Docket: IMM-2968-16
Citation:
2017 FC 24
Ottawa, Ontario, January 6, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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YVONNE NIWAHERE
JELE
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (“RPD”) of the Immigration and
Refugee Board of Canada, dated June 10, 2016, which determined that the
Applicant was not a Convention refugee or a person in need of protection under
ss 96 and 97, respectively, of the Immigration and Refugee Protection Act,
SC 2001, c 27 (“IRPA”).
Background
[2]
The Applicant is a citizen of Uganda. She
claims to have been in a lesbian relationship with “Immy” from 1999 to 2013.
When the relationship was discovered by her family in 2008, the Applicant was
severely mistreated by her father. He then forced her to marry
Patrick Jele, who physically and sexually abused her. She continued her
lesbian relationship in secret, but in 2013 her husband discovered she and Immy
kissing. He called the police, who arrested and detained the Applicant for
three days, during which time she was tortured and raped. Upon her release,
she again experienced physical and sexual violence at the hands of her husband.
[3]
In 2016, the Applicant obtained a business visa
allowing her to enter the United States, which she did in March 2016. She made
a port of entry refugee claim in Canada on April 13, 2016. Her claim was an
exception to the Safe Third Country Agreement, as she has a brother in Canada.
[4]
The Applicant claims that she fears persecution
on the basis of her lesbian sexual orientation and domestic violence by her
husband.
Decision Under Review
[5]
The RPD found the determinative issue to be
credibility. It stated that documents submitted by the Applicant to support
her claim contained inconsistencies and contradictions that were unreasonably
explained, and her testimony regarding past contact with her lesbian partner
was inconsistent. It also drew a negative inference because her brother, who
was present at the hearing, would not testify.
[6]
More specifically, the Applicant testified that
upon being released from police custody she walked to a nearby hospital for
treatment. She provided a hospital medical form (“Medical Form”) to
substantial her claim; it indicated that she was treated for hypothermia and
that that CPR was administered. The RPD found that the Applicant’s account that
she was severely beaten, raped and tortured in police custody and was able to
walk herself to hospital, yet required CPR, highly unlikely.
[7]
The RPD found that the affidavit provided by the
Applicant’s cousin, Mable, was inconsistent in material respects with the
Applicant’s testimony. Mable stated that the Applicant’s husband found out
about the lesbian relationship and that the Applicant was raped in police
custody in 2014, but the Applicant’s evidence was that these events occurred in
2013. The Applicant said that Mable made mistakes, but the RPD found it unreasonable
for the Applicant to distance herself from evidence that she herself put
forward in support of the claim. Mable also deposed that the Applicant fled to
Mable’s house because of a police search for the Applicant at the home where
she lived with her husband, while the Applicant’s testimony was that she had no
knowledge of the police looking for her at that time.
[8]
The RPD found Mable’s affidavit to be lacking in
credibility as a result of the inconsistencies. And, because of this, the
Applicant's testimony that Mable obtained the Medical Form also lacked
credibility. Further, there was no evidence as to how the Medical Form was
obtained or why it was dated 2013 when it was obtained in 2016. The RPD placed
no weight on those documents to corroborate the relationship with Immy or the
abuse suffered by the Applicant in police custody.
[9]
The RPD also found that the Applicant was
contradictory and changed her story about when she last contacted Immy.
Initially, she stated that she had no contact with Immy after the Applicant’s
arrest in July 2013, except for one letter dated May 10, 2014. Only when
confronted with a reference in that letter stating that it had been five months
since Immy had last seen the Applicant, did the Applicant bring up Skype
conversations. Her explanation for not previously providing this information to
the RPD was that she was scared. The Applicant also could not give any
information about the Skype account and said that she had deleted it before
leaving Uganda. The RPD found that the Applicant’s testimony continually
changed and placed no weight on the letter as corroborative evidence of the
same-sex relationship.
[10]
The Applicant also submitted a letter from her
brother in Canada corroborating her story and stating that he was willing to
assist her. The Applicant’s brother was present on the day of the hearing but
did not appear as a witness. The RPD gave the letter no weight, and drew an
adverse inference from the brother’s unwillingness to speak to the letter that
he had written.
[11]
The Applicant testified that she was repeatedly
raped and abused by her husband and experienced instances of gang rape
instigated by him. The RPD asked why, in her Basis of Claim form, she made
little reference to the type of abuse she endured and found her explanation
that she “just forgot” not to be reasonable.
Citing the numerous credibility concerns related to the Applicant’s testimony
and the supporting documents, the RPD found the Applicant lacking in
credibility with respect to her testimony of forced marriage and abuse.
[12]
The Applicant also submitted a copy of a warrant
for her arrest and an email from her lawyer explaining how he obtained the
warrant. The RPD placed no weight on either document and also stated that, in
considering the totality of the evidence, it found that those documents did not
outweigh its numerous credibility findings.
Issues
[13]
In my view, the issues arising in this matter
are as follows:
1. Is the expert affidavit submitted by the Applicant admissible?
2. Were the RPD’s credibility findings reasonable?
Standard of Review
[14]
While the standard of review is not explicitly
addressed by the Applicant, the Respondent submits that the standard of review
is reasonableness. The Respondent further submits that credibility findings of
the RPD should not be interfered with if the Court can ascertain any reasonable
basis in the record to support those findings (Rahal v Canada (Citizenship
and Immigration), 2012 FC 319 at paras 41-46 (“Rahal”); Kaur v
Canada (Citizenship and Immigration), 2012 FC 1379 at para 34 (“Kaur”)).
[15]
It is well established that when reviewing the
credibility findings of the RPD, the Court will apply a reasonableness standard
and accord the RPD considerable deference (Aguebor v Canada (Minister of Employment
and Immigration) (1993), 160 NR 316 at para 4 (FCA); Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 46; Rahal at paras 22
and 60; Rezmuves v Canada (Citizenship and Immigration), 2013 FC 973 at
para 33). In judicial review, reasonableness is reviewed is concerned with the
existence of justification, transparency and intelligibly within the decision
making process as well as whether the decision falls 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 para 47 (“Dunsmuir”)).
Issue 1: Is the expert affidavit submitted by the
Applicant admissible?
[16]
The Applicant seeks to submit the Affidavit of
Dr. Rouhani, sworn on August 7, 2016, (“Rouhani Affidavit”) in support of her
application for judicial review. Dr. Rouhani identifies herself as an
attending emergency physician at Brigham and Women’s Hospital in Boston and the
co-chair of the Department of Emergency Medicine at L’Hôpital Universitaire de
Mirebalais in Haiti. She states that she has extensive experience relating to
the delivery of emergency medicine in developing countries.
[17]
In her affidavit, Dr. Rouhani states that it is
her expert opinion that the RPD’s decision is not reasonable and lacks critical
medical and contextual background information about the delivery of emergency
medicine in Uganda, where it is quite common for CPR to be erroneously
administered in situations where it is not required. Dr. Rouhani interprets
the RPD’s reasons as assuming that the Applicant was in a state of cardiac
arrest that required CPR, which the RPD found to be implausible. She describes
the “fundamental flaw” in that assumption as
being that the Applicant actually required CPR. She states, amongst other
things, that it is unreasonable to discredit the Applicant’s narrative simply
because the Medical Form indicates that CPR was administered.
Applicant’s Submissions
[18]
The Applicant submits that while new evidence is
not normally admissible on judicial review (Association of Universities and Colleges
of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012
FCA 22 (“Access Copyright”)), in this case the Rouhani Affidavit is
the only way to demonstrate that the RPD’s implausibility findings were
speculative and based on an erroneous apprehension of the facts. According to
the Applicant, the RPD did not raise concerns about CPR during the hearing or
give the Applicant the chance to provide evidence about it.
[19]
As an exception to the general rule against
allowing new evidence in judicial review proceedings, extrinsic evidence can be
used to show the absence of evidence before the decision-maker on a particular
point (Re Keeprite Workers’ Independent Union et al and Keeprite Products
Ltd (1980), 29 OR (2d) 513 (CA) (“Keeprite”); Access Copyright).
The Applicant submits that the Rouhani Affidavit falls squarely within the Keeprite
exception. It demonstrates the erroneous factual basis on which the RPD made
its decision.
[20]
Alternatively, even if the Rouhani Affidavit
does not fall within the exception, it should still be admitted. The RPD’s
applied highly specialized medical knowledge to challenge the presumption of
truth. The use of such “specialized knowledge”
without specifying its source is a breach of procedural fairness. And, in any
event, the implausibility finding was made without an evidentiary basis and was
the RPD’s attempt at playing doctor.
Respondent’s Submissions
[21]
The Respondent submits that evidence not before
the decision-maker should only be received by a reviewing court in situations
that are not inconsistent with the differing roles of the judicial review court
and the administrative decision-maker (Access Copyright at para 19).
The Rouhani Affidavit purports to “review” the RPD finding and determines that
it is “not reasonable.” However, this is the
function of the Court, not an expert. Further, the Keeprite exception
applies only in cases where the complete absence of evidence arises to the
level of jurisdictional error and should not allow the re-litigation of facts found
by the RPD (Keeprite at 521).
[22]
Even if the Rouhani Affidavit was admissible as
new evidence, it is not free from argumentative materials and attempts to
interpret evidence considered by the RPD and to draw legal conclusions. This is
not an acceptable use of an affidavit on a judicial review (Canadian Tire
Corporation v Canadian Bicycle Manufacturers Association, 2006 FCA 56 at
para 10).
Analysis
[23]
In my view the Rouhani Affidavit is not
admissible.
[24]
The general rule is that evidence that was not
before the administrative decision-maker, in this case the RPD, is not
admissible before the reviewing court (Bernard v Canada, 2015 FCA 263 at
para 13 (“Bernard”); Connolly v Canada (Attorney General), 2014
FCA 295 at para 7; Access Copyright at para 19).
[25]
In Bernard, the Federal Court of Appeal
recently revisited the three recognized exceptions to this general rule
previously set out in Access Copyright, as well as the principles behind
them, the most significant of which is the differing roles of the court and the
administrative decision-maker. In this matter, the Applicant submits that she
relies on the second exception. However, because she also makes a peripheral
argument pertaining to the third exception, I set out the Federal Court of
Appeal’s comments on both:
[24] The second recognized exception is
really just a particular species of the first. Sometimes a party will file an
affidavit disclosing the complete absence of evidence on a certain subject-matter.
In other words, the affidavit tells the reviewing court not what is in the
record—which is the first exception—but rather what cannot be found in the
record: see Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980),
29 O.R. (2d) 513 (C.A.) and Access Copyright, above at paragraph 20.
This can be useful where the party alleges that an administrative decision is
unreasonable because it rests upon a key finding of fact unsupported by any
evidence at all. This too is entirely consistent with the rationale behind the
general rule and administrative law values more generally, for the reasons
discussed in the preceding paragraph.
[25] The third recognized exception
concerns evidence relevant to an issue of natural justice, procedural fairness,
improper purpose or fraud that could not have been placed before the
administrative decision-maker and that does not interfere with the role of the
administrative decision-maker as merits-decider: see Keeprite and Access
Copyright, both above; see also Mr. Shredding Waste Management Ltd. v.
New Brunswick (Minister of Environment and Local Government), 2004 NBCA 69,
274 N.B.R. (2d) 340 (improper purpose); St. John’s Transportation Commission
v. Amalgamated Transit Union, Local 1662 (1998), 161 Nfld. & P.E.I.R.
199 (fraud). To illustrate this exception, suppose that after an administrative
decision was made and the decision-maker has become functus a party
discovers that the decision was prompted by a bribe. Also suppose that the
party introduces into its notice of application the ground of the failure of
natural justice resulting from the bribe. The evidence of the bribe is
admissible by way of an affidavit filed with the reviewing court.
[26]
In the context of the second exception, it may
have been permissible under the Keeprite exception for the Applicant to
file an affidavit pointing out that there was no evidence before the RPD as to
whether it was likely that CPR would be necessary or administered to a person
in the condition asserted by the Applicant. But the Rouhani Affidavit does not
address this. Rather, it presents entirely new evidence that was not before
the RPD and which was intended to demonstrate that, in developing countries,
CPR is often administered even when it is not required. The Applicant’s
premise appears to be that even if it is implausible for someone in her alleged
condition to be capable of walking to a hospital but to also need CPR, as the
RPD seemed to believe, the treatment could have been erroneously administered.
Thus, the Rouhani Affidavit does not demonstrate that the RPD’s conclusion was
based on an evidentiary vacuum, but calls on the Court to conclude that the
RPD’s finding was in error based on the new evidence. In my view, this goes
well beyond the second exception to the general rule and to accept it would be
to place the Court in the position of making a decision on the merits of the
claim, which is not its role (Bernard at para 17; Access Copyright
at paras 17-19; Connolly at para 7; Delois v Canada (Attorney
General), 2015 FCA 117 at paras 41-42).
[27]
Nor am I persuaded that the third exception has
application in these circumstances. The onus was on the Applicant to establish
her claim. In that regard, she provided the Medical Form, which indicated that
CPR had been administered. It could reasonably be anticipated that she would be
asked by the RPD, as she was, about the content of the Medical Form including
her account that she walked from the police station to the hospital where she
required CPR. Thus, it was open to the Applicant to have provided the expert
affidavit to the RPD to explain either why she may have needed CPR or, as she
now suggests, that it was erroneously administered.
[28]
For these reasons I do not find that the Rouhani
Affidavit falls within the existing exceptions, and the Applicant does not suggest
that a new category arises in these circumstances.
Issue 2: Were the RPD’s credibility findings reasonable?
[29]
As to the RPD’s credibility finding concerning
the Applicant’s account of events after she was released by the police, I would
point out that for the RPD the issue was whether the Applicant’s account was
credible:
[12] To corroborate this incident the
claimant presented a hospital medical form. The claimant was asked a number of
questions regarding her treatment such as what she was treated for, how she
managed to walk to the hospital on her own, and how she obtained the hospital
record. The claimant’s account was unreasonable. The claimant testified that
she was “bleeding” and when asked what treatment she received she provided a
cursory answer, she said she was cold, she said the hospital gave her an
injection “to sleep”, and she could not recall any other treatment. According
to the medical form the claimant was treated for hypothermia and
Cardiopulmonary Resuscitation (CPR) among other treatments that are difficult
to read on the form. When the claimant was asked specifically about the CPR,
she was unable to explain. When asked how she managed to walk to the hospital
and yet was in such a state that required CPR [sic] the claimant could not
explain. When the claimant was informed that CPR would indicated an emergency
medical procedure used to resuscitate someone form cardiac arrest, the claimant
could not explain when/how this was done. She testified that she was asleep
and when she woke up she did not get any feedback from the doctors about her
treatment due to the busyness of the hospital. The panel finds the claimant’s
account that she was severely beaten, raped, and tortured in police custody and
was able to walk herself to hospital, yet required CPR, highly unlikely.
(footnotes omitted)
[30]
Plausibility findings by the RPD should only be
made in the “clearest of cases” (Valtchev v
Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7 (“Valtchev”)).
[31]
My concern is that the Applicant provided an
explanation for why she could not provide details as to when or how CPR was
administered. She stated that she had been given an injection to sleep. The
RPD does not explicitly reject that evidence. It instead makes a plausibility
finding that someone having suffered the abuse and being in the condition that
the Applicant alleged, thus requiring CPR, could not have walked to the
hospital. However, the RPD does not have medical expertise. Whether someone
who has sustained such injuries could have walked to the hospital or not is a
plausibility finding that is not based on any evidence that was before the RPD.
In my view, this plausibility finding was therefore unreasonable.
[32]
The RPD could have tested the Applicant’s
account of events in other ways, such as asking her why she was suffering from
hypothermia in Uganda in August or why she testified that the reason she did
not speak to a doctor before she was discharged from the hospital to address
the administration of CPR was because she was in the free mass treatment
section of the hospital where there was little contact with doctors or nurses,
yet the Medical Form indicates that it is from Mulago Hospital Complex “Private Patients Services Scheme”.
[33]
However, regardless of the unreasonable
implausibility finding, the RPD made other credibility findings which have not
been challenged by the Applicant. These include the inconsistencies between
the Applicant’s evidence and that contained in in the affidavit provided by her
cousin Mable, which caused the RPD to place no weight on the affidavit.
Additionally, the inconsistencies in the Applicant’s testimony as to when she
last had contact with Immy, which resulted in the RPD affording no weigh to
that letter to corroborate the relationship. Further, the RPD noted the lack
of evidence to confirm her marriage to Patrick Jele and the fact that the
Applicant had not mentioned in her Basis of Claim form the gang rapes that she
testified were instigated by him. Based on its credibility concerns with the
Applicant’s testimony and the corroborating documents, the RPD found the
Applicant to be lacking in credibility with respect to her testimony of forced
marriage and abuse. The RPD also had concerns with the source of the Medical
Form. The Applicant had no personal knowledge of how it was obtained. She
testified that Mable provided it but Mable’s affidavit did not speak to this
and her affidavit was found to be lacking in credibility. In my view, these
negative credibility findings were reasonably open to the RPD based on the
evidence before it.
[34]
This Court has previously held that where one of
the RPD’s findings supporting a negative credibility assessment is
unreasonable, the Court should still uphold the decision if the RPD’s assessment
is sufficiently supported by other findings which can withstand reasonableness
review (Santillan v Canada (Citizenship and Immigration), 2011 FC 1297 at
para 51; Agbon v Canada (Minister of Citizenship and Immigration), 2005
FC 1573 at para 10; also see Kaur at paras 14-18). Further, unchallenged
credibility findings must be presumed to be true (Liu v Canada (Citizenship
and Immigration), 2015 FC 207 at para 28 (“Liu”)). In my view, the
unchallenged findings of the RPD on the Applicant’s inconsistencies,
contradictions and omissions provided a reasonable basis to ground its conclusion
that she was not credible (Rahal at para 60; Kaur at para 38).
[35]
As to the failure of the Applicant’s brother to
testify, the Applicant submits that while it was open to the RPD to give her
brother’s letter little or no weight because he would not testify in support of
it, that it was unreasonable to draw a negative inference against the Applicant
in this regard. The Respondent submits that the taking of evidence under oath
is an important safeguard of the truth seeking function of the adjudicative
process. The suggestion that a witness will say something but refuses to did
so under oath is an ample basis for drawing an adverse inference (Nguyen v
Canada (Citizenship and Immigration), 2012 FC 587 at para 31).
[36]
In this matter the Applicant testified that she
asked her brother to testify but he declined. This was because her brother “is a Born Again Christian and […] he says this goes against
his faith.” When asked why he wouldn’t testify when he was willing to
assist the Applicant with her claim, she said that, “[h]e’s
… I don’t know but he … he said he has helped me all he can, but he will not
make a … he chooses not to make a statement.”
[37]
The letter from the Applicant’s brother states
that he found out that his sister was a lesbian in 2008. When she called him
from the United States, he agreed to help her because he knew the situation
that she had left was not good and he was no longer in danger if he now
provided her with assistance. When she arrived in Canada, she relayed to him
her whole story and he agreed to help her so that she could start a new life
and that she deserved to be able to make a choice, rather than being forced to live
a life she does not want.
[38]
In my view, it was open to the RPD to afford the
letter no weight given that the Applicant’s brother was in attendance at the
hearing and able to testify to its content but refused to do so. It was also
open to the RPD to reject the Applicant’s explanation for her brother’s refusal
to testify, instead inferring that he was unwilling to repeat the statements
under oath or be subject to questioning, and to draw an adverse inference from
this. Where a party or witness fails to give evidence that is in the power of
the party or witness to give, a tribunal may be justified in drawing the
inference that the evidence of the party or witness would have been
unfavourable to the party to whom the failure was attributed (Lévesque v
Comeau et al, [1970] S.C.R. 1010 at 1012-13; Canada (Minister of
Citizenship & Immigration) v Malik (1997), 128 FTR 309 at para 4 (“Malik”);
Ma v Canada (Citizenship and Immigration), 2010 FC 509 at paras 1-7; Shen
v Canada (Citizenship and Immigration), 2016 FC 70 at para 37).
[39]
While an adverse inference should not be drawn
against a party if there is a reasonable explanation for failing to call a
witness (Malik at para 4), the RPD found that the Applicant’s
explanation- which is unclear but appears to be that her brother’s faith
precluded him from confirming her sexual orientation with sworn testimony— was
unreasonable. In my view, this conclusion was open to the RPD. The brother’s
letter stated that after his sister’s forced marriage, their father warned his
family not to contact her, and, that they did not want to get in trouble with the
law or the police. The letter made no reference to religious opposition by the
brother to his sister’s sexual orientation. Accordingly, it was open to the RPD
to determine that the failure to testify was because he would give unfavorable
evidence. Moreover, I would point out that a qualification by her brother had
he testified, such that, because of his faith, he personally did not support
his sister’s sexual orientation, would not have undermined the facts which he
stated in his letter being that she is a lesbian and was subject to a forced
marriage by their father.
[40]
Finally as to the warrant, the Applicant submits
that this was a critical piece of evidence as it illustrated that the police
sought her for committing illegal lesbian acts. The Applicant submits that the
RPD unreasonably gave the warrant no weight because it lacked letterhead and had
few security features. She submits that there was no evidence to support that
the warrant should have a letterhead and the RPD did not specify what security
features it expected to see. Foreign documents purporting to be issued by a
competent foreign public officer should be accepted as evidence of their
content unless the RPD has some valid reason to doubt their authenticity (Rasheed
v Canada (Minister of Citizenship and Immigration), 2004 FC 587 at para 19
(“Rasheed”)). Further, the RPD erred in stating that it had no way to
verify that the individual who states he is the Applicant’s lawyer and provided
the warrant, as the email from that person explained the relationship and the
RPD gave no reason why this should be doubted. The Applicant says she was
surprised by the RPD’s finding and, had it been put to her, she could have
provided further verification (Rojas v Canada (Citizenship and Immigration),
2011 FC 849 at para 6).
[41]
The Respondent points out that the warrant was
provided as an attachment to an email from a yahoo.com email address and there
was nothing to indicate if the person who sent the email was with a law firm or
was a lawyer. The warrant itself did not display any official insignia or seal
and showed an illegible signature. The Respondent submits that the RPD is able
to draw negative inferences for irregularities apparent on the face of a
document (Cao v Canada (Citizenship and Immigration), 2015 FC 1254 at
para 36 (“Cao”)). Given the Applicant’s lack of credibility and the
lack of indicia of reliability in either the warrant or the email, the RPD
found the document to be unpersuasive.
[42]
It is true that the warrant is a significant
document. This is because, had the RPD found the arrest warrant to be a
credible indicator of its content, it would have established government
persecution of the Applicant on the basis of sexual orientation.
[43]
In discussing the weight to be given to the
warrant and the letter, the RPD noted that the warrant contained few security
features and no letterhead and there was no way to verify the identity of the
individual who stated that he was the Applicant’s lawyer. The warrant, in fact,
contains no insignia of any kind; it is a simple typed document with no
apparent security features. When appearing before me, counsel for the
Respondent noted that there are errors on the face of the document such as the
misspelling of “Magistate” in the heading “In the Chief Magistate’s Court of Nakawa at Nakawa”.
This is true, however, it was not the reason given by the RPD in affording the
warrant no weight. Further, Cao does not assist the Respondent. In
that case, an arrest warrant was rejected by the RPD because there was ink on
top of the seal, indicating that the document had been signed after the seal
was applied. This was an indicator that the document could be fraudulent, which
was sufficient for the RPD to reasonably displace the presumption of
authenticity. Here the RPD makes no suggestion that the document is
fraudulent.
[44]
Further, in Chen v Canada (Citizenship and
Immigration), 2015 FC 1133, Justice Zinn found that the presumption of
authenticity applied in the absence of any evidence as to what security
features should exist on the document and that the RPD cannot simply reject its
authenticity on the basis that forgeries are available to the applicant (paras
10 – 11).
[45]
In this case, if the RPD had rejected the
warrant solely on the basis that it lacks security features, then this may have
been unreasonable. The RPD cannot reject the authenticity of a document in the
absence of some evidence that indicates that the document is not genuine, such
as irregularities on the face of the document itself (Jacques v Canada
(Citizenship and Immigration), 2010 FC 423 at para 16), or the document
differs from what an authentic example should look like (Liu at paras
22-24).
[46]
However, the RPD is entitled to give little
weight to documents that corroborate an allegation it finds not to be credible
without making any explicit finding as to their authenticity (Rasheed at
para 24; Singh v Canada (Minister of Citizenship and Immigration), 2004
FC 333 at paras 43-45; Lawal v Canada (Citizenship and Immigration),
2010 FC 558 at para 23; Berhane v Canada (Citizenship and Immigration),
2011 FC 510 at paras 33-34; Liu at para 30).
[47]
In this case, while the wording of the RPD’s
decision is not as clear as it could be, I am not satisfied that it rejected
the arrest warrant on the basis of it lacking security features as in the
following paragraph the RPD states:
[25] In considering the totality of the
evidence the Panel finds these two documents do not outweigh the numerous
credibility problems with this case. The Panel finds that the warrant for the
claimant’s arrest is lacking in credibility as the circumstances leading to her
arrest have been lacking in credibility.
[48]
It appears that the warrant was not afforded no
weight because it lacked security features—indeed the RPD made no authenticity
finding—but because it did not outweigh the RPD’s other negative credibility
findings. Put otherwise, this is a situation where the RPD examined the
Applicant’s testimony and determined, in light of the contradictions,
inconsistencies and omissions and other concerns which it identified, no
probative value should be afforded to this documentary evidence.
[49]
As stated by Justice Gleason in Rahal:
[60] None of these points warrants
intervention by the Court. In matters of credibility, as with identity
findings, it is my view that intervention by the Court is not warranted if
there is some evidence to support the Board's conclusion, if the RPD offers
non-generalized reasons for its findings (that are not clearly specious) and if
there is no glaring inconsistency between the Board's decision and the weight
of the evidence in the record. It does not matter if the RPD's reasons are not
perfect or even if the Court agrees with the conclusion, let alone each step in
the RPD's credibility analysis. As the case law establishes, matters of
credibility are at the very heart of the task Parliament has chosen to leave to
the RPD.
[50]
Viewed in whole, although the RPD’s
implausibility finding concerning the Applicant’s account of events upon her
release from prison was unreasonable, the remaining inconsistences,
contradictions and omissions were sufficient to ground the RPD’s adverse
credibility findings. Accordingly, the decision falls within the range of
acceptable outcomes defensible in respect of the facts and the law and the
application is dismissed.
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