Docket: IMM-3511-22
Citation: 2023 FC 1097
[ENGLISH TRANSLATION]
Ottawa, Ontario, August 11, 2023
PRESENT: Mr. Justice Régimbald
BETWEEN: |
SAMIRA MAMLOUK
|
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The applicant, Samira Mamlouk, is a 65‑year‑old citizen of Lebanon, who claimed refugee protection while visiting her daughters in Canada. She alleges that she fears persecution because of the threats received by her husband, a well‑known journalist in Lebanon, who had written a draft article criticizing Hezbollah and the Amal Movement and their actions in Lebanon.
[2] On March 24, 2022, the Refugee Appeal Division [RAD] dismissed the appeal from the decision of the Refugee Protection Division [RPD] determining that the applicant was neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Like the RPD, the RAD found that the applicant lacked credibility.
[3] For the reasons that follow, the application for judicial review is dismissed. In view of the RAD’s findings, the applicable law and the arguments and evidence brought before it, I see no reason to set aside the RAD’s decision [Decision]. The applicant has not discharged her burden of proof and has not demonstrated that her fear of persecution related to her husband’s situation is credible.
[4] The application for judicial review is therefore dismissed.
II. Facts
[5] The applicant is a Lebanese citizen and has four children, including two daughters who live in Canada and have obtained refugee status. Her husband, Najib Jezzini, is a well-known journalist and writer in Lebanon.
[6] In September 2019, the applicant’s husband wrote a draft article to be published in a Lebanese newspaper, criticizing Hezbollah and the Amal Movement and their actions in Lebanon. He showed the draft to a friend to get his opinion, and in January 2020, he was attacked, beaten and threatened not far from his home.
[7] Following the attack, the applicant’s husband contacted the applicant, who was in Canada visiting her daughters, to warn her not to return to Lebanon. Fearing persecution because of the threats received by her husband, which also targeted his family members, the applicant claimed refugee protection in Canada on March 4, 2020.
A. RPD’s decision
[8] The refugee protection claim was rejected on October 29, 2021, on the basis that the applicant was not credible because of several contradictions in her account. In addition, she did not establish a prospective risk.
[9] The RPD concluded that it was unclear when the applicant had been informed of the attack on her husband. Even though the information provided in her Basis of Claim Form [BOC Form] to the effect that her husband was attacked in the first week of January 2020 corresponds to the information in the police report, stating that he was attacked on January 6, 2020, her testimony before the RPD was completely different.
[10] In fact, before the RPD, she stated that the incident had taken place on December 20, 2019, and, when the member asked her when her husband had contacted her daughter to inform her of it, she stated that he had telephoned on November 17, 2019. The RPD therefore drew a negative inference regarding the applicant’s credibility because of these contradictions, which it was at liberty to do in the circumstances.
[11] The RPD also concluded that the police report filed in evidence was contradictory because the husband’s agents of persecution were not named in it, whereas the applicant wrote in her BOC Form that one of the attackers was a man named Murtada, who was known to her husband. The RPD rejected the applicant’s explanation that her husband had been afraid to give the police this information because he feared Hezbollah and thus assigned no probative value to either the police report or the medical report. The RPD also faulted the applicant for not producing testimony from her husband.
[12] It also concluded that there was no prospective risk for the applicant because her husband, her son and one of her daughters have continued to live in Lebanon and were never contacted by Hezbollah, thus demonstrating its lack of interest.
B. RAD’s decision
[13] The RAD confirmed the RPD’s determination that the applicant was neither a Convention refugee nor a person in need of protection.
[14] Like the RPD, the RAD concluded that there was a contradiction in the applicant’s statements that her husband had given her the name of one of his attackers but had not given it to the police, which undermines her credibility.
[15] The RAD also concluded that there were contradictions in how the applicant found out that her husband had been attacked. She wrote in her BOC Form that her husband had called her and asked her daughter to ensure that she not return to Lebanon, but before the RPD she testified that her husband had called her daughter, thus undermining her credibility again.
[16] The RAD also concluded that the evidence was inconsistent with respect to the date of the attack on her husband and the date on which he informed her daughter about it. The RAD rejected the applicant’s explanation that she was not present at the time of the attack.
[17] The RAD stated that the RPD’s decision not to assign any probative value to the police report and the medical report was correct since those documents did not specify the identity of the agents of persecution.
III. Issue and standard of review
[18] The applicant raises only one issue in her application for judicial review: Is the RAD’s decision regarding her credibility unreasonable?
[19] The standard of review applicable to the RAD’s credibility findings and the assessment of the evidence is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25; Adeniji-Adele v Canada (Citizenship and Immigration), 2020 FC 418 at para 11; Singh v Canada (Citizenship and Immigration), 2020 FC 807 at paras 16–17). Under this standard, the burden is on the party challenging the decision to show that it is unreasonable (Vavilov at para 100).
IV. Analysis
A. The Decision is reasonable
[20] The applicant argues that, despite the fact that the RAD’s findings deal with credibility, which would usually warrant deference, the Court should not hesitate to intervene in a clear case of error as in this case (Martinez Giron v Canada (Citizenship and Immigration), 2013 FC 7 [Martinez Giron] at para 15).
[21] For his part, the respondent submits that the RAD’s findings are reasonable given the applicant’s lack of credibility with respect to several central elements of her claim. Indeed, the RAD noted several omissions, contradictions and inconsistencies with respect to the identity of the agent of persecution, the applicant’s knowledge of fundamental aspects of her fear and important dates related to the alleged incident.
[22] I agree with the respondent. The contradictions and omissions in the applicant’s evidence are sufficient to question her credibility. I will explain.
(1) Burden of proof, credibility and implausibility
[23] In a refugee protection claim, the onus is on the applicant to “satisfy”
the decision maker (normally the RPD) that the claim and the allegations are credible. The onus is then on the RPD to decide whether the claim is credible or not. The RPD is often “best placed to assess the quality of testimony, since it is the RPD that hears the testimony”
(Eloi v Canada (Immigration, Refugees and Citizenship), 2019 FC 213 [Eloi] at para 21; see also Cerra Gomez v Canada (Citizenship and Immigration), 2018 FC 1233 at para 37; Lawani v Canada (Citizenship and Immigration), 2018 FC 924 [Lawani] at para 22; Soorasingam v Canada (Citizenship and Immigration), 2016 FC 691 at para 23; Jin v Canada (Citizenship and Immigration), 2012 FC 595 at para 10).
[24] To assess a claimant’s credibility, the RPD must consider the entirety of the evidence before it. Associate Chief Justice Gagné specified the following in Li v Canada, 2018 FC 877:
[29] First, I agree with the findings of this Court that it is “permissible for the RPD [or RAD] to assess an applicant’s genuineness and therefore sur place claim in light of credibility concerns relating to the original authenticity of a claim” (Zhou v Canada (Citizenship and Immigration), 2015 FC 5 at para 23). In my view, it would be an error to ask the RPD and RAD to analyze each issue raised by an asylum claimant in isolation, without regards to the credibility of the evidence filed in support of a different issue. A credibility assessment generally requires considering the entirety of the evidence adduced and a negative credibility finding is likely to taint all aspects of the claim.
[25] There is, however, a presumption that a claimant’s allegations are true unless there be reason to doubt their truthfulness (Maldonado v Minister of Employment and Immigration, [1980] 2 FC 302 (FCA); Sary v Canada (Citizenship and Immigration), 2016 FC 178 at paras 17–23).
[26] Although testimony cannot normally be rejected simply because there is no corroborating evidence, such evidence is helpful for establishing a claimant’s credibility. Justice Blanchard found as follows in Sinnathamby v MCI, 2001 FCT 473:
[24] I accept the contention that this Court has held that the CRDD may err when it requires corroborating evidence to support the claimant’s uncontradicted testimony. However, in the circumstances of this case, given the credibility concerns explicitly put to applicants, I am of the opinion that this principle does not apply. The CRDD noted the abundance of and supportive documentary evidence made available to it by the applicants for the earlier years. Given the credibility concerns expressed by the CRDD, it was open to it to draw a negative inference by reason of the fact that the applicants failed to provide any such evidence.
[27] Justice Leblanc reiterated this in Eloi, at paragraph 21:
… It is also a well-established fact that an accumulation of omissions and contradictions in a narrative intended to support a refugee protection claim may legitimately serve as the basis for a negative finding regarding the refugee protection claimant’s credibility; depending on the circumstances of each case, it can also legitimately justify the documentary evidence intended to corroborate a narrative being given little weight (Quintero Cienfuegos v Canada (Citizenship and Immigration), 2009 FC 1262 at para 1; Lawal v Canada (Citizenship and Immigration), 2010 FC 558 at para 25; Obinna v Canada (Citizenship and Immigration), 2018 FC 1152 at para 31).
[28] In this case, the applicant argues that the RPD and the RAD decided that her account was implausible. That is not the case.
[29] The RPD must be very careful when making plausibility findings. Indeed, plausibility findings by the RPD should only be made in the “clearest of cases”
(Jele v Canada (Immigration, Refugees and Citizenship), 2017 FC 24 at paras 29–34, citing Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 [Valtchev] at para 7).
[30] In Valtchev (see also Lawani at para 26), Justice Muldoon specified the following:
[6] The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. ...
[7] A tribunal may make adverse findings of credibility based on the implausibility of an applicant’s story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[8] In Leung v. M.E.I. (1994), 81 F.T.R. 303 (T.D.), Associate Chief Justice Jerome stated at page 307:
[14] …Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence.
[15] This duty becomes particularly important in cases such as this one where the Board has based its non-credibility finding on perceived "implausibilities" in the claimants’ stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member’s perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board’s decision clearly identifies all of the facts which form the basis for their conclusions. The Board will therefore err when it fails to refer to relevant evidence which could potentially refute their conclusions of implausibility...
[Bold emphasis in Justice Muldoon’s decision.]
[31] Thus, the Court should only make such determinations in situations where events are clearly unlikely to have occurred in the manner asserted, based on common sense or the evidentiary record (Aguilar Zacarias v Canada (Citizenship and Immigration), 2012 FC 1155 [Aguilar Zacarias] at para 10).
[32] It is also important to keep in mind that the reviewing court must show some degree of deference when it is required to determine the reasonableness of a credibility finding made by an administrative tribunal that heard the evidence (Eloi at para 21; Jiang v Canada (Citizenship and Immigration), 2019 FC 57 at para 15; Zuniga v Canada (Citizenship and Immigration), 2018 FC 634 at para 13; Quintero Sanchez v Canada (Citizenship and Immigration), 2011 FC 491 at para 12; Profète v Canada (Citizenship and Immigration), 2010 FC 1165 at para 11).
[33] In addition, Justice Mosley stated the following regarding plausibility findings in Santos v Canada (Minister of Citizenship and Immigration), 2004 FC 937:
[15] It is clear that plausibility findings are subject to the same deference as credibility findings, that being patent unreasonableness: see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). However, as stressed in Valtchev, supra, plausibility findings involve a distinct reasoning process from findings of credibility and can be influenced by cultural assumptions or misunderstandings. Therefore, implausibility determinations must be based on clear evidence, as well as a clear rationalization process supporting the Board’s inferences, and should refer to relevant evidence which could potentially refute such conclusions. The cautions set out in both Valtchev, supra, and Leung v. Canada (Minister of Employment and Immigration) (1994), 81 F.T.R. 303 are worth keeping in mind in the Court’s review of plausibility conclusions.
[34] As stated in Aguilar Zacarias, an “allegation may thus be found to be implausible when it does not make sense in light of the evidence before the Board or when (to borrow the language of Justice Muldoon in Vatchev [sic]) it is ‘outside the realm of what reasonably could be expected’”
(at para 11).
[35] In this case, neither the RAD nor the RPD made an implausibility finding. They concluded only that the applicant was not credible without mentioning that the applicant’s account was implausible.
(2) Police report and medical report
[36] The applicant is criticizing the RAD for not lending any credibility to the police report and the medical report and for accepting only the conclusions regarding the identity of the agent of persecution, the way in which she found out about what happened to her husband and the date of the incident.
[37] The RAD found that those two documents did not help to establish the identity of the agents of persecution or their association with Hezbollah or the Amal Movement.
[38] I find the RAD’s decision to be reasonable in this respect.
[39] The police report reads as follows:
[translation]
Subject:
Complaint filed against persons who beat, harmed and insulted the journalist Najib El Jezzini
On Monday, January 6, 2020, at __ o’clock, I, Warrant Officer Marwan Zeaiter, No. 42602, a judicial officer assisting the Attorney General of Appeal of Beirut, reporting to the platoon and in military uniform, certify that, while I was at the platoon headquarters as an officer assigned to the investigation, Mr. Najib El Jezzini, born in 1952, of Lebanese nationality, appeared before me and filed a complaint against three individuals of unknown identity who beat and threatened him. I have informed the platoon commander of this, and he ordered me to do what is required by law and to conduct an investigation.
...
Q.A.: I did not know them previously. I asked them “Who are you? Who sent you?” and one of them replied: “I know who you’re writing about. If you don’t want to lose your family and your hands, do not attack your masters”.
(Page 103 of the Certified Tribunal Record.)
[40] The medical report is dated January 6, 2020. Although the report is not clear, it seems to indicate that the applicant’s husband was examined for eye injuries and that the medical certificate was submitted to the authorities.
[41] These reports provide no relevant additional information. On the contrary, the police report contradicts the testimony of the applicant, who stated at the hearing that her husband had been attacked on December 20, 2019, while the police report states that the attack took place on January 6, 2020.
[42] The RAD did not fail to consider the evidence in this case. The RAD could reasonably not give evidentiary weight to assessments or reports based on underlying elements it found not to be credible (Lawani at para 34). This finding is reasonable in light of the two pieces of evidence provided.
[43] The police report and the medical report are insufficient to overcome the significant credibility concerns with the evidence. It is important to note that the evidence presented by the applicant is not assessed in isolation from the overall claim. Where the applicant’s personal testimony and evidence is not credible, it is reasonable for the RAD to have credibility concerns with the supporting documentary evidence, especially when that evidence is inconsistent with the information in the BOC Form (Ogaulu v Canada (Citizenship and Immigration), 2019 FC 547 [Ogaulu] at para 26).
(3) Persecutors’ identity
[44] The applicant submits that the RAD’s conclusion with respect to the persecutors’ identity is speculative and does not take the Lebanese reality into account, considering the power wielded by Hezbollah and the Amal Movement in the country. She argues that it was normal for her husband to be afraid to disclose the name of one of his attackers for fear of more significant retaliation, and that, accordingly, the finding that there was a contradiction between her testimony and the police report is unreasonable.
[45] She adds that, according to the Court’s case law, implausibility findings should be made only in the clearest of cases and should not be based on speculation. According to her, the RAD’s implausibility findings are therefore unreasonable as they are not based on the evidence, but rather on speculation and on misunderstanding of the evidence, contrary to Martinez Giron.
[46] In addition, the applicant submits that, in accordance with Mejia v Canada (Citizenship and Immigration), 2015 FC 434, the RAD was obliged to consider the explanations she provided to explain that contradiction because they were not obviously implausible. The RAD had to provide reasons “in clear and unmistakeable terms”
so as to reject those explanations with respect to the evidence before it.
[47] First, as explained above, neither the RAD nor the RPD made an implausibility finding. The case law cited by the applicant on the issue of plausibility is of no help to her. The RPD and the RAD rather drew a negative inference because of her lack of credibility, and they were entitled to do so.
[48] Then, the RAD specified in its conclusions that the explanation given by the applicant was unreasonable since her husband had asked the police for help and ordered them [translation] “to establish dispatch at the central investigations platoon, to set up an investigation patrol, to gather information about the incident, to inform him of any new developments and to keep the case open. His order was carried out”.
The fact that her husband asked the police for help and protection while failing to disclose who exactly had attacked him (on the pretext that his attacker was linked to Hezbollah and, according to him, by extension, to the police) is not credible. On the contrary, if the husband believed that the attacker was linked to Hezbollah (and to the police), he simply would not have disclosed the attack for fear of further retaliation by the attacker and the police.
[49] Contrary to the applicant’s claims, the RAD provided clear and intelligible explanations. The RAD specified that this explanation did not support a finding that the husband knew the identity of the primary agent of persecution, but was afraid to disclose it.
[50] Furthermore, the RAD concluded that the identity of the agent of persecution and the agent’s association with the Amal Movement and/or Hezbollah were central to the applicant’s claim, thus undermining her credibility. This is a reasonable conclusion.
[51] Finally, the RPD and the RAD were reasonably entitled not to accept the applicant’s explanation as to why her husband had not disclosed his attacker’s identity to the police (for fear of Hezbollah). First, without the husband’s testimony or evidence, this is hearsay. Second, the RPD and the RAD could reasonably find that the applicant lacked credibility because it was unreasonable for her husband to ask for the police’s help and protection while failing to disclose the name of the person he feared.
(4) Overzealousness
[52] The applicant submits that the RAD was overzealous and focused on insignificant inconsistencies with respect to how she found out about her husband’s situation. According to the applicant, this was simply an honest mistake that cannot lead to a finding of lack of credibility.
[53] I agree with the applicant on this point. Whether the applicant’s husband called her directly or whether he called her daughter first to inform her changes nothing. However, although the RAD erred on this point, the error is not sufficiently significant to warrant the Court’s intervention.
[54] It is important to understand that, on judicial review, the reviewing court must look at the decision as a whole and make sure that the decision maker’s reasoning is both rational and logical. However, it must be kept in mind that “[r]easonableness review is not a ‘line-by-line treasure hunt for error’”
(Vavilov at para 102, citing Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 at para 54, citing Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 14).
[55] Thus, the reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that ‘there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived’”
(Vavilov at para 102, citing Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 55 and Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 S.C.R. 748 at para 56).
[56] In this case, the RAD’s error on this issue does not result in the entire Decision’s being unreasonable. The error in question is not a sufficiently serious shortcoming such that the Decision as a whole cannot be said to exhibit the requisite degree of justification, intelligibility and transparency, and is unreasonable.
[57] The RAD’s error is superficial. It is a minor misstep that does not affect the Decision as a whole. Indeed, the RAD’s error was not “sufficiently central or significant to render the [Decision] unreasonable”
(Vavilov at para 100).
(5) Date of the incident
[58] The applicant submits that, although she made a mistake in her testimony regarding the date of the incident that happened to her husband, the panel should have relied on the date in the police report and the medical report. She argues that this evidence [translation] “the genuineness of which is not in dispute”
should have been considered fairly by the RAD rather than being discounted because of what it does not say, that is, the names of the persecutors or their organizations.
[59] In her BOC Form, the applicant states that her husband was attacked at the end of the first week of January 2020. However, in her testimony, she stated that the attack occurred on December 20, 2019. She then said that her husband had called her daughter to inform her of the situation on November 17, 2019, that is, before both of those dates.
[60] The RAD stated that it did understand that the applicant had not experienced these events herself but that this did not explain the inconsistency between the dates. The RAD pointed out that neither the police report indicating that the incident had taken place on January 6, 2020, nor the medical report helped to explain the inconsistencies.
[61] However, as the RAD pointed out in the Decision, the date of the attack on the applicant’s husband gave rise to the refugee protection claim. Therefore, this is not an inconsequential detail.
[62] The conclusion of Justice McDonald in Alhossiny v Canada (Citizenship and Immigration), 2022 FC 520 is relevant to the case at bar,
[26] This case is distinguishable from Cetinkaya v Canada (Citizenship and Immigration), 2012 FC 8 [Cetinkaya] where this Court held that it would be a reviewable error to “impugn the credibility of the Applicant on the sole ground that the information provided by the Applicant at the POE interview lacks details” (at para 51). The date of the attack – which gives rise to the claim for refugee protection – is not an inconsequential detail but goes to the core of the Applicants’ claim for protection.
[27] Further, as noted in Guven v Canada (Citizenship and Immigration), 2018 FC 38 inconsistencies between POE statements and later evidence can support credibility findings where “those inconsistencies are about ‘crucial elements’ of the applicants [sic] claim” (at para 39). In my view, being unable to identify the date of the attack is a crucial element of the Applicants’ claim.
[Emphasis added.]
[63] A negative credibility finding was therefore reasonable because the omission went to the very core of the refugee protection claim (Ogaulu at para 20).
[64] In sum, all of the RAD’s conclusions concern the applicant’s credibility, and as stated in Mohamed v Canada (Immigration, Refugees and Citizenship), 2020 FC 657 at paragraphs 33 and 37, the Court cannot reweigh the applicant’s evidence and arguments to intervene:
[33] The RAD reviewed the explanations provided by the applicants to justify these inconsistencies but found them to be unsatisfactory. The applicants essentially repeated the same explanations before his [sic] Court. It was open to the RAD to conclude that these inconsistencies created doubt about this key event in the chronology of the alleged persecution; as for Ms. Ahmed, this was an error of several months about a determinative event in her account.
...
[37] The applicants simply repeated the explanation that was provided to the RAD and then dismissed by it. They did not identify a reviewable error in the reasons the RAD relied on to reject this attempt to justify their delayed departure.
[Emphasis added.]
[65] As specified in Lawani, the reviewing court cannot substitute its own view of a preferable outcome. It is sufficient if the reasons allow the Court to understand why the panel made its decision, which is the case here:
[16] On such credibility and plausibility questions, a reviewing court can neither substitute its own view of a preferable outcome, nor can it reweigh the evidence (Khosa at para 59; Diallo v Canada (Citizenship and Immigration), 2007 FC 1062 at para 30). The Court must not intervene with the RPD’s decision so long as the panel came to a conclusion that is transparent, justifiable, intelligible, and within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law (Dunsmuir at para 47). It is sufficient “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” (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 16).
V. Conclusion
[66] The RAD’s decision is reasonable and justified in light of the relevant factual and legal constraints that bear on it.
[67] For these reasons, the application for judicial review is dismissed. The RAD’s reasons regarding the applicant’s credibility are sufficiently detailed and possess the qualities that make its reasoning logical and coherent in light of the relevant legal and factual constraints. There are therefore no grounds to warrant the Court’s intervention.
[68] The parties have raised no question for certification. I agree that none arises in the case at bar.
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