Docket: IMM-2289-15
Citation:
2016 FC 936
Ottawa, Ontario, August 16, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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ALI MOHAMMED
DERAR AHMED
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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
brought pursuant to section 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c27 [IRPA] of a decision dated April 15, 2015
[Decision], wherein the Refugee Protection Division [RPD] of the Immigration
and Refugee Board of Canada determined that the Applicant is neither a
Convention refugee nor a person in need of protection pursuant to sections 96
and 97 (1) of the IRPA.
[2]
For the reasons that follow, this application is
dismissed.
I.
Background Facts
[3]
The Applicant is a citizen of Sudan who claims
to fear persecution by the Sudanese government on the basis of political
opinion.
[4]
While attending university in India, the
Applicant participated in a student group that advocated for civil liberties
and protested against the Sudanese government. After graduation in 2010, the
Applicant moved to Qatar for work and continued his political activities,
allegedly participating in campaigns to expose corruption within the Sudanese
government and raising money for opposing political groups.
[5]
In 2013, the Applicant became involved in
charitable relief efforts in Qatar following the flooding in Sudan as part of a
group called “Nafeer”, which was an initiative
instigated by Sudanese youth. They were committed to direct distribution of
emergency flood relief in Sudan to avoid donations being lost to corrupt
government officials. They also publicly criticized the Sudanese government for
its inaction. As a member of the Nafeer steering committee in Qatar, the
Applicant collected money and donated items for victims of the flooding, which
the Sudanese embassy in Qatar refused to send to Sudan.
[6]
In October 2014, the Applicant returned to Sudan
for the first time since 2005, and was allegedly detained and interrogated by
immigration officials about his participation in student groups in India,
opposition groups in Qatar, and the Nafeer movement. He was accused of
collaborating with enemies of the state and was beaten with a club.
[7]
The Applicant claims he was released after
agreeing to cooperate with Sudanese officials and to act as an operative in
Qatar. He was told he would be contacted in Qatar upon his return. When the
Applicant returned to Qatar two weeks later, his political colleagues, upon
learning of his ordeal with the Sudanese authorities, advised him to leave the
country given the close domestic ties between Qatar and Sudan.
[8]
The Applicant travelled to the United States in
December 2014, and made his way to Canada where he made a refugee claim on
January 24, 2015.
II.
Decision under Review
[9]
The determinative issue for the RPD was the
Applicant’s lack of credibility. The RPD accepted his Sudanese passport, birth
certificate, Qatar temporary work card and Qatar driving licence to establish
the Applicant’s identity. Given the overall credibility issues, the RPD found
that the Applicant did not satisfy the burden of establishing a serious
possibility of persecution in Sudan on a Convention ground in accordance with
section 96 of the IRPA. It also found that he would not personally be
subject to a risk to life, or a risk of cruel and unusual treatment or
punishment, or a danger of torture upon return to Sudan.
[10]
The Board found that the Applicant lacked
credibility generally, which extended to all of his relevant testimony. It
concluded there was insufficient credible and trustworthy evidence to establish
that the Applicant had been targeted by Sudanese authorities.
[11]
The RPD concluded on a balance of probabilities
that the Applicant did not have serious problems with the Sudanese authorities
while in India. More specifically, the RPD did not believe the Applicant when
he claimed he started to have problems with authorities because of his
activities within the National Democratic Front while he was studying in India.
He said he booked premises and informed students about upcoming events. When
the RPD probed further, he provided two general examples that were not highly
personal to him.
[12]
The Applicant also mentioned at the RPD hearing
that when he was in India, he received a telephone call from the Sudanese
Consul requesting that he stop activities against the government. When asked by
the RPD why this fact was not included in his Basis of Claim narrative [BOC],
the Applicant stated he had no official proof of the phone call. The Decision
notes this omission as an important element weighing against the Applicant’s
credibility concerning problems he allegedly faced in India.
[13]
With respect to his involvement with Nafeer, the
RPD found that the documentary evidence demonstrated that Nafeer aimed to help
victims of the flooding disaster by providing emergency relief and was active
in Sudan and in North America and the Middle East, particularly through social
media. It operated in July and August 2013, but was forced to reduce operation
by September 1, 2013, due to government interference. Source information on
Nafeer indicated that Sudanese authorities interrogated and then released
Nafeer members in August 2013, and the Board noted that no subsequent arrests
of Nafeer members are mentioned in the documentary evidence.
[14]
The Board did accept documentary evidence of the
Applicant’s personal involvement with Nafeer in Qatar, but noted that the
Applicant testified Nafeer was no longer functioning in Qatar and he was not
still involved in political activities.
[15]
The RPD noted documentary evidence demonstrates
that Sudanese authorities have committed serious human rights violations and
that “repression of any form of dissent and protest”
has been characteristic under the al-Bashir/National Congress Party regime. Accordingly,
the Board questioned why the Applicant was allegedly released after his October
2014 arrest. When he explained he was let go because he pretended to agree to
cooperate with Sudanese authorities, the RPD found it implausible that the
authorities would trust the Applicant, particularly since he claimed they had
suspected him for years of contra-government activities. Additionally, the RPD
noted the Applicant travelled without issue out of Sudan and Qatar with a valid
passport from the Sudanese authorities. The RPD concluded that on a balance of
probabilities, the Applicant was not detained and interrogated in Sudan in
October 2014.
[16]
The RPD also afforded little weight to evidence from
the Applicant related to his alleged resignation from his employment in Qatar.
The letter from his employer simply indicated there was a termination. The
Applicant stated he did not have the resignation form he filled out, which the RPD
noted, along with the fact “that the panel does not
find the claimant credible regarding key areas of his testimony” as
reasons for providing little weight to that evidence.
[17]
Finally, the RPD also did not give much weight
to an affidavit from one of the Applicant’s sisters in Sudan: it mentions she
is “aware” of the Applicant’s activities, but
fails to include how she learned this information and from whom. The RPD
reasoned that if she learned it from the Applicant, then as the Board did not
find the Applicant credible, the affidavit is of little weight.
III.
Issues and Standard of Review
[18]
The only issue is whether the RPD determination
on credibility was unreasonable. Credibility was the determinative finding and
if it was unreasonably determined then the Decision itself is unreasonable.
[19]
It is well established that the RPD’s findings
on credibility are reviewable on the standard of reasonableness. This means the
reviewing Court should not substitute its own findings for those of the RPD
where the conclusions it reached were reasonably open it: Alahaiyah v Canada
(Citizenship and Immigration), 2015 FC 726 at para 14.
[20]
Reasonableness review requires deference to the
decision-maker. The Court is not to re-weigh the evidence but must be satisfied
that the decision-making process results in a decision that falls within the
range of possible, acceptable outcomes defensible on the facts and law.
Reasonableness review is “concerned with the existence
of justification, transparency and intelligibility within the decision-making
process”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir].
IV.
Submissions of the Parties
A.
Applicant’s Submissions
[21]
The Applicant submits the RPD rejected his claim
because of the single omission in his BOC that the Sudanese Consul telephoned
him while he was in India. He says that the RPD then added plausibility
findings and inferences and made a general finding of lack of credibility. For
example, he says two known members of Nafeer were shot and killed by
authorities and when the RPD found Nafeer members had not been arrested after
August 2013 it ignored any evidence to the contrary.
[22]
The Applicant also says his activities in India
during the period 2005 – 2010 were not the significant events contributing to
his fear. His activities in Qatar and with Nafeer are what put him at risk.
Therefore, the omission in his BOC of the telephone call from the Consul does
not justify an overall finding that he lacked credibility.
[23]
With respect to the Applicant being able to
travel on his own passport and being released by Sudanese authorities after he
was arrested and beaten in October 2014, the Applicant relies on Valtchev v
Canada (Minister of Citizenship and Immigration), 2001 FCT 776, to say that
what appears implausible from a Canadian perspective may be ordinary or
expected in other countries. He says the RPD “appeared
to be oblivious of the fact that secret police and intelligence organizations
frequently employ opponents whom they “turn” by some combination of coercion,
blackmail or bribery”. He submits that the RPD finding overlooks the
fact that the agreement with the NISS required him to return to Qatar in order
to spy for them.
[24]
In analysing the employment termination letter,
the Board found the Applicant not credible with respect to “key areas” of his testimony. The Applicant argues
this conclusion is unjustified on the basis of the evidence and Board’s own
findings that: (i) the Applicant had been a member of Nafeer in Qatar; (ii) had
engaged in political activities while there; and (iii) accepted that Nafeer
members faced arbitrary arrest in summer of 2013. These “key areas” of the Applicant’s testimony were not
rejected.
B.
Respondent’s Submissions
[25]
The Respondent claims that the Board reasonably
drew a negative inference with respect to the Applicant’s credibility from his
testimony that he had received a personal phone call from Sudanese authorities
while in India. They say that although the Applicant argues too much
significance was placed on this one omission, it was significant. The Applicant
provided no other support for his testimony that he first became a person of
interest to the Sudanese government while he was studying in India, which interest
continued in Qatar and eventually led to his October 2014 detention. Raising
the telephone call at the hearing was his attempt to support his story. As the
RPD should have considered the totality of his profile, not including the
telephone call in his BOC was significant, not peripheral.
[26]
The Respondent submits that the two examples the
Applicant provided of problems with the Sudanese government while he was in
India were only generic: (1) students who received grants from the Sudanese
government were favoured; and (2) the Sudanese Embassy refused to repatriate
the body of a dead student who had been involved in anti-government political
activities. The Respondent says the RPD reasonably held that these actions did
not amount to serious problems for the Applicant personally.
[27]
The Respondent points to the submissions made
before the RPD by the Applicant’s previous counsel to the effect that his
refugee claim was based on political opinion and on being a member of a
particular social group, Nafeer. Once the RPD reasonably believed the Sudanese
government was not pursuing members of Nafeer after August, 2013 the Decision
was reasonable.
V.
Analysis and Conclusion
[28]
The Applicant’s claim revolves around his political
activities, primarily membership in Nafeer and the repercussions he suffered or
could suffer as a result of those activities if he returns to Sudan.
[29]
The documentary evidence before the RPD clearly
stated that Nafeer operated in July and August 2013, but was forced to reduce
operation by September 1, 2013, due to government interference. Source
information on Nafeer indicated that Sudanese authorities interrogated and then
released Nafeer members in August 2013, and the RPD noted that no subsequent
arrests of Nafeer members are mentioned in the documentary evidence.
[30]
The Applicant testified that Nafeer was no
longer functioning in Qatar and he was not still involved in political
activities. Counsel for the Applicant submitted that two known members of
Nafeer were shot and killed by authorities after September 1, 2013 and the RPD
ignored that evidence in determining no arrests were made after that date.
[31]
The record contains a story that was posted as a
press release dated October 4, 2013, on a website dedicated to “defending human rights defenders”. It expresses deep
concern for the safety of human rights defenders arrested in anti-government
demonstrations that took place after September 23, 2013. Three people were shot
and killed while another twenty-three, who were named, were detained and
another two, also named, were arrested but released. Having reviewed this
article I am unable to draw the conclusion put forward by counsel to say it
shows that members of Nafeer were still being arrested or killed. The thrust of
the article is that human rights defenders were among the over eight hundred people
arrested in connection with anti-government demonstrations. The article does
not say or, as I read it, imply, that two people were killed because they were
members of Nafeer. Rather they were killed because they were publicly
demonstrating against the government as were hundreds of other people. The RPD
is not required to mention this particular evidence and is presumed to have
considered it. I do not find the conclusion they drew about membership in
Nafeer post-September, 2013 runs contrary to this evidence. Membership in
Nafeer was noted in the article but not stated to be the reason for the
shooting that occurred.
[32]
The only evidence the Applicant could offer as
to his personal risk was his allegation that he was arrested, detained and
beaten in October 2014 when he returned to Sudan. In light of his claim that he
had been “on the radar” of the authorities for
several years, the RPD queried the Applicant about his release by the Sudanese
authorities. He said he was released because he pretended to co-operate with
them and made an agreement to that effect. The RPD was concerned that the
Applicant had left Sudan using his own passport. They found it implausible that
the authorities would trust him if they had suspected him for years to be a
political activist who was opposed to the government and had been checking on
him for an extended period of time. As a result, the RPD found on a balance of
probabilities that he was not detained and interrogated in Sudan in October,
2014.
[33]
Both these findings on credibility were
reasonably open to the RPD to make based on the evidence before it. The
conclusions drawn were within the range of possible, acceptable outcomes defensible
on the facts and law.
[34]
As well, the RPD found the Applicant did not
prove on a balance of probabilities that he had resigned from his employment in
Qatar. They did not find the Applicant’s explanation persuasive because: (i) he
did not submit a copy of the alleged resignation to the Board; (ii) the letter
provided did not indicate the Applicant had resigned; and (iii) the Applicant’s
testimony in “key areas” was found not credible.
It appears the Applicant is asking the Court to re-weigh that evidence, but
nothing turns on the termination letter as it was not an integral part of the credibility
findings made by the RPD.
[35]
In sum, I find the credibility findings of the
RPD to be reasonable. They were not made without regard to the evidence. The
RPD was able to see and hear the Applicant and was in the best position to
assess his credibility. Doing just that, in conjunction with its assessment of
the objective evidence, the RPD reasonably called into question the aspects of
his narrative beyond his time in India, most specifically, his story of being
detained in 2014.
[36]
The Applicant has not persuaded me that the
findings by the RPD were either speculative or implausible. The RPD did not
solely rely on the failure of the Applicant to mention in his BOC the telephone
call from the Consul. I have found it was within the margin of appreciation
afforded to the RPD as a specialized tribunal to make the decisions on
credibility that they did. The determination by the RPD that the Applicant is
neither a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 (1) of the IRPA is also reasonable given the
credibility findings.
[37]
In keeping with the requirements laid down in Dunsmuir,
it is my determination that the reasons given and the decision-making process
are justified, intelligible and transparent and the outcome falls within the
range of possible, acceptable outcomes.
[38]
This application is dismissed.
[39]
Neither party posed a question for
certification.
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