Docket: IMM-3764-16
Citation:
2017 FC 374
Ottawa, Ontario, April 19, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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LUBNA ABD
ALRAHMAN FOUAD ABU ZAID
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AMER MOHAMMAD
ABDEL-MUHSEN AL-DIBEH
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AYHAM AMER
MOHAMMAD ABDEL-MUHSEN AL-DIBEH
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AHMAD AHMER
MOHAMMAD ABDEL-MUHSEN AL-DIBEH
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Applicants
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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 Applicants are a family from Jordan. Lubna
Abu Zaid, the principal Applicant, is 33 years old and her husband, Amer
Al-Dibeh, is 35 years old. Their two children, Ayham and Ahmad, are six and
four years of age, respectively. Following their arrival in Canada on January 14,
2016, the Applicants made a claim for refugee protection, alleging that they
faced risk of harm in Jordan from the family of a married woman who falsely
alleged she had an extra-marital affair with Amer. However, the Refugee
Protection Division [RPD] of the Immigration and Refugee Board rejected the
Applicants’ claim in a decision dated August 5, 2016. The Applicants have now
applied under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] for judicial review of the RPD’s decision.
I.
Background
[2]
The Applicants’ claim is based on an accusation
of adultery and threats of death that occurred in July 2015. According to the
Applicants, Amer’s sister witnessed a male stranger leaving the apartment of a
woman named Iklas, leading her to believe that Iklas was having an
extra-marital affair. Amer’s sister and Iklas are related through marriage;
their husbands are brothers. At around the same time, Iklas’ husband was in the
process of divorcing Iklas based on an allegation of adultery. Iklas confronted
Amer’s sister and threatened her to not provide evidence at the divorce proceeding.
If Amer’s sister did not comply with this threat, Iklas said she would falsely
tell her family that the stranger leaving her apartment was Amer. Despite this
threat, Amer’s sister gave evidence at the divorce proceeding and,
subsequently, Iklas told her family that she had had an extra-marital affair
with Amer. Amer’s sister relayed this information to Amer on July 3, 2015.
[3]
The following day, Amer consulted the Mukhtar,
the local village leader, for advice; but the Mukhtar was unable to resolve the
situation. The Mukhtar advised Amer to flee their village because the police
would not provide protection and local culture would require Iklas’ family to
avenge the violation of their family’s honour. The Applicants fled to Lubna’s
father’s house in Irbid, Jordan, where they stayed until leaving Jordan. In
late July 2015, the Applicants applied for a visa to travel to the United
States and, after receiving their US visa on September 9, 2015, they began
making arrangements to leave Jordan. On November 17, 2015, the Applicants left
Jordan and travelled to the US to stay with Lubna’s sister in Louisiana. Some
two months later, the Applicants travelled to Canada and made a claim for
refugee protection.
II.
The RPD’s Decision
[4]
The RPD rejected the Applicants’ claim in a
decision dated August 5, 2016, finding that they were neither Convention
refugees nor persons in need of protection. The RPD noted several concerns with
the testimony of Lubna and Amer and, ultimately, found that the Applicants were
generally not credible. The RPD questioned the credibility of the Applicants’
claim that they fled to Lubna’s father’s house in Irbid prior to leaving
Jordan, noting that the Applicants had omitted this detail in their initial
refugee forms and mentioned it for the first time in their Basis of Claim [BOC]
form. The RPD also questioned why Iklas’ family never attempted to locate the
Applicants while they were hiding in Irbid; the RPD noted that Iklas and Amer’s
sister are related through marriage and, in the RPD’s view, it did not make
sense that Iklas’ family would not have attempted to find Amer through Lubna’s
family relations. The RPD drew a negative inference in this regard.
[5]
The RPD also made a negative inference
concerning the Applicants’ delay in leaving Jordan after receiving their US
visa. The RPD noted that the Applicants received their visa on September 9,
2015, but they did not leave Jordan until November 17, 2015. In their BOC form,
the Applicants attributed this delay to their decision to wait for the Mukhtar
to resolve the conflict. During the hearing, however, the Applicants stated
that they delayed their departure to obtain money to purchase their plane
tickets; Amer testified that he sold his car to raise the money, and waited an
additional month for cheaper airfare. In response to the RPD’s questions about
the Applicants’ inconsistent explanations for not leaving Jordan sooner than
they did, the Applicants explained that they were unaware they should have
mentioned these details in their BOC form and had only 10 days to complete the
form. The RPD did not accept this explanation, stating that:
[16]…The panel does not find that this
reasonably explains the discrepancy between his oral testimony around his delay
and his written statements. If financial reasons were the significant factor,
it is reasonable to expect this to have been mentioned in the BOC … The panel
finds this to be a hearing room embellishment to explain away the concerns of
the panel around the delay in departure. …
[17] The panel finds these actions
inconsistent with those reasonably expected of individuals whose lives were in
peril in Jordan as alleged.
[18] The panel draws a negative
inference as to both subjective fear and the credibility of their allegations
from the unreasonable delay in leaving Jordan and the inconsistent testimony
provided on the issue.
[6]
As to the Applicants’ failure to make a refugee
claim in the United States, the RPD observed that the Applicants have close
family ties in Canada and the US and were visiting family in the US for
approximately two months before coming to Canada to seek protection. The
Applicants explained that they felt Canada was a better option because they had
concerns, as Muslims, about the political climate in the US. The Applicants
acknowledged, however, that they did not have any problems while in the US and
felt generally welcomed as Muslims. Although it did not make a further negative
credibility finding from the Applicants’ failure to seek refuge in the US, the
RPD remarked that this failure was consistent with the credibility and
subjective fear concerns previously identified.
[7]
The RPD had concerns about the Applicants’
failure to mention that Iklas and Amer’s sister were related by marriage. The
RPD noted that this detail was absent from the BOC narrative, and Iklas was
described only as a woman in the neighbourhood. When the Applicants were asked
to explain this omission, Amer stated that he did not think it was a key detail
worth mentioning, and that he may have overlooked the fact since he only had 10
days to complete the BOC form. The RPD found this omission had not been
reasonably explained and drew a negative inference from this omission.
[8]
The RPD challenged the Applicants’ credibility
concerning the threats from Iklas’ family. The RPD questioned Amer as to why he
consulted the Mukhtar about threats received from Iklas’ family on July 4,
2015, even though Iklas did not inform her family about the alleged adultery
until the following day on July 5, 2015. The Applicants were unable to explain
this inconsistency. Amer testified that he sought advice from the Mukhtar as a
precaution before Iklas’ brothers threatened him. The RPD discounted this
explanation. Lubna also explained that she overheard threats made against the
entire family in her residential building. The RPD questioned why Lubna never
mentioned any of these threats in her BOC form, given that this was a relevant
and significant detail. The RPD made negative credibility findings based on
these inconsistencies and omissions.
[9]
The RPD noted the absence of any credible
documentation to support the Applicants’ claim. The Applicants did not have any
court documents to verify that Iklas’ husband had commenced divorce proceedings
or that Amer’s sister had provided testimony. The RPD recognized that, while
the Applicants may not have direct access to court documents since they were
not parties in the divorce proceedings, Amer’s sister should have had access to
some documentation because she provided testimony as a witness. The RPD placed
little weight on the letters provided by Amer’s sister, Amer’s brother, and the
Mukhtar because the Applicants had not provided the original documents or
copies of the emails which verified proof of receipt. The RPD noted that Rule
42 of the Refugee Protection Division Rules, SOR/2012-256 [Rules],
clearly indicates that originals are required, and the Applicants’ counsel
should have made them aware of this requirement. Although the RPD granted time
for these documents to be produced after the hearing, they had not been provided
by the time the RPD issued its decision some five months after the hearing.
Additionally, the RPD noted various other faults with these letters, such as
being undated, and gave each one little weight following its examination of the
letters.
[10]
The RPD questioned the reasonableness of the
Applicants’ allegation that they were at risk of honour violence caused by a
false allegation of adultery, expressing doubt that in a patriarchal society,
Iklas, a female complainant, would be believed over Amer. The RPD also noted that
Amer’s sister could corroborate Amer’s story and that Iklas would likely not be
believed given her tarnished reputation because of a past affair. The
Applicants were unable to explain these concerns to the RPD, and the RPD found
that Amer provided “shifting and inconsistent
testimony” in this regard. The RPD confirmed its doubts about the
Applicants’ alleged risk of honour violence by looking to the country condition
documentation which stated that males were rarely victims of honour crimes and
there were no reported cases where a male had been killed. The RPD found, in
view of the country documentation, that there was no evidence that Lubna or the
children would face a risk of harm due to the adultery allegation made against
Amer.
[11]
The RPD ultimately concluded that:
[46] Given all of the above concerns,
the panel finds the principal and male claimants to have been generally not
credible. …the story as a whole lacks the ring of truth.
[47] The panel finds that it has
insufficient credible or trustworthy evidence to establish the allegations in
these claims. The panel finds, on a balance of probabilities, that Iklas did
not threaten the male claimant's sister with false allegations against him;
that she has not told anyone that it was with the male claimant that she was
having an affair; and that the claimants are not being threatened related to
false allegations against the male claimant.
III.
Issues
[12]
The Applicants’ submissions raise the following
issues:
1.
What is the appropriate standard of review?
2.
Did the RPD breach its duty of procedural
fairness?
3.
Were the RPD’s negative credibility findings
unreasonable?
4.
Did the RPD improperly require the Applicants to
provide corroborating evidence?
5.
Did the RPD improperly reject the three letters?
IV.
Analysis
A.
Standard of Review
[13]
The RPD’s assessment of the Applicants’
credibility is to be reviewed on a standard of reasonableness (Aguebor v
Canada (Minister of Employment and Immigration), [1993] FCJ No 732 at para
4, 160 NR 315, (CA)). Credibility findings have been described as the “heartland of the Board’s jurisdiction,” in that they
are essentially pure findings of fact (Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at para 7, 228 FTR 43).
Moreover, the RPD’s interpretation and assessment of evidence is reviewable on
a standard of reasonableness (Oluwafemi v Canada (Citizenship and
Immigration), 2009 FC 1045 at para 38, 181 ACWS (3d) 554; Lin v Canada
(Citizenship and Immigration), 2008 FC 698 at paras 11-12, [2008] FCJ No
888 [Lin]). The RPD’s factual findings are to be given significant
deference (Lin at para 11). The reasonableness standard also applies to
allegations that the RPD ignored relevant corroborative evidence (see: Eze v
Canada (Citizenship and Immigration), 2016 FC 601 at paras 12, 22, 267 ACWS
(3d) 681; Maldonado Ventura v Canada (Citizenship and Immigration), 2012
FC 463 at paras 24, 30, 408 FTR 161; Hadesh v Canada (Citizenship and
Immigration), 2016 FC 747 at para 17, [2016] FCJ No 749).
[14]
Consequently, this Court should not intervene so
long as the RPD came to a conclusion that is transparent, justifiable,
intelligible, and within the range of possible, acceptable outcomes based on
the law and the facts before it (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 S.C.R. 339 [Khosa]).
A reviewing court can neither substitute its own view of a preferable outcome
nor can it reweigh the evidence (Khosa at paras 59, 61).
[15]
The standard of review to determine whether the
RPD fulfilled its duty of procedural fairness is correctness (Dirie v Canada
(Citizenship and Immigration), 2015 FC 1052 at para 15, [2015] FCJ No 1144;
Ngeze v Canada (Citizenship and Immigration), 2016 FC 858 at para 22,
[2016] FCJ No 934; Mission Institution v Khela, 2014 SCC 24 at para 79,
[2014] 1 S.C.R. 502; Khosa at para 43). Under the correctness standard, a
reviewing court shows no deference to the decision maker’s reasoning process
and the court will substitute its own view and provide the correct answer if it
disagrees with the decision maker’s determination (see: Dunsmuir at
para 50).
[16]
Moreover, the Court must determine whether the
process followed in arriving at the decision under review achieved the level of
fairness required by the circumstances of the matter (see: Suresh v Canada
(Minister of Citizenship and Immigration), 2002 SCC 1 at para 115, [2002] 1
SCR 3). When applying a correctness standard of review, it is not only a
question of whether the decision under review is correct, but also a question
of whether the process followed in making the decision was fair (see: Hashi
v Canada (Citizenship and Immigration), 2014 FC 154 at para 14, 238 ACWS
(3d) 199; and Makoundi v Canada (Attorney General), 2014 FC 1177 at para
35, 249 ACWS (3d) 112).
B.
Did the RPD breach its duty of procedural
fairness?
[17]
The Applicants argue that the RPD breached its
duty of procedural fairness by not notifying them that it would “depart from the Act” and apply legal and technical
rules of evidence in assessing the three letters, contrary to subsection 170(g)
of the IRPA. According to the Applicants, the RPD should have notified
them as to its concerns over the authenticity of the letters and provided them with
an opportunity to respond. The failure to do so, the Applicants say, was a
breach of procedural fairness. I find no merit in this argument because it is
nothing more than a complaint about the RPD not assigning more weight than it
did to these three letters.
[18]
The RPD noted at the hearing that the Applicants
had failed to provide either the original copies of the three letters or the
corresponding emails which proved receipt, and further noted that the
Applicants had not provided these documents after the hearing. The Applicants
were made aware of the RPD’s concerns about these letters at the hearing as
well as the requirements under Rule 42 of the Rules. This is not a case
where, post-hearing, the RPD looked to extrinsic documentation in reaching its
decision without affording the Applicants an opportunity to address such
documentation. On the contrary, the RPD in this case merely assessed at the
hearing the very documentation provided by the Applicants themselves. There is
nothing unfair about the RPD proceeding in such a manner.
C.
Were the RPD’s negative credibility findings
unreasonable?
[19]
The Applicants submit that the RPD erroneously
made negative inferences as to the Applicants’ credibility because they failed
to include minor or elaborate details in their BOC forms. According to the Applicants,
the RPD further erred by making a negative credibility finding because the
Applicants failed to provide court documentation to establish the divorce
proceeding between Iklas and her husband. The Applicants also take issue with
the RPD’s finding that it was unlikely that Amer, as a male, would be targeted
in an honour killing while the female Iklas would be allowed to live. The
Applicants say the RPD can only make adverse findings based on the
implausibility of a claimant’s story in the clearest of cases where the
allegations are outside the realm of what could reasonably be expected. The
Applicants also challenge the RPD’s conclusory credibility findings, arguing
that the RPD erroneously focused on minor discrepancies to question their
credibility.
[20]
The Respondent submits that the RPD reasonably
determined that the adult Applicants generally lacked credibility. According to
the Respondent, the Applicants’ evidence contained material omissions and
inconsistencies and conflicted with objective documentary evidence about honour
killings. The Respondent says the RPD is owed significant deference in making
credibility findings because they are factual, case-specific, and arise from an
individualized assessment. In the Respondent’s view, the inconsistences and
omissions in the Applicants’ evidence cannot be characterized as minor, noting
in particular that Amer failed to mention in his BOC form that Iklas told her
family she had had an affair with him, an omission which the RPD found to be “a significant incident that set the wheels in motion for his
problems with the brothers.” The Respondent further argues that the RPD
reasonably made a negative inference about the Applicants’ evidence because
they failed to tender evidence from the divorce proceeding, and that even if
the RPD may have erred in this regard, the decision as a whole should be upheld
as reasonable since it was merely one finding among many other reasonable
findings.
[21]
The RPD’s credibility findings in this case were
reasonable because they were based on more than the adult Applicants’ failure
to include minor or elaborate details in their BOC forms. The RPD explained
that Amer’s sister’s relationship to Iklas was relevant to Iklas’ brothers’
ability to locate the Applicants. This was not a minor or elaborative detail.
Similarly, the Applicants’ failure to mention that they stayed in Jordan after
receiving their US visas was relevant to whether they were truly in peril.
Finally, the RPD believed that the Applicants’ failure to mention the threats
against Lubna and the two children in the BOC form was a significant detail
which was omitted.
[22]
The RPD’s credibility findings were also based
on serious inconsistencies in the adult Applicants’ narrative. For example, the
RPD questioned Amer as to why he consulted the Mukhtar about threats received
by Iklas’ family on July 4, 2015, even though Iklas did not inform her family
about the alleged adultery until the following day on July 5, 2015. The adult
Applicants were unable to explain this inconsistency. Similarly, the RPD did
not believe that Iklas’ family members would not attempt to find the Applicants
given that Iklas was related to Amer’s sister by marriage. The RPD’s
credibility findings about the adult Applicants in this case were transparent
and, accordingly, reasonable in view of the evidence before the RPD.
D.
Did the RPD improperly require the Applicants to
provide corroborating evidence?
[23]
The Applicants claim that the RPD erred by
requiring the Applicants to adduce court documents from Iklas’ divorce proceeding.
Although the RPD recognized that the Applicants would not have access to the
divorce documents, it nonetheless stated it would be reasonable for Amer’s
sister to have access “given her involvement in the
case, such as those documents relating to her being a witness and having to
attend court to give her testimony.” The Applicants assert that this
finding is unreasonable because it was not based on the evidence which showed
that court documents are only available to the parties to a proceeding. In my
view, however, even if this finding by the RPD is unreasonable, as the
Applicants contend, this does not render the RPD’s decision as a whole
unreasonable because the failure to submit any court documents did not, in and
of itself, undermine the adult Applicants’ credibility.
E.
Did the RPD improperly reject the three letters?
[24]
The Applicants submit that the RPD unreasonably
placed little weight on the three letters written by Amer’s brother, Amer’s
sister, and the Mukhtar. According to the Applicants, the RPD cannot reject
these letters on the basis of what they do not say. In the Applicants’ view,
the low weight ascribed to the letters is a veiled finding that they were
fraudulent, and the RPD incorrectly assessed the letters based on strict rules
of evidence given that the RPD, by virtue of subsection 170(g) of the IRPA,
is not bound by any legal or technical rules of evidence.
[25]
The Respondent maintains that the RPD reasonably
considered the Applicants’ three supporting letters. According to the
Respondent, despite the lack of originals and proof of receipt, the RPD
nevertheless considered all three letters and provided several reasons for
ascribing them little weight. In particular, the Respondent notes with respect
to the Mukhtar’s letter, that the RPD reasonably noted the illegible stamp, the
confusion over the Mukhtar’s tribe, and the fact his account of events was
inconsistent with Amer’s testimony.
[26]
The RPD admitted these three letters as
evidence; yet, it placed little weight on them because of concerns over their
authenticity. The RPD’s first concern was that they were copies, contrary to
the requirement to submit original documents pursuant to Rule 42 of the Rules
which requires a party who has provided a copy of a document to the RPD to
provide the original document. The RPD’s second concern was that these letters,
which were purportedly received as attachments to email messages, were not
accompanied by the emails which proved receipt. The RPD also raised a concern
that none of the letters were dated or sworn. Despite the RPD’s concerns over
the authenticity of these documents, it still decided to admit these documents.
[27]
I disagree with the Applicants’ assertion that
the RPD made a “veiled finding” that the three
letters were fraudulent because, had they been so, the RPD would not have
accepted them as evidence or given any weight to a fraudulent document.
Furthermore, the RPD did not, as the Applicants contend, require that the
letters conform to strict rules of evidence contrary to subsection 170(g) of the
IRPA. In my view, the RPD relied on indicia of credibility and
trustworthiness to determine the appropriate weight to be assigned to these
letters and, as subsection 170(h) of the IRPA provides, received and
based its decision “on evidence that is adduced in the
proceedings and considered credible or trustworthy in the circumstances.”
[28]
It was reasonable for the RPD in this case to
raise its concerns over the credibility and relevance of the three letters. The
RPD found that the letter from Amer’s brother did not provide many details
concerning the Applicants’ claim, and it also questioned the credibility and
relevance of the statement by Amer’s brother that Iklas’ divorce took place in
a military court, whereas the country documentation stated that a divorce
proceeding occurred in the religious courts. The RPD also noted that the letter
from Amer’s sister mentioned Iklas making a threat to identify Amer as the
person with whom she was having an affair and that she told Amer this; yet, the
RPD found this letter was not as fulsome as might reasonably be expected.
Lastly, the RPD noted that the letter from the Mukhtar was inconsistent with Amer’s
testimony, notably with respect to the Mukhtar’s tribe and the amount of time
he spent trying to reconcile the family’s situation.
[29]
In short, the RPD did not improperly reject the
letters written by Amer’s brother, Amer’s sister, and the Mukhtar. On the
contrary, it received these letters as evidence and, upon review and
consideration of them, reasonably ascribed little weight to them, especially in
view of its concerns about the lack of original documents and lack of evidence as
to their provenance. It is not the Court’s function to reweigh the evidence
that was before the RPD. The RPD’s assessment of the letters was transparent
and, consequently, reasonable.
V.
Conclusion
[30]
For the reasons stated above, this application
for judicial review is dismissed. The RPD’s decision in this case was a
reasonable one rendered without any denial of procedural fairness.
[31]
Neither party proposed a question of general
importance for certification; so, no such question is certified.
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