Date: 20090430
Docket: IMM-3825-08
Citation: 2009 FC 422
Ottawa, Ontario, April
30, 2009
PRESENT: The Honourable Mr.
Justice Orville Frenette
BETWEEN:
WARDOUGOU
AHAMAT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review of a decision dated
August 7, 2008, in which the Refugee Protection Division (RPD) of the
Immigration and Refugee Board determined that the applicant was neither a
"Convention refugee" nor a "person in need of protection"
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, and consequently
rejected the applicant's refugee claim.
Facts
[2]
The
applicant, Wardougou Ahamat, is a 24 year-old Chadian citizen from the Goran
ethnic group. His mother, sister and three brothers are still living in Chad.
[3]
The
applicant's father, a career soldier and commander in the national army of Chad, was
apparently targeted by the government in place following a show of dissent on
the part of a former defence minister of Goran origin. On June 2, 2007, the
applicant's father left on a mission in eastern Chad, and on
June 5, 2007, he deserted the Chadian army to join the Union of
Forces for Democracy and Development, a rebel movement. The father has not
returned home since, and is no longer looking after his family.
[4]
On
June 7, 2007, soldiers from the country's Presidential Guard and agents from its
National Security Agency broke into the applicant's family's home in N’djamena,
searched through the house, roughed up the people who were present and accused
the applicant's father of treason. The applicant then left Chad using false
documents, and arrived in New York City (United States of
America)
on August 5, 2007. The applicant's mother, sister and brothers have
continued to live in Chad since his departure and have had no major
problems, apart from their fears and subsistence-related concerns.
[5]
On
September 15, 2007, the applicant arrived in Canada and claimed
refugee status.
The impugned
decision
[6]
The
RPD determined that the applicant was neither a "Convention refugee"
nor a "person in need of protection". It analyzed the evidence and
expressed the view that the applicant was not credible and that his narrative
was implausible. In its determination, the narrative was made up for the
purposes of his claim, and he came to Canada simply to continue his
studies.
[7]
In
the RPD's determination, the applicant claimed to be in danger because his
father had deserted the army to join a rebel movement. At the hearing, he said
that all members of his family had been arrested; in addition, in his Personal
Information Form (PIF), he stated the following: [TRANSLATION] "the soldiers
beat my uncles Maidé Ahamat and Hemchi Ahamat and my cousin Ali Adoum; they restrained
them and humiliated them in front of the family."
[8]
The
RPD identified various contradictions and implausibilities in the applicant's
account and in the manner in which he testified; this is why it deemed him not
to be credible. The RPD found that the applicant had made up his story to
justify his refugee claim, and that he came to Canada to pursue
his studies.
Issue
[9]
Is
the RPD's decision reasonable?
The applicable standard
of review
[10] The standard
of review applicable to decisions involving questions of fact or questions of
mixed fact and law is reasonableness simpliciter. Where questions of
pure law or the application of the principles of natural justice are involved,
the correctness standard applies (Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190).The decision in Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12, reminds us that decisions of administrative
bodies regarding factual questions require deference.
Analysis
[11] The applicant
submits that the RPD made determinative factual errors and perverse and
capricious findings.
[12] Before analyzing
these allegations, I feel it is essential to consider the RPD's determination
regarding the applicant's credibility and the contradictions and
implausibilities that were raised.
[13] First of all,
the applicant admitted that he fled Chad using false documents.
In my opinion, the use of such a method is one of numerous factors that
can serve to determine a person's credibility. This type of cheating can leave
doubts as to credibility.
[14] Secondly,
when the applicant was asked, at the hearing, to explain the risk in Chad, he said
that on June 7, 2007, soldiers and agents of the National Security
Agency [TRANSLATION] "beat, restrained and arrested members of [his]
family". However, in his PIF, he does not mention that they were arrested,
even though it is a very important point, and one that he made during his
testimony.
[15] Thirdly, the
applicant's mother and brothers have remained in Chad without any
particular risk other than financial difficulties. The applicant's uncle is a
businessman who lives in Nigeria. Another of the
applicant's uncles is living and studying in Chad without any
problems. According to the applicant, he studied in Ghana in 2006 and
2007 and could have returned there to study, the only obstacles being financial.
[16] Fourthly, the
applicant obtained a U.S. student visa and went to the United
States
for a week, but did not claim refugee status there.
[17] The RPD
considered all these factors and the applicant's demeanour at the hearing. It
found that the applicant tried to adjust his answers to the questions that he
was asked, and concluded that his narrative or account was not credible.
[18] The applicant
submits that the RPD unreasonably interpreted the facts regarding the following
five points: (1) the arrests of his uncles and cousin; (2) his failure to claim
protection in the United States; (3) refuge in Ghana; (4) the
fact that his mother, sister and brothers are still in Chad; and (5) the
RPD's impartiality.
[19] With respect
to the first point, the applicant refers to use of the word [TRANSLATION]
"restrained" in his PIF, as opposed to the use of the word
[TRANSLATION] "arrested" at the hearing.
[20] With respect
to the second point, the applicant complains that the RPD disregarded his
assertion that he had always intended to come to Canada, but he did not explain
why he decided to obtain a U.S. student visa instead of a Canadian one,
even though he claims that he wished to study in Canada.
[21] With respect
to the third point, the applicant explains that he did not seek refuge in Ghana because he
could not afford to study there. And yet, he said that he came to Canada to study.
[22] With respect
to the fact that his mother, sister and brothers live in Chad, the
applicant did not assert that they were at risk, but merely referred to the
general documentary evidence.
[23] As for the panel’s
impartiality, the applicant submits that the RPD had preconceived notions about
children originating from Francophone African countries. The respondent contests
this allegation, explaining that the reference to Francophone African countries
does not constitute sufficient evidence of an appearance of bias based on the
test articulated by the Supreme Court of Canada in Committee for Justice and
Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pages 394-395.
In my opinion, the respondent is correct and this allegation of bias is
outlandish.
[24] Upon analyzing
the applicant's challenges against the RPD's decision on microscopic points,
one must conclude, for the following reasons, that they are not well-founded in
fact or in law.
[25] The RPD saw
and heard the applicant; it was entitled to consider his demeanour, the manner
in which he testified, and the contradictions and implausibilities raised above
(Aguebor v. Minister of Employment and Immigration (1993), 160
N.R. 315 (F.C.A.); Jarada v. Minister of Citizenship and Immigration,
2005 FC 409; Singh v. Minister of Citizenship and Immigration,
2007 FC 62). The RPD was also entitled to cite common sense
and reason in assessing the credibility and plausibility of a claimant's
statements (Mahamat v. Minister of Citizenship and Immigration, 2009 FC
157; Singh v. Minister of Citizenship and Immigration, 2008 FC 408).
[26] The refugee
claimant bears the burden of establishing both the subjective and the objective
elements of his fear of returning to his country of origin (Chan v. Canada
(Minister of Employment and Immigration), [1995] 3 S.C.R. 593; Gilgorri v. Minister
of Citizenship and Immigration, 2006 FC 559).
[27] "Asylum
shopping" is not a permitted course of conduct for refugee claimants. The
applicant could have sought protection in the United States, but did not
do so. Why Canada? The
applicant should have sought protection at the first opportunity (Saleem v. Minister
of Citizenship and Immigration, 2005 FC 1412, at paragraph 28; Reyes v. Minister
of Citizenship and Immigration, 2005 FC 418; Samseen v. Minister of
Citizenship and Immigration, 2006 FC 542).
[28] The applicant
complains that the RPD did not consider or refer to all the oral, written or
documentary evidence before it. But in order for that complaint to be valid,
the applicant would have needed to rebut the presumption that the panel considered
all the evidence, and this, he did not succeed in doing (Florea v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.)
(QL); Ahmad v. Minister of Citizenship and Immigration, 2003 FCT 471,
at paragraph 26). Moreover, the decision-maker was not required to specify
every facet of the evidence in support of its decision.
[29] The Court
cannot assess the evidence anew and simply substitute its opinion for that of
the panel (Chen v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 551 (C.A.) (QL); Zrig v. Canada (Minister of Citizenship
and Immigration), [2003] 3 F.C. 761 (C.A.); Ahmad, above; Singh
v. Minister of Citizenship and Immigration, 2006 FC 743; Arizaj v. Minister
of Citizenship and Immigration, 2008 FC 774).
[30] The
possibility that a few minor errors or inaccuracies may have made their way
into the understanding of the evidence resulting from the applicant's confused
or ambiguous testimony is not a ground for review unless those errors are
important, which they are not in the case at bar (Kar v. Minister
of Citizenship and Immigration, 2009 FC 143, at paragraph 32; Anwar et
al v. Minister of Citizenship and Immigration, 2008 FC 305, at paragraph
26; and Ielovski v. Minister of Citizenship and Immigration,
2008 FC 739, at paragraph 9).
Conclusion
[31] The applicant
has failed to show that the RPD's decision was erroneous in fact and in law.
For these reasons, the application for judicial review is dismissed.
JUDGMENT
The Court
orders that:
The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board dated August 7, 2008,
is dismissed.
No question will be certified.
" Orville
Frenette"
Certified
true translation
Susan
Deichert, Reviser
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