Docket: IMM-5812-15
Citation:
2016 FC 774
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 8, 2016
PRESENT: The Honourable
Mr. Justice LeBlanc
|
BETWEEN:
|
|
DJINDE KOITA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The applicant is challenging a decision rendered
by the Refugee Appeal Division (RAD) of the Immigration and Refugee
Board (IRB) denying his appeal of a decision rendered by the IRB’s Refugee
Protection Division (RPD), which found that he is neither a 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, chapter 27 (the Act).
[2]
The applicant is a citizen of Mali. He left Mali
for Canada in January 2015 to seek refugee protection there on the grounds
that he feared reprisal from two thugs who, in 2011, allegedly stole the
motorcycle of one of his brothers (Dougoutigui) and who, after having been
tried for this crime and having subsequently escaped from prison, allegedly
sought revenge on the applicant’s family. He claims in this regard that:
(i) his troubles began in July 2014 when the two escaped thugs
allegedly showed up at his family’s home, located in the city of Bamako, and
with Dougoutigui gone, targeted him;
(ii) following this incident, Dougoutigui allegedly went into hiding and
then left Mali;
(iii) in
September 2014, the two thugs were allegedly seen in the applicant’s
neighbourhood, which prompted the applicant and his parents to move to another
part of the city of Bamako;
(iv) in
mid-December 2014, the applicant and another of his brothers (Drissa)
allegedly returned to their old neighbourhood and ran into the two thugs, who
allegedly shot Drissa, leaving him with gunshot wounds;
(v) on December 31, 2014, one of the applicant’s male cousins,
hearing noises, allegedly came to an intersection in the applicant’s new
neighbourhood and was gunned down and killed there; and
(vi) a few days
after this incident, the applicant’s parents allegedly decided to move again,
this time near a city of 2.5 million residents, the city of Kayes, located
more than 600 kilometres from Bamako. The applicant opted not to follow
them and instead went to live with a friend in order to continue his studies in
Bamako.
[3]
The RPD denied the applicant’s refugee
protection claim on the grounds that his account of the events that allegedly
led him to leave Mali was not credible and that, in any case, the applicant had
an internal flight alternative in Kayes. More specifically, the RPD deemed that
the applicant’s story included contradictions and inconsistencies, particularly
regarding the fact that, unlike with the incident in mid-December 2014, no
complaint was filed with the police following the murder of the applicant’s
cousin. Also, the fact that the applicant opted to remain in Bamako to continue
his studies instead of accompanying his parents to a safer location seems
inconsistent with the behaviour of a person who fears for his life. The RPD
also gave no weight to the death certificate for the applicant’s cousin, given
that this certificate included no information regarding the circumstances of
death and given that no complaint was filed with the authorities following this
incident, which was much more serious than the previous incident for which a
complaint had been filed.
[4]
The applicant criticizes the RPD for having
deemed his story to lack credibility on the basis of irrelevant and
insignificant considerations. The RAD, before which the applicant produced no
new evidence, refused to intervene after hearing the recording of the hearing
before the RPD and reading and analyzing the body of evidence in the file,
finding that the RPD’s decision was well-founded.
[5]
The applicant argues that the RAD, for its part,
erred in three ways, namely (i) by being overzealous in assessing his
testimony and by ascribing an inordinate amount of importance to elements of
secondary importance; (ii) by finding that the applicant had an internal
flight alternative; and (iii) by finding that section 96 of the Act
did not apply in this instance despite the fact that Dougoutigui, whose
motorcycle was stolen in 2011, was granted refugee protection in Canada.
[6]
The question here is whether the RAD, in
deciding as it did, made an error justifying the Court’s intervention pursuant
to section 18.1 of the Federal Courts Act, R.S.C., 1985,
chapter F-7. It is well established that the RAD’s decision must be
reviewed using the standard of reasonableness, which means that in order to
intervene, the Court must be satisfied that the RAD’s findings in this case do
not “fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9,
at paragraph 47, [2008] 1 SCR 190; Canada (Citizenship and
Immigration) v. Huruglica, 2016 FCA 93, at paragraphs 32,
35; Ghauri v. Canada (Citizenship and Immigration), 2016 FC 548,
at paragraph 22).
[7]
The applicant has not convinced me that there is
any reason to intervene. Both the RPD and the RAD, which conducted its own
assessment of the evidence, noted inconsistencies in the applicant’s story and
I cannot say that these findings are unreasonable. The Court must avoid
substituting its own interpretation of the facts for that of the RAD—an
administrative tribunal that specializes in appeals—and must show deference to
the RAD’s findings, especially since they confirm the findings made by the RPD,
whose mandate and expertise centre on assessing refugee claimants’ testimonies
and credibility (Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, at paragraph 89, [2009] 1 SCR 339; Quintero
Sanchez v. Canada (Citizenship and Immigration), 2011 FC 491,
at paragraph 12; Touileb Ousmer v. Canada (Citizenship and Immigration),
2012 FC 222, at paragraph 15; Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] FCJ No. 1425,
at paragraph 14, 157 FTR 35).
[8]
In particular, in my opinion, it was open to the
RAD to question the credibility of the applicant’s story on the basis of the
applicant’s decisions, first, not to file a complaint following his cousin’s
murder, when he had already approached the authorities (with some success) for
less serious incidents, and second, to remain in Bamako after this incident,
instead of leaving the city with his parents, given that he said he feared for
his life. It was also open to the RAD to give little weight to the fact that
the applicant had decided not to leave Bamako at that time, in order to
continue studies which he had stated in his immigration form had ended in
June 2014. Lastly, the RAD could reasonably conclude that the applicant
had failed to establish that his cousin’s death on December 31, 2014, was
related to him or to the two thugs who had stolen his brother Dougoutigui’s
motorcycle. In this regard, the RAD could reasonably expect the applicant’s
testimony regarding such a connection to be supported by some form of stronger
corroborating evidence than simply his cousin’s death certificate.
[9]
More importantly, even if the applicant’s fears
had been determined to be founded, I see no reason to intervene given the RAD’s
findings regarding the possibility of an internal flight alternative in Kayes,
the city the applicant’s parents have lived in since the beginning of
January 2015. This city, located in the centre of a region with
2.5 million inhabitants, is located, I reiterate, more than
600 kilometres from Bamako and the applicant, on whom the burden rested (Aguilar
Suarez v. Canada (Citizenship and Immigration), 2011 FC 1474, at
paragraph 8; Sandoval Aramburo v. Canada (Citizenship and Immigration),
2013 FC 984, at paragraph 13), failed to demonstrate that the
two thugs had the interest, the motivation or even the ability to search him
out there. The standard for ruling out an internal flight alternative is
stringent: it requires real and conclusive evidence of the existence of
conditions that jeopardize the refugee claimant’s life or safety (Perez v.
Canada (Citizenship and Immigration), 2011 FC 8, at
paragraph 15). Yet not only was this evidence not provided, but the
applicant also indicated that his parents did not seem to have been bothered
since moving to Kayes. As the Court noted in Perez, above, international
protection is provided only if the country of origin cannot offer adequate
protection throughout its territory (Perez, at paragraph 15). The
RAD found that such protection was available to the applicant in Kayes. This
finding appears to me to be unimpeachable, and in itself fatal in all aspects
to the applicant’s appeal, even having regard to the argument brought forth
regarding section 96 of the Act.
[10]
This case does not raise, as the parties at the
hearing noted, any serious questions of general importance justifying the
certification of a question to the Federal Court of Appeal.
Email this Content