Docket: IMM-6517-22
Citation: 2024 FC 13
[ENGLISH TRANSLATION]
Montréal, Quebec, January 4, 2024
Present: Mr. Justice Gascon
BETWEEN: |
HAMZA KAMARA MAKEYIATU IBRAHIM SORIE KAMARA HAMZA IMAN KAMARA |
Applicants |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The applicants, Hamza Kamara and his spouse, Makeyiatu Ibrahim Sorie Kamara, are citizens of Sierra Leone; they are also accompanied by their minor son, Hamza Iman Kamara, who is a citizen of Brazil [together, the Kamaras]. They are seeking judicial review of a decision dated June 16, 2022 [Decision], by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada rejecting their refugee protection claim on the ground that they are not refugees or persons in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In its Decision, the RAD confirmed the previous decision by the Refugee Protection Division [RPD] and found that the Kamaras’ account lacked credibility and that their behaviour showed a lack of subjective fear of persecution.
[2] The Kamaras submit that the RAD’s Decision is unreasonable. First, they allege that the RAD erred in finding that racism in Brazil did not constitute discrimination that could be equated with persecution and by ignoring the most recent documentary evidence in that respect. They also maintain that the Decision contains other important errors concerning their credibility and their subjective fear, sufficient to warrant judicial intervention.
[3] For the following reasons, I will dismiss this application for judicial review. Given the RAD’s conclusions, the evidence before it and the applicable law, I see no reason to set aside the Decision, as it is reasonable and contains no serious shortcomings that would require the Court’s intervention.
II. Background
A. Facts
[4] The Kamaras state that they fear being persecuted by Mr. Kamara’s family if they return to Sierra Leone.
[5] In 2012, Mr. Kamara’s family, who are from the Temne tribe, learned that Mr. Kamara was in a relationship with Mrs. Kamara, whose family is from the Susu tribe. According to Mr. Kamara’s family, he must not marry Mrs. Kamara. In particular, Mr. Kamara’s father, a rich businessman in Sierra Leone, told his son that he would not accept Mrs. Kamara as part of their family.
[6] As a result of that conflict, Mrs. Kamara was the target of reprisals by Mr. Kamara’s family. For instance, Mr. Kamara’s aunt threw hot water on her feet. As well, a few months after Mrs. Kamara became pregnant in 2015, she was the victim of an attack by Mr. Kamara’s father, which resulted in a miscarriage.
[7] In 2017, the couple nonetheless married in the city of Bo in Sierra Leone. Mr. Kamara’s mother was the only member of his family to attend the ceremony. After their wedding, however, Mr. Kamara and his spouse returned to live in Mr. Kamara’s family home for a while to retrieve their personal effects and arrange a few matters before leaving for the city of Bo.
[8] After the newlyweds left, Mr. Kamara’s family began searching for them. When the family was informed that the couple were living in Bo with Mrs. Kamara’s grandmother, they hired someone to practise black magic on the couple.
[9] After saving up the necessary money, Mr. Kamara and his spouse finally decided to leave Sierra Leone for Brazil in September 2018, as they feared being victims of another attack that would kill their unborn child. At that time, Mrs. Kamara was seven months pregnant. They first travelled to Ecuador, where they were able to enter without a visa, and then travelled to Brazil, where their son Hamza Iman was born.
[10] In Brazil, Mr. Kamara, his spouse and their son lived in a precarious situation in camps close to shanty towns and faced racism, among other challenges. As a result of the discrimination they faced in Brazil, the Kamaras left the country and took steps to come to Canada to claim refugee protection.
B. RAD Decision
[11] The RPD found that the Kamaras’ account was not credible, that they have an internal flight alternative in Sierra Leone in Bo, and that state protection is available to them in their country of citizenship. It therefore rejected their refugee protection claim.
[12] On appeal, the RAD concluded that the determinative issue was credibility. According to the RAD, the Kamaras’ behaviour shows a lack of subjective fear, particularly because the couple did not seek protection from their agents of persecution in Sierra Leone. For instance, the RAD observed that Mr. Kamara and his spouse continued to live with Mr. Kamara’s parents, even after his father’s attack on Mrs. Kamara. The RAD also noted the significant delay before Mr. and Mrs. Kamara decided to leave Sierra Leone.
[13] The RAD also found that the failure to mention the death threats they received from Mr. Kamara’s father in the first written account in their Basis of Claim Form [BOC Form] undermines their credibility. The RAD also assigned little weight to the affidavits filed in support of the refugee protection claim. The RAD thus concluded that the Kamaras did not demonstrate a serious possibility of persecution or that, on a balance of probabilities, they would be personally subjected to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment if they were to return to Sierra Leone.
[14] Finally, the RAD determined that the Kamaras did not demonstrate that their minor son would be personally subjected to a serious possibility of persecution, a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Brazil because of the racism they state that they experienced there. In that respect, the RAD concluded that the Kamaras had failed to establish that the racial discrimination faced in Brazil was serious or systematic enough to amount to a reasonable fear of persecution.
C. Standard of review
[15] It is well known that the RAD’s findings on credibility issues are reviewable on a standard of reasonableness (Lin v Canada (Citizenship and Immigration), 2021 FC 380, at para 19; Adelani v Canada (Citizenship and Immigration), 2021 FC 23, at paras 13–15). Moreover, the assessment of persecution behind incidents of discrimination is a question of mixed fact and law that is also reviewable on a standard of reasonableness (Ban v Canada (Citizenship and Immigration), 2018 FC 987, at para 17; Kamran c Canada (Citizenship and Immigration), 2011 FC 380, at para 24, citing Tetik v Canada (Citizenship and Immigration), 2009 FC 1240, at para 25 [Tetik]).
[16] In addition, the analytical framework for a judicial review of the merits of an administrative decision is now the one established by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] (Mason v Canada (Citizenship and Immigration), 2023 SCC 21, at para 7 [Mason]). This framework is based on the presumption that the applicable standard of review in all cases is now that of reasonableness.
[17] Where the applicable standard of review is reasonableness, the role of a reviewing court is to examine the reasons given by the administrative decision maker and to determine whether the decision is based on “an internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
(Mason, at para 64; Vavilov, at para 85). To make this determination, the reviewing court asks “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility”
(Vavilov, at para 99, citing in particular Dunsmuir v New Brunswick, 2008 SCC 9, at paras 47, 74).
[18] It is not sufficient for the decision to be justifiable. In cases where reasons are required, the decision “must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies”
[italics in original] (Vavilov, at para 86). Thus, a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome (Vavilov, at para 87). This exercise must include a rigorous evaluation of administrative decisions. However, in its analysis of the reasonableness of a decision, the reviewing court must adopt a “reasons first”
approach, examine the reasons provided with “respectful attention”
, and seek to understand the reasoning process followed by the decision maker to arrive at its conclusion (Mason, at paras 58, 60; Vavilov, at para 84). The reviewing court must adopt an attitude of restraint and intervene “only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process”
(Vavilov, at para 13). The reasonableness standard always finds its starting point in the principle of judicial restraint and deference, and requires reviewing courts to show respect for the distinct role that Parliament has chosen to confer on administrative decision makers rather than on the courts (Mason, at para 57; Vavilov, at paras 13, 46, 75).
[19] The party seeking judicial review bears the burden of showing that a decision is unreasonable. To set aside an administrative decision, the reviewing court must be satisfied that there are sufficiently serious shortcomings to make the decision unreasonable (Vavilov, at para 100).
III. Analysis
A. Risk to minor child in Brazil
[20] The Kamaras first claim that the RAD erred in concluding that they had not demonstrated that their minor child would be a victim of repeated racial discrimination that could be considered persecution should he return to Brazil. In particular, they claim that the RAD failed to make a reasonable analysis of the rampant discrimination in Brazil in light of the National Documentation Package [NDP] for that country. In support of their position, the Kamaras cite numerous passages from the NDP that, in their opinion, indicate the seriousness of racism in Brazil and the discrimination against African immigrants and Afro-Brazilians. They also allege that the RAD ignored the most recent version of the NDP, a version that describes African immigrants in Brazil as modern-day slaves.
[21] I am not persuaded by the Kamara’s arguments.
[22] It is a well-established principle that the RAD is presumed to have reviewed all the evidence on record and is not required to refer to each element considered in its analysis, including all documents contained in the NDP for the country in question (Khelili v Canada (Public Safety and Emergency Preparedness), 2022 FC 188, at para 29, citing Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86, at para 36, and Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA) (QL), at para 1; Simolia v Canada (Citizenship and Immigration), 2019 FC 1336, at para 20 [Simolia], citing Quebrada Batero v Canada (Citizenship and Immigration), 2017 FC 988, at para 13 and Akram v Canada (Minister of Citizenship and Immigration), 2004 FC 629, at para 15). The Supreme Court of Canada has also expressly noted that “[r]easons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element”
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 16).
[23] However, I recognize that, when an administrative decision maker does not properly deal with evidence squarely contradicting its findings of fact, the Court may intervene and infer that the decision maker overlooked the contradictory evidence when reaching its conclusion (Ozdemir v Canada (Minister of Citizenship and Immigration), 2001 FCA 331, at paras 9–10; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL), at para 17) [Cepeda-Gutirerrez]). That said, Cepeda-Gutierrez does not state that the mere failure to refer to important evidence that contradicts the decision maker’s conclusion automatically renders a decision unreasonable and causes it to be set aside. On the contrary, Cepeda-Gutierrez states that only when the omitted evidence is essential and directly contradicts the administrative tribunal’s conclusion can the reviewing court infer that the tribunal failed to consider the evidence before it.
[24] Failure to consider specific evidence must therefore be viewed in context (Khir v Canada (Citizenship and Immigration), 2021 FC 160, at para 48; Torrance v Canada (Attorney General), 2020 FC 634, at para 58). In the case of the Kamaras, there is nothing on record to suggest that the RAD did not consider the evidence before it.
[25] Moreover, with respect specifically to the issue of discrimination, the Court has repeatedly confirmed the RAD’s conclusions that the discrimination sometimes experienced by African immigrants and Afro-Brazilians in Brazil does not necessarily amount to persecution (Morissaint v Canada (Citizenship and Immigration), 2020 FC 413, at paras 17–20 [Morissaint], citing Celestin v Canada (Citizenship and Immigration), 2020 FC 97, at para 62; Debel v Canada (Immigration, Refugees and Citizenship), 2020 FC 156, at para 29 [Debel]; Simolia, at paras 26–27; Noel v Canada (Citizenship and Immigration), 2018 FC 1062, at paras 28–31). Thus, “to show that the incidents of harassment or discrimination amounted to persecution, the applicant had to establish that, cumulatively or singly, they constituted a serious, systematic and repeated violation of his core human rights”
(Morissaint, at para 18; Tetik, at para 27).
[26] Here, the RAD observed that the Kamaras often suffered from racial abuse in Brazil, which is certainly upsetting and deplorable. However, it was open for the RAD, in light of the evidence before it, to conclude that that abuse, as regrettable as it might be, was not serious or systematic enough to constitute persecution, even cumulatively. In light of the facts and the case law, I do not see anything that would lead me to conclude that the RAD’s conclusions on the lack of risk to the Kamaras’ minor son in Brazil are unreasonable.
[27] As noted by the Minister, the Kamaras are in fact asking the Court to reassess the evidence and substitute its own conclusions for those of the RAD, which is not its role in a judicial review.
[28] I now turn to the Kamaras’ argument that the RAD failed to consider the most recent version of the NDP on Brazil. For the following four reasons, I conclude that this argument has no merit.
[29] First, as the Minister argues, the Kamaras did not submit any passages from the NDP to the RAD at the appeal stage. Indeed, it is clear from the Kamaras’ appeal memorandum before the RAD that they did not refer to any article from the NDP on Brazil in support of their argument that their minor son would be at risk of persecution if he were to return to Brazil. It is well established in case law that, when a refugee protection claimant fails to raise an issue before the RAD, an argument that the RAD did not consider the evidence related to that issue cannot suddenly appear at the judicial review stage and must therefore be rejected (Eyitayo v Canada (Citizenship and Immigration), 2020 FC 1072, at paras 26–27).
[30] It is also undeniable that the RAD did not ignore the documentary evidence and that it explicitly referred to several tabs of the NDP in its reasons. The Kamaras maintain that a new version of the NDP for Brazil became available on May 31, 2022—before the Decision was issued on June 16, 2022—and that the new version modified some important passages in tabs 13.1 and 13.2 of the NDP on racism and discrimination in Brazil. The Kamaras reproduce several excerpts in their memorandum before this Court and believe that the RAD should have considered them in its reasons.
[31] I do not dispute that the RAD must consider the most recent NDP in assessing the risk of persecution (Oymali v Canada (Citizenship and Immigration), 2017 FC 889, at paras 28–29), even if that new version only becomes available after the parties’ submissions. Indeed, the RAD is to engage in a forward-looking analysis of risk, and thus it is generally required to rely on the most recent information available about the relevant country. However, the onus is on the refugee protection claimant to demonstrate not only that the new NDP contains recent information that the RAD did not consider, but also that the more recent information deviates from the previous information and could have changed the decision rendered. Indeed, a refugee protection claimant citing failure by the RAD to consider the most recent documentary evidence must show that the new information is sufficiently different, novel and significant.
[32] I will pause here a moment to note that, even when the RAD considers information that only became available after the parties’ submissions, it is not necessarily required to inform the parties unless the information in question is sufficiently different, novel and significant. Indeed, it is only when the information is sufficiently “different, novel and significant”
that a failure to cite it or give the claimant an opportunity to make submissions about it can constitute a denial of procedural fairness (Siddique v Canada (Citizenship and Immigration), 2022 FC 964, at paras 22–23; Thind v Canada (Citizenship and Immigration), 2022 FC 1782, at paras 21–22). In short, when the new information is not sufficiently different, novel and significant, there is no breach of the rules of procedural fairness if the RAD fails to give a claimant the opportunity to comment on it.
[33] In the same vein, a refugee protection claimant who wants to criticize the RAD for failing to consider new documentary evidence must show that the new information is sufficiently different, novel and significant and could change the decision. In this case, I cannot conclude that the Kamaras have demonstrated that the information contained in the new version of the NDP and cited in their submissions was novel, different and significant.
[34] Indeed, Tab 13.11 of the NDP referred to by counsel for the Kamaras at the hearing before the Court was in the version of the NDP dated July 29, 2022, but was not in the version dated July 30, 2021, used by the RAD in the Decision or in the version dated May 31, 2022, published between the RAD hearing and the date of the Decision. Incidentally, there is no difference between the documents contained in the NDPs dated July 30, 2021, and May 31, 2022, respectively, with respect to the treatment of African immigrants and Afro‑Brazilians. Tab 13, which deals with the issues of “Nationality, Ethnicity and Race” contains the same articles in both versions.
[35] The excerpts describing the conditions of African immigrants and Afro-Brazilians do not appear in the NDP until July 29, 2022, after the Decision rendered on June 16, 2022. Thus, when the RAD rendered its Decision on June 16, 2022, the new Tab 13.11 submitted by the Kamaras to invalidate the Decision was not available. The RAD certainly cannot be faulted for ignoring documentary evidence that did not exist at the time of the decision.
[36] In addition, I note that the RAD recognized that the context was difficult for Afro-Brazilians in Brazil. However, it went on to observe the lack of a link between the general documentary evidence on Afro-Brazilians and the Kamaras’ personal situation (Riboul v Canada (Citizenship and Immigration), 2020 FC 263, at para 39). It is well established that claimants cannot simply cite the NDP about the country for which they are citing a fear of persecution (Morissaint, at para 19; Debel, at para 29), but must also submit subjective evidence concerning their particular situation.
[37] Finally, I acknowledge that the dividing line between discrimination and persecution can sometimes be difficult to draw. However, in light of the Kamara’s written account and the documentary evidence dealing with the experience of African immigrants in Brazil, I find that it was reasonable for the RAD to conclude that the discrimination alleged by the Kamaras did not amount to persecution. Nothing in the evidence permitted the RAD to conclude that the discrimination experienced was so serious and so repeated that it should constitute persecution. For all of these reasons, it follows that there is no reviewable error in the RAD’s analysis of the Kamaras’ fear in respect of Brazil and that the analysis is completely reasonable.
B. Kamaras’ lack of credibility
[38] As a second argument attacking the RAD Decision, the Kamaras submit that several findings by the RAD concerning their credibility are unreasonable. They present three main complaints. First, they claim that the RAD erred in concluding that the delay before the Kamaras’ left the home of Mr. Kamara’s father and Sierra Leone was unreasonable. Second, the Kamaras argue that the RAD erred in ruling that the omission of the death threats by Mr. Kamara’s father from their first BOC Form undermined their credibility. According to them, the RAD did not distinguish between making a change that could be considered a different declaration and simply providing clarifications to the initial written account. Finally, the Kamara family claims that the RAD erred in refusing to consider the passages from the NDP on Sierra Leone and the profile of Mr. Kamara’s father as part of the reason their inter-ethnic marriage was not accepted in their country.
[39] According to the Kamaras, these errors led the RAD to determine that their behaviour was inconsistent with that of persons who fear for their lives. They state that they provided explanations to the RAD to justify the delay in leaving their country—including their young age—and the fact that they returned to live with Mr. Kamara’s father after the attack that caused Mrs. Kamara to suffer a miscarriage. Thus, it was when Ms. Kamara became pregnant again in 2018 that they decided to leave Sierra Leone permanently to avoid losing a second child.
[40] Again, I am not persuaded by the Kamaras’ arguments.
[41] Let us first look at the RAD’s conclusions concerning the lack of subjective fear. Case law from this Court has repeatedly recognized that a return to their country of persecution or a delay in leaving the country can demonstrate a lack of subjective fear and seriously undermine the credibility of refugee protection claimants (St-Sulne v Canada (Citizenship and Immigration), 2020 FC 620, at para 10, citing Profète v Canada (Citizenship and Immigration), 2010 FC 1165, at para 13; Manirakiza v Canada (Citizenship and Immigration), 2009 FC 1309, at para 18). That is precisely what the evidence reveals in the Kamaras’ case and, under the circumstances, it was entirely open to the RAD to find that Mr. and Mrs. Kamara’s behaviour could indicate a lack of subjective fear that undermines their credibility.
[42] This issue, it must be remembered, is a question of fact and of weighing the evidence, which is within the expertise of the RAD. When assessing credibility, it is well known that the RPD and the RAD have discretion in determining the weight to be assigned to various pieces of evidence (Okbet v Canada (Citizenship and Immigration), 2021 FC 1303, at paras 32–33, [Okbet], citing Tariq v Canada (Citizenship and Immigration), 2015 FC 692, at para 10 [Tariq]). Thus, “[a]nalyzing findings of fact and determinations of credibility fall within the heartland of its expertise ... . Therefore, the Court should not substitute its own findings for those of the RPD where the conclusions it reached were reasonably open to it”
(Tariq, at para 10). In this case, the RAD assigned more weight to the Kamaras’ behaviour, their delay in leaving the country, and the fact that they returned to live with their agent of persecution, Mr. Kamara’s father. I see nothing unreasonable in the RAD’s analysis or in its conclusion that the Kamaras’ behaviour was inconsistent with that of persons fearing for their lives.
[43] With respect to the change to their BOC Form, the RAD did not simply draw a negative inference from the mere fact that the Kamaras had submitted an amended BOC Form. The RAD instead analyzed the elements that had been omitted from the first version of the BOC Form, namely the death threats uttered by Mr. Kamara’s father.
[44] I do not dispute that there is indeed a distinction between making a change to add a different statement and adding clarifications to the initial written account: “[w]hen [BOC Form] amendments do not in any way change an applicant’s story, but simply provide more detail to information that is already on the record, this alone does not undermine the presumption that the testimony of the witness is true”
(McKenzie v Canada (Citizenship and Immigration), 2019 FC 555, at para 18).
[45] However, with respect, that is not what happened here. As the RAD reasonably concluded, the Kamara’s omission was much more than a mere clarification. At paragraph 14 of its Decision, the RAD notes that it is well established that all important facts from a claimant’s written account must appear in the BOC Form and that failure to include them, without a reasonable explanation, can deal a fatal blow to the credibility of a refugee protection claim. Such an omission can therefore be sufficient to undermine the credibility of a claimant’s entire account: “[t]here is only so far that one can stretch the basis of a claim through amendments to the BOC Form without tainting the claimant’s credibility”
(Occilus v Canada (Citizenship and Immigration), 2020 FC 374, at para 25, citing Walite v Canada (Citizenship and Immigration), 2017 FC 49, at paras 53–54; Theodor v Canada (Citizenship and Immigration), 2009 FC 396, at para 11).
[46] There is no doubt that the amendment made by the Kamaras was related to a crucial element of their refugee protection claim and was central to the alleged risk of persecution, the behaviour of their main agent of persecution, Mr. Kamara’s father. Moreover, these were not trivial details or actions: the amendment to the BOC Form referred to death threats in addition to the attack on Mrs. Kamara and the harm she suffered. It was therefore entirely open to the RAD to find that the omission of that central element of the Kamaras’ account and their fear of persecution could undermine the credibility of their entire account. It was also after those death threats that the Kamaras decided to leave the country.
[47] Finally, with respect to the allegations that the RAD misinterpreted the objective evidence concerning inter-ethnic marriages in Sierra Leone, I note that, in the Decision, the RAD clearly reviewed the Kamaras’ submissions and the relevant objective evidence before expressing and explaining its disagreement with their claims. The RAD therefore did not ignore the passages from the NDP on Sierra Leone and the profile of Mr. Kamara’s father as potentially among the reasons why an inter-ethnic marriage is not accepted.
[48] Again, the RAD is presumed to have considered all evidence on the record and is not required to refer to each element under consideration (Simolia, at para 20). The RAD also has discretion concerning the weight to be assigned to the various pieces of evidence (Okbet, at paras 32–33). Here, the RAD specifically referred to a passage from the NDP cited by the Kamaras. After analyzing the entire passage—which notes that [translation] “interethnic and inter-religious marriages are common as long as they are between people of the same caste (or social class)”—
the RAD determined that the word “common”
did not demonstrate that people from different castes could not marry. The RAD thus clearly reviewed the Kamaras’ submissions and the relevant objective evidence before explaining why it disagreed with their interpretation of the documentary evidence cited.
[49] In short, the arguments put forth by the Kamaras for challenging the RAD’s findings on their lack of credibility amount to a disagreement concerning the weight assigned to the evidence and the RAD’s interpretation. However, it is well established that such a disagreement is not sufficient to justify the Court’s intervention. For a reviewing court to set aside an administrative decision, it must instead be satisfied that there are sufficiently serious shortcomings to make the decision unreasonable (Vavilov at para 100). Given the RAD’s conclusions, the evidence before it and the applicable law, I am of the view that the Decision contains no serious flaws and that the Kamaras have not demonstrated that the Decision is unreasonable.
IV. Conclusion
[50] For the above reasons, the application for judicial review is dismissed.
[51] Neither party proposed any questions of general importance for certification, and I agree that there are none.
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