Docket: IMM-3447-15
Citation:
2016 FC 260
Ottawa, Ontario, March 3, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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FADUMO SHARIF
ABDULLAHI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] challenging a decision by the Refugee Appeal
Division [the Board or RAD] confirming the Refugee Protection Division’s [RPD]
finding that the Applicant, Fadumo Sharif Abdullahi (a.k.a. Habiba Mohammed
Ilmi), is neither a Convention refugee nor a person in need of protection
pursuant to sections 96 and 97 of the Act. The Applicant is seeking to have the
RAD decision set aside and sent back for redetermination by a different panel.
[2]
For the reasons that follow, the application is dismissed.
I.
Background
[3]
The Applicant is allegedly a citizen of Somalia
and a single female of the Asharaf minority clan who fear the majority clan,
Habar Gidir, and the terrorist group, Al Shabaab.
[4]
The Applicant alleges that after a series of
events in Somalia including undergoing female genital mutilation [FGM], being
the recipient of death threats, and an attempt of being sold and forced into
marriage, she married a man her age in order to protect herself from forced
marriage. As a result of this marriage, death threats were directed at her
husband and he ran away three months after their wedding and was never heard of
again.
[5]
In October 2012, the Applicant travelled to the
United States with a smuggler’s assistance. Upon arrival, the authorities
determined by means of a fingerprint match that the Applicant’s name was Faduma
Sharif Adbullahi and not Habiba Mohamed Ilmi, the name she provided. The
Applicant remained in detention until her claim was denied on June 13, 2013 despite
having a credible basis.
[6]
On July 31, 2013, the Applicant entered Canada and
claimed refugee protection. Her refugee protection application was heard in
five different hearings spanning from December 2013 to November 2014.
On March 30, 2015, the RPD ultimately rejected the refugee claim upon concluding
that the Applicant failed to establish her identity on a balance of probability
and that her evidence lacked credibility in other material areas of her claim.
[7]
On April 21, 2015, the Applicant appealed the
RPD decision to the RAD and on July 8, 2015, the RAD confirmed the
RPD decision. The RAD decision forms the basis of this judicial review.
II.
Impugned Decision
[8]
The Applicant submitted two pieces of evidence
she wished the RAD accept as new. The first was a witness affidavit intended to
corroborate the Applicant’s identity [the identity evidence], whereas the
second was a Registered Psychotherapist’s report intended to establish that the
Applicant suffered from PTSD which adversely impacted her testimony before the
RPD. The RAD found this evidence was available prior to the RPD’s decision and
therefore failed to meet the test for new evidence of subsection 110(4) of the
Act.
[9]
In reviewing the record before the RPD, the RAD
considered whether the RPD erred in its assessment of the Applicant’s medical
report, interpretation issues, use of a “fake name,” clan and religious
identity, and risk profile. The RAD found that on all elements, except for the
Applicant’s risk factor, the RPD’s findings were reasonable. As for the
Applicant’s risk factors, the RAD agreed with the RPD that it was under no
obligation to consider risk factors as the Applicant failed to establish her
identity in regards to her belonging to a minority clan, or that she is a
citizen of Somalia.
III.
Issues
[10]
The following issues arise in this application:
1.
Did the RAD err in refusing to admit the
Applicant’s newly submitted evidence?
2. Did the RAD err in its credibility findings?
IV.
Standard of Review
[11]
It is common ground that the deferential
standard of review of reasonableness applies to the issue of the RAD’s decision
to admit new evidence (Singh v Canada (Minister of Immigration and
Citizenship), 2014 FC 1022, para 42 [Singh]) and the reasonableness
of its credibility findings (Cabdi v Canada (Minister of Immigration and
Citizenship), 2016 FC 26, para 16).
V.
Analysis
A.
Did the RAD err in refusing to admit the
Applicant’s newly submitted evidence?
[12]
The Applicant submits that it was unreasonable
for the RAD to reject the Applicant’s new material evidence in order to answer
deficiencies in her case raised by the RPD. The RAD must consider the
Applicant’s right to submit evidence to answer to the weaknesses in her claim
in order to fully benefit from the RAD’s fact-based appeal (Singh, para
55; Awet v Canada (Minister of Citizenship and Immigration), 2015 FC
759, para 10).
[13]
I find that the RAD reasonably rejected the
Applicant’s new evidence. The Applicant, in arguing otherwise, mischaracterizes
the respective roles of the RPD and the RAD with respect to the issue of
introducing new evidence. The RAD does not operate as a de novo appeal that
allows an appellant to provide “improved” evidence of a similar nature on an
issue that was canvassed and decided by the RPD, when this evidence could
reasonably have been introduced before the RPD (Dhillon v Canada (Minister
of Citizenship and Immigration), 2015 FC 321, para 18).
[14]
I agree with the RAD that the Applicant must put
her best foot forward before the RPD, and present all the evidence that is
available at the time, whether aware of it or not, unless there is an aspect of
injustice arising from unexpected new facts, or old facts that no reasonable
amount of due diligence could have turned up. It is not intended to be a
tune-up procedure for the RAD that upon learning in deficiencies in the
Applicant’s case, additional evidence that could have been presented to the RPD
may be presented as new evidence before the RAD.
[15]
In other words, responding to an inadequacy
identified by the RPD in a party’s case cannot be a legitimate foundation for
the party to claim that had she known about the deficiency she could have
presented better evidence that was always in existence from persons that could
have been called, in this case from her cousin. This would make the RPD process
a monumental waste of time, which is surely not Parliament’s intention in
providing appeal rights.
[16]
Additionally, the Singh decision bears no
resemblance to the introduction of new evidence in this matter. Its ratio must
not be extended to unrelated fact situations that undermine the ordinary
finality of the RPD decision except on a proper basis of appeal under the Act.
In Singh, the Applicant only discovered after the RPD decision that a
key document, which related to the determinative issue of identity, had been
retained by the Applicant’s solicitor when he had reasonable grounds to believe
that it was in the possession of the Citizenship and Immigration Canada, via
his lawyer. The Court described a fairly liberal interpretation of what
constitutes evidence that “was not reasonably
available, or that the person could not reasonably have been expected in the
circumstances to have presented” in appeals before the RAD when it was
found to be an honest mistake about who had possession of the key document. It is
the sort of case where the interests of justice call for an exception in what
is intended to be a flexible administrative process. The case did not involve
calling a witness who was available before the hearing to testify on an issue
vetted at length by the RPD, and on top of that, whose evidence could have been
presented on the subject matter before the termination of the RPD process.
[17]
Similarly, the Psychotherapist’s report cannot
be admitted to explain away problems in the evidence from the forensic medical
evidence of the physician who provided evidence to the RPD. In this matter before
the RPD, the Applicant provided post-traumatic behavioural forensic medical evidence
concluding that the Applicant had demonstrated multiple symptoms of post-traumatic
stress disorder, depression and anxiety as a consequence of her experiences of
FGM. Apart from the Applicant being depressed however, the forensic medical expert
reported no perceived delusions by the Applicant, who she described as
exhibiting normal insight and judgment, in addition to a coherent thought
process.
[18]
The evidence from the second psychologist expert
does not fit the category of evidence that “was not
reasonably available, or that the person could not reasonably have been
expected in the circumstances to have presented.” Indeed, I think it is highly
unlikely that it would be appropriate to present forensic opinion evidence after
the fact based on what occurred before the RPD. Moreover, to allow the second
medical forensic report to provide contrary evidence or more complete evidence
from that of the medical expert in the RPD hearing, would in effect be allowing
the impeachment of the first expert called by the Applicant.
[19]
In addition, medical expertise is not
permissible after a hearing in an attempt to “bootstrap” and explain why a
witness was found incredible, inconsistent or otherwise unreliable before the
RPD. Lawyers are trained to overcome such problems, or at least raise concerns
about an applicant’s ability to testify before the decision-maker in the first
instance. This issue must be raised at the hearing: Diaz Serrato v Canada (Minister
of Citizenship and Immigration), 2009 FC 176 at paragraph 22, as follows:
[22] Let us
not forget that an expert report is a piece of evidence like any other; hence
it was up to the RPD to decide how much weight it should be given. It is not
for the expert to decide if the inconsistencies in the applicant’s testimony
could be excused by his Post Traumatic Stress Syndrome. Having analyzed the
evidence, the RPD found that there it was not a question of amnesia or
forgetting incidents but of inconsistencies. In other words, the RPD found that
there was no relation between the syndrome found and the inconsistencies.
[20]
Accordingly, I find no reviewable error in the
RAD’s exercise of discretion to refuse to admit the new evidence tendered by
the Applicant.
B.
Did the RAD err in its credibility findings?
[21]
The Applicant submits that the RAD erred when it
found the Applicant not credible because of inconsistencies and other problems
arising during her testimony. Specifically, the Applicant submits that the RAD
focused too heavily on the Applicant’s use of her real name, which was not
significant; ignored mitigating factors such as the Gender Guidelines
and the doctor’s report; did not consider cultural practices in the Applicant’s
country when assessing the Applicant’s clan and religious identity; and failed
to assess the Applicant’s risk profile.
[22]
The hearings and record in this matter are
extensive. They commenced on December 9, 2013 and continued over five sittings
until November 12, 2014, almost an entire year. It is well-established that credibility
findings are the heartland of the RPD’s core functions. It is not surprising
therefore, given the extensive amount of evidence introduced in these
proceedings and related commentary of the RPD on a large number of credibility
issues, that no reviewable errors or patently unfounded credibility findings
were demonstrated.
[23]
Based on the record, I conclude that the RAD’s
credibility findings are reasonable and based on various inconsistencies
between the Applicant’s Basis of Claim form and testimony that cannot simply be
explained by arguments of poor interpretation by the RPD. I do not find for
example that the RAD unreasonably disagreed with the Applicant’s argument that
what she described as issues arising from poor interpretation were in fact
inconsistencies or contradictions in her testimony and the documentation. Similarly,
the RAD could reasonably conclude that the RPD was justified in finding
important inconsistencies in the Applicant’s testimony concerning the use of
her “fake name.”
[24]
In the same vein, I see no reviewable error in
the RAD’s confirmation that the RPD found inconsistencies in several adverse
impacts on the Applicant’s credibility from her failure to know her natural
clan and the confusion over the dates when she said to have learned of this
when her father was threatened in 2003. Cultural foundations do not appear
obvious to explain the different descriptions of her husband as her father’s
relative or the inconsistency in religious cultural evidence or timing of dates
relating to her father’s situation. Additionally, the RPD thoroughly considered
the Gender Guidelines, which were not a matter of contention before the RAD.
[25]
Ultimately, the RAD agreed with the RPD’s
conclusions that the Applicant was not able to establish her identity as a
citizen of Somalia, not to mention whether she is married, or single, or any
other important markers in order to discern whether she fitted any type of risk
profile.
[26]
The Court finds no reviewable errors that could
undermine the RAD’s analysis of the RPD’s credibility findings. In this
respect, the Court generally agrees with the Respondent that the Applicant is
asking the Court to reweigh the evidence on a number of different points that
contributed to the adverse credibility findings, which is obviously not the Court’s
role.
VI.
Conclusion
The application
is dismissed. No question is certified for appeal.
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