Docket: IMM-9727-21
Citation: 2022 FC 1345
Ottawa, Ontario, September 27, 2022
PRESENT: The Hon Mr. Justice Henry S. Brown
| BETWEEN:
|
| SHAHZAD ALI
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Nature of the matter
[1] This is an application for judicial review of a decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada, dated December 13, 2021, dismissing the Applicant’s appeal and confirming the decision by the Refugee Protection Division [RPD], which found the Applicant was not a Convention refugee nor a person in need of protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
II.
Facts
[2] The Applicant is a citizen of Argentina. He was born in Pakistan and moved to Argentina in 2011. He obtained Argentinian citizenship in 2015.
[3] The Applicant established a business in Argentina where he owned and operated a number of stores. His business was profitable and he lived in an affluent neighbourhood.
[4] The Applicant was found credible. He says he fears a criminal known as “El Negro”
and its associates.
[5] Because this case involves an allegation of mixed motive persecution, one of which motives is alleged to have a nexus under section 96 of IRPA, in addition to the motives of extortionists looking for money, I will refer to the nexus evidence in this summary.
[6] The Applicant stated in his BOC “There is a drug mafia called El Negro or El Patron. They are also involved in other criminal activities in Argentina. On multiple occasions they threatened me saying that I am a Muslim, and I own several businesses and because I live in an upper class neighbourhood, I would need to pay them significant amounts of money, or they would kill me.”
[Emphasis added]
[7] During his testimony the Applicant reported that an El Negro associate told one of his employees that “The Muslim is -- you know, is taking our money, and so that Muslim has to pay that money.”
[Emphasis added]
[8] However, while the Applicant’s employee gave a written statement, it did not contain that evidence.
[9] That said, the employee’s statement reported:
- El Negro had come several times and they asked me normally and l said I don't know where Shahzad is and they tell me that we know and they said Just tell the Muslim a message Shahzad that he will not save from us.
- They said to me if the Muslim Ali doesn’t pay 30 thousand dollars they were going to kill him, and see who’s going to save that son of a bitch.
[Emphasis added]
[10] The RAD also found El Negro referred to the Applicant as “Muslo”
or Muslim when he looked for him at his stores.
[11] The Applicant also testified regarding police protection saying: “Like I said before -- you know, are Argentinian citizens. Like yes, I might be an Argentinian citizen but I am -- somebody who is born in Argentina, they have a different type of rights because you know, how they mention it. You know, as a Muslim and because of my religion, you know, like, you know kidnapping is nothing to me. You know, somebody trying to kill you is nothing to me”
. [Emphasis added]
[12] From May 2019 to February 2020, the Applicant stated he was extorted on a number of occasions by El Negro and/or associates.
[13] In May 2019, El Negro and two other armed men stopped the Applicant in his vehicle after he withdrew money from the ATM and demanded money from him. The Applicant gave them $2700 US and reported the incident to the police who said they would investigate the matter. The Applicant is not aware of any investigation into his complaint. It is not known if the police followed up or not.
[14] In June 2019, the same men kidnapped the Applicant and demanded money from him. The Applicant was released two days later after making arrangements to have them paid $20,000 US. The Applicant reported the incident to the police and the police did not seem interested in helping the claimant. He testified that he “could hear another police officer saying, like, you're Muslim, commenting that kidnapping should not be a big deal to him because he is Muslim”.
[Emphasis added]
[15] In August and September 2019, the Applicant travelled out of the country. Upon his return, El Negro and/or his associates looked for him at his stores and asked his employees for his whereabouts. As a result, the Applicant moved elsewhere, where he hid in his friend’s apartment out of fear.
[16] The Applicant received a text message from El Negro and/or his associates demanding that he pay them $30,000 US. The Applicant reported this to the police. After leaving the police station, El Negro and/or his associates found the claimant near his friend’s apartment and demanded that he pay them $30,000 US. The Applicant reported this encounter to the police on February 9, 2022. The police came up with a plan for the Applicant to deliver $10,000 US to El Negro on February 10, 2022 and the police would arrest him during delivery.
[17] On February 10, 2022, the Applicant met El Negro and gave him $10,000 US. The police did not appear as planned.
[18] The Applicant left Argentina in 2022 and entered the United States on a valid American visa, then entered Canada and claimed refugee status.
[19] The RPD held the Applicant was neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of IRPA. Although it determined that the Applicant was credible, the RPD held he does not have a well-founded fear of persecution due to his Pakistani or Muslim identity. First, the RPD asserted the Applicant could not establish a nexus between his fear of extortion and the Convention grounds (race, religion, nationality, membership in a particular social ground and political opinion) — El Negro and/or his associates likely targeted the Applicant because he was perceived to be wealthy rather than due to his Pakistani or Muslim identity. Second, the RPD held that the Applicant does not have a well-founded fear of persecution due to his Pakistani or Muslim identity outside of his problems with El Negro. It found that the mistreatment of the Applicant as a Muslim amounts to discrimination rather than persecution under section 96 of IRPA. In addition, although the RPD found that the Applicant’s risk was personalized, it asserted that he would not face a forward-looking risk if he were to return to Argentina. The RPD found that there is no indication that El Negro and/or his associates have any ongoing interest in locating the Applicant now given his businesses are closed.
[20] Notably, in discussing mixed motives underlying El Negro’s treatment of the Applicant, the RPD used the words ‘primary’
and ‘largely’
when comparing the Applicant being targeted because of his wealth and allegedly because of his race, religion and or ethnicity.
[21] The Applicant appealed to the RAD focussing on mixed motive persecution.
III.
Decision under review
[22] The RAD, as required, conducted its own review of the matter and dismissed the appeal. The RAD found the RPD was correct in finding the Applicant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97(1) of IRPA.
A.
Nexus
[23] The Applicant submits the RPD mentioned concerns regarding the Applicant’s Muslim identity “in a passing and limited manner that does not appropriately represent its weight and importance.”
The Applicant submits that although the RPD correctly found that his agents of harm “were initially motivated by money, we argue that it is important to consider the cross-section of wealth and a minority religion because the pressures that drive circumstances wherein wealth is the sole motivator versus circumstances where in both wealth and religion are motivators, which is the case for the [Applicant] are completely different and should never be conflated.”
[24] The RAD considered the Applicant’s Muslim identity when analyzing whether there is a nexus between his fear of extortion and Convention grounds, including references made by the RPD in this connection. The RPD had noted the Applicant is of Pakistani origin and a Muslim and that the Applicant testified he was well known in the community due to his business acumen and his unique ethnic and religious profile. The RPD also made reference to the fact El Negro referred to the Applicant as “Muslo”
or Muslim when he was searching for him at his stores.
[25] The RAD subsequently reviewed the record and found that references to the Applicant’s Muslim identity:
● Applicant’s BOC form states that El Negro threatened him because he is Muslim, owns several businesses and lives in an upper-class neighbourhood
● Applicant’s supplemental police complaint states that El Negro went to his business and asked for “Muslo”
● Statement by Applicant’s employee and friend who said that the men looking for the Applicant called him ““The Black”…they said just tell the Muslim a message Shahzad that he will not save from us.”
● Applicant testified to the RPD that his employee said that El Negro told him, “The Muslim is – you know, is taking out money. And so that Muslim has to pay that money.”
[26] The RAD stated that while it is possible to establish a nexus to a Convention ground where there are mixed motives, there must be reliable and persuasive evidence to suggest that a Convention ground formed part of the reason for targeting relying on Kaur v Canada (Citizenship and Immigration), 2020 FC 1130 [per Southcott J] at para 28 for this proposition. In this case, the RAD held that there was insufficient credible evidence that El Negro targeted the Applicant for extortion on the basis of his ethnic identity.
[27] Specifically, the RAD concluded: “[36] I find, as detailed above, the evidence is clear on its face and I agree with the RPD that there was insufficient credible evidence that El Negro and his associates would have been interested in targeting the Appellant if he were not wealthy or that they were motivated to harm the Appellant by anything but money.”
B.
Section 96
[28] The RPD considered whether the Applicant has a well-founded fear of persecution by reason of his Pakistani and/or Muslim identity. The RPD stated that other than the problems with El Negro, the RAD did not allege that he fled Argentina due to racism or his inability to practise his religion in Argentina. The Applicant testified at the RPD hearing that he encountered problems in Argentina, specifically with the police, and had received insults and comments due to his race and religion. The RPD noted that there is limited objective evidence regarding the treatment of Muslims in Argentina. A determinative issue is whether this discrimination based on Muslim identity rises to the level of persecution.
[29] The Applicant submits the RPD erred because it focussed its section 96 assessment on religion. The Applicant argued he “has been discriminated against to the point that his human dignity is affected to the extent where in his rights to safety and protection were made almost impossible.”
He argues he was unable to find protection through the authorities and was discriminated against due to his Muslim identity by the police citing his testimony and he overheard one of the police officers saying “you’re Muslim, kidnapping is nothing for you.”
[30] The RAD found the evidence presented by the Applicant does not demonstrate that discrimination against him on the basis of his Muslim identity amounts to persecution in his case. The RAD relied on the personalized evidence provided by the Applicant as well as country-specific evidence to make this finding.
C.
Section 97(1)
[31] The Applicant argued the RPD’s finding of lack of prospective risk was incorrect because the RPD erred in failing to consider “the effects of both race and religion — which the agents of harm have conflated.”
Moreover, the Applicant argued the RPD erred in its “superficial”
assessment of his ability to re-establish himself in Argentina as this cannot protect him from El Negro locating him and protect him from the police’s inability to protect him.
[32] The RAD disagreed and found the Applicant does not face a prospective risk of harm from his agents of persecution in Argentina. The RAD applied the doctrine of state protection noting the Applicant bears the onus of rebutting the presumption of state protection which requires clear and convincing evidence of the state’s inability to protect. The RAD held the Applicant did not satisfy his evidentiary burden to rebut the presumption of state protection.
IV.
Issues
[33] The Applicant put forward the following issues on judicial review:
1) Did the RAD err by failing to apply the mixed motives doctrine?
2) Did the RAD err by failing to apply the presumption of credibility of sworn testimony?
3) Was the RAD unfair to the applicant by doubting his credibility on a matter about which he was not questioned at this hearing without giving him a chance to respond?
4) Did the RAD err by failing to consider whether there was a nexus to the Convention refugee definition by virtue of the reason why state protection was denied?
5) Did the RAD err by separating consideration of persecution from consideration of failure of state protection, rather than viewing them as an integrated whole?
[34] With respect, the issues on judicial review are:
1) Is the RAD’s finding that the Applicant is not a Convention refugee based on an established nexus to a Convention ground reasonable?
2) Is the RAD’s finding that the Applicant didn’t meet the onus of the state protection doctrine reasonable?
3) Was it reasonable for the RAD to afford no weight to some of the Applicant’s evidence?
V.
Standard of Review
[35] In this case the standard of review is reasonableness. In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what a reviewing court should consider:
[31] 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 para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[36] Furthermore, and of direct relevance to this case, Vavilov establishes the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances”
. The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[37] The Federal Court of Appeal recently held in Doyle v Canada (Attorney General), 2021 FCA 237 that this Court may only reweigh and reassess the evidence where the tribunal has committed fundamental errors in fact-finding that undermine the acceptability of the decision:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.
[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.
VI.
Analysis
A.
Is the RAD’s finding that the Applicant is not a Convention refugee based on an established nexus to a Convention ground reasonable?
[38] This with respect is the central aspect of this judicial review application. There must be a nexus between the claimant’s fear of persecution and the enumerated Convention grounds to meet the definition of Convention Refugee (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [per La Forest J] at 732).
[39] The mixed motives doctrine relied on by the Applicant recognizes the motivation of the agent of persecution may involve more than one ground or factor (Canada (Minister of Citizenship and Immigration) v B344, 2013 FC 447 [per Noël J] at paras 39-41). In addition constraining law holds that while there may be mixed motives, one not nexus based and one relating to a nexus ground, the nexus ground may only be relied upon where there is reliable and persuasive evidence to suggest that a Convention ground formed part of the reason for the targeting: Kaur v Canada (Citizenship and Immigration), 2020 FC 1130. [Emphasis added]
[40] As a preliminary matter, the Applicant devoted significant time and attention in his written submissions, criticizing the RPD’s lack of awareness of the mixed motives doctrine and alleged errors in the RPD’s assessment and analysis. With respect, this Court’s role is to assess whether the RAD decision is reasonable, and not whether the RPD decision is reasonable.
[41] Therefore, this analysis will focus on whether the RAD’s application of the mixed motives doctrine was reasonable.
[42] The Applicant argues the RAD failed to apply the mixed motives doctrine and did not “appreciate its significance.”
He states the RAD’s finding that there were mixed motives but insufficient credible evidence “that they were motivated to harm the [Applicant] by anything but money”,
creates “confusion and uncertainty.”
Moreover, the Applicant asserts that “when an agent of persecution expresses two motivations, the conclusion that only one matters is speculative.”
[43] The Respondent submits the RAD did not fail to “appreciate the significance”
of the mixed motives doctrine or fail to apply it. The RAD relied on this Court’s decision in Kaur v Canada (Citizenship and Immigration), 2020 FC 1130 [per Southcott J] [Kaur] which states it is possible to establish a nexus to a Convention ground where there are mixed motives only where there is reliable and persuasive evidence to suggest that a Convention ground formed part of the reason for the targeting (Kaur at para 28):
[28] In reliance on Gonsalves, the RAD accepted that it is possible to establish a nexus to a Convention ground where there are mixed motives, but only where there is reliable and persuasive evidence to suggest that a Convention ground formed part of the reason for the targeting. The RAD concluded that, apart from the principal Applicant’s statement as to her belief in her BOC, there was no such evidence. The RAD distinguished Gonsalves, as the facts of that case included racial slurs directed towards the claimants.
[Emphasis added]
[44] I accept that Kaur is constraining law in relation to the issue of mixed motives.
[45] In this case, the RAD considered and assessed the evidence before it and found:
[36] I find, as detailed above, the evidence is clear on its face and I agree with the RPD that there was insufficient credible evidence that El Negro and his associates would have been interested in targeting the Appellant if he were not wealthy or that they were motivated to harm the Appellant by anything but money.
[Emphasis added]
[46] The RAD set out the evidence relied upon by the Applicant, and in my view reasonably found the few occasions where the Applicant was identified as Muslim were not enough to demonstrate he was targeted for extortion on the basis of his race, religion and or ethnic identity.
[47] Thus and with respect, there is no merit to the Applicant’s mixed motive argument. There was no failure to follow constraining law. Nor with respect is the Decision out of line with the constraining record. The Applicant had the onus to establish the alleged nexus motive, on a balance of probabilities, with reliable and persuasive evidence to suggest that a Convention ground formed part of the reason for the targeting. [Emphasis added] The RAD was not persuaded, and with respect I am not persuaded the RAD acted unreasonably in that regard, With respect this is a case where the Applicant did not reasonably meet his evidentiary burden.
[48] In addition, the Applicant is impermissibly asking this Court to reweigh and reassess the evidence. That is not the role of the Court; that is the role of the RAD, and before that, the RPD. As the Federal Court of Appeal put it in Doyle, the tribunal “alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role.” [Emphasis added]
[49] In my view the complaints of the Applicant taken either singularly or in the aggregate, do not reasonably constitute fundamental error in fact-finding that undermines the acceptability of the Decision. There is no fundamental flaw nor fatal gap. In my view, the RAD reasonably canvassed the evidence.
[50] Not only did the RAD find the Applicant’s evidence insufficient, it specifically found that money was El Negro’s only motive: “that they were motivated to harm the Appellant by anything but money.” [Emphasis added]
The RAD could not have been clearer in dismissing the Applicant’s mixed motive submissions, which conclusion I find was reasonably open to it.
B.
Is the RAD’s finding that the Applicant didn’t meet the onus of the state protection doctrine reasonable?
[51] The Applicant also submitted he was denied state protection because he was Muslim. He contends that the RAD erred by failing to consider the linkage between nexus and state protection. More specifically, he submits the RAD erred by not considering whether the failure of the Argentinian state authorities to protect the Applicant was motivated by a Convention ground. He also asserts when addressing state protection, the RAD only considered general county condition information and did not consider the denial of state protection endured by the Applicant.
[52] In this respect, the Applicant had the onus of providing “clear and convincing evidence”
to rebut the presumption of state protection. This evidence was assessed and found lacking by the RAD.
[53] In terms of the nexus argument and state protection, I note that per Badran v Canada (Minister of Citizenship and Immigration), (1996), 111 F.T.R. 211 (F.C.T.D.) the “law does not require that the inability to protect be connected to a Convention reason.”
I also note my finding above that the RAD reasonably rejected the nexus argument both based on insufficiency of evidence, and on the RAD’s finding that the only motive for El Negro was money.
[54] I am satisfied the RAD reasonably considered and rejected the Applicant’s argument that as a Muslim, he would not be able to receive state protection in Argentina. In assessing whether the Applicant had a well-founded fear of persecution pursuant to section 96 of IRPA, the RAD took into account the Applicant’s argument that he was unable to find state protection through police authorities and that police discriminated against him due to his Muslim identity when he overheard an officer say “you’re Muslim, kidnapping is nothing for you.”
Subsequently, the RAD assessed general country evidence of discrimination against Muslims in Argentina. After considering the above evidence as well as the higher evidentiary burden due to the level of democracy in Argentina, the RAD found that the Applicant did not satisfy his evidentiary burden to rebut state protection.
[55] With respect, the RAD’s finding concerning state protection is reasonable having regard to the record before it.
C.
Was it reasonable for the RAD to afford no weight to one portion of the Applicant’s evidence?
[56] The RAD noted a portion of the Applicant’s testimony to the RPD was not corroborated by the employee’s statement, as noted above, which did not contain information the Applicant said it did. The evidence is set out above, but to recall, the Applicant’s testimony was: “[t]he comments from El Negro that was also in the statement from my employee is that the Muslim is – you know, is taking our money”.
[57] The difficulty, as noted above, is that the employee’s statement does not say what the Applicant testified it said.
[58] The RAD also noted the Applicant’s evidence was uncorroborated and inconsistent. Both of these comments are accurate on the record in this case. At issue is whether these findings are reasonable.
[59] The Applicant argues the RAD failed to apply the presumption of credibility of sworn testimony to the evidence of the Applicant. In his reply submissions, the Applicant contends that the RAD erred by not referencing other occasions in evidence where the Applicant’s Muslim identity was referred to when making a finding that the above testimony is insufficient. Furthermore, he says that the conclusion the above testimony is insufficient is an adverse credibility finding rather than a determination of weight.
[60] The Applicant asserts there is no inconsistency between the evidence of the Applicant and the statement of the employee. He says the fact the employee statement does not corroborate the evidence of the Applicant doesn’t call into question the evidence of the Applicant because corroboration does not rebut the presumption of credibility of sworn testimony. He relies on Maldonado v Canada (Minister of Employment & Immigration), [1979] FCJ No 248 (FCA) [per Heald and Ryan JJ and MacKay DJ] [Maldonado] and Dayebga v Canada (Citizenship and Immigration), 2013 FC 842 [per O’Keefe J] for this proposition.
[61] In my respectful view, the RAD’s comments are not directed at credibility but merely went to weight. They are not disguised credibility findings. This is another issue of sufficiency of the Applicant’s evidence to establish his allegation of nexus.
[62] I find the treatment of this evidence was reasonable and in line with constraining jurisprudence and the evidence in this case. Here, the employee gave a written statement, therefore I conclude corroborating evidence was reasonably available. In addition, the onus rests on the Applicant to provide sufficient evidence to support his claims: Sallai v Canada (Citizenship and Immigration), 2019 FC 446 [per Kane J] at para 57; Huang v Canada (Citizenship and Immigration), 2018 FC 940 [per Gascon J] at para 43. This is especially so where the evidence is tendered by a witness with personal interest in the matter as it “typically…requires corroboration if it is to have probative value”
: Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067 [per Zinn J] at para 27.
[63] I also agree with the Respondent that a Court may believe the truthfulness of the Applicant’s testimony yet determines he failed to provide sufficient evidence to establish the allegations based on a balance of probabilities (Sallai v Canada (Citizenship and Immigration), 2019 FC 446 at para 57).
VII.
Conclusion
[64] In my view, the RAD’s decision is reasonable in that it is justified, transparent and intelligible in terms of constraining law and the evidence in this case. Therefore this application for judicial review will be dismissed.
VIII.
Certified Question
[65] Neither party proposed a question of general importance, and none arises.
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