Docket: IMM-2651-16
Citation:
2017 FC 111
[ENGLISH
TRANSLATION]
Ottawa, Ontario, January 30, 2017
PRESENT: The
Honourable Mr. Justice Diner
|
BETWEEN:
|
|
EDDY MANDEKO
MANDJO
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the case
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 [IRPA], regarding a decision by the Refugee Appeal Division
[RAD] of the Immigration and Refugee Board of Canada, dated May 27, 2016,
which confirmed a decision by the Refugee Protection Division [RPD] that found
that the applicant is neither a Convention refugee nor a person in need of
protection. For the reasons detailed below, I do not agree with the applicant’s
arguments and am dismissing this application.
II.
Facts
[2]
The applicant is 28 years old and is a citizen
of the Democratic Republic of the Congo [DRC]. He alleges the following.
Between December 12, 2011 and February 26, 2015, the applicant
allegedly lived in Canada without interruption on a student visa that expired
in August 2015. He reportedly returned to the DRC in February 26,
2015, to visit his family and relax.
[3]
On March 4, 2015, the applicant allegedly
participated in a brainstorming session during which he allegedly shared ideas
with friends on the state of politics in the DRC from a North American
perspective. That same day, the applicant and his friends were allegedly
arrested and detained by police, accused of conspiracy, insurrection, and civil
disobedience. Some items of value were allegedly confiscated from them, such as
his watch and his money, and his membership card in the Union for Democracy and
Social Progress [Union pour la démocratie et le progrès
social; UDPS], an opposition political party in the
DRC. During his detention, he was allegedly tortured by the police authorities.
[4]
During the night of March 6 and 7, 2015,
the applicant was allegedly released and afterwards hid at his grandmother’s home.
The applicant reportedly did not go to a hospital. On March 7, 2015, the
applicant allegedly contacted a lawyer to file a complaint about this violation
of his civil rights.
[5]
On March 9, 2015, the applicant allegedly
left his country of origin with the help of a friend of his father to get to
Canada and subsequently apply for refugee status.
[6]
The RPD’s decision was unfavourable to the
applicant, who appealed it before the RAD.
III.
The decision subject to this judicial review
[7]
The RAD first addressed the issue of
admissibility of new items of evidence, including an attestation from a lawyer
in the DRC, a UDPS membership card and a letter from the Fédération de l’UDPS au Canada. The RAD
found that those documents were inadmissible, since they did not meet any of
the admissibility criteria set forth in subsection 110(4) of the IRPA.
Considering subsection 110(6) of the IRPA, the RAD found that there was no
need to hold a hearing, since no new evidence was admissible.
[8]
After describing the standard of review that it
had to apply to the RPD decision, the RAD dismissed the applicant’s arguments,
which were based on deficiencies in procedural fairness, particularly that the
RPD allegedly did not consider all the evidence and that it reportedly based
its decision on speculation.
[9]
The RAD then confirmed most of the findings made
by the RPD as to the applicant’s credibility. However, the RAD found that the
applicant did not show that he belonged to the UDPS within a balance of
probabilities. In addition, the applicant apparently did not establish the
authenticity of the submitted photographs, which show the applicant and his
torturers, and were allegedly taken during his detention. Lastly, the RAD found
that the account about the applicant’s release and departure was implausible.
[10]
However, the RAD set aside the RPD’s decision as
to the plausibility of obtaining certain documents, including the minutes of a
hearing from the police. That being so, the RAD did not give any probative
value to it due to incongruities and inconsistences, which are addressed below.
[11]
Given the rejection of additional evidence, and
the findings that were made as to the implausibility of the applicant’s account
and as to his credibility, the RAD dismissed the appeal.
IV.
Issues
[12]
The applicant alleges that the RAD erred by (a)
refusing to admit additional evidence and hold a hearing; (b) by failing in its
duty to procedural fairness; and (c) by making unfavourable findings as to his
credibility.
V.
Standard of review
[13]
The parties recognize that the standard of
review that applies to RAD decisions for questions of fact and mixed questions of
fact and law is reasonableness (Canada (Minister of Citizenship and
Immigration) v. Huruglica, 2016 FCA 93 at paras 32 and 35; Yeboah v.
Canada (Minister of Citizenship and Immigration), 2016 FC 780 at para 19). However,
issues of procedural fairness are subject to the correctness standard of review
(Dunsmuir v. New Brunswick, 2008 SCC 9 at para 51 [Dunsmuir]).
VI.
Analysis
A.
Inadmissibility of additional evidence and
holding a hearing
[14]
Subsection 110(4) of the IRPA states that as
part of an appeal before the RAD, only the following new items of evidence are
admissible: (a) those that arose after the rejection of their claim before the
RPD; or (b) those that were not reasonably available at the time of the claim
before the RPD; or (c) those that were available at the time of the claim
before the RPD, but could not reasonably have been expected in the circumstance
to have been presented, at the time of the rejection. The Court of Appeal
recently established that the admissibility conditions of 110(4) of the IRPA
are unescapable and leave no room for discretion on the part of the RAD (Canada
(Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96 at para 35
[Singh]). However, the following passage from the Court of Appeal
judgment must be noted: “It goes without saying that
the RAD always has the freedom to apply the conditions of subsection 110(4)
with more or less flexibility depending on the circumstances of the case.”
(at para 64).
[15]
The applicant maintains that the RAD
unreasonably rejected three items of evidence, including an attestation from a
lawyer in the DRC, a copy of a UDPS membership card and a letter from the
Fédération de l’UDPS au Canada [the Fédération], since they would have met the
criteria set forth in subsection 110(4) and those established by Raza v
Canada (Citizenship and Immigration), 2007 FCA 385. The applicant maintains
that those items of evidence were not submitted before the RPD, since they were
obtained after the hearing. The applicant claimed that if they had been
considered, it would have made a different decision. In support of his
argument, the applicant cites Olowolaiyemo v Canada (Citizenship and
Immigration), 2015 FC 895 at para 19, in which Gascon J. explains the
disjunctive and not conjunctive character of subsection 110(4).
[16]
In turn, the Minister argues that the additional
evidence was reasonably rejected. Relying on Abdullahi v Canada (Citizenship
and Immigration), 2016 FC 260, at paras 14–15, the Minister maintains that
the applicant did not comply with his obligation to submit the best evidence
possible before the RPD and, as a result, try to address the deficiencies in
his evidence.
[17]
There is no doubt that the RAD analyzed the
explanations provided by the applicant justifying why the evidence was not
submitted before the RPD in a timely manner: delays beyond his control and the
trauma that he allegedly suffered following his detention in the DRC;
communication difficulties with contact persons in the DRC; and the fear that
those contact persons would in turn be arrested by the police.
[18]
The RAD found that those explanations were
insufficient. In fact, the applicant contacted the contact persons in question —
namely, the lawyer (through the applicant’s father) and the Fédération — which
provided evidence to the applicant, well before the publication of the RPD’s
decision.
[19]
First, regarding the lawyer’s attestation, the
applicant has known the legal expert in question since March 7, 2015. Aside
from the time, trauma, and communication difficulty, he does not provide any
valid explanation to justify why the attestation was not obtained and submitted
before the RPD. In addition, the applicant did not file any evidence showing
attempts at communication before his claim was rejected by the RPD.
[20]
Second, the RAD explains that the UDPS
membership card, which was allegedly confiscated by the police, would have been
issued in March 2008. The applicant does not give any explanation to
clarify why the card would have been confiscated by the police on March 4,
2015, and would not have been available before the rejection of the claim by
the RPD, but was before the RAD.
[21]
Lastly, the RAD rejected the letter from the
Fédération, since the applicant has been a member of the Ottawa-Gatineau
section since March 9, 2015. The applicant does not explain how his trauma
or his communication difficulties with contact persons in the DRC would have
kept him from obtaining this letter in Canada well before the rejection of his
claim by the RPD.
[22]
At para 54 of Singh, the Court of Appeal
confirmed that “[t]he role of the RAD is not to provide
the opportunity to complete 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.” In addition, in Ketchen v Canada (Citizenship and
Immigration), 2016 FC 388, at para 23, the rejection of additional evidence
submitted by the applicant was reasonable, given that the explanation provided
to justify the delay was vague and general in nature.
[23]
In this case, I find that the RAD reasonably
found that the explanations provide by the applicant did not justify the
failure to obtain and submit the evidence in question before the RPD. In
addition, in accordance with subsection 110(6) of the IRPA, since there
is no additional evidence to consider, the RAD reasonably found that it had no
need to hold a hearing (Malambu v Canada (Minister of Citizenship and
Immigration), 2015 FC 763 at para 36).
B.
Did the RAD fail in its duty to procedural
fairness?
[24]
The applicant alleges in a general and vague
manner that the RAD should have granted him a hearing, since it partially set
aside the RPD decision and then gave no probative value to certain documents
that were filed by the applicant before the RPD, including the minutes of a
hearing. The applicant does not address that argument further, either in fact
or in law. Since there are no errors whatsoever of procedural fairness, and
given the poorly reasoned rationale in this argument, I believe that it must be
dismissed.
C.
Are the findings regarding the applicant’s
credibility reasonable?
[25]
The applicant states that the RAD’s findings
regarding his credibility are unreasonable. More specifically, the applicant argues
that the decision is unreasonable for numerous reasons, including the fact that
the administrative decision-maker (i) wrote that the applicant responded in a
hesitant manner and that there were contradictions in his account, with no
justification; (ii) created a contradiction that did not exist in the facts
regarding the applicant’s failure to obtain his membership card; (iii) unlike
in Maldonado v Canada (Minister of Employment and Immigration), [1980] 2
FC 302 (FCA) [Maldonado], declared without reason that the
applicant was not part of the UDPS and erred by judging that the absence of
evidence as to the applicant’s membership in the UDPS undermined his
credibility; (iv) did not understand how the photographs submitted by the
applicant were proof of his detention; (v) made findings regarding the early
date of the applicant’s flight that were based on pure speculation.
[26]
The Minister argues that the RAD’s findings on
credibility are not erroneous. I share this view for the following reasons.
[27]
The applicant rightly maintains that in light of
Maldonado, the applicant’s allegations are presumed true. However, the
principles arising from Maldonado set forth an exception to that last
presumption if in the facts there is reason to doubt the veracity of the
applicant’s testimony. In addition, the applicant is right to note that our
Court declared that implausibility findings should only be made in the clearest
of cases (Yang v Canada (MCI), 2016 FC 543 at para 10; Cao v
Canada (MCI), 2016 FC 669 at para 32).
[28]
It must also be noted that some judges from our
Court recently made some observations regarding plausibility, in which Annis J.
wrote that “negative plausibility findings, be they
related to credibility or otherwise, are essentially the decision-maker’s
rejection of an alleged inferential fact by a party required to be made on a
simple balance of probabilities. When such finding is under review by the
Court, it is subject to the same deference owed to any factual finding by an
administrative tribunal” (Bercasio v Canada (MCI), 2016 FC 244 at
para 29; see also comments from Shore J. in Khurram v Canada (MCI),
2016 FC 498 at para 17).
[29]
Similarly, according to Kane J., “whether the RPD made a plausibility finding or a credibility
finding makes no difference, as the finding relates to […] credibility [...]”
(Demberel v Canada (MCI), 2016 FC 731 at para 42). What is more, in
Yathavarajan v Canada (MCI), 2014 FC 297 at para 33 (citing Aguebor
v Canada (MEI) (1993), 10 NR 315 (FCA)), Kane J. stated that the
administrative tribunal may make plausibility findings over the entire account
told by the applicant and that those findings should receive some deference.
[30]
Quite clearly, the credibility findings must be
well-founded by the administrative decision-maker and must be within the range
of acceptable and reasonable solutions, as Dunsmuir has established. In
this case, I believe that the reasons put forward by the RAD regarding
credibility are well-reasoned and, when taken as a whole, the decision is
reasonable.
[31]
First, the RAD considered the principles
established in Maldonado and, referring to Magyar v Canada (MCI),
2015 FC 750 at paras 34–36, stated that the absence of certain evidence may be
a factor when the RPD makes its findings as to the applicant’s credibility and
that it falls to the applicant to establish his application for refugee status.
The RAD subsequently found that given the particular facts in this case, the
applicant’s sole testimony on his membership in the UDPS was not satisfactory.
[32]
I concur that, when considered on its own, that
finding may appear problematic. However, the RAD states at paragraph 41 of
its decision that the absence of the membership card as evidence in the record
was not the sole reason in support of its finding that the account offered by
the applicant was implausible.
[33]
As for the photographs that were allegedly taken
by the applicant’s cousin during detention, I believe that the RAD’s findings are
reasonable. Given the largely useless responses from the applicant as to the
origin of those photographs (that is, how the photos were taken by the cousin,
obtained by the applicant’s father, and then sent by him without any
interference from state authorities), I believe that the intervention of our
Court would not be appropriate in this case.
[34]
Afterwards, the RAD considered some other
documents filed by the applicant, particularly a document titled “Note
de l’OPJ” [note from the OPJ] and the minutes of a summary hearing for the
applicant and his friends following their arrest. The RAD disagreed with the
RPD regarding the implausibility of obtaining documents from the applicant’s
lawyer. However, the RAD gave it no probative value due to the disparities
between the documents, particularly the divergence between the applicant’s
contact information, which was listed in the minutes, and what was written in
other documents. In addition, the RAD saw that the minutes do not report any
seizures of property by the police, that the questions asked by police as they
appear in the minutes do not specifically deal with the facts alleged by the
applicant, and lastly, that the note from the OPJ is not dated.
[35]
Lastly, the RAD considered the airplane ticket
from the anticipated flight. However, in light of other findings made regarding
the applicant’s credibility, the Panel found that the airplane ticket on its
own was insufficient evidence in itself to establish the alleged facts.
[36]
It is not open to this Court to reassess all the
evidence when the RAD’s reasoning and conclusions are intelligible and
transparent, and are supported by the evidence on record (Vigan v Canada
(Minister of Citizenship and Immigration), 2016 FC 398 at para 15).
VII.
Conclusions
[37]
In light of my reasons that were described
above, and the jurisprudence on which I am relying, I believe that the findings
made by the RAD in this case are founded in the evidence on record, and that
its assessment, when considered as a whole, is reasonable. As a result, this
application for judicial review is dismissed. No questions are certified, and
no costs are awarded.
Email this Content