil War would
want to recruit him or at least investigate to find out who he is and would
discover that he comes from a wealthy family triggering a risk of kidnapping or
other forms of persecution to obtain money.
[10]
Based on this profile, the RPD found it was
speculative for the applicant to fear recruitment or being kidnapped for ransom
because:
A.
His brother and father have been able to
circulate in Libya going about their regular business, his father continues to
work and his brother continues to attend high school and they continue to
reside at the same address; and
B.
Though the applicant’s father and brother had experienced
a number of incidents at checkpoints, there was never any question of forced
recruitment or kidnapping for ransom despite the father’s well-known
connections to the Gaddafi regime and his wealth.
C.
Credibility
[11]
The RPD made a series of negative credibility
findings as a result of inconsistencies and contradictions (1) in the applicant’s
testimony, (2) between the applicant’s testimony and his PIF and (3) between
the applicant’s sworn evidence and the sworn declaration of his father. This
led to the RPD disbelieving that the applicant’s brother had been kidnapped as
the applicant alleged.
III.
Issues
[12]
The application raises the following issues:
1)
What is the standard of review;
2)
Did the RPD err in its negative credibility
findings; and
3)
Did the RPD commit a reviewable error by failing
to address the objective documentary evidence in relation to the applicant’s
risk profile?
IV.
Analysis
A.
Standard of Review
[13]
The RPD’s assessment of the evidence and
credibility engages questions of fact and mixed law and fact that are to be
reviewed on the reasonableness standard (MDCOG v Canada (Minister of
Citizenship and Immigration), 2010 FC 804 at para 9, 193 ACWS (3d) 226).
B.
Credibility findings
[14]
The applicant submits that the RPD’s negative
credibility findings were unreasonable, addressing each in turn. The applicant,
relying on Sheikh v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 568 at para 23, 190 FTR 225 (TD), argues that the RPD zealously
searched for inconsistencies in the applicant’s evidence. The respondent on the
other hand argues that the credibility determinations were rational and open to
the RPD to reach.
[15]
Recognizing that the RPD is best positioned to
gauge credibility and is to be accorded significant deference in this regard (Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 at
para 4, 160 NR 315 (CA)), I am satisfied that the RPD had a rational basis for
the negative credibility findings made against the applicant.
[16]
The record discloses real material
contradictions and inconsistencies between the applicant’s PIF, his testimony
and his father’s sworn declaration. For example:
A.
At the first day of hearings the applicant could
not answer questions regarding his brother’s kidnapping;
B.
The applicant could not explain why his father stated
in his declaration that he found out about the applicant’s involvement in the Protests
through Facebook while the applicant stated his father learned from Gaddafi
supporters approaching the father in Libya threatening to imprison or kill the
father due to the applicant’s involvement in the Protests; and
C.
The applicant testified that his brother Malik,
was freed on August 20, 2011 but did not mention this release in the PIF,
signed on September 6, 2011. Instead the PIF states there was no news
concerning Malik.
[17]
There was a rational basis underpinning the
RPD’s credibility findings.
C.
Assessing the applicant’s profile against the
documentary evidence
[18]
The applicant further submits that the RPD erred
by ignoring the documentary evidence which confirmed that a person fitting the
applicant’s profile would face persecution and be at risk if returned to Libya.
[19]
The applicant submits that the evidence established
his family’s profile as (1) being wealthy; and (2) being perceived as having
been supportive of the former Gaddafi regime due to his father’s high ranking
position in Libya’s medical and academic establishment. In turn, the applicant
argues that the country condition documents demonstrate a real and immediate
risk of persecution of people associated with the Gaddafi regime, a risk the
RPD did not address. Relying on Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at paras 16-17, 157 FTR 35
(TD) [Cepeda-Gutierrez] the applicant argues the RPD was obliged to
consider this evidence, that the RPD failed to do so, and that the failure is not
cured by the RPD’s general statement at paragraph 31 of the decision that it
had “considered all of the evidence.”
[20]
The respondent argues that the RPD’s credibility
findings are dispositive of the claim, general documentary evidence is
insufficient to overcome a finding of a lack of credibility (Ozbay v Canada
(Minister of Citizenship and Immigration), 2014 FC 674 at para 23 [Ozbay]),
and the RPD was under no obligation to refer to every piece of evidence before
it.
[21]
In this case I am persuaded by the respondent’s
position. The RPD did not need to refer to each piece of evidence the applicant
submitted (Llana v Canada (Minister of Citizenship and Immigration),
2011 FC 1450 at para 29) and “General documentary
evidence, in the face of a version of events that is not believed, will not be
sufficient to turn the tide” (Ozbay at para 23).
[22]
While I agree with the applicant’s submissions
to the effect that a blanket statement by an administrative decision-maker that
it has considered all the evidence is not sufficient where the evidence
squarely contradicts a decision-maker’s finding (Cepeda-Gutierrez at
para 17), this is not the situation in this case.
[23]
The RPD considered the applicant’s profile but
found his fear to be speculative based on the evidence that both his father and
brother were circulating and conducting their daily affairs without
experiencing any of the risks the applicant feared. Essentially the applicant’s
claim centred on the allegations (1) that Gaddafi’s men kidnapped his brother;
and (2) that due to the applicant’s father’s status, the applicant would be at
risk of forced recruitment or kidnapping at checkpoints. Having reasonably
found: (1) the kidnapping of the brother did not occur due to the applicant’s
general lack of credibility; (2) that no weight would be given to the corroborative
evidence from the applicant’s father; and (3) that the risks feared were
speculative based on the applicant’s evidence of the experience of his father
and brother, it was reasonably open to the RPD not to address further evidence
related to the applicant’s risk profile.
V.
Conclusion
[24]
I am of the view that the decision falls within
the range of reasonable acceptable outcomes based on the facts and the law (Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[25]
The parties did not identify a question for
certification.
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