Docket: IMM-3258-16
Citation: 2017 FC 188
Ottawa,
Ontario, February 14, 2017
PRESENT: The
Honourable Mr. Justice Brown
|
BETWEEN:
|
|
AJOKE MOSUNMOLA
DOSUNMU
OLAJUWON
OLAYINKA DOSUNMU
FOLASHADE
DOSUMU, MINOR
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT
AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review by
Ajoke Mosunmola Dosunmu [the Principal Applicant] and her two children [the
Secondary Applicant and the Minor Applicant], pursuant to s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision
made by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board,
dated June 28, 2016, in which the RAD determined the Applicants were
neither Convention refugees nor persons in need of protection under sections 96
and 97 of the IRPA [the Decision]. Leave was granted November 8, 2016.
II.
Facts
[2]
The Principal Applicant is a citizen Nigeria, as
are the Secondary Applicant, the Minor Applicant and the Principal Applicant`s
husband [Husband]. The Applicants came to Canada and made refugee claims on the
ground of political opinion, fearing that they would be arrested, detained and
possibly killed if they returned to Nigeria. The Husband is not part of this
refugee claim.
[3]
The Principal Applicant alleges that her Husband
is a retired naval officer who became fed up with the corruption in the
Nigerian oil industry and wrote a petition to the authorities in which he
claimed to have incriminating documents against several high placed individuals
involved in this corrupt oil industry.
[4]
The Principal Applicant claims the family
travelled to Canada for two weeks in November 2015, allegedly to visit family.
The Husband allegedly returned to Nigeria ahead of the Applicants. Two days
after his return, the Husband was allegedly arrested by authorities as a result
of the petition he wrote. The Principal Applicant alleges that when her Husband
was taken by the authorities, their house was upended, several of their
documents and personal items were taken away and their bank accounts were
frozen. She alleges that no one was able to make contact with the Husband for
approximately a week, at which time his lawyer in Nigeria was finally allowed
to contact him. She alleges that, before the Husband left Canada, he gave her
an envelope which contained a copy of the petition and several of the allegedly
incriminating documents. She further alleges that, under interrogation, the Husband
confessed that she was in possession of the documents sought by his
interrogators. She and her children thereafter applied for refugee protection
in Canada instead of returning to Nigeria, where they allege the authorities
are awaiting them.
III.
Decision
A.
Refugee Protection Division [RPD] Decision
[5]
On March 21, 2016, the RPD found the Applicants
were neither Convention refugees nor persons in need of protection. The
determinative issues were credibility and objective basis.
[6]
The RPD found the Principal Applicant had “not provided sufficient credible and trustworthy evidence to
support her fear of returning to Nigeria” and that it had credibility
concerns resulting from inconsistencies between the Principal Applicant’s Basis
of Claim [BOC] and her testimony. The RPD also found there were other anomalies
identified which were not adequately explained.
[7]
The RPD found the Principal Applicant failed to
corroborate a central aspect of her claim, in that she did not provide any
documentary proof to show that the Husband had accompanied the family to
Canada. The RPD found the Global Case Management System [GCMS] notes did not
evidence that the Husband had actually been issued a visa and without one, he
would have been unable to travel to Canada. The RPD drew a negative credibility
inference which “completely undermine[d] the factual
underpinning of [the] refugee claim”, finding the Principal Applicant’s
testimony to be “generally not credible”. In
light of this “general finding of no credibility”,
the RPD rejected and gave no weight to the Principal Applicant’s supporting documents.
The RPD also found the supporting documents to be either fraudulent or
fraudulently obtained “in order to advance a bogus
refugee claim”.
[8]
The RPD found the alleged interest in the Husband
by the authorities was not credible in light of the objective documentary
evidence provided in the National Documentation Package [NDP]. The RPD also
found the alleged interest in the Principal Applicant to be implausible
considering that she lacked direct knowledge of any of the allegations that had
been made by the Husband and considering that the documents he gave her, which
it is claimed substantiate these allegations of corruption, were all matters of
public record. In coming to this conclusion, the RPD made note of the objective
documentary evidence contained in the NDP. The RPD did not accept the Principal
Applicant’s allegation that she was in possession of documents that posed a
serious threat to the continuing profitability of illegal operations carried
out by corrupt officials and other higher-ups. Finally, the RPD found:
Given the previous adverse credibility
findings and in light of the preponderance of the documentary evidence…the
principal claimant’s subjective fear of persecution is not objectively
well-founded. The principal claimant and her children do not face a serious
possibility of persecution should they return to Nigeria today.
[9]
The RPD therefore concluded that the Principal
Applicant’s story was generally not credible, the Principal Applicant was not a
credible witness and the Principal Applicant had failed to satisfy her burden.
The RPD rejected her claim.
[10]
The Applicants appealed this Decision to the
RAD.
B.
RAD Decision
[11]
On June 28, 2016, the RAD found the Applicants
were neither Convention refugees nor persons in need of protection. The RAD
ultimately concluded, as a cumulative result of its findings, that the
Applicants lacked credibility and did not accept that the events described by
the Applicants occurred as described.
[12]
The RAD refused to accept new evidence filed in
support of the Applicants’ appeal, namely, a copy of what was said to be their
original flight ticket (which included the name of the Husband), as well as
several photographs allegedly taken of the Husband while the Applicants were in
Canada on their alleged vacation of November 2015. The RAD held these did not
meet the statutory requirements set out in subsection 110(4) of IRPA, in
that there was no explanation as to why these documents were unavailable prior
to the RPD’s Decision. The RAD also found that the alleged flight ticket
submitted was actually a flight reservation and that the photographs submitted
were undated and provided little context. The RAD further determined that, as
there was no new evidence submitted pursuant to subsection 110(4) of the IRPA,
it would be unable to proceed with an oral hearing as requested by the
Applicants under subsection 110(6).
[13]
The RAD noted and summarized the four major
negative credibility and objective basis findings made by the RPD. It found the
Applicants’ submission that the RPD had applied a higher standard of proof than
the balance of probabilities to be without merit. The RAD also found that,
although the RPD’s Decision could have been better organized, there was no
error committed in requiring documentary evidence to corroborate the Principal
Applicant’s main allegation. The RAD concurred with the negative inference
drawn by the RPD from the lack of documentary evidence corroborating the Husband’s
alleged travel. The RAD also found the Applicants’ argument that the RPD had
not provided clear and specific statements as to the inconsistencies it found
with the Principal Applicant’s testimony to be without merit. The RAD found the
RPD had made clear credibility findings; it noted this Court’s prior holdings
that the Board “is under no obligation to alert the
refugee claimant of its concerns about weaknesses of testimony giving rise to
implausibilities”.
[14]
The RAD concurred with the RPD’s assessment of
the evidence, noting the lacklustre proof of corruption the Principal Applicant
allegedly had in her possession, the lack of information regarding
whistleblowers in Nigeria being pursued by the authorities and the human rights
documentation provided by the Principal Applicant which dealt with criminal
suspects and not with persons in the Principal Applicant’s situation. The RAD
concurred with the RPD’s assessment of the corroborating evidence (namely, the
petition, the oil shipment receipts, the letters from the husband’s lawyer in
Nigeria and from the husband’s employer and the affidavit from the husband’s
older brother), noting they were all submitted to confirm aspects of a story
that was not credible; the RAD also found the documents did not make the
Applicants’ story credible. It noted that the widespread availability of
fraudulent documents was not, by itself, sufficient to reject foreign documents
as forgeries but assigned no weight to the corroborating documents.
[15]
The RAD found the Applicants’ submission that
the RPD had interpreted political opinion too narrowly to be without merit. It
also found the Applicants’ submission that the RPD erred in failing to consider
facts particular to the claims of the Secondary and Minor Applicants to be
without merit; their circumstances were not significantly different and the
younger Applicants relied on the family BOC, as told by the Principal
Applicant. The RAD therefore confirmed the RPD Decision and dismissed the
Applicants’ appeal.
[16]
The Applicants seek judicial review of the RAD
Decision.
IV.
Issues
[17]
The main issues on this application are whether
the RAD acted reasonably in rejecting the proffered new evidence and whether the
RAD’s credibility and plausibility findings were reasonable.
V.
Standard of Review
[18]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
A decision by the RAD reviewing a finding by the RPD is to be reviewed by this
Court on the standard of reasonableness. The Federal Court of Appeal has stated
in Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, that
the RAD is to review the RPD’s findings on the standard of correctness, but may
defer to the RPD on credibility findings “where the RPD
enjoys a meaningful advantage”.
[19]
In Dunsmuir, above at para 47, the
Supreme Court of Canada explained what is required of a court reviewing on the
reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[20]
The Supreme Court of Canada also instructs that
judicial review is not a line-by-line treasure hunt for errors; the decision
should be approached as an organic whole: Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34. Further, a reviewing court must determine whether the decision, viewed
as a whole in the context of the record, is reasonable: Construction Labour
Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62.
[21]
Credibility is the central issue in both the
decisions of the RPD and the RAD. It is therefore worthwhile to set out the law
in this respect, which was recently summarized in Khakimov v Canada, 2017
FC 18:
…To begin with, the RPD has broad discretion
to prefer certain evidence over other evidence and to determine the weight to
be assigned to the evidence it accepts: Medarovik v Canada (Minister of
Citizenship and Immigration), 2002 FCT 61 at para 16; Pushpanathan v Canada
(Minister of Citizenship and Immigration), 2002 FCT 867 at para 68. The
Federal Court of Appeal has stated that findings of fact and determinations of
credibility fall within the heartland of the expertise of the RPD: Giron v
Canada (Minister of Employment and Immigration) (1992), 143 NR 238 (FCA)
[Giron]. The RPD is recognized to have expertise in assessing refugee claims
and is authorized by statute to apply its specialized knowledge: Chen v
Canada (Minister of Citizenship and Immigration), 2003 FCT 805 at para 10.
And see Siad v Canada (Secretary of State), [1997] 1 FC 608 at para 24
(FCA), where the Federal Court of Appeal said that the RPD:
… is uniquely situated to assess the
credibility of a refugee claimant; credibility determinations, which lie within
“the heartland of the discretion of triers of fact”, are entitled to
considerable deference upon judicial review and cannot be overturned unless
they are perverse, capricious or made without regard to the evidence.
[24] The RPD may make credibility
findings based on implausibility, common sense and rationality, although
adverse credibility findings “should not be based on a microscopic evaluation
of issues peripheral or irrelevant to the case”: Haramichael v Canada
(Minister of Citizenship and Immigration), 2016 FC 1197 at para 15, citing Lubana
v Canada (Minister of Citizenship and Immigration),2003 FCT 116 at paras
10-11 [Lubana]; Attakora v Canada (Minister of Employment and
Immigration), [1989] FCJ No 444. The RPD may reject uncontradicted evidence
if it “is not consistent with the probabilities affecting the case as a whole,
or where inconsistencies are found in the evidence”: Lubana, above at
para 10. The RPD is also entitled to conclude that an applicant is not credible
“because of implausibilities in his or her evidence as long as its inferences
are not unreasonable and its reasons are set out in ‘clear and unmistakable
terms’”: Lubana, above at para 9.
VI.
Analysis
A.
New evidence admissibility issue
[22]
I am not persuaded that the RAD acted unreasonably
in declining to admit the proposed new evidence. The RAD reasonably noted the
obligation lying on applicants such as these to meet the statutory requirements
set out in subsection 110(4) of the IRPA, which includes providing an explanation
as to why these documents were unavailable prior to the RPD’s Decision, reasonably
soon thereafter or before the RPD concluded its decision. I note that the
Applicants were able to file birth certificates after the hearing but before the
decision was completed; so too could have been the case with respect to the new
evidence they sought to introduce before the RAD. Nothing in the evidence
explains the delay. It was obvious from the questioning at the RPD hearing that
further proof was needed. I note the Applicants had counsel at the RPD, albeit
different counsel from that engaged in the RAD hearing and in this Court.
[23]
In my view, the alleged flight ticket submitted
was actually a flight reservation, as indicated by the RAD. It would appear from
this document that the Husband had the right to come to Canada, but that was not
the issue before the RAD; while it had e-ticket receipt numbers on it, the
undated flight reservation does not prove the Husband actually flew to Canada
with his family, or at any other time for that matter. As noted by the RAD, the
flight reservation also had no date of issuance on it, which in my view further
points to the reasonableness of the RAD’s decision.
[24]
As for the photos, the RAD reasonably found they
were undated and provided little context; in my view, that finding was
charitable because, in fact, the photos were filed without any evidentiary
context at all. The issue was whether the Husband had, in fact, come to Canada
at the time alleged, which the photos do not establish. While it appears from
the photos that the Husband had been in Canada at some time in the past, there
is nothing in the record to show when that was. The RAD’s decision to reject
the new evidence was therefore reasonable. With respect, there is no merit in
the Applicants’ suggestion that the new evidence was rejected in large or in significant
part because of the country condition evidence regarding the prevalence of fraudulent
documents in Nigeria; that, in my view, was simply one of several relevant
considerations considered by the RAD.
B.
Whether RAD’s credibility and plausibility
findings were reasonable
[25]
In my view, the answer to this question is yes.
While the RAD is to review decisions by the RPD on the standard of correctness,
the RAD may defer to the RPD’s credibility findings; in my view, the RAD reasonably
did so in this case. The entirety of the RPD and RAD decisions in this case are
based on general findings of no credibility and on plausibility findings. The
deference owed by this Court on review in such circumstances is, in my view,
extremely high.
[26]
The RAD acted reasonably in accepting the RPD’s
implausibility findings. The RAD’s analysis and finding on the implausibility
of both the Principal Applicant and her Husband’s allegations of fear, while
not the only available option, were options open to it on the record and facts
of this case. The RAD reasonably concluded the RPD was entitled to draw
negative credibility findings on the basis of implausibility: Arubi v Canada
(Minister of Citizenship and Immigration), 2012 FC 36, Scott J. The RAD also
reasonably rejected the Applicants’ central allegation that families (such as
the Applicants) of whistleblowers (such as the Husband) are of interest to
corrupt officials in Nigeria, particularly given the lack of objective support
for this allegation and the lack of any explanation for why this would be the
case. The onus to establish their case was on the Applicants. The RAD reasonably
found the “evidence of alleged corruption insignificant
and easily accessible by others”. The implausibility findings flowed
directly from the Applicants’ own evidence of being wanted by higher ups and
authorities in Nigeria and the Principal Applicant’s failure to support that allegation.
I am not persuaded this conclusion is unreasonable, because it was based on the
evidence, common sense and rationality.
[27]
With respect to the allegation that the RAD
failed to assess the claim of the two children, again I am not persuaded the
RAD acted either unreasonably or incorrectly. It reasonably held that there was
no indication that the circumstances of the children were “significantly different than those of the Principal
Applicant”. This finding was reasonable given that the children’s allegations
were tied to that of the Principal Applicant. In this case, the allegations of
the children were weakened by the RAD’s credibility concerns regarding the
allegations of the Principal Applicant and reasonably so; all three relied on
the underlying facts in the Principal Applicant’s BOC Narrative.
[28]
Judicial review entails review of the reasons
and the record as an organic whole. As noted above, it is not a treasure hunt
for errors. In my respectful view, the RAD’s decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law, per Dunsmuir. Therefore, judicial review must be dismissed.
VII.
Question to Certify
[29]
Neither party proposed a question to certify and,
in my view, none arises.
VIII.
Conclusions
[30]
Judicial review is dismissed and no question is
certified.
JUDGMENT
THIS COURT ORDERS that the application
for judicial review is dismissed, no question is certified and there is no
order as to costs.
“Henry S. Brown”
Email this Content