Docket: IMM-3523-20
Citation: 2021 FC 1323
Ottawa, Ontario, November 30, 2021
PRESENT: The Honourable Madam Justice Kane
| BETWEEN:
|
| KHALEFA NASER EL-HADI
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP
|
| AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant, Khalefa Naser El-Hadi [Mr. El-Hadi], seeks judicial review of the decision of the Refugee Appeal Division of the Immigration and Refugee Board [RAD] dated July 31, 2020, which upheld the decision of the Refugee Protection Division [RPD]. The RPD had found Mr. El-Hadi not to be credible and concluded that he had not met his burden to establish with sufficient evidence that he is a Convention refugee or a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].
[2]
The RAD found that Mr. El-Hadi’s allegations lacked “coherence and logic,”
agreed with the RPD’s findings that there was “not enough reliable evidence”
to support Mr. El-Hadi’s section 96 and 97 claims, and dismissed the appeal.
[3]
For the reasons that follow, the Application is dismissed. Although the reasons of the RAD are not a model of clarity, a holistic reading permits the Court to understand the chain of analysis and to find that the reasons are transparent and intelligible and the outcome is justified by the facts and the law. The RAD addressed all of Mr. El-Hadi’s arguments on appeal. Contrary to Mr. El-Hadi’s submission, the RAD was not required to assess his credibility; the jurisprudence has established that a decision-maker is not required to assess credibility in every case and before determining the probative value of the evidence.
I.
Background
A.
The Applicant’s history
[4]
Mr. El-Hadi is a citizen of Libya. He arrived in Canada in October 2013 on a visitor’s visa with his wife, who was studying in Canada. He remained in Canada on work permits from 2014 to 2017.
[5]
On December 27, 2016, Mr. El-Hadi’s brother Mohamed was killed in Libya. Mr. El‑Hadi recounts that Mohamed was killed by Abdel Ghani Al-Kikli [Al-Kikli], a member of a rebel militia, because of Mohamed’s perceived support for the Gaddafi regime. Mr. El-Hadi explains that the Tarhouna tribe, of which he and his family are members, is known for its support of Gaddafi. Mr. El-Hadi adds that his two other brothers witnessed Mohamed’s death.
[6]
Mr. El-Hadi also recounts that his marriage began to break down in February 2017. He states that his wife told both their families (in Libya) that Mr. El-Hadi planned to marry another woman, which was untrue. Mr. El-Hadi claims that this led to threats against him from both families. He recounts that in March 2017, his wife and brother-in-law attacked him in his home and that his wife emptied their joint bank account. Mr. El-Hadi reported the incident to the police.
[7]
Mr. El-Hadi claims that his other brother-in-law threatened that if he ever returned to Libya, his wife’s family would direct Al-Kikli to kill Mr. El-Hadi. Mr. El-Hadi also claims that his own father told him that he would let the militia kill him.
[8]
Mr. El-Hadi’s claim for refugee protection is based on his imputed political opinion (as a Gaddafi supporter) and on his allegations that he is at risk to his life if he returns to Libya due to his marital breakdown and the resulting threats from his family to engage the militia to kill him.
B.
The Decision of the RPD
[9]
Given Mr. El-Hadi’s allegations that the RAD erred in not addressing the RPD’s credibility findings, a brief summary of the RPD decision is necessary.
[10]
The RPD found that Mr. El-Hadi was generally lacking in credibility and that the lack of credibility extended to relevant parts of his testimony.
[11]
The RPD did not doubt that Mohamed was killed; the RPD acknowledged the death certificate and forensic certificate. Rather, the RPD concluded that there was insufficient evidence to establish that Mohamed was killed by the rebel militia (Al-Kikli). The RPD found this allegation to be inconsistent with Mr. El-Hadi’s confirmation that his other brothers were completely unharmed, despite their presence at Mohamed’s death, and that his mother and sisters continued to live in Tripoli in close proximity to the home of Al-Kikli without incident. The RPD found, on a balance of probabilities, that Mr. El-Hadi’s brother Mohamed had not been targeted by the militia.
[12]
The RPD also doubted Mr. El-Hadi’s allegations about the death threats from his brother‑in-law. The RPD noted that the March 2017 attack was not mentioned in his Basis of Claim [BOC]. The RPD did not accept Mr. El-Hadi’s explanation for this omission—that he did not read English and did not know why this information had not been included in the BOC—noting that Mr. El-Hadi had affirmed his BOC, which included the signature of the interpreter declaring that the entire content of the BOC had been interpreted into Arabic, and that Mr. El‑Hadi understood and had confirmed that the BOC was complete and exact. The RPD concluded that Mr. El-Hadi’s testimony about his relationship with his wife was unreliable.
[13]
The RPD attributed no weight to the police report about the incident, finding that it did not establish that Mr. El-Hadi had received death threats from his brother-in-law.
C.
The Applicant’s submissions on appeal to the RAD
[14]
In his appeal to the RAD, Mr. El-Hadi argued that the RPD erred in finding that he was not credible, noting that his evidence was consistent and without any internal contradictions. He further argued that the RPD erred in its assessment of the evidence regarding the risk he faced in Libya. He also argued that the RPD erred in giving no weight to the police report and asserted that it was not tendered to support his allegations of death threats in Libya.
II.
The Decision of the RAD Under Review
[15]
The RAD agreed with the RPD’s conclusion that Mr. El-Hadi is not a Convention refugee nor a person in need of protection.
[16]
The RAD noted that the determinative issues were whether Mr. El-Hadi had a well‑founded fear of persecution due to imputed political opinion as a member of the Tarhouna tribe or perceived political supporter of Gaddafi and whether, on a balance of probabilities, he needs protection because of threats made against his life.
[17]
The RAD noted that Mr. El-Hadi’s claim was based on finding connections between his marriage breakdown, repercussions from his wife’s family (and to some extent his own family), and a connection to a militia in Libya, who would be motivated by his wife’s family to kill him if he returned because he is a member of the Tarhouna tribe or because he is perceived as pro‑Gaddafi.
[18]
The RAD found that Mr. El-Hadi’s refugee claim lacked logic and coherence. The RAD found that the connection between Mr. El-Hadi’s brother’s death in Libya and his claim that he will be targeted throughout Libya by Al-Kikli was not self-evident and was not a logical consequence of the two families’ displeasure about his failed marriage.
[19]
The RAD considered the political circumstances in Libya, noting that this provided context for Mr. El-Hadi’s allegations. The RAD accepted, based on the news articles, that Mr. El-Hadi’s brother Mohamed died by gunshot at the hands of the warring militia in Tripoli in December 2016. However, the RAD found that this was not evidence of how the warring factions in 2016 were linked to the alleged nationwide presence of Al-Kikli and the current personal threat to Mr. El-Hadi in Tripoli or throughout Libya.
[20]
The RAD addressed Mr. El-Hadi’s allegation that his marriage breakdown generated threats to his life from his wife’s family and from his own father because his brother-in-law could influence Al-Kikli to target and kill Mr. El-Hadi upon return to Libya.
[21]
The RAD acknowledged that the police had responded to Mr. El-Hadi’s report of the dispute with his wife in 2017, but found that the police report did not mention the allegations that his wife’s family threatened to kill him or that he faced a risk of persecution or harm in Libya. The RAD noted that the police had concluded that the dispute was a civil matter. The RAD also noted that it was only Mr. El-Hadi’s account of his report to the police that alleged he was threatened if he returned to Libya.
[22]
The RAD also found that Mr. El-Hadi’s allegation that his wife’s family could motivate the militia to kill him was not established on a balance of probabilities for several reasons. The RAD found that Mr. El-Hadi’s belief that his brother’s death was a targeted killing—rather than a random result of street wars between factions in Tripoli—and that Mr. El-Hadi was at risk of being targeted was not supported by any evidence. The RAD also found that Mr. El-Hadi’s claim that his father respected Mr. El-Hadi’s wife (as an explanation for why his father had sided with her and would support killing Mr. El-Hadi) was inconsistent with his claim that his wife’s family had connections to Al-Kikli, who had allegedly killed Mohamed. In other words, the RAD found that it was inconsistent that Mr. El-Hadi’s father would align himself with those responsible for killing his own son Mohamed.
[23]
The RAD found that the evidence about Libya and the warring militias vying for power did not support Mr. El-Hadi’s allegation that Al-Kikli will target him at all or that the militia had the means to do so throughout Libya.
[24]
The RAD rejected the arguments advanced on appeal, which were that Mr. El-Hadi’s account was consistent and presumed to be true and, therefore, the RPD’s credibility findings were not reasonable. First, the RAD noted that the presumption of truthfulness does not fill gaps in lack of logic or coherence. Second, the RAD found that the argument did not distinguish between the determinative questions and the evidence. The RAD found that the credibility concerns about Mr. El-Hadi’s evidence had a minimal effect on the determinative issue. The RAD explained that the allegations did not establish the connection between Mr. El-Hadi’s marital problems, the death of his brother, warring militias in Libya and the serious possibility that he would be persecuted or harmed if he returned. The RAD concluded that the essential connections were based on speculation, not reliable evidence.
[25]
The RAD noted that “[t]he RPD’s conclusions were confused by drawing irrelevant negative inferences about credibility”
but that its key findings were correct: that there was insufficient reliable evidence to establish that Mohamed was targeted and that Mr. El-Hadi would be targeted by Al-Kikli or that he had received death threats from his brother-in-law or others.
III.
The Applicant’s Submissions
[26]
Mr. El-Hadi submits that the RAD erred by failing to address the issue of his credibility, which he argues was the central basis for the RPD’s rejection of his refugee claim and was the focus of his argument on appeal. Mr. El-Hadi submits that credibility is at issue in every refugee claim and must be assessed “head on”
and determined before proceeding to assess the evidence for reliability, probative value or weight.
[27]
Mr. El-Hadi submits that the jurisprudence which has found that the probative value or the weight of evidence can be assessed without first assessing credibility is applicable only in the context of a pre-removal risk assessment or other proceedings, not in a refugee determination.
[28]
Mr. El-Hadi points to Gomes v Canada (Citizenship and Immigration), 2020 FC 506 [Gomes] and Green v Canada (Citizenship and Immigration), 2016 FC 698 [Green], in support of his submission that where credibility is the basis for the rejection of the refugee claim, the RAD is required to conduct its own independent assessment of credibility.
[29]
Mr. El-Hadi also argues that the RAD’s decision does not show an internally coherent and rational chain of analysis.
[30]
Mr. El-Hadi submits that if the RAD had believed that his brother was killed by the militia, then the RPD should have found that Mr. El-Hadi had established his claim. He submits that the RAD speculated, without any evidence, that Mohamed’s death was the result of random killings rather than a targeted killing. He notes that the death and forensic certificates show that Mohamed was shot both in the chest and in the head, which he submits demonstrates that it was a targeted attack. He submits that the fact that there were other random killings in Tripoli does not mean that Mohamed’s death was a random killing.
[31]
Mr. El-Hadi further submits that the RAD made unreasonable plausibility findings not based on the evidence. These findings include that Mohamed was not targeted, that Mr. El‑Hadi’s father would not side against him, and that his brother-in-law would not warn him of the threat if he returned to Libya if he really wanted him killed.
[32]
Mr. El-Hadi also submits that the RAD unreasonably rejected the police report as not probative evidence of the threats, arguing that it shows that his wife’s family is hostile toward him.
IV.
The Respondent’s Submissions
[33]
The Respondent submits that the RAD is entitled to confirm the conclusions of the RPD for different reasons. The Respondent submits that the RAD reasonably concluded that there was insufficient reliable evidence to support Mr. El-Hadi’s allegations, because his evidence lacked probative value and, as a result, was insufficient to establish a well-founded fear of persecution or to establish a risk of serious harm or death.
[34]
The Respondent submits that the RAD conducted a detailed review of the evidence and agreed with the RPD’s key findings. The RAD concluded that no connection was established between Mr. El-Hadi’s allegations and threats to him from the militia, and no connection was established between the death of his brother and his allegation that he would be targeted as pro‑Gaddafi or as a Tarhouna.
[35]
The Respondent submits that where the RAD attributes little weight and probative value to evidence, the RAD may reasonably determine that a credibility assessment is unnecessary.
[36]
The Respondent further submits that the RAD’s decision shows a rational chain of analysis and clear determinations that reliable evidence was lacking on the two critical aspects of Mr. El-Hadi’s refugee claim.
V.
The Issues
[37]
The overriding issue is whether the RAD’s decision is reasonable. This entails consideration of whether the RAD erred by not making a determination about Mr. El-Hadi’s credibility and, more generally, whether the RAD’s decision shows a coherent and rational chain of analysis.
VI.
The Standard of Review
[38]
In Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 103 [Huruglica FCA], the Federal Court of Appeal clarified that the RAD is an appeal tribunal and applies the standard of correctness when reviewing an RPD decision. The RAD conducts an independent assessment of the evidence. However, the RAD may defer to the RPD on credibility findings “where the RPD enjoys a meaningful advantage”
(para 70), for example, where the RPD has heard the testimony firsthand.
[39]
The Court judicially reviews a decision of the RAD on the reasonableness standard.
[40]
In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canada provided extensive guidance to the courts in reviewing a decision for reasonableness.
[41]
A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision‑maker (Vavilov at paras 85, 102, 105–07). The court does not assess the reasons against a standard of perfection (Vavilov at para 91).
[42]
In Vavilov, at para 100, the Supreme Court of Canada noted that decisions should not be set aside unless there are “sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
and that “[t]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.”
VII.
The Decision Is Reasonable
A.
The RAD did not err by not assessing credibility
[43]
The RAD was not required to assess and make a determination about Mr. El-Hadi’s credibility. The RAD reasonably found that Mr. El-Hadi had simply not established his claims with sufficient reliable evidence. The RPD had made the same essential findings.
[44]
Contrary to Mr. El-Hadi’s argument, the decision-maker is not required to assess an applicant’s credibility if their evidence, whether credible or not, would not establish their claim.
[45]
Mr. El-Hadi relies on the Federal Court’s decision in Huruglica v Canada (Citizenship and Immigration), 2014 FC 799 to argue that the RAD must examine all aspects of the RPD’s decision, including credibility. In that decision, Justice Phelan stated at para 54:
Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.
[46]
In Huruglica FCA at para 78, the Federal Court of Appeal explained the role of the RAD in conducting an appeal:
. . . the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. … If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD.
[Emphasis added]
[47]
The Court of Appeal agreed that an independent analysis of the evidence was required (although the RAD may defer to the RPD on credibility and other issues where the RPD had an advantage: para 70), stating, at para 103:
I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.
[48]
Huruglica FCA does not establish that the RAD must assess “all aspects of the RPD’s decision”
; rather, the RAD is required to “determine whether … the RPD erred.”
Here the RAD focussed on the key findings of the RPD—that there was insufficient evidence to support the claim—and after independently assessing the evidence, agreed with the RPD’s conclusion. Moreover, the RAD did not find that the RPD erred in its credibility assessment. The RAD found that the RPD’s credibility inferences were irrelevant because its critical findings were determinative and correct; there was insufficient (“not enough reliable”
) evidence to establish the claims.
[49]
In any event, if the RAD had found an error, it would have been entitled to confirm the decision on a different basis than that of the RPD (section 111 of the Act; Huruglica FCA at para 78).
[50]
Mr. El-Hadi relies on Gomes, where the Court cited Vavilov and stated that in order to be responsive, the decision-maker’s determination must address the key facts of the case (Gomes at para 63). In the present case, the RAD did address the key facts, including Mr. El-Hadi’s arguments on appeal (unlike Gomes).
[51]
Mr. El-Hadi also relies on Green to argue that the RAD must assess credibility. In Green, the RPD made findings on both credibility and state protection, but the RAD declined to take a clear position on the credibility findings and affirmed the RPD’s conclusion that the applicant had failed to rebut the presumption of state protection. In that case, the RAD was required to make a finding with respect to credibility because the applicant’s credibility was a key aspect of the state protection determination.
[52]
In the present case, the determination of Mr. El-Hadi’s claims did not require an assessment of credibility, because the evidence was not sufficient to establish the claims.
[53]
In Nti v Canada (Citizenship and Immigration), 2020 FC 595 at para 21, Justice McHaffie cited Magonza v Canada (Citizenship and Immigration), 2019 FC 14 [Magonza] and Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067, both of which had addressed the evidentiary concepts regarding the assessment of evidence, and noted the nuances:
In other words, evidence that has little probative value may be entitled to little weight even assuming it to be credible, which may obviate the need to undertake the credibility assessment: Ferguson at paras 26–27; Zdraviak v Canada (Citizenship and Immigration), 2017 FC 305 at para 18. I certainly do not take Justice Grammond’s statement in Magonza to mean that a decision-maker must assess credibility even if that assessment is irrelevant to the ultimate determination of weight: Magonza at paras 29–31. Nor do I take Justice Zinn’s statement in Ferguson to mean that a decision-maker may jump to an assessment of weight without assessing credibility in cases where the evidence is probative on its face. The answer to the credibility question is not “irrelevant” in such cases: Ferguson at para 26. The same is true of Justice Kane’s statement in Sallai, relied on by the Minister, that a decision-maker may conclude that a sworn statement is insufficient even if its credibility is not doubted: Sallai v Canada (Citizenship and Immigration), 2019 FC 446 at paras 51–57.
[54]
In this case, the RAD found that the credibility assessment of the RPD was irrelevant because the RPD’s other findings were determinative, including that: “without any further supporting evidence”
Mr. El-Hadi’s claim that his brother was killed by Al-Kikli was not established on a balance of probabilities; his testimony about the alleged attack by his brother-in-law, which he had omitted from his BOC and attempted to explain by saying he did not understand English, was found to be “unreliable”
; and the police report of the incidents involving Mr. El-Hadi’s wife’s and his brother-in-law gave no indication of any threats, and was accorded no weight. Mr. El-Hadi also challenged these findings in his appeal to the RAD.
[55]
Justice Grammond explained the concept of sufficiency in Azzam v Canada (Citizenship and Immigration), 2019 FC 549 at para 30 [Azzam]:
Evidence is said to be sufficient if it meets the burden of proof. Given that, in immigration matters, that burden is on a balance of probabilities standard, evidence will only be deemed sufficient if [it] makes the existence of the fact at issue “more likely than not” – which is the definition of the balance of probabilities standard. Conversely, evidence is insufficient if the fact at issue remains unlikely.
[56]
Evidence may be found insufficient if it stands alone and is uncorroborated: Magonza at para 33; Azzam at para 33; Sallai v Canada (Citizenship and Immigration), 2019 FC 446 at para 56). Evidence may also be found insufficient “where it does not contain enough detail to persuade the decision-maker of the existence of the facts necessary to trigger the application of a legal rule”
(Azzam at para 33; Adeleye v Canada (Citizenship and Immigration), 2020 FC 640 at paras 10, 13; Olusola v Canada (Immigration, Refugees and Citizenship), 2019 FC 46 at para 18). Mr. El- Hadi has not provided any authority for his submission that a credibility finding must be made in every refugee determination. The jurisprudence that establishes that sufficiency and probative value may be assessed first without assessing credibility (see for example, Nti, Ferguson, Adeleye) is not so restricted.
[57]
Contrary to Mr. El-Hadi’s submissions, the RAD grappled with the key issues—whether Mr. El-Hadi had established his claims—and also addressed and rejected the arguments advanced on appeal, which disputed the RPD’s credibility findings and its other essential findings.
[58]
The RAD found that Mr. El-Hadi’s argument—that credibility was the main issue and that the RPD erred in its assessment—failed for two reasons, one of which was because credibility had a minimal effect on the determinative issues. The RAD sought to explain the concepts of credibility, probative value and reliability, and also referred to logic and coherence. In my view, the RAD did not need to do so and may have muddled up the explanation, but it properly applied the relevant principles, in particular the distinction between sufficiency and credibility. Although the RAD batted about the terms “probative value,”
“credibility”
and “reliability,”
the RAD was focussed on the insufficiency of the evidence.
[59]
Mr. El-Hadi’s argument—that if the RPD had believed him that his brother was killed by Al-Kikli he would have successfully established his claim—overlooks that he had the onus to establish with sufficient evidence that his brother’s death in 2016 supported his claim that he would be at risk from Al-Kikli or others. He failed to do so. As noted by the RPD, neither his brothers, who allegedly witnessed Mohamed’s killing, nor any of his family members had been harmed in the meantime. Mr. El-Hadi also failed to provide sufficient evidence to explain how his wife’s family had any influence over the militia in order to elevate his marital problems to a risk to him from the militia if he returned to Libya.
B.
The reasons of the RAD show a rational chain of analysis
[60]
Internal coherence and rationality are hallmarks of a reasonable decision. As noted in Vavilov at para 102, “the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that ‘there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.’”
[61]
The RAD’s reasons clearly convey why it found that Mr. El-Hadi had not established either his claim of persecution, based on his perceived political opinion as a Gaddafi supporter or a member of the Tarhouna tribe, or his claim that he would be at risk of harm or death due to threats from his wife’s family.
[62]
Mr. El-Hadi argues that the RAD erred in “speculating”
that Mohamed’s death was a random act of the violence at that time in Tripoli, rather than political targeting. This argument overlooks that it is up to Mr. El-Hadi to establish his claim with sufficient evidence—i.e., he had the onus to establish on a balance of probabilities that Mohamed was targeted by Al-Kikli based on his real or perceived political affiliation. The RAD did not speculate, rather it concluded that Mr. El-Hadi had not provided sufficient evidence to establish the alleged cause of Mohamed’s death.
[63]
With respect to Mr. El-Hadi’s submissions that the RAD made implausibility findings about the lack of logic to the threat by Mr. El-Hadi’s brother-in-law and to Mr. El-Hadi’s father’s apparent support for having Mr. El-Hadi killed upon return, I do not find these to be implausibility findings—although the RAD could have so found. Rather, the RAD found that Mr. El-Hadi had not established on a balance of probabilities that his wife’s family in Libya could motivate Al-Kikli and his militia to kill him, for several reasons, including the lack of logic in these claims.
[64]
Read holistically, the Court can identify the RAD’s findings and follow its chain of analysis, which reasonably supports the decision that Mr. El-Hadi did not establish his claims. The decision demonstrates a rational chain of analysis on the determinative issues. While the decision is not a model of clarity, the reasons of an administrative tribunal are not held to a standard of perfection. There are no serious flaws or shortcomings in the decision that are “sufficiently central or significant to render the decision unreasonable.”
Email this Content