Docket: IMM-4469-15
Citation:
2016 FC 398
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 11, 2016
PRESENT: The Honourable
Mr. Justice Martineau
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BETWEEN:
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NONVIGNON ARMAND VIGAN
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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 of a
decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board [IRB] rendered September 2, 2015, confirming the Refugee Protection
Division’s [RPD] decision that the applicant is not considered a Convention
refugee or a person in need of protection under sections 96 and 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27
[IRPA].
[2]
The applicant, who was previously represented by
Odette Desjardins, is now representing himself. When the hearing opened,
the Court allowed him to remove from the Court files the abandonment that he
had served and filed a week ago; the applicant erroneously believed that he was
not entitled to represent himself. However, the Court dismissed his application
to postpone the hearing. The applicant has known since at least February 23,
2016, that he must represent himself or find a new counsel. Finally, the Court
took into consideration all the representations made on behalf of the applicant
by Ms. Desjardins in her written factum, as well as the applicant’s oral
comments at the hearing.
[3]
The following is an overview of the applicant’s
main allegations.
[4]
The applicant is a citizen of Benin. He came to
Canada in 2010 on a student visa. In November 2011, the
applicant’s father died. The applicant returned to Benin for about 10 days
to attend the funeral and the family ceremonies. Shortly thereafter, the
applicant’s mother informed him that his deceased father’s eldest half‑brother,
Assogba, had used pressure and threats to incite the applicant’s mother or
sister to marry him in order to take possession of his brother’s assets. The
applicant’s mother apparently refused and complained to the police, but in
vain. In March 2012, to cut ties with the father’s side of the family, the
applicant’s mother and sister left the family home in Cotonou, and moved to
Calavie, another city about 30 to 40 km away. They stayed in Calavie
with one of the applicant’s uncles on his mother’s side, Alarick. Meanwhile,
the applicant’s sister apparently suffered from nightmares, visions and some
illnesses, which the applicant alleged were caused by witchcraft performed by
Assogba. She was allegedly treated by witch doctors.
[5]
The applicant filed an application for refugee
protection in Canada in September 2013. An initial negative decision was
rendered by the RPD on November 5, 2013. The decision was successfully
appealed before the RAD. On October 21, 2014, the RPD rendered a second
negative decision. The applicant appealed to the RAD.
[6]
Meanwhile, before the applicant’s second appeal
had been heard, new facts arose. According to the applicant, on January 4,
2015, the applicant’s mother and sister found refuge in Kandi, in northern
Benin, wanting to move away from the Calavie area and receive treatment from
healers in Kandi. On February 15, 2015, the applicant’s sister was
allegedly assaulted by Assogba, who was accompanied by another person. They
attempted to kidnap her, but she managed to escape. She and her mother fled to
Cotonou, where the applicant’s sister apparently received care for her injuries
in a hospital. In Cotonou, the applicant’s mother and sister tried to get in
touch with Alarick, but his wife told them that Alarick no longer wanted to
have any contact with them, and that he had been beaten and forced to say where
they had found refuge. After this discussion with Alarick’s wife, the
applicant’s mother and sister apparently stayed at the hospital in Cotonou. On
May 23, 2015, they left the country and found refuge in Ghana. On June 6,
2015, they again tried to contact Alarick, but were told he was dead.
[7]
The applicant submitted these new facts to the
RAD, which agreed to consider them. Nevertheless, because the credibility of
these new allegations was material, the RAD convened an oral hearing. On
September 2, 2015, the RAD confirmed the RPD’s decision, which led to this
application for judicial review.
[8]
The standard of review for assessing evidence
and credibility is reasonableness. Since this involves any alleged violation of
natural justice, correctness is the standard that applies. Finally, with
respect to assessing whether the RAD erred in interpreting the provisions of
the IRPA having to do with launching an appeal and admitting new evidence, the
Court applies the correctness standard of review (Djossou v. Canada
(Citizenship and Immigration), 2014 FC 1080, at paragraphs 33
to 34; Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93,
at paragraphs 31 to 35 [Huruglica]; Canada (Citizenship and
Immigration) v. Singh, 2016 FCA 96, at paragraph 29).
[9]
This application for judicial review must
therefore be dismissed.
[10]
First, I find the reasons provided by the RAD
transparent and intelligible in all respects. The RAD decided to confirm the
RPD’s decision, but using a different reasoning, which the RAD was entitled to
do in this case (see Huruglica). Its assessment of the new evidence
admitted and its finding that the applicant lacked credibility rely on the
evidence on the record and are not unreasonable.
[11]
Regarding this point, it was open to the
RAD to find that the hearing held before the RPD failed to provide deeper
insight into certain essential aspect of the applicant’s allegations. In
particular, the RAD noted that the applicant not only feared being subjected to
witchcraft instigated by Assogba, he also dreaded being forced to be initiated
into the voodoo cult, being forced to marry one of Assogba’s daughters and, if
he refused, being assaulted by him. It was also permissible for the RAD to find
that the RPD’s review of the internal flight alternative [IFA] was
insufficient. In particular, the RAD noted that the exercise undertaken by the
RPD to attempt to establish a geographic or territorial boundary to belief in
witchcraft was not appropriate in the circumstances, which is consistent with
what the Court wrote in Ajayi v. Canada (Citizenship and Immigration),
2007 FC 594, at paragraph 16: “the state
cannot provide effective protection from magic, witchcraft, supernatural powers
or beings from beyond. The state can only protect a person from actions by
members of a sect or a tribe participating in rituals where supernatural powers
or beings from beyond are invoked or may appear.”
[12]
In deciding to perform an independent review of
all the evidence to determine whether the applicant was a Convention refugee or
a person in need of protection, the RAD did not commit any error of law, and
its approach was reasonable. In addition, subsection 110(6) of the IRPA
provides that the RAD may hold a hearing if, in its opinion, there is
documentary evidence that meets the requirements of subsection 110(4) of
the IRPA, and that also raises a serious issue with respect to the credibility
of the person who is the subject of the appeal; that is central to the decision
with respect to the refugee protection claim; and, that, if accepted, would
justify allowing or rejecting the refugee protection claim.
[13]
I also reject the applicant’s contention that
the scope of the hearing before the RAD could have taken him by surprise. The
applicant and his former counsel received a notice to appear before the
hearing, specifically listing the topics to be covered by the hearing. Also,
any alleged breach of the principles of natural justice must be raised at the
first opportunity. The applicant, who was represented at the hearing by
counsel, did not raise an objection, which constitutes another reason for not
accepting his arguments (Alvarenga v. Canada (Citizenship and Immigration),
2012 FC 1540, at paragraph 28).
[14]
With respect to the actual merit of the
applicant’s allegations, the RAD provided a detailed explanation of why it did
not believe his account:
a)
The RAD noted that the applicant’s mother had
tried to contact Alarick, but was unsuccessful because Alarick no longer wanted
her to communicate with him, and he had been beaten by Assogba and forced to
reveal his sister’s address. Questioned on the reasons for which Alarick had
not informed his mother of this event, the applicant said that she had changed
her cell phone number. The RAD did not find it plausible that the applicant’s
mother had cut all contact with Alarick, since she had a good relationship with
him; she had the means to contact him; she had lived at his residence for
nearly three years; and she was interested in knowing whether Assogba was
trying to find her. Neither did the RAD find Alarick’s alleged behaviour
credible when he supposedly did not tell the applicant’s mother about his
meeting with Assogba and wanted to stop helping her. This was implausible since
he was aware of her situation, had given her shelter and had tried to settle
matters with Assogba. There was also the issue of the considerable impact on
the applicant’s mother when her address was disclosed. The RAD did not find the
applicant’s behaviour plausible when he supposedly did not contact Alarick.
b)
The RAD therefore found that the applicant did
not provide credible evidence confirming communication between his mother and
Alarick’s wife on February 16, 2015, or the fact that Alarick no longer wanted
to communicate with his mother or the “meeting” between Alarick and Assogba,
including the beating, the disclosure of the address and the threats against
the applicant. In addition, the RAD noted the applicant was hesitant about the
date on which such a meeting would have occurred. Consequently, it was open to
the RAD to find that the applicant had not provided credible evidence that his
sister had been injured by Assogba in the alleged circumstances, undermining
the applicant’s credibility on material elements of the application for refugee
protection. With respect to medical treatments for the applicant’s sister, the
RAD noted that the applicant submitted documents confirming that she had
received treatments for a fractured ankle, but these records did not indicate
the cause of the fracture. Given the RAD’s conclusion regarding the
circumstances of the sister’s injury, the RAD could not give these documents
any probative value. In addition, the RAD considered that the documents
mentioning cardiac and ultrasound treatments were unrelated to treatment of an
ankle.
c)
With respect to the reasons for which the
applicant’s mother and sister left for Ghana, the RAD noted that the applicant
testified, inter alia, that his sister was suffering from stomach pain and
nightmares. However, the applicant did not include any allegations regarding
these conditions in his affidavit. The RAD did not find this final omission
credible.
d)
The applicant submitted a “receipt for an ankle
x‑ray” for his sister (Exhibit A‑9), dated June 22, 2015,
and testified that a friend had given it to him, and that this friend had
personally obtained it when he met with the applicant’s mother at the hospital
in Cotonou in June 2015. However, the applicant’s mother and sister had
been in Ghana since May 23, 2015. The applicant explained that he was
referring to other documents that his friend had obtained in May 2015.
Later on at the hearing, the RAD admitted an “order for an ankle x‑ray”
(Exhibit A‑11), dated June 22, 2015, and the applicant explained
that the document and the ankle x‑ray were obtained by his friend at the
hospital as a duplicate of previous receipts that had been burned. The RAD
noted that nothing on exhibits A‑9 and A‑11 indicated that they
were duplicates, and that the applicant had changed his testimony on how the
documents were obtained. For these reasons, the RAD did not find the
applicant’s revised explanations credible, and the RAD concluded that the
applicant had not provided credible evidence that his mother and sister were
still living in Ghana. With respect to Alarick’s death, the RAD noted that the
applicant did not provide credible evidence that his death was connected with
Assogba’s actions. The document submitted by the applicant to confirm Alarick’s
death contained discrepancies regarding the deceased’s residence and the fact
that the declarant, Alarick’s father, had died before Alarick. In addition,
since the RAD did not believe that Alarick and Assogba met in January 2015,
the RAD found that the applicant had not established that Alarick had been
abused by Assogba. This determination is also reasonable.
e)
With respect to the applicant’s allegations
regarding Assogba’s actions before his mother and sister moved to Kandi, the
applicant testified that from 2013 until she departed for Kandi in 2015,
the applicant’s mother had received threatening calls from Assogba, but that
she had kept the same cell phone number. Also, the applicant testified that his
mother and sister were assaulted by Assogba in September 2014, more than
30 months after they moved to Alarick’s residence. In order to account for
this period of time, the applicant testified that although Assogba knew Alarick
because he had met him after the applicant’s father died in 2011, he did
not know where he lived. The RAD did not find the applicant’s explanations
credible because Calavie is near Cotonou and Assogba had known Alarick for
several years. The was no evidence establishing that Assogba had asked Alarick
for information to find the applicant’s mother or sister, or that Assogba had
tried to contact persons whom the mother knew through his business operations
or his neighbours in Cotonou. Also, the RAD found it reasonable to believe that
if the alleged telephone threats were real, the mother would have changed her
cell phone number when she was living in Calavie, even after the alleged
assault in September 2014. Consequently, the RAD found that the applicant
had not established these telephone threats or that his mother and sister had
been assaulted in September 2014 in the alleged circumstances. Therefore,
the RAD did not give any probative value to the documents submitted by the
applicant to establish Assogba’s alleged actions against his mother and sister
when they were living in Calavie.
f)
Finally, the RAD assessed the applicant’s
allegations that he feared being initiated into the “voodoo” cult and that he
would be killed if he refused. Also, the applicant testified that he would be
forced to marry his cousin. The RAD did not share this opinion and noted that
the documentary evidence did not support these claims. Given the absence of
such documentary evidence, the RAD considered that the applicant had not
substantiated his allegations.
[15]
At the hearing, the applicant told the Court
that he did not understand why his appeal had been dismissed and he could not
invent evidence that did not exist. There is no basis for this complaint. In
every respect, the RAD’s decision is intelligible and the RAD’s conclusions are
clearly stated. Although the applicant does not agree with some findings of
fact by the RAD, it is not open to this Court to reassess all of the evidence.
The RAD’s reasoning and conclusions must simply be intelligible and
transparent, and the dismissal must be based on the evidence in the record,
which is the case here.
[16]
For the above reasons, the application for
judicial review is dismissed. No serious questions of general importance are
raised in this case.
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