Docket: IMM-442-16
Citation:
2016 FC 1020
Ottawa, Ontario, September 8, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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NADIA HASSAN BABIKIR
MAHMOUD
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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
I.
Overview
[1]
Ms. Mahmoud, a citizen of Sudan, came to in
Canada in October 2015 from the United States. On arrival she claimed
protection on the basis that she will be persecuted in Sudan as a result of her
anti-government political opinions and her relationship with prominent human
rights and political activists. Ms. Mahmoud had made a claim for protection in
the United States but considered the process unpredictable, lengthy and
complicated so she decided to come to Canada where she also has relatives.
[2]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada [IRB] rejected her claim. The RPD noted
inconsistencies in Ms. Mahmoud’s documentary evidence and testimony,
inconsistencies that it concluded undermined her claim of subjective fear and
overall credibility. The RPD also placed no weight on photos, a support letter
and a proof of relationship document tendered in furtherance of the claim. The
RPD noted specific concerns with some of the documentation and highlighted that
country conditions documentation indicates a serious problem with untrustworthy
persons in or from Sudan generating fraudulent documents. As a result the RPD
found insufficient credible or trustworthy evidence to support the claim and
concluded that Ms. Mahmoud was neither a Convention refugee nor a person in
need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] respectively.
[3]
Ms. Mahmoud asks this Court to quash the RPD
decision and return the matter for reconsideration by a differently constituted
panel. Specifically she argues that the RPD unreasonably rejected her
explanations for discrepancies in the documentary evidence she had tendered and
the reasons she had initially applied for a travel visa to the United States.
She also submits that the RPD erred in ignoring a “Proof
of Relationship” document generated in the United Arab Emirates, as this
document did not originate in Sudan.
[4]
The application requires that I address the
following issues:
A.
Were the RPD’s credibility findings
unreasonable?
B.
Did the RPD err in giving no weight to the Proof
of Relationship evidence?
[5]
Having considered the written and oral
submissions of the parties, I am satisfied that the RPD’s decision is
reasonable. The application is dismissed for the following reasons.
II.
Standard of Review
[6]
The reasonableness standard of review applies
where this Court is considering questions of fact and mixed fact and law. The
RPD’s credibility or plausibility findings and the weight to be given to
evidence are questions of mixed fact and law and will be reviewed on a
reasonableness standard (Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59 and, in particular Soorasingam v Canada
(Minister of Citizenship and Immigration), 2016 FC 691 at para 15 [Soorasingam]).
III.
Analysis
A.
Were the RPD’s credibility findings
unreasonable?
[7]
The RPD assessed the applicant’s evidence
against her Basis of Claim form [BOC] and her testimony, identifying a number
of discrepancies. Specifically the RPD drew negative inferences as to the
authenticity of a letter allegedly authored by Dr. Amin Mekki Medani. Dr. Medani
is a human rights activist in Sudan who Ms. Mahmoud alleges is also her brother-in-law.
The RPD noted two discrepancies in Dr. Medani’s letter relating to the dates of
incidents relevant to Ms. Mahmoud’s claim: (1) the date she alleges she was
arrested by the Sudanese authorities; and (2) the date Dr. Medani himself was
arrested. The RPD found Ms. Mahmoud’s explanation that these errors were the
result of innocent typographical errors implausible. Ms. Mahmoud included a
letter in the application record that seeks to explain these discrepancies.
This letter was not before the RPD and I have not considered it (Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at para 19).
[8]
The RPD also drew a negative inference from Ms.
Mahmoud’s explanation of why she had applied for a United States visa. She
alleged she applied for a visa after being arrested and tortured in Sudan in
November 2014. However, the visa was issued approximately six weeks prior to
the alleged arrest. When asked to explain the discrepancy, Ms. Mahmoud changed her
explanation stating that she had applied for the visa to visit Disneyland.
[9]
On the basis of these inconsistencies the RPD
concluded that Ms. Mahmoud was not a credible or trustworthy witness.
[10]
Ms. Mahmoud argues that the individual findings
were unreasonable as was the RPD’s conclusion that the cumulative effect of the
findings undermined the credibility of all of the evidence advanced in support
of the claim. I do not agree. The RPD’s conclusions were reasonable.
[11]
The RPD noted Ms. Mahmoud’s explanation for the
date discrepancies in Dr. Medani’s letter. It further noted that these dates
were critical to Ms. Mahmoud’s claim and concluded that while one error of this
nature might well be possible, two were improbable. While the facts might lend
themselves to different reasonable outcomes this Court will only interfere
where a conclusion fails to 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 para 47 [Dunsmuir]).
This is not the case here.
[12]
In regard to the United States visa, Ms. Mahmoud’s
counsel argued that the RPD decision did not accurately reflect Ms. Mahmoud’s explanations
in her BOC and her testimony at the hearing. While the testimony was somewhat
confusing, it is clear that Ms. Mahmoud’s explanation for having applied for
the visa evolved from a response to her alleged arrest and torture to
facilitating a visit to Disneyland. Again, the RPD’s credibility findings made
as a result of Ms. Mahmoud’s evolving testimony on a key aspect of her narrative
were reasonable.
[13]
The RPD was also entitled to consider the impact
of its negative credibility findings on all of the evidence advanced in support
of the claim. The evolving testimony and discrepancies did not relate to
peripheral issues but rather engaged facts that were central to Ms. Mahmoud’s claim.
B.
Did the RPD err in giving no weight to the Proof
of Relationship evidence?
[14]
In its submissions, the applicant states that: “[t]he RPD gave no weight to any documentary evidence
submitted in support of her claim on the basis that the documentary evidence
indicated that fraud and corruption were serious problems in Sudan ….”.
[15]
Ms. Mahmoud does not challenge this conclusion
as it relates to documents originating in Sudan. However, she argues that a “Proof of Relationship” document did not originate in
Sudan but rather the United Arab Emirates. Ms. Mahmoud alleges that this
document establishes that she is the mother of Nagal Kamal Mekki Madani. As the
daughter’s name “Mekki Medani” is the name of
Dr. Medani, who Ms. Mahmoud alleges is her brother-in-law, she argues that the
document is central to her claim. She adds that by ignoring the document the
RPD committed a reviewable error. I disagree.
[16]
It is well-established in the jurisprudence of
this Court that a decision-maker need not refer to every piece of evidence
before it, (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 at para 16 [Cepeda-Guitierrez]) and
that it is presumed, unless the contrary is shown, that all evidence has been
weighed and considered (Boulos v Canada (Public Service Alliance), 2012
FCA 193 at para 11).
[17]
In Rahal v Canada (Minister of Citizenship
and Immigration), 2912 FC 319 Justice Mary Gleason addresses the
requirement for a tribunal to refer to all evidence before it and at paragraph
39 states that Cepeda-Gutierrez “actually
says…that a tribunal need not refer to every piece of evidence; rather, it is
only where the non-mentioned evidence is critical and contradicts the
tribunal’s conclusion that the reviewing court may decide that its omission
means that the tribunal did not have regard to the material before it.” [emphasis
in original]
[18]
In this case the RPD did
not ignore the document but rather makes specific reference to it when
identifying the documentation to which it attaches no weight. Although the RPD
did not address the source of the document as being a country other than Sudan,
it was reasonably guided by its prior credibility findings, findings that I
have concluded were reasonable. In addition, the document in question does not
contradict the RPD’s findings. At best all this document establishes is that
Ms. Mahmoud has a daughter that shares a portion of her name with a human
rights activist in Sudan. Finally, I note that the RPD’s concern was not with documents
originating in Sudan but with documents generated by persons “in or from Sudan”. The concern was that documents
could be staged by untrustworthy persons in or from Sudan.
[19]
The RPD did not err in giving no weight to Ms.
Mahmoud’s documentary evidence in light of its credibility findings and the
country condition documentation relating to the availability of false
documents. The RPD reasonably concluded there was “insufficient
credible or trustworthy evidence upon which to reach a positive determination”.
IV.
Conclusion
[20]
For the reasons set out above, I conclude that
the decision falls within the range of possible, acceptable outcomes defensible
in respect of the facts and law (Dunsmuir at para 47).
[21]
The parties have not proposed a question for
certification and none arises.
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