Dockets: IMM-2916-15
Citation:
2016 FC 380
Ottawa, Ontario, April 7, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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SAIDA AIDA
IBRAHIM
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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 of a
decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board upholding a decision of the Refugee Protection Division [RPD], which
denied her refugee claim. The RAD upheld the RPD’s decision solely on the
basis of its finding on the issue of the applicant’s credibility. In
particular, the RAD held that the applicant was not credible when she claimed
that she would face persecution in Kenya because of an arranged marriage and because
of her conversion to Christianity.
Background
[2]
On September 5, 2008, the applicant arrived in
Canada to commence studies at the College of New Caledonia in British
Columbia. She graduated in April 2012, and then she remained in Canada on a
work permit.
[3]
In February 2014, the applicant says that she learned
that her father had made arrangements for her to marry a man in Kenya. The
applicant informed her father that she was not practicing Islam and was
thinking of converting to Christianity. The applicant’s father told her that
she was a disgrace to her family and community.
[4]
The applicant claims that she fears returning to
Kenya because of the arranged marriage and, in particular, the risk that the
marriage could turn violent, because it is “based on
power.” She also says that she fears persecution on account of her
Christian faith.
[5]
In May 2014, the applicant claims that she
converted to Christianity and further claims that she was baptized on December
24, 2014. On November 26, 2014, the applicant made a sur place refugee
claim in Canada.
[6]
On February 10, 2015, the applicant’s refugee
claim was rejected by the RPD. In an oral decision, the RPD held that the
applicant was not credible when she claimed that she had converted to
Christianity, that she was being pressured into an arranged marriage, and that
she feared persecution by her father, relatives, and community. The RPD also
held that the applicant’s delay in making a refugee claim undermined her
alleged subjective fear of persecution: even though she learned about the
proposed arranged marriage in February 2014, she did not make a refugee claim
until November of that year. Finally, the RPD held that the applicant had not
provided convincing documentary evidence to corroborate her fear of
persecution. In the alternative, the RPD held that the applicant had an IFA in
Nairobi.
[7]
The applicant appealed the RPD decision to the
RAD on a number of bases. The first ground of appeal raised in her memorandum
filed with the RAD was the credibility finding of the RPD; namely, that “the panel rejected the claims of the appellant on the basis,
among others, that the appellant was not a credible witness.” The RAD,
which ultimately agreed with the RPD’s finding, conducted the appeal only with
respect to that issue.
[8]
On appeal, the applicant submitted no new
evidence but rested her appeal on the record before the RPD.
[9]
On appeal, the RAD agreed with the applicant
that three of the reasons the RPD gave for its credibility determination could
not support that finding. First, the RAD drew no negative inference as a
result of the lack of documentary evidence regarding the prospective groom or
wedding plans. Second, it drew no negative inference as a result of the
applicant’s testimony that she could choose not to marry. Third, it drew no negative
inference from the applicant’s testimony that her father had never abused her
and that her mother supported her choice not to marry.
[10]
The RAD did agree with the RPD’s overall
credibility finding based on the following evidence.
[11]
First, it found that the applicant’s testimony
appeared at times to be rehearsed and at other times unconvincing and vague.
In particular, it found her explanation of why she converted to Christianity to
be unconvincing and vague.
[12]
Second, the RAD assigned little weight to a letter
from Reverend David Elliot, dated July 3, 2014, which was written on the
letterhead of Knollwood Baptist Church in London, Ontario. It held that the
letter appears to be a form letter sent to new attendees at the church and it
noted that the letter provided neither evidence that the applicant was
attending church on a regular basis nor evidence of her conversion to
Christianity.
[13]
Third, the RAD assigned no weight to two
Knollwood Baptist Church weekly service programs she entered as evidence at the
RPD because they provided no evidence of the applicant’s conversion to
Christianity.
[14]
Fourth, the RAD assigned little weight to a
study package entitled “Believer’s Baptism.” It
noted that the study package had not been completed, but acknowledged that it was
signed and dated by the applicant on December 24, 2014, and was accompanied by
a handwritten note reading “6:15-bathing suit, towel,
6:30pm-service.” The RAD gave these documents little weight because the
applicant had failed to provide a program for the baptism, despite providing
programs for other, less important, church services, and because she had failed
to provide a baptismal certificate.
[15]
Fifth, the RAD assigned little weight to
a letter from Muriel Goodridge, dated January 17, 2015, which stated that Ms.
Goodridge has known the applicant since November, 2014, when the applicant
became a member of Knollwood Baptist Church. Ms. Goodridge says that the
applicant was baptised on December 24, 2014. The RAD gave this letter little
weight because it was not affirmed and identification of the letter’s author was
not provided. The RAD also notes that the applicant “provided
no persuasive evidence that she was baptized” and “[t]he letter from Ms. Goodridge can only attest to the
Appellant’s participation in church activities in Canada; the letter does not
attest to the motivations of the Appellant.”
[16]
Sixth, the RAD assigned little weight to a
letter from the applicant’s sister, which states, among other things, that the
applicant’s father is planning on marrying her off to an old Muslim man. The
RAD assigned this letter little weight because it is not affirmed, the letter
writer’s identity is not provided and the applicant is not identified in the
letter. The RAD also expresses the following concerns about the format of the
letter:
[T]he salutation of the letter is “Dearest
siz”. However, “Dearest” is written on one line and the word “siz” is written
on the line below, indented, and in a different ink. The RAD also notes that
the signature of the author is “Your loving sis”, [unreadable signature]. The
RAD finds it unreasonable that the author of the letter referred to her sister
as “siz” and then later as “sis”.
The RAD found
implausible the applicant’s explanation for why this letter was sent, given that
the applicant frequently communicates with her sister on Facebook. The
applicant claimed that her sister communicated by letter, as opposed to
Facebook, because she was concerned that someone might hack into her Facebook
account. This explanation is supported by the letter itself, which states that
“[t]his is the story I was to tell you on facebook but
just felt I should write you instead because of security reasons.” The
RAD did not find this explanation plausible because, although there was
evidence that the Kenyan government monitors websites, there was no evidence
that it would be interested in the applicant’s arranged marriage.
[17]
Seventh, the RAD assigned little weight to a
letter from the applicant’s mother. The letter states, in part, that the applicant’s
father “is still insisting on marrying you off to an
old man” and that, although the applicant’s mother supports the
applicant’s decision not to marry, there is nothing she can do. The RAD
assigns this letter little weight because it is not dated or affirmed, no
identity document was provided for the author of the letter, and the applicant
is not identified in the letter. The RAD also observes that:
The signature of the author is “mum”. While
not a handwriting expert, the RAD observes that the printing of the word “mum”
is considerably different than the printing in the body of the letter. The
salutation reads “Dearest Daughter”. The words “Daughter”, in the salutation,
and “mum”, in the signature, appear to be in different ink than the remainder
of the letter.
[18]
Eighth, the RAD held that the applicant’s delay
in making a refugee claim undermined her claim of subjective fear. The
applicant’s father told her about the arranged marriage in February 2014 and
she converted to Christianity in May 2014. Nevertheless, she failed to make a
refugee claim until November 26, 2014. The RAD did not accept the applicant’s
explanations that her work visa was still valid when she made her claim and, in
any case, she was not aware of her right to make a claim until shortly before
she made it. The RAD held that, as an educated woman who is fluent in English,
the applicant could have made inquiries about the refugee process. The RAD
further held that the applicant’s dilatory behaviour was not that of someone who
fears for her life.
[19]
Ninth, the RAD found it suspicious that the
applicant converted to Christianity shortly after learning that her father
intended to marry her off to an older Muslim man, and that all of this occurred
while the applicant was a temporary resident of Canada. It held that this
coincidence diminished the applicant’s credibility.
Issues
[20]
The applicant raises two issues: (1) Whether the
RAD breached the applicant’s right to procedural fairness, and (2) whether the RAD’s
assessment of the evidence leading to the credibility finding was reasonable.
Analysis
A.
Procedural Fairness
[21]
The applicant submits that the ninth basis
(above at paragraph 19) on which the RAD relied for upholding the credibility
finding was a new issue and the RAD owed her a duty to confront her with its
concerns but failed to do so.
[22]
When addressing this aspect of the evidence, the
RAD makes it clear in its decision that the finding of coincidence was not a
finding made by the RPD, nor was it raised by the applicant in her appeal:
Although not mentioned in the appeal
pleadings or in the RPD member’s decision, the RAD notes that during the oral
hearing the Appellant was asked to comment on the coincidence of the timing of
the events that led to her claim for refugee protection.
[23]
As the respondent notes, and the RAD confirms,
the RPD did ask questions of the applicant relating to the alleged coincidence;
however, it made no express finding on the evidence.
[24]
The applicant submits that she was entitled to
know that this would be relied upon by the RAD in order to address its
concerns. She relies on the decision of Justice Kane in Ching v Canada
(Minister of Citizenship and Immigration), 2015 FC 725 [Ching], and
in particular the statement at paragraph 71:
If the RAD pursues a new issue, it seems
clear that procedural fairness requires that the party or parties affected be
given notice and an opportunity to make submissions.
[25]
Reference was also made to Justice Hughes’
statement in Husian v Canada (Minister of Citizenship and Immigration),
2015 FC 684 [Husian] at para 10:
The point is that if the RAD choses to take
a frolic and venture into the record to make further substantive findings, it
should give some sort of notice to the parties and give them an opportunity to
make submissions.
[26]
I find that both of these authorities are
distinguishable from the facts here. In both of these cases, the RAD went
beyond the issues that were before it; whereas in this case, it did not.
Here the issue did not change nor did the RAD explore a new issue; rather, the
RAD’s assessment of the evidence going to the issue the applicant raised,
differed from the RPD’s assessment.
[27]
In Ching the RPD found the applicant to
be generally credible. That credibility finding was not an issue on appeal to
the RAD. Nevertheless, the RAD, on its own motion, raised the issue of the
applicant’s credibility. Justice Kane, quite correctly, found that this was a
breach of procedural fairness because this was a “new” issue and the applicant
would have had no reason to think that it would be considered by the RAD in the
appeal.
[28]
The facts in Husian are similar. The RPD
found that the applicant had failed to establish his identity. He had no
documents and it was found that neither he nor his great aunt were credible
witnesses. It appears from the very brief reasons that the RAD, based on its
own review of the record, went on to conclude incorrectly that there was no
evidence of the applicant being a member of the Dhawarawayne clan. Moreover,
it also commented on differences in the spelling of the applicant’s name in
various documents and “[t]here were other errors.”
Justice Hughes describes these as “further substantive
findings.”
[29]
In the case at bar, a central finding of the RPD
that was the subject of the appeal to the RAD was its finding that the
applicant’s evidence regarding her conversion to Christianity, her arranged
marriage, and her fear, was not credible. The RAD took exception to some of
the findings relied upon by the RPD for the conclusion that she was not
credible, accepted others, and, in one instance, relied on an exchange between
the RPD Member and the applicant at the hearing regarding the timing of events,
and found that they were too fortuitous to be believed.
[30]
Unlike Ching and Husian, the RAD
was not raising a new issue; rather, it was addressing the very issue raised by
the applicant – the finding that she was not credible in regards to her
conversion, her arranged marriage, and her fear. It too found she was not
credible. It was entitled, and indeed obliged to review and assess the
evidence afresh. It did so. The fact that it saw some of the evidence
differently is not a basis to challenge the decision on fairness grounds when
no new issue was raised.
B.
Reasonableness of Decision
[31]
I agree with the applicant that the RAD drew
negative inferences from the failure of evidence to include some feature or
information that it could not reasonably be expected to include: Osman v
Canada (Minister of Citizenship and Immigration), 2008 FC 921 at paras
37-39; Taha v Canada (Minister of Citizenship and Immigration), 2004 FC
1675 at para 9). Nonetheless, that evidence was of little if any persuasive
value. For example, the discounting of the letter from Ms. Goodridge on the
basis that “the letter does not attest to the motivations
of the Appellant” is unreasonable as Ms. Goodridge cannot be expected to
speak to the applicant’s motivations for going to church. Additionally, the
discounting of the letters from the applicant’s mother and sister on the basis
that they were not affirmed is unreasonable as there is no evidence that they
were prepared for the purpose of litigation. In particular, the letter from
the applicant’s sister is dated June 3, 2014, and therefore predates by several
months the applicant’s refugee claim.
[32]
On the other hand, the RAD’s observations
regarding the use of different coloured ink, and other anomalies in the letters
from the family, was reasonable and greatly diminishes the evidentiary value of
these letters. I do not accept that the RAD engaged in a microscopic
examination of the applicant’s evidence for inconsistencies.
[33]
The RAD’s discounting of the letter from Ms.
Goodridge because the letter’s author is not identified is unreasonable and
appears to be inaccurate. The letter’s author is identified: it is Muriel
Goodridge. Her signature is on the letter and she is identified as a member of
Knollwood Baptist Church in London, Ontario. Nonetheless, I agree with the RAD
that the letter is of little value in establishing either that the applicant is
a member of the church or that she converted to Christianity. More persuasive
evidence, such as a baptismal certificate or a church program listing that
ceremony were reasonably expected to be available and would no doubt have gone
a long way to corroborating the applicant’s testimony.
[34]
The applicant also challenged the RAD’s finding
that her delay in claiming also diminished her credibility relating to her
fear. I am unconvinced. Here there was a substantial delay, and the fact that
the applicant still had a right to work in Canada did not grant her status to
remain in Canada after it expired. Accordingly, it was not unreasonable to
expect a person who feared to return to her country of origin to take active
and timely steps to regularize her status in Canada so that she would not have
to return home.
[35]
Although imperfect, I am not convinced that the
RAD’s assessment of the evidence was unreasonable. This application must be
dismissed.
Question
for Certification
[36]
The applicant proposed the following
question for certification: “Where the RAD raises
credibility issues not raised previously must the RAD convoke a hearing to give
the applicant a right to respond?”
[37]
I agree with the respondent that the proposed
question would not be dispositive of an appeal because, as I have found, the
RAD did not raise a credibility issue not previously raised – as it did in Ching.
Rather, the credibility issue was squarely before it and it examined all of the
evidence when determining whether the credibility finding was made out. In so
doing, it relied on evidence not relied on by the RPD, but that is the risk one
takes when one launches an appeal. If an appeal tribunal were bound by the evidentiary
findings made by the original decision-maker, the appeal would be largely pro
forma.
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