Docket: IMM-3859-15
Citation:
2016 FC 599
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 30, 2016
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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BELINDA KIFUNGO
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KEVIN KIFUNGO
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
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AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicants, Belinda Kifungo and her
brother, Kevin Kifungo, are citizens of the Democratic Republic of the
Congo. They are applying for judicial review of a decision rendered on
July 31, 2015, by the Refugee Protection Division (RPD) of the Immigration
and Refugee Board of Canada (IRB), refusing to grant them status as a refugee
or person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act (IRPA), S.C. 2001, c. 27, on the
grounds that their story is not credible and that they failed to discharge
their burden of proof.
[2]
In July 2010, Belinda and Kevin Kifungo,
who were at the time 16 and 13 years old, respectively,
accompanied their mother and their older sister Anaïs on a trip to Europe and
the United States. Towards the end of August 2010, their mother returned
to the Congo, leaving the children alone in the United States. In the absence
of news from their parents, Anaïs took steps to make a claim for refugee
protection at the Canada-United States border with her sister Belinda and her
brother Kevin, but Anaïs was sent back because she had reached the age of
majority. Belinda and Kevin Kifungo’s claim for refugee protection went
ahead because they were unaccompanied minors.
[3]
In their refugee protection claim, Belinda and
Kevin Kifungo state that their father was detained in the Congo from
August 2010 until January 2011 because of a complaint their parents
had filed with the local police after Belinda was the victim of attempted
sexual assault in May 2010. Their father had to leave the Congo
afterwards, and Belinda and Kevin Kifungo maintain that they fear
persecution in the Congo because of these events. The RPD denied their
application on the grounds that the evidence of their father’s detention was
insufficient and that Belinda and Kevin Kifungo’s story also lacked
credibility.
[4]
Belinda and her brother argue that in rendering
its decision, the RPD did not have sufficient grounds to doubt their
credibility or their father’s detention. Furthermore, they argue that the RPD
underestimated their fear of persecution and failed to respect the Chairperson
Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution
(Guidelines) issued by the IRB. They ask that the Court set aside the RPD’s
decision and refer the matter back for redetermination before a differently
constituted panel, in light of all the evidence submitted.
[5]
The following issues are in dispute:
1.
Was the RPD wrong when it determined that Belinda Kifungo
and her brother Kevin had not discharged their burden of proof?
2.
Was the RPD wrong in its estimation of the
applicants’ fear of persecution?
[6]
For the following reasons, Belinda and Kevin Kifungo’s
application for judicial review must be rejected. I cannot find any error in
the RPD’s decision that would justify the Court’s intervention. Rather, I find
that the RPD’s conclusions regarding the lack of credibility to Belinda and
Kevin Kifungo’s story and the lack of sufficient proof of their father’s detention
to be reasonable and to fall clearly within the possible, acceptable outcomes
in the circumstances. In addition, I find that the Guidelines, which aim to
ensure that gender-based claims are heard with compassion and sensitivity, do
not apply to Belinda Kifungo’s refugee protection claim, since her fear of
persecution was based on totally different grounds from those set out in the
Guidelines.
II.
Background
A.
The Facts
[7]
Belinda Kifungo claims to have been the
victim of attempted sexual assault in the Congo in May 2010, after which
her parents filed a complaint with the local police. Her father is a
high-ranking executive with the telecommunications company Airtel, and her
mother is a cabinet member for the governor of Kongo Central, as well as a well-known
activist with the organization Congolese Women’s Caucus. In
June 2010, Congolese police officers arrived at the family’s home and
escorted Belinda’s father to the police station. Two days later, the father
returned home, saying that everything was settled.
[8]
In December 2010, Belinda and Kevin Kifungo,
who were in Canada at the time, following their claim for refugee protection,
learned that their mother had taken refuge in a convent because their father
had been detained. In January 2011, their father said he had been detained
from August 2010 to January 2011, allegedly because of the sexual
assault complaint filed on Belinda’s behalf in May 2010. In 2012, the
applicants’ father filed a new complaint with Congolese police, contesting his
arbitrary arrest and detention in 2010. Following this complaint, he
sought refuge in Gabon. The applicants’ mother, however, remained in the Congo
and continued her political activities.
B.
The RPD’s decision
[9]
In its decision, the RPD concludes that Belinda
and Kevin Kifungo’s story is not credible, given the circumstances and the
fact that their parents are well known, and that they therefore failed to
discharge the burden of proof necessary to obtain the status of refugee or
person in need of protection.
[10]
The RPD does not believe that Belinda and Kevin’s
father was detained from August 2010 until January 2011. It notes
that the father was a successful businessman who frequently appeared in the
media. The disappearance of such a man for a period of five months would
certainly have drawn the attention of the media and of human rights protection
organizations. Furthermore, Airtel, the company for which he was working at the
time, would undoubtedly have reported the disappearance of its director of
operations.
[11]
The RPD also grants little probative value to
the documentary evidence provided by Belinda and Kevin Kifungo as proof of
their father’s detention. It notes, firstly, that this evidence was submitted
late, even though it had been available since the beginning of the refugee
protection claim process. Furthermore, the documents contain no security
features that would allow their authenticity to be confirmed, since they are
photocopies sent by email. The RPD also does not accept the explanations given
by Belinda Kifungo and her lawyer to the effect that they no longer knew
which documents to file and that they were focussed on preparing another matter
for the hearing before the panel.
[12]
The RPD adds that, even if their father truly
was detained, Belinda Kifungo and her brother are not at risk in the
Congo. The RPD bases its decision particularly on the circumstances of their
mother, who continues her political activities in the Congo without difficulty,
even though she regularly condemns the assault that Belinda allegedly suffered.
The RPD finds it inconsistent, under the circumstances, that the father would
be arrested to silence his complaint regarding his daughter’s sexual assault,
whereas the mother is not at risk herself, despite being a well-known activist
and politician in the Congo.
C.
Standard of review
[13]
It is well established that, with regard to the
credibility or plausibility of a refugee protection claimant, the RPD’s
conclusions are considered factual in nature and command a high degree of
judicial deference, considering the role of the trier of fact in the
administrative tribunal (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 (Khosa) at paragraph 59; Lawal v Canada (Citizenship
and Immigration), 2015 FC 155 at paragraph 9; Martinez Giron v
Canada (Citizenship and Immigration), 2013 FC 7 at paragraph 14; Dong
v Canada (Citizenship and Immigration), 2010 FC 55 at paragraph 17).
[14]
Assessing credibility is the very core of the
RPD’s expertise and is intimately linked to the facts of a given case (Pepaj
v Canada (Citizenship and Immigration), 2014 FC 938 at paragraph 13, Lubana
v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at
paragraphs 7-8). Since it is a mixed issue of fact and law, the applicable
standard of review for questions of credibility and assessment of evidence by
the RPD is therefore that of reasonableness (Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (FCA) at paragraph 4; Bikoko
v Canada (Citizenship and Immigration), 2015 FC 1313 at paragraph 8).
In such questions of credibility and assessment of evidence, the Court must not
substitute its point of view for that of the administrative tribunal, even if
that point of view could, in the Court’s eyes, lead to a better result (Khosa
at paragraph 59). The Court must only intervene if the decision-making
process fails to be transparent and intelligible, and if the decision
does not “fall 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 paragraph 47).
[15]
The reasons for a decision are considered to be
reasonable “if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 (Newfoundland Nurses) at paragraph 16). In this context, the
Court must exercise deference toward the panel’s decision. Its mission is not
to weigh the case’s evidence once again or to interfere with the panel’s
conclusions of fact; instead, it should limit itself to determining whether a
conclusion is irrational or arbitrary (Mikhno v Canada (Citizenship and
Immigration), 2010 FC 385 at paragraphs 32–33; Diallo v Canada
(Citizenship and Immigration), 2007 FC 1062 at paragraph 30).
[16]
If the reasons for decision show evidence of
justification, transparency and intelligibility, and allow for determination as
to whether the conclusion is within the range of possible acceptable outcomes,
then there is no reason for the Court to interfere.
III.
Analysis
A.
Was the RPD wrong when it determined that
Belinda Kifungo and her brother Kevin had not discharged their burden of proof?
[17]
Belinda and Kevin Kifungo argue that the RPD
paid a disproportionate amount of attention to the documents submitted
regarding their father’s detention, when it was not even a key factor in their
claim. They maintain that, at the time of the first hearing held in 2012,
the RPD had not yet requested these documents, and that it is therefore normal
that neither they nor their lawyer would have thought to submit them prior to
the RPD requesting them. In addition, Belinda Kifungo and her brother
allege that the RPD erred in granting little probative value to these documents
because of their nature and their source, when the panel had held a hearing
specifically regarding the admissibility of these documents and had not raised
any concerns about their authenticity or about the steps taken to obtain them.
[18]
I do not agree with the arguments formulated by
Belinda Kifungo and her brother. It is quite clear from the RPD’s
determination that the detention of the applicants’ father was the catalyst for
Belinda and Kevin Kifungo’s refugee protection claim, and that they were
therefore obligated to substantiate this key factor in their claim. The absence
of evidence corroborating their father’s detention could reasonably have
undermined Belinda and Kevin Kifungo’s credibility in the eyes of the RPD.
[19]
It is well established that a refugee protection
claimant bears the burden of establishing the merits of the claim (Singh v
Canada (Citizenship and Immigration), 2007 FC 62 at paragraph 16).
Belinda Kifungo and her brother alleged that their parents, their father
in particular, had been subject to reprisal in the form of an arbitrary arrest
and detention, after filing a complaint for the attempted sexual assault
Belinda suffered. The father allegedly then filed a complaint regarding his
arbitrary detention, which allegedly led to additional reprisal that caused him
to flee to Gabon.
[20]
Contrary to Belinda and Kevin Kifungo’s
arguments, this does not constitute an issue that is secondary or peripheral to
their claim for refugee protection. Quite the contrary; it is clear from the
case that this is the very basis for their claim. If they fear for their safety
in the Congo, it is precisely because their parents allegedly suffered
reprisals. It was therefore essential to establish that these reprisals had
truly occurred.
[21]
This is not a case where, as in Sothinathan v
Canada (Citizenship and Immigration), 2015 FC 154, the panel only
indirectly mentions those aspects of an applicant’s credibility that pose a
problem. On the contrary, this is a situation wherein, after an in-depth analysis,
the panel found there to be a lack of credibility regarding the central
elements of the applicants’ refugee status claim. In such circumstances, the
lack of credibility could extend to other elements of the refugee protection
claim and be generalized to all of the documentary evidence presented to
corroborate a version of the facts (Sheikh v Canada (Minister of
Employment and Immigration), [1990] FCJ No 604 (FCA) at paragraphs 7–9).
[22]
Of course, the RPD cannot base its determination
regarding the claimant’s lack of credibility on minor contradictions arising in
evidence that is secondary or peripheral to the refugee protection claim. The
panel “should not be over-vigilant in its microscopic
examination” of issues that are irrelevant or peripheral to the claim (Attakora
v Canada (Minister of Employment and Immigration) (1989), 99 NR 168 (FCA)
at paragraph 9; Cooper v Canada (Minister of Citizenship and
Immigration), 2012 FC 118 at paragraph 4; Akhigbe v Canada
(Minister of Citizenship and Immigration) 2002 FCT 249 at paragraph 16).
It is an entirely different matter when a piece of evidence addresses the very
essence of the refugee protection claim, as is the case here regarding the
detention of Belinda and Kevin Kifungo’s father.
[23]
The RPD is also entitled to draw conclusions
concerning the credibility of a refugee protection claimant based on
implausibilities, common sense and rationality, and to reject evidence if it is
inconsistent with the probabilities affecting the case as a whole (Shahamati
v Canada (Minister of Employment and Immigration), [1994] FCJ No 415 (FCA)
at paragraph 2 [Shahamati]; Yin v Canada (Minister of
Citizenship and Immigration), 2010 FC 544 at paragraph 59; Hernandez
Utrera v Canada (Minister of Citizenship and Immigration), 2007 FC 1212
at paragraph 61). I expect that this is the approach that guided the RPD
in this case.
[24]
Furthermore, I share the RPD’s opinion that the
evidence corroborating the detention of the applicants’ father was filed late.
A lack of effort made to obtain evidence in support of a refugee protection
claim can affect an applicant’s credibility (Quichindo v Canada (Minister of
Citizenship and Immigration), 2002 FCT 350 at paragraph 28). It was
not unreasonable for the RPD not to accept the explanations offered by Belinda
and Kevin Kifungo regarding the delay, given the circumstances.
[25]
Regarding the applicants’ argument that they had
been asked for so many documents since the beginning of their refugee claim
that they no longer knew which ones to submit, I do not find this
convincing at all. Nor do I find convincing their lawyer’s statement that
he believed that the hearing would be about the omission of Belinda’s sexual
assault from the original refugee protection claim form, and that he was
preparing for it accordingly. The IRB forms clearly indicate that all evidence
corroborating the allegations made must be submitted in support of the refugee
protection claim.
[26]
Finally, I note that an administrative tribunal
may base its conclusions on rationality and common sense and make negative
inferences if there is no documentary evidence to support an allegation, when
one might have expected some (Shahamati at paragraph 2; Saliaj v
Canada (Minister of Citizenship and Immigration), 2004 FC 1247 at
paragraph 53). Given the high profile of the applicants’ father in the
business world, and the large number of organizations that report violations of
fundamental rights in the Congo, it was totally plausible for the RPD to
conclude that, if it indeed occurred, the disappearance of Belinda and Kevin Kifungo’s
father would have been reported by some kind of organization, or at the very
least, by his employer.
[27]
Similarly, it was also reasonable for the RPD to
conclude that, if the applicants’ father had suffered reprisals for filing an
individual, private complaint, it was unlikely that the applicants’ mother
would escape any kind of reprisal when, for her part, she continued to publicly
condemn the assault on her daughter in the Congo.
[28]
As part of an application for judicial review,
the Court’s mission is not to reassess the evidence in the case; rather, it
must limit itself to finding whether a conclusion is irrational or arbitrary.
According to the reasonableness standard, it is sufficient that the process and
the outcome respect the principles of justification, transparency and
intelligibility, and the Court must not substitute its own opinion for that of
the panel. The arguments put forward by Belinda and Kevin Kifungo
simply express their disagreement with the RPD’s assessment of the evidence and
in fact ask the Court to prefer their assessment and their reading to that of
the panel. However, this is not the Court’s role with respect to judicial
review. The reasons for the RPD’s decision regarding the applicants’ lack of
credibility and the insufficiency of the evidence are intelligible and
transparent, and demonstrate that the conclusion falls within a range of
acceptable outcomes. There is therefore no reason for the Court to intervene.
[29]
In summary, I am of the opinion that the
RPD was not wrong in determining that Belinda Kifungo and her brother did
not discharge their burden of proof.
B.
Was the RPD wrong in its estimation of the
applicants’ fear of persecution?
[30]
Belinda and Kevin Kifungo furthermore
maintain that the RPD made no distinction between their fear of persecution and
that of their mother. In addition, they argue that the RPD further erred by
failing to take into consideration the attempted sexual assault suffered by
Belinda and by not taking the Guidelines into account in its analysis.
[31]
I do not share the applicants’ opinion on these
matters.
[32]
There is no doubt that refugee claimants must
establish the objective and subjective basis for their fear of persecution (Chan
v Canada (Minister of Employment and Immigration), [1995] 3 SCR 593 at
paragraphs 119–120 and 148–151), and that the absence of an objective
fear is fatal to the claim. Under the circumstances, I am satisfied that
the RPD was not wrong in analyzing the applicants’ fear in light of their
mother’s behaviour. In fact, the analysis of the mother’s fear went to the
heart of the objective and subjective basis for the fear of persecution
formulated by Belinda Kifungo and her brother. The RPD thus rightly noted
that the applicants’ mother did not feel it necessary to leave the Congo like
the father did, that she was a member of the Kongo Central governor’s inner
circle and that she continued in her public involvement with the Congolese
Women’s Caucus. And yet there is no evidence indicating that she was the
target of threats or intimidation.
[33]
In the absence of credible evidence of reprisals
against the applicants’ father, coupled with their mother’s behaviour, which
did not seem to put her at risk, it was not unreasonable for the RPD to
determine that Belinda and Kevin Kifungo had no objective fear of
persecution.
[34]
Regarding the criticism that the RPD failed to
consider Belinda’s fear as a woman victimized by violence and failed to make
direct reference to the Guidelines in its decision, I do not see any error on
the part of the RPD in this regard. Belinda Kifungo did not flee the Congo
because she feared she would become a victim of sexual violence; she left the
country on a family vacation with her mother, brother and sister. The basis of
Belinda and Kevin Kifungo’s claim for refugee protection is the fear of
reprisal by association, due to the alleged detention of their father. At no
time was Belinda Kifungo’s alleged sexual assault the reason for her
refugee protection claim. Under the circumstances, the RPD simply did not need
to refer to the Guidelines in its decision.
[35]
This Court has established that the Guidelines
only need to be considered by the RPD in appropriate cases (Higbogun v
Canada (Minister of Citizenship and Immigration), 2010 FC 445 at
paragraph 57). This is the case, for example, when refugee claimants
allege having been victims of violence due to their sex (Khon v Canada
(Minister of Citizenship and Immigration), 2004 FC 143 at
paragraph 20). However, in this case, the assault that Belinda may have
suffered, although unfortunate, does not constitute the basis for her refugee
protection claim. The Guidelines were therefore in no way relevant in such a
context, and the RPD cannot be criticized for having ignored them.
IV.
Conclusion
[36]
For the foregoing reasons, Belinda and Kevin Kifungo’s
application for judicial review is dismissed. The RPD’s decision in refusing
their refugee protection claim is transparent and intelligible, and its
conclusions regarding the applicants’ failure to establish the basis for their
allegations and to establish an objective fear of persecution in the Congo fall
within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law. Furthermore, at no time did the RPD fail to
fulfill its obligations to apply the Guidelines.
[37]
The parties did not raise any serious questions
of general importance for certification in their submissions, and I agree that
there are none in this case.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The application for judicial review is dismissed, without costs;
2. There is no serious question of general importance for
certification.
“Denis Gascon”
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