Docket: IMM-5201-16
Citation:
2017 FC 589
[ENGLISH
TRANSLATION]
Ottawa, Ontario, June 15, 2017
PRESENT: The Honourable
Mr. Justice Roy
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BETWEEN:
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ABDOULAYE BARADJI
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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]
In this application for judicial review of a
decision rendered by the Refugee Protection Division (RPD) of the Immigration
and Refugee Board of Canada, the Applicant is seeking to have the decision set
aside. Based on a review of his memorandum of fact and law that the Applicant
is allegedly arguing not only the decision on rejecting his claim for refugee
protection or as a person in need of protection, but also the fact that the RPD
found, under subsection 107(2) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 [the IRPA] that there is no
credible basis for the claim. Subsection 107(2) reads as follows:
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No credible basis
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Preuve
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(2) If the Refugee Protection Division
is of the opinion, in rejecting a claim, that there was no credible or
trustworthy evidence on which it could have made a favourable decision, it
shall state in its reasons for the decision that there is no credible basis
for the claim.
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(2) Si
elle estime, en cas de rejet, qu’il n’a été présenté aucun élément de preuve
crédible ou digne de foi sur lequel elle aurait pu fonder une décision
favorable, la section doit faire état dans sa décision de l’absence de
minimum de fondement de la demande.
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[2]
That determination is important as it prevented
the Applicant from seeking remedy before the RPD Appeal Division. Thus, the
application for judicial review before this Court was open to the Applicant.
[3]
Essentially, the RPD did not believe the
Applicant, outlining an impressive list of contradictions, inconsistencies and
implausible statements.
I.
Standard of review
[4]
The standard of review for an administrative
decision on the merits is the standard of reasonableness. In fact, few
questions give rise to the standard of correctness; moreover, the Supreme Court
of Canada decreed that a presumption exists to the effect that questions of
fact and law are subject to the reasonableness standard, unless of course it
involves a question of law as cited in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]
(paragraphs 58–61). In this case, it is not disputed that the standard of
review is that of reasonableness.
[5]
However, significant consequences arise
therefrom on the burden of discharge that falls on a triable individual who is
complaining about an administrative decision, the review of which is based on
the reasonableness standard. In fact, in the famous paragraph 47 of Dunsmuir,
the Court found that the deferential aspect of the administrative tribunal’s
decision must prevail since reasonableness has clearly defined prerogatives. I
cite the following text from the Supreme Court, at paragraph 47:
[47] Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. 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.
[6]
The Applicant’s burden is therefore to establish
that the RPD’s findings do not fall within the range of possible acceptable
outcomes in respect of the facts and the law. Moreover, it may be demonstrated
that reasonableness was not achieved given that the decision was sought through
lack of justification, transparency or intelligibility within the
decision-making process. However, this was not demonstrated by the Applicant.
At most, he tried to offer explanations to some of the contradictions and
inconsistencies which could allegedly ensure that there may be another possible
acceptable outcome. That is not the test asked of the Applicant when he
contests an administrative decision for lack of reasonableness. He must instead
demonstrate that the decision does not fall within one of these possible
acceptable outcomes.
II.
Facts
[7]
Although extraordinary, the facts of this case
are relatively simple. The Applicant, a citizen of Mali, allegedly lost both
his parents. Aged 8 at the time, in 1990, he was apparently taken in by an
orphanage, presumably in Mali, by a person of Syrian citizenship. This person
allegedly brought him to Syria. He remained there for the next 22 years.
[8]
When the troubles began in Syria in 2011, the
people who had taken in the Applicant in 1990 fled to Turkey. The Applicant,
who had apparently never acquired Syrian citizenship, seems to have been
refused entry to Turkey. The Applicant was 30 years old at the time.
[9]
He thus decided to return to Mali, likely in
early 2012. Upon his arrival in Mali, he claims that he was arrested at the
airport and questioned about his presence in Syria. He was allegedly detained
for one week and his passport was allegedly confiscated. When he was released,
it seems he sought refuge with an Imam who then accommodated him for six (6)
months.
[10]
His life in Mali apparently became harrowing
because he was allegedly arrested, specifically several times at highway
control posts and because, for all practical purposes, he was considered a
target under surveillance.
[11]
The Applicant was married in 2013, which
resulted in two children. It seems that in March 2016, the Applicant was
the subject of a recent search by Mali authorities who allegedly went to his
residence and asked him to report to the police station. If we include the Applicant’s
testimony, he claims that he was a person of interest to authorities in his
country because he was allegedly suspected of being a terrorist. When he
returned to Mali, he could no longer express himself in French or in any of the
languages spoken in Mali, and his only references seemed to be Arabic and
Islamic. Following this visit in March 2016, he sought refuge at a friend’s
home from March 20 to April 10. He then apparently obtained a
passport under a fictitious name. From Mali, he then apparently passed through
Côte d’Ivoire via car, and came to Canada via Brussels. The file does not
reveal how the Applicant ended up in Brussels from Côte d’Ivoire. In fact, the
file is brief in many respects. When he arrived in Canada, the Applicant
claimed refugee protection.
III.
The decision for which judicial review is
requested
[12]
In its carefully rendered decision, the RPD
listed a considerable number of challenges with the version provided by the
Applicant at the hearing. In fact, the Applicant’s stance in this case is that
some of the challenges listed by the RPD can be interpreted differently than
what was maintained. Moreover, the contradictions recorded between the Basis of
Claim Form and the Applicant’s version provided at the hearing can be
explained, as the Applicant says, by problems encountered in translation of
this document from the Arabic spoken by the Applicant and his French version.
IV.
Analysis
A.
Reasonableness
[13]
Neither of these attempts at an explanation
would hold water. The claim that problems in the interpretation are allegedly
at the root of the contradictions and inconsistencies appears to be an ex
post facto explanation. In any event, many of the elements between the
Basis of Claim Form—for which he was responsible and which was completed with
no government intervention—and the testimony match. Translation errors cannot
stem solely from areas in which the Applicant is contradictory or inconsistent,
yet not in the rest of the translation. If the Applicant had problems with the
translation, he should have raised them for this claim to have some
credibility. Even better, he had the option of using another translator.
[14]
What is more, as the respondent noted, the
documentary evidence presented by this Applicant was particularly flawed. It is
no trivial matter that:
(a) His passport and his marriage certificate
listed two different residences where the Applicant asserts he never lived.
(b) His passport, his marriage certificate and
his daughters’ birth certificates indicate that the Applicant held different
jobs, whereas, according to the Applicant, this information was completely
false.
(c) the place of marriage indicated on the
marriage certificate was incorrect; the Applicant could not explain this error.
(d) The Applicant could not provide the name of
two witnesses to his marriage and the only person he identified as a witness
was not recorded as such on the marriage certificate.
(e) The Applicant could not explain the
discrepancies in dates when he entered and left Mali, and the date stamps in
his passport.
Respondent’s additional memorandum, paragraph 8
[15]
In other words, the translation was not shown to
be flawed and, on reflection, is almost certainly an ex post facto
explanation. In fact, even the documentary evidence contained no
inconsistencies.
[16]
As regards the contradictions and
inconsistencies at the hearing, the Applicant tried to explain some of them.
However, none of these explanations can successfully argue that the RPD’s
findings are unreasonable, within the meaning of Dunsmuir.
[17]
It would be burdensome to raise all of the
questions presented to the RPD, some of which the Applicant attempted to
explain, while others were simply not explained. By way of illustration, some
paragraphs in the decision read as follows:
[TRANSLATION]
[24] The panel also has no evidence of
the Applicant’s return date to Mali. The Applicant entered into evidence his Al
Fath Institute student card. This card was issued on February 20, 2012,
whereas the Applicant stated that, given the instability in the country in
2011, the final exams for the 2011–2012 academic year were held in
December 2011 so that the students could go home, especially the foreign
ones. Thus, the Applicant returned to Mali in January 2012. Under these
conditions, the panel found it difficult to explain why the Al Fath Institute
would issue student cards once the final exams were done and the school was
essentially closed. The Applicant also stated that he did not know why that
date appears on his student card. The panel then asked him how he obtained that
card. He said that he obtained it in the summer; then when asked to clarify, he
said it was in summer 2010 or 2011. This makes no sense. Lastly, in his
Appendix A form, the Applicant allegedly indicated to the immigration
officer that from September 1999 to August 2011, he apparently
studied in Damas at a high school, the name of which he apparently does not
know. Confronted by the difference in the study end date and the fact that he
allegedly did not know the name of the two institutes where he allegedly
studied, more specifically, the name of the Al Fath Institute, the Applicant
replied that he knows he studied there and that he does not know why the
immigration officer did not write it down, that maybe he misunderstood. This
further undermines the Applicant’s credibility with respect to his studies and
whereabouts in 2012.
[25] Moreover, his whereabouts also
call into question his presence in Mali. In fact, no two Mali documents
submitted by the Applicant indicate the same information, more specifically,
about his address.
. . .
[28] The Applicant was then confronted
about his national identity card issued in Tambacara during a period in [sic]
the Applicant indicated that he lived in Bamako. He explained that he had to go
"sell some things
there" and that, in Bamako, it is very
difficult to have such a card issued. The Applicant was then asked why this
card indicated the following address: "Gory, at his father’s home" on July 28, 2015, if the Applicant is an orphan. The Applicant
replied that that address clearly needed to appear on the documents he
submitted to obtain that card. The Applicant added that he did not fill out any
forms to request that card and that he was not asked any question [sic].
The panel then asked him how the officer could have known that he was a commercial
employee; the Applicant replied that he was asked the question. This undermines
his credibility. In addition, the panel does not see how the Applicant, given
his purported history, was allegedly in possession in 2015 of documents stating
that he lived at his father’s home. Moreover, this instead led the panel to
question whether the Applicant was indeed an orphan.
[18]
In fact, the inconsistencies and contradictions
raised by the RPD could fall under three categories:
1)
Problems with the documentation: The claimant claimed he never went to school in Syria because he
could not be enrolled as he had no valid passport. The panel questioned the
possibility that this was the case and that his adoptive father was unable to
obtain such a passport. When a Mali passport was allegedly obtained in 2010
before he left Syria, its origin was unexplained. A new passport seemingly
obtained without difficulty in 2015 caused suspicion because, according to
the Applicant, he was constantly harassed and he says he was suspected of
terrorism. Furthermore, that passport was allegedly a replacement for the one
that was apparently confiscated by Mali authorities upon the Applicant’s return
in 2012 (the Court noted that it seems that the Applicant left Mali
in 2016 after obtaining a false passport—decision, paragraphs
12 and 20). The birth certificates of the Applicant’s wife and
children also pose a problem. Thus, for example, the Applicant was unable to
provide the date of birth of his children when he was asked this during the hearing.
There was also no explanation as to why his wife’s birth allegedly appears as
being recorded twice (upon her birth and again in 2016). The marriage
certificate is also problematic because a marriage that was allegedly
celebrated at a specific location is not the one that appears on the
certificate. Moreover, only one of the four witnesses was identified.
2)
Inconsistent evidence regarding this
Applicant’s whereabouts: This refers to the
Applicant’s history, which is described as "rather
unusual." The Applicant could not explain how he happened to be in
Syria in 1990, but, even more striking, is that nothing is known of his
situation in Syria between 1990 and 2012. However, in 2012, the
Applicant was 29 or 30 years old. One is entitled to obtain explanations
regarding the 21 years spent in Syria. The child became an adult. Besides the
issue of the student card referred to in one of the above paragraphs, and the
inability to identify the high school attended in Damas between 1999 and
2011, one can note the fact that the Applicant completely did not recognize one
address appearing on his passport. The RPD also questioned the Applicant’s
different addresses following his return from Mali, while the information
provided on the forms differs from that which the Applicant was able to provide
at the hearing.
3)
Applicant’s training and job history: The RPD questioned the Applicant’s claim to the effect that,
in 2006, he was studying "texts and
expressions, grammar, dictation, conversation, reading, research".
He was 24 at the time. His employment history in Mali is also rather obscure,
even though different jobs and professions are presented by the Applicant on
the various documents.
[19]
The Applicant’s attempts to explain in no way
demonstrate that the findings drawn by the RPD are unreasonable because they
are allegedly not one of the possible acceptable outcomes. At best, he
suggested explanations without convincing that the RPD’s findings fall outside
of the range of possible acceptable outcomes. These findings all boil down to
one single conclusion: the witness is not credible. I fail to see how this
finding could have been questioned and the Applicant’s demonstration does not
come close to convincing that there is a lack of reasonableness.
B.
No credible basis
[20]
As indicated above, the RPD also found [translation] "that
no credible or trustworthy evidence was presented on which it could have based
a positive decision" (paragraph 34). In my opinion, this finding by
the panel is beyond reproach. In fact, all of the evidence presented makes this
finding possible. The RPD phrased it unequivocally:
[translation]
[34] All of the elements raised thus far,
especially the core elements of his allegations, lead to the panel’s finding
that the Applicant is not a credible witness. Thus, the panel does not believe
the Applicant’s allegations. Moreover, the panel felt that he did not present
any credible or trustworthy evidence on which one could base a positive
decision. The panel therefore found that there was no credible basis for this claim.
[21]
The Applicant is not incorrect in recalling that
whenever there is a lack of credibility, it does not always imply that there is
no credible basis (Ouedraogo v. Canada (Minister of Citizenship and
Immigration), 2005 FC 21), but this in no way excludes the
possibility that a general lack of credibility generates no credible basis.
[22]
If I understand the Applicant’s argument
correctly, the existence of objective documentary evidence regarding the
situation in Mali would be sufficient to prevent a finding under
subsection 107(2) of the IRPA. In the Applicant’s opinion, this claim is
supported by the Federal Court of Appeal decision in Rahaman v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 89;
[2002] 3 FC 537 [Rahaman].
[23]
The Applicant turned to paragraph 19 of that
decision for support. In that paragraph, the Court examined the effects of
statutory changes regarding the use of the no credible basis concept. Reference
was made to the decision by Mr. Justice Denault in Foyet v.
Canada (Minister of Citizenship and Immigration),
(2000) 187 F.T.R. 181 [Foyet] in which he stated that "In cases where there is independent and credible
documentary evidence, however, the panel may not make a no credible basis
finding." The Federal Court of Appeal was in agreement with this
passage but added an important reservation. The passage in Rahaman to
which the Applicant refers reads as follows:
[19] . . . In
my view, this is an accurate statement of the law as it has been understood to
date, subject to one qualification: in order to preclude a "no credible
basis" finding, the "independent and credible documentary
evidence" to which Denault J. refers must have been capable of
supporting a positive determination of the refugee claim.
[My emphasis]
[24]
The finding drawn by the Applicant was that the
existence of objective documentary evidence means the possibility of supporting
a positive determination of the refugee claim. This finding could probably have
been drawn from Foyet alone, but was no longer possible following Rahaman.
In fact, Rahaman actually provides for the contrary when one reads
further and the Court of Appeal explains how documentary evidence is capable of
supporting a positive determination of a [refugee] claim. Not just any
documentary evidence will suffice. The Court actually refuted such a finding in
paragraph 29, which is reproduced below:
[29] However,
as MacGuigan J.A. acknowledged in Sheikh,
supra, in fact the claimant’s oral testimony will often be the only evidence
linking the claimant to the alleged persecution and, in such cases, if the
claimant is not found to be credible, there will be no credible or trustworthy
evidence to support the claim. Because they are not claimant-specific, country
reports alone are normally not a sufficient basis on which the Board can uphold
a claim.
[25]
The Court also explained that "the existence of some credible or trustworthy
evidence will not preclude a ’no credible basis’ finding if that evidence is
insufficient in law to sustain a positive determination of the claim"
(paragraph 30). Therefore, the documentary evidence alone does not
normally constitute that which might support a positive determination of the
refugee claim because it does not address the person’s situation. What is more,
even certain elements of credible or trustworthy evidence will not be
sufficient to avoid the status of "no credible
basis," if these elements are insufficient to support a positive
determination of the refugee claim.
[26]
The only evidence of the situation in Mali is
insufficient to grant refugee status. As a result, the Court can only conclude
that the RPD finding regarding "no credible
basis" was not demonstrated to be unreasonable.
[27]
Consequently, the application for judicial
review is dismissed.
[28]
There are no questions of importance to certify.
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