Docket: IMM-2869-16
Citation:
2017 FC 49
Ottawa, Ontario, January 13, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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YOUSSOUF ALI
WALITE
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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, Youssouf
Ali Walite, seeks judicial review pursuant to section
72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]
of the decision of the Refugee Appeal Division [RAD] dated
May 25, 2016, which upheld the finding of the Refugee Protection Division [RPD]
that he was not a Convention refugee or a person in need of protection under
sections 96 and 97 of the Act.
[2]
For the reasons that follow, the application is
dismissed.
I.
Background
[3]
The Applicant is a citizen of Chad and a member
of the Gorane ethnic group. He recounts that on November 11, 2014, he helped
organize and participated in a protest by students against the discrimination
faced by the Gorane and other minority groups in accessing higher education. He
recounts that the police violently dispersed the protesters and he went into
hiding. His brother and father were arrested for refusing to tell the police
where he was.
[4]
The Applicant left Chad on December 22, 2014 and
travelled to the United States (US) with a US Visa. He entered Canada on
January 24, 2015 and sought refugee protection shortly thereafter.
The RPD Decision
[5]
The RPD found that the determinative issue was
credibility. The RPD found that the Applicant’s evidence regarding the basis
for, and his role in, the November 11, 2014 protests was not credible.
[6]
The RPD also drew a negative credibility
inference from the Applicant’s failure to mention in his Basis of Claim [BOC]
that Ibrahim Nour, the president of a student group, had been arrested at the
November 11, 2014 protest and allegedly reported the Applicant to the police.
[7]
The RPD also found that the Applicant was not a
student in the fall of 2014 as he alleged. The RPD noted his extensive travel
during the same period, the defects in the student card he presented and the
lack of other documents to show that he actually attended school at the
relevant time.
[8]
The RPD rejected the Applicant’s claim that he
was discriminated against as a Gorane seeking access to education. The RPD
noted that the Applicant hesitated in his responses to questions regarding what
he was studying and wished to study. The RPD also noted that the documentary
evidence did not mention that the Gorane faced discrimination in education or
that this was the reason for the protests. The documentary evidence indicated
that the protests were sparked by the non-payment of teachers and a spike in
fuel prices due to fuel shortages.
II.
The RAD Decision Under Review
[9]
The RAD first considered two documents that the
Applicant sought to submit as new evidence: the Applicant’s original student
card and, a letter of support written by his friend, Issa Ali Oumar.
[10]
The RAD found that the documents did not constitute
new evidence in accordance with subsection 110(4) of the Act.
[11]
The RAD found that the student card was not
trustworthy for several reasons: a portion of it was not translated into
English or French; there was no identification number or issue date on the
card; and, the card contained spelling errors. The RAD also noted that a copy
of the same student card, which had been partly translated into French, was
part of the RPD record.
[12]
The RAD found that the letter from Issa Ali
Oumar did not refer to an event that occurred after the rejection of the
Applicant’s claim by the RPD. The RAD also found that the letter was submitted
without verifying the identity of the author. The RAD noted that the
information in the letter was the same as another letter which was on the RPD
record and considered by the RPD.
[13]
With respect to the merits of the appeal, the
RAD found that the RPD did not err in its assessment of the evidence and that
there were several reasons to doubt the Applicant’s credibility.
[14]
The RAD noted that the Applicant failed to
mention in his BOC that Ibrahim Nour, who he claimed most likely reported him
to the police, had been arrested. The RAD found that this omission impugned his
credibility given that it dealt directly with the basis of his claim for
refugee protection.
[15]
The RAD agreed with the RPD that the Applicant
was not a student at the Lycée Roi Fayçal in September of 2014. The RAD noted
additional reasons for this finding: the Applicant’s passport issued in January
2014 indicates that he was employed as a sales representative; his travels did
not correspond to the lifestyle of a secondary school student; he was already
25 years of age and engaged to be married; and, the photocopy of his student
card lacked a date of issue, lacked an identification number, and included
spelling mistakes in the document’s title and in the school’s name. The RAD concluded
that the RPD did not err in finding that, on a balance of probabilities, the
Applicant had not returned to school in September 2014 and could not have
participated as a student in the November 2014 protests.
[16]
The RAD noted the Applicant’s submissions that
the RPD erred in failing to consider all the evidence and that the RPD erred in
making a credibility finding based on his failure to mention the arrest of
Ibrahim Nour in his refugee claim. The RAD rejected both arguments.
III.
The Issues
[17]
The applicant raises two issues with respect to
the reasonableness of the decision:
- Whether the RAD
erred in refusing to admit new evidence; and;
- Whether the RAD
erred in its credibility assessment.
IV.
The Standard of Review
[18]
In reviewing a decision of the RAD this Court applies
the reasonableness standard with respect to the RAD’s
determinations of factual issues, including credibility, and issues of mixed
fact and law (Canada (Citizenship and Immigration) v
Huruglica, 2016 FCA 93, [2016] FCJ No 313 (QL) [Huruglica]).
This includes determinations regarding
the admissibility of new evidence (Canada (Minister of Citizenship and
Immigration) v Singh, 2016 FCA 96 at para 29, [2016] FCJ No 315 (QL) [Singh].
[19]
The reasonableness standard focuses on “the existence of justification, transparency
and intelligibility within the decision-making process” and considers “whether
the decision falls 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, [2008] 1
SCR 190).
V.
Did the RAD err in refusing to admit the new
evidence?
The Applicant’s submissions
[20]
The Applicant submits that he satisfied the
criteria for new evidence pursuant to subsection 110(4) of the Act as
clarified by the Federal Court of Appeal in Singh.
[21]
He argues that his original student card should
have been admitted. He submits that his explanation for not providing his original
student card to the RPD – because he did not anticipate that his student status
would be such an issue – was reasonable. He also submits that the original
student card is worn and stained, which supports his claim that he was a
student since 2010 at the Lycée in Ndjamena. He adds that the card contains
information consistent with his personal information, and includes an official
school stamp and his photo.
[22]
The Applicant argues that the support letter
from Issa Ali Oumar is new evidence which supports his testimony that Ibrahim
Nour was arrested by police after participating in the student protests of
November 11, 2014. He explained that this letter was provided to respond to an
issue which was only raised at the RPD hearing (i.e., the omission of Ibrahim
Nour’s name and his arrest). The Applicant also notes that the RAD erred in
stating that the author of the letter was not identified by an independent
document, noting that copies of both Oumar’s national ID card and passport were
attached.
The Respondent’s Submissions
[23]
The Respondent notes that although the RAD did
not accept the Applicant’s original student card as new evidence it considered
the document but reasonably gave it no weight.
[24]
The RAD reasonably found that the student card
did not establish that the Applicant was a student in November 2014. Whether
the card should have been accepted as “new” is
not relevant because the RAD specifically considered the card in its assessment
of the Applicant’s credibility.
[25]
The Respondent submits that the Applicant’s
explanations about why he did not provide the letter of support from Mr. Oumar
earlier were not reasonable, as the RAD found.
[26]
The Respondent also submits that it was
reasonable for the RAD to conclude that the Applicant could or should have
anticipated the concerns of the RPD regarding his student status and the basis
of his claim.
[27]
The Respondent notes that the role of the RAD is
not to provide the opportunity to supplement a deficient record submitted
before the RPD, but to allow for errors of fact, errors in law, or mixed errors
of fact and law to be corrected.
The RAD did
not err in refusing to admit the “new” evidence
[28]
Subsection 110(4) of the Act provides:
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110(4) On appeal,
the person who is the subject of the appeal may present only evidence that
arose after the rejection of their claim or that was not reasonably
available, or that the person could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection.
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110(4) Dans le
cadre de l’appel, la personne en cause ne peut présenter que des éléments de
preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement
présentés, dans les circonstances, au moment du rejet.
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[29]
In Singh, Justice de Montigny
noted that the RAD cannot disregard the clear statutory criteria of subsection
110(4). In addition, the factors established in Raza v
Canada (Minister of Citizenship and Immigration),
2007 FCA 385, [2007] FCJ No 1632 (QL)[Raza] (credibility, relevance,
newness, and materiality) remain applicable to determinations by the RAD to
admit new evidence. The Federal Court of Appeal added that only evidence that
meets the criteria set out in subsection 110(4) is admissible.
[30]
With this guidance in mind, the role of the
Court is not to re-determine whether the new evidence should have been accepted,
but to determine whether the RAD’s findings are reasonable.
[31]
The RAD found that the student card contained
errors which cast doubt on its authenticity. A copy of the card was available
to and considered by the RPD and remained on the record, so the original card
was not new evidence. It is reasonable to expect that the Applicant’s original
student card was available at the time of the RPD hearing. His explanation,
that he did not anticipate that his student card would be a key issue or that
the original would be required, is not reasonable. His claim was based on his
alleged role in a student protest and he claimed to be a student who faced
discrimination in accessing education due to his ethnicity. Establishing that
he was a student would certainly be a key issue.
[32]
The RAD also reasonably found that the letter of
support by Issa Ali Oumar was not new evidence, despite mistakenly stating that
it was not accompanied by identity information. The letter does not refer to an
event that occurred after the RPD’s rejection of the Applicant’s claim. As
noted by the RAD, the content of the letter was similar to another letter of
support that was before the RPD (which was the letter from Cherif Adjber). The
RAD also found that the Applicant failed to establish that the letter was not
reasonably available or that he could not reasonably have been expected in the
circumstances to have presented it to the RPD before his claim was rejected by
the RPD. The Applicant’s argument that the letter was tendered to respond to an
issue that only arose at the hearing is not a reasonable explanation. The issue
was the omission in his BOC to mention the arrest of Ibrahim Nour. The letter
does not explain why his BOC failed to mention Ibrahim Nour by name or that he
was arrested. In addition, the other letter on the record included similar
information.
[33]
The RAD’s rejection of the “new” evidence reflects the statutory criteria in
subsection 110(4) of the Act and the application of the Raza factors.
VI.
Did the RAD err in its credibility assessment
and findings?
The Applicant’s Submissions
[34]
The Applicant submits that the RAD erred in
focussing on his failure to mention the arrest of Ibrahim Nour in his BOC
narrative. He argues that omissions are only serious or material where they are
central to the claim and should not be exaggerated by the RAD.
[35]
He submits that the central element of his claim
is that he was part of a protest at a school in Ndjamena, Chad and, as a
result, was targeted by authorities. His testimony regarding the role of Ibrahim
Nour was simply a detail he elaborated on at his hearing.
[36]
The Applicant also argues that the RAD erred in
finding that he was not a student. He submits that he provided credible and
trustworthy evidence to demonstrate that, on a balance of probabilities, he was
a student in November 2014. He notes that although his passport, issued in
January 2014, stated he was a “sales rep”, this
is not inconsistent with his claim that he was a student from October 2010
until November 2014. He indicated in his BOC that he was both a student and worked
in commerce. He also submits that his travels, his engagement and his age are
not inconsistent with being a student. The Applicant argues that the RAD erred
in making an implausibility finding based on speculation about the lifestyle of
a student without regard to supporting evidence.
[37]
The Applicant also relies on the presumption of
validity of foreign identification documents. He submits that the RAD did not
point to any evidence, apart from its own observations, regarding the
authenticity of student cards or other documents. The RAD’s assessment of his
student card was microscopic as there were other characteristics that pointed
to the card’s authenticity.
[38]
The Applicant also argues that the RPD should
have considered the support letter from Cherif Adjber. The RAD erred in not
identifying and correcting the RPD’s error and in not independently assessing
this letter.
[39]
Cherif Adjber stated in his letter that he housed
the Applicant for one month, helped him obtain a US visa and contributed to his
airline ticket to the USA. The letter also stated that the Applicant was in
danger, was being pursued by Chadian authorities, and that because of this, the
applicant’s father and brother disappeared.
[40]
The Applicant also submits that his claims of
discrimination and protests are plausible. He argues that both the RAD and the
RPD ignored the objective, documentary evidence regarding discrimination
against the Gorane. He points to the documentary evidence which refers
to the protests arising from concerns about human dignity generally and notes protests
by teachers, lawyers, and judicial workers. He adds that there was no evidence
that discrimination against the Gorane in education was not an issue in
the November 2014 protest. He argues that it was, therefore, plausible that he
helped organize and participated in the protest on November 11, 2014.
The
Respondent’s Submissions
[41]
The Respondent submits that it was open to the RPD
and then to the RAD to find that the Applicant’s testimony at the RPD hearing regarding
the role of Ibrahim Nour was not merely an elaboration or further minor details
of his BOC.
[42]
The Respondent notes the Applicant never
mentioned Ibrahim Nour by name in his BOC or narrative and did not mention that
the president was arrested or that the president gave the Applicant’s name to
the police.
[43]
The Respondent submits that both the RPD and the
RAD reasonably concluded that the Applicant had not established that he was a
student in November 2014. The RPD concluded that the Applicant had left school
at the beginning of January 2014. This is consistent with the evidence in his
passport which was issued in January 2014 and listed his occupation as “sales rep”. Even though the Applicant claimed that he
returned to school full time in September 2014, he failed to produce any
evidence to establish this, such as a letter of admission or report cards, as
the RPD noted. The only evidence was a student card that both the RPD and RAD reasonably
rejected.
VII.
The RAD’s credibility assessment and findings
were reasonable
[44]
In Huruglica, Justice Gauthier clarified
the uncertainty that previously existed regarding the standard of review to be
applied by the RAD; the RAD should fulfill its appellate role and apply the
standard of correctness when reviewing an RPD decision. With respect to whether
deference is owed to the RPD, Justice Gauthier noted at para 70: “In each case, the RAD ought to determine whether the RPD
truly benefited from an advantageous position, and if so, whether the RAD can
nevertheless make a final decision in respect of the refugee claim.”
Justice Gauthier noted that the RAD would develop its own jurisprudence over
time.
[45]
In the present case, the RAD independently
assessed the Applicant’s testimony and found that it lacked credibility. Although
the RAD reached the same conclusion as the RPD, the RAD provided additional
reasons to support its credibility findings.
[46]
I disagree with the Applicant’s submission that
the RAD erred in finding it implausible that he was a student and that the
protests were about discrimination against the Gorane in accessing education
because the RAD did not point to any evidence in support of their
implausibility findings.
[47]
The RAD supported all of its findings with
reference to the evidence, or to the lack of evidence. The RAD did not rely on
speculation with respect to the Applicant’s failure to establish his status as
a student nor did it make unfounded implausibility findings.
[48]
The RAD reasonably found, as did the RPD, that
the Applicant was not a student at the Lycée Roi Fayçal in November 2014. As
the RAD noted, the Applicant’s passport, issued on January 23, 2014 indicates
that he was a sales representative. The record shows a number of visas in his passport
indicating extensive travel during 2014. While this does not rule out that the
Applicant was a student, it reasonably caused the RPD and RAD to probe this
issue.
[49]
The Applicant’s student card contained a number
of anomalies, including the misspelling of the name of the school and the French
word “Scolaire”. Importantly, the student card,
whether the photocopy or the original, did not include the date of its issuance
or expiration. In other words, it did not establish the school year for which
it applied and it did not confirm that the Applicant returned to school in
September 2014.
[50]
The Applicant’s reference to his response to a
question in a Schedule to his BOC which indicates his activities as “etude/ commerce” from April 2007 to the date of the
BOC, is not contradictory evidence that the RPD or RAD ignored. That cryptic
notation does not establish that the Applicant returned to school full time in
September 2014 or was a student at the time of the protests in November 2014.
[51]
With respect to the plausibility of the
Applicant’s claim of discrimination, nothing on the record establishes that the
protests he claims to have been involved in had anything to do with
discrimination against the Gorane in education. The Applicant suggests the
objective evidence confirms that there were protests, that people were arrested
and that minorities are discriminated against and that these elements are
sufficient to support his claims. I do not agree. The record, which includes
the US Department of State Report and extensive media reports about the
protests, says nothing to support the Applicant’s contention that the protest
he participated in in the city of Ndjamena was about discrimination of the
Gorane in education.
[52]
The Applicant’s argument that nothing in the
record suggests that the protests were not about education suggests that
the onus of proof regarding the underlying discrimination and nexus to a
Convention ground should be on the Minister, which is clearly not the law. The
Applicant must establish his claim. He did not do so. The RPD and the RAD
reasonably found that there was insufficient evidence to support his claim that
there is discrimination in education and that he was subject to such
discrimination or that his participation in the alleged protest put him at
risk.
[53]
With respect to the omission in the Applicant’s
BOC, as the Respondent notes, the role of Mr. Nour is an important element in
the Applicant’s claim. Mr. Nour allegedly reported the Applicant to the police in
Chad. This would set the Applicant apart from the many other protesters and
explain why he was targeted by the police. It was not an elaborative detail
regarding his claim; this was central to his claim. Why would the Applicant
state in his BOC that he and the president organized the protests yet not
indicate the name of the president, that the president was arrested or that the
president likely gave his name to the police? Contrary to the Applicant’s
submission, this was not a detail about a third party. The role of Ibrahim Nour
was linked to his alleged participation in the protest, his need to go into
hiding and the alleged arrest of his father and brother for not revealing his
whereabouts.
[54]
The RAD’s finding that this omission justified
an adverse credibility finding is reasonable.
[55]
Nor did the RAD err by not specifically
referring to the letter from Cherif Adjber. The RAD addressed the Applicant’s
argument that the letter had been ignored by the RPD, noting that the RPD is
presumed to have considered all the evidence and need not refer to each piece.
The RAD did not err in finding that the RPD’s statement
that it considered all the evidence could be relied on.
[56]
Moreover, the RAD did not err in not specifically
referring to the letter from Cherif Adjber. The RAD acknowledged that this
letter was on the record before the RPD and that its content was similar to the
letter from Issa Ali Oumar, which it did not accept as new evidence. Therefore,
the RAD was aware of the content of the letter and cannot be said to have
ignored it.
[57]
The RAD referred to Moriom v Canada, 2015
FC 588 at para 24, [2015] FCJ No 553. In that case, Justice Brown
considered the principle that a general finding of lack of credibility may
extend to all relevant evidence emanating from an applicant’s account. He
considered the jurisprudence and noted at para 26:
In my view, these lines of reasoning were
resolved by the Federal Court of Appeal in Canada (Minister of Citizenship
and Immigration) v Sellan, 2008 FCA 381 [Sellan], where an issue was
certified for the Court of Appeal where it concluded :
[2] The Judge also
certified a question, namely: where there is relevant objective evidence that
may support a claim for protection, but where the Refugee Protection Division
does not find the claimant’s subjective evidence credible except as to
identity, is the Refugee Protection Division required to assess that objective
evidence under s. 97 of the Immigration and Refugee Protection Act?
[3] In our view, that question
should be answered in the following way: where the Board makes a general
finding that the claimant lacks credibility, that determination is sufficient
to dispose of the claim unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition of the
claim. The claimant bears the onus of demonstrating there was such evidence.
[4] This leads to the question
of whether there was in the record before the Board any evidence capable of
supporting a determination in the respondent’s favour. In our view, there was
clearly no such evidence in the record. We are satisfied that had the Judge
examined the record, as he was bound to, he would no doubt have so concluded.
In those circumstances, returning the matter to the Board would serve no useful
purpose.
[58]
The issue is, therefore, whether there is
independent and credible documentary evidence on the record capable of
supporting a positive disposition of the Applicant’s claim, despite the general
finding of lack of credibility. More specifically, the issue here is whether
the letter from Cherif Adjber was capable of supporting a positive
determination in the Applicant’s favour. Clearly it would not do so. The
information in the letter did not overcome the concerns the RAD had regarding
the Applicant’s credibility; for example, that he was in fact a student in
November 2014, or that there was discrimination against the Gorane in accessing
education.
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