Docket: IMM-5235-15
Citation:
2016 FC 752
Ottawa, Ontario, July 6, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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VICTOR
KIPLANGAT KOECH
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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]
The applicant seeks judicial review pursuant to
section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27
[the Act] of the decision of the Refugee Appeal Division [RAD] dated November
3, 2015, which dismissed his appeal of the decision of the Refugee Protection
Board [RPD] and confirmed that he is not a Convention refugee or person in need
of protection.
[2]
Based on its assessment of the evidence, the RAD
agreed with the RPD that the applicant was not credible and found that the
objective evidence did not support that he was at risk.
[3]
For the reasons that follow, I find that the
decision of the RAD is reasonable. The application for judicial review is
dismissed.
I.
Background
[4]
The applicant, Mr. Koech, a citizen of Kenya,
arrived in Canada on August 24, 2014 on a study permit. He made a refugee claim
on February 11, 2015 based on his fear, as a Christian, of Al Shabaab in Kenya.
He recounts two incidents: a grenade attack which killed his cousin in July
2014; and, the killing of dozens of people and burning of his family’s property
in Mpeketoni in November 2014. He claims that he has not heard from his family
or siblings since they fled the area after the November 2014 attack. He also
claims to fear Al Shabaab because of its killings and forced conversion of
Christians to Islam.
The RPD decision
[5]
The RPD found that Mr. Koech’s testimony was
vague, evasive and inconsistent with the information he provided in his Basis
of Claim (BOC) form.
[6]
The RPD noted that he testified that he was with
his cousin for a social visit immediately before his cousin was killed in an
attack. The police report and death certificate stated otherwise: that his
cousin was in a security meeting before the attack. When confronted with the
inconsistency, he responded that security issues were also discussed during the
social visit. The RPD rejected this explanation and found that he had adjusted
his testimony to be consistent with the police report.
[7]
In response to the RPD’s inquiry why his cousin
had been killed, the applicant stated that he did not understand the reason,
but that most people attacked in Kenya are Christians and that only Christians
were in the area at the time. The RPD confronted the applicant with his
different account in his BOC form, which stated that his cousin was attacked
for failing to recite the Quran and for refusing to join Al Shabaab. He then
explained that this had happened to his cousin in the past, but the attackers
fled, and that he does not believe it was the reason for the grenade attack
that killed his cousin. The RPD rejected the explanation and again found that
he had altered his testimony to be consistent with his BOC form.
[8]
The RPD noted that the Minister had intervened
and provided evidence to address the applicant’s credibility. This included
evidence of the applicant’s Facebook page which demonstrated that Facebook
accounts in his parents’ names had “liked”
photos of the applicant posted in December 2014, January 2015 and February
2015, after the November 2014 attack that the applicant had alleged was the
last time he had heard from his parents.
[9]
The applicant did not dispute that it was his
Facebook page. He explained that he did not consider these “likes” to be communication. He speculated that his
sister had set up the Facebook accounts. In response to why he did not use
Facebook to determine the whereabouts of his parents, he responded that he did,
but received no response.
[10]
The RPD did not find it credible that the
applicant’s parents would be using Facebook if they were in a refugee camp, as
the applicant stated he believed them to be. If his parents had access to the
internet, the RPD found that they would likely communicate with the applicant.
The RPD also found it unlikely that anyone except the applicant’s parents or
sister would have set up these Facebook accounts. Moreover, if the applicant’s
sister had set up their parents’ accounts, as the applicant speculated, she
would likely have also established her own account or responded to the
applicant’s inquiries about their parents’ whereabouts. The RPD found that
these inconsistencies undermined the applicant’s credibility.
[11]
The RPD also found that the applicant did not
have a well-founded fear of persecution based on being a Christian. Kenya is
over 80% Christian and that laws and policies generally protect religious
freedom in Kenya. Although the documentation indicates that there is some
discrimination against Christians, this occurs in historically Muslim areas
where the applicant, who resides in Nairobi, has never lived.
[12]
The RPD noted that if forced conversions and
killings of Christians in Kenya were an ongoing problem, it would have been
highlighted in the National Documentation Package [NDP]. There was insufficient
evidence to support that violence directed at Christians in Kenya is so
frequent, systematic or common that the applicant faces a serious possibility
of persecution or a personalized risk of harm on a balance of probabilities.
II.
The Decision under Review
[13]
The RAD confirmed the decision of the RPD and
found that the applicant is not a Convention refugee or a person in need of
protection.
[14]
The RAD noted that the applicant did not submit
new evidence, request an oral hearing, or make submissions regarding his
Facebook account or the NDP.
[15]
With respect to the RPD’s credibility finding
related to the applicant’s cousin’s death, the RAD found, even with allowances
made for his self-representation at the RPD hearing, that his responses to the
RPD’s questions did not address the RPD’s concerns. Moreover, even if the RPD’s
finding was due to a misunderstanding, this finding would not be fatal to the
overall determination in light of the RPD’s other credibility findings.
[16]
The RAD found that it was open to the RPD to
find that the applicant’s Facebook account and interaction contradicted his
statements that he had no contact with his family and to find his explanation
unreasonable. Based on its own assessment, the RAD found that, given that the
applicant acknowledged that this was his Facebook account, on a balance of
probabilities, the names identified as his parents were his parents.
[17]
Based on its own review of the evidence, the RAD
also agreed with the RPD’s finding that the preponderance of the objective,
documentary evidence does not corroborate the applicant’s testimony and that
there was insufficient evidence to support that he was at risk as a Christian
in Kenya.
III.
The Issues
[18]
The applicant submits that the RAD did not
conduct a sufficiently independent analysis, but rather deferred to the RPD,
and, as a result, erred in its credibility findings and in its assessment of
the documentary evidence.
IV.
The Standard of Review
[19]
The RAD conducts an appeal of the RPD’s
decision. The Court conducts a judicial review of the RAD’s decision.
[20]
In Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93 at para 103, [2016] FCJ No 313 (QL) [Huruglica
FCA], Justice Gauthier clarified that the RAD should fulfill its appellate
role and apply the standard of correctness when reviewing an RPD decision.
[21]
Although the RAD decision preceded the decision
in Huruglica FCA, the Court of Appeal confirmed the requirement for an
independent assessment of the evidence that was established in the Federal
Court’s decision and which was applied by the RAD.
[22]
The Court of Appeal also noted that the level of
deference the RAD may owe to the RPD on credibility and other factual findings
will vary depending on whether the RPD had an advantage in making its findings,
and other circumstances of the case, and that the jurisprudence will evolve.
[23]
The Court’s review of the RAD’s determinations
of factual issues, including credibility, and issues of mixed fact and law are
reviewed on the reasonableness standard.
[24]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
The Court will not re-weigh the evidence or re-make the decision.
V.
The RAD’s decision is reasonable
[25]
The applicant’s principal argument is that the
RAD showed inordinate deference to the findings of the RPD and did not conduct
a sufficiently thorough and independent assessment of the evidence and, as a
result, the RAD’s decision is not transparent. The applicant focuses on the
findings regarding his cousin’s death, his Facebook account and the country
condition evidence.
[26]
The applicant argues that, although his initial
responses to the RPD’s questions about his cousin’s death were not as detailed
as described in his BOC or later responses, this should not have been found to
be an attempt to alter his testimony. As a result of his lack of legal
representation and sophistication, he argues that the credibility findings are
unfair and unreasonable.
[27]
The applicant submits that his responses
regarding his cousin’s death were not inconsistent. In his BOC he referred to
the reason why his cousin was killed, due to his refusal to recite the Quran,
and in his testimony he referred to how his cousin was killed. He argues that
rather than assessing his evidence, the RAD simply deferred to the RPD.
[28]
With respect to the Facebook interactions, the
applicant submits that both the RPD and RAD failed to consider his explanation
that he did not receive a response when he tried to communicate with his
parents. He argues that a “like” on Facebook
should not be considered communication and that anyone can set up a Facebook
account in another person’s name.
[29]
The applicant also submits that the RAD erred by
deferring to the RPD’s finding that the preponderance of objective evidence
does not support his allegations that he will be forced to convert to Islam or
be killed. The applicant points to parts of the NDP that refer to the risk
posed by Al Shabaab in Kenya, including the recruiting of youth, forcing
children into prostitution and grenade attacks in Mombasa. He argues that if
the NDP had been assessed by the RAD, it would not be such a leap to find that
this evidence supports the risk he asserts.
The RAD conducted an independent assessment of the
evidence
[30]
I do not agree that the RAD simply deferred to
the RPD’s findings. The RAD conducted an independent assessment of the evidence
based on the guidance in Huruglica v Canada (Minister of Citizenship and
Immigration), 2014 FC 799, [2014] 4 FCR 811, which is consistent with the
Court of Appeal’s guidance in Huruglica FCA. The RAD clearly states
where it agreed with the RPD and where it made its own findings based on its
assessment of the entire record.
[31]
Moreover, the RAD’s deference to the credibility
findings of the RPD was appropriate in the circumstances and reasonable. The
RPD had an advantage in hearing the applicant’s testimony and in observing his
demeanor and his response to questions.
[32]
The jurisprudence has established that the
credibility findings of boards and tribunals that have heard the testimony and
observed the demeanor of an applicant should be accorded significant deference
(Aguebor v Canada (Minister of Employment and Immigration) , [1993] FCJ
No 732 at para 4 (QL), 160 NR 315 (FCA); Lin v Canada (Minister of
Citizenship and Immigration), 2008 FC 1052 at para 13, [2008] FCJ No 1329
(QL); Fatih v Canada (Minister of Citizenship and Immigration), 2012 FC
857 at para 65, [2012] FCJ No 924 (QL)). I see no reason to take a different
approach to credibility findings that are confirmed by the RAD following its
independent assessment of the evidence on the record or where the RAD defers to
the RPD based on its first-hand assessment.
[33]
However, the RAD went beyond deference,
conducted an independent assessment of the evidence and made its own
credibility findings.
The Cousin’s Death
[34]
The RAD noted that it had taken the applicant’s
lack of legal representation before the RPD into account in its own review of
the evidence. The RAD noted that the applicant did not address the concerns
expressed by the RPD regarding his cousin’s death. The RAD added that the
applicant bears the onus to explain internal inconsistencies and contradictions
in his evidence and had not done so.
[35]
The applicant’s lack of legal representation is
not a reason to find the credibility findings unreasonable. The applicant
argues that the findings of the RPD and RAD were “unfair”,
but does not suggest that there was a breach of procedural fairness. The record
before the RAD, which includes the transcript of the RPD hearing, reveals that
the RPD member explained the process to the applicant and the applicant
understood that he was required to tell the truth and to respond to questions.
The RPD member provided a copy of the applicant’s BOC form to him. The lack of
representation does not excuse inconsistencies, contradictions and other
indicators of a lack of credibility.
[36]
The applicant also offers additional
explanations to the Court about how his testimony could be reconciled with his
BOC. In my view, the new explanations also fail to do so. Regardless, the role
of the Court is to determine if the findings of the RAD are reasonable, and it
is clearly reasonable for the RAD to both defer to the RPD’s credibility
finding regarding the inconsistencies and to independently find that the
inconsistencies were not explained.
The Facebook Account
[37]
Whether a “like”
on Facebook constitutes communication is not the issue. The issue is whether
the applicant’s contradictory testimony supports an adverse credibility
finding. The applicant had claimed that he had no contact with his parents or
siblings since they fled after the November 2014 attack. The RPD and RAD found
this to be contradicted by the Facebook activity. Both the RPD and RAD
considered the applicant’s explanation that his sister may have set up the
accounts. There is no merit in the applicant’s argument that the RAD ignored his
explanation. The applicant appears to seek a re-weighing of evidence by the
Court, which is not the Court’s role on judicial review.
The National Documentation Package
[38]
The applicant appears to concede that the NDP
does not include reports that support that the applicant would be personally at
risk of being killed by Al Shabaab as a Christian or forced to convert to
Islam. Instead, the applicant argues that the NDP notes the range of Al
Shabaab’s activities and, by extrapolation, the RAD should have found that the
applicant would be at risk as a Christian in Kenya.
[39]
Both the RPD and RAD considered the NDP and both
referred to the terrorist attack by Al Shabaab at the Westgate Mall in Nairobi
and the attack at the university in Garissa. However, the RAD found that the
NDP as a whole did not support that the violence is so frequent, systematic or
common that it would support a serious possibility of persecution or
personalized risk of harm to this applicant on a balance of probabilities.
[40]
The applicant’s fear that he would be forced to
convert to Islam, based on his testimony that this had happened to friends
several years ago, with whom he had lost contact, was reasonably found to be
not supported by the objective evidence.
[41]
As noted by the respondent, if the RAD were to
extrapolate from the NDP, as the applicant argues the RAD should have done,
then every Christian in Kenya would be found to be at risk. The applicant bears
the onus to establish that he is at risk on a Convention ground and the RAD
reasonably found that he had not established such a risk.
The RAD’s decision is transparent
[42]
I do not agree with the applicant’s submission
that the RAD did not provide sufficient analysis or reasons in its decision to
demonstrate that it conducted an assessment of the evidence.
[43]
In Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708,
the Supreme Court of Canada elaborated on the requirements of the
reasonableness standard articulated in Dunsmuir, noting at paras 14-16
that the decision maker is not required to set out every reason, argument or
all the details in the reasons. The reasons are to “be
read together with the outcome and serve the purpose of showing whether the
result falls within a range of possible outcomes” (at para 14). In
addition, where necessary, courts may look to the record “for the purpose of assessing the reasonableness of the
outcome” (at para 15). The key principle is summed up at para 16 that “if the reasons allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.”
[44]
As noted above, it is apparent that the RAD
reviewed the entire record and both deferred to the RPD and made independent
findings. The record before the RAD supports the reasonable findings made.
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