Docket: IMM-7096-24
Citation: 2025 FC 515
Ottawa, Ontario, March 19, 2025
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
Rajab Haji HASSAN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP & IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Rajab Haji Hassan is a citizen of Tanzania who fled to Canada where he claimed refugee protection because of asserted persecution and discrimination based on his sexual orientation (bisexual).
[2] The Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada [IRB] rejected Mr. Hassan’s claim. Expressing credibility concerns with his testimony and documentary evidence, the RPD found that he is neither a Convention refugee nor a person in need of protection. The Refugee Appeal Division [RAD] of the IRB dismissed Mr. Hassan’s appeal, similarly finding his allegations were not credible [Decision].
[3] Mr. Hassan brings this judicial review application seeking to have the Decision set aside and the matter redetermined by a different panel, arguing the RAD’s negative credibility findings were unreasonable. The Respondent disagrees.
[4] Having considered the parties’ written material and their oral submissions, I find that Mr. Hassan’s submissions largely request the Court to reweigh the evidence considered by the RAD and come to different conclusions. As I explain below, this is not the role of a reviewing court and, thus, the judicial review application will be dismissed.
II. Analysis
A. The Decision is not unreasonable
[5] I am not persuaded that the Decision is unreasonable on the bases asserted by Mr. Hassan. Specifically, he disputes the RAD’s findings insofar as they relate to (a) testimony about his sexual orientation and partners that the RAD found inconsistent, vague and lacking in detail, (b) the implausible nature of police and court interest in Mr. Hassan, (c) his delay in leaving Tanzania, and (d) fraudulent court and police documents. Each area of concern is addressed briefly below.
[6] There is no disagreement that the presumptive review standard of reasonableness applies in the matter presently before the Court: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25. To avoid judicial intervention, the challenged decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (para 99). A decision may be unreasonable if the decision maker misapprehended the evidence before it (paras 125-126). The party challenging the decision has the onus of demonstrating that the decision is unreasonable (para 100).
(1) Testimony
[7] I determine the RAD reasonably described, with reference to the transcript, that Mr. Hassan’s testimony about his 7-year same-sex relationship with “Mohamed”
was vague, hesitant, and had to be drawn out through piecemeal questioning. Mr. Hassan takes issue with the RAD’s consideration of the Psychotherapy Assessment Report in evidence and the impact of his mental state on his testimony, but his submissions are little more than a request for the Court to reconsider and reweigh the Report.
[8] The Report outlines Mr. Hassan’s symptoms, such as insomnia, lost appetite, and frequent headaches, as well as “disabling levels of worry and anxiety,”
which are said to arise whenever he thinks about returning to Tanzania. These indications do not demonstrate, in my view, that Mr. Hassan has an impaired memory or would have difficulty testifying about his former partner Mohamed. The RAD reasonably characterized the vague or missing details as “quotidian.”
[9] Mr. Hassan’s Report differs from the situation in Abbar where the applicant’s psychotherapy report specifically outlines that she was suffering from “poor concentration and memory impairment,”
which the RAD there accepted would impede her ability to testify: Abbar v Canada (Citizenship and Immigration), 2017 FC 1101 at para 38.
[10] I also find the RAD intelligibly describes Mr. Hassan’s evolving testimony about his former same-sex partner “Juma”
as inconsistent and that his psychological state does not explain his discrepant testimony. The same can be said, in my view, about the RAD’s treatment of the affidavit of Mr. Hassan’s friend “Masoud”
and related inconsistencies in Mr. Hassan’s testimony. As an example, the RAD concludes the affidavit’s allegations were more consistent with falsity rather than truth because Masoud swears to having committed a crime by harbouring a fugitive from the police.
[11] Further, contrary to Mr. Hassan’s submissions, “[t]he fact that the RAD found inconsistencies and implausibilities in the Applicant’s evidence does not mean that the SOGIE[SC] Guidelines were not applied or improperly applied”
: Jayaraman v Canada (Citizenship and Immigration), 2022 FC 458 at para 24. In my view, the RAD reasonably accounts for Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
(2) Implausibility of police and court conduct/interest in Mr. Hassan
[12] I am not convinced that the RAD selectively considered country conditions documentation when it found the offences under the Zanzibar Penal Code — which Mr. Hassan asserts he is facing in court proceedings — are implausible. The fact that it was open to the RAD to draw another inference or other inferences on the evidence does not mean that the RAD’s evidentiary assessment on this issue was flawed: Krishnapillai v Canada (Minister of Citizenship and Immigration), 2007 FC 563 at para 11; Solis Mendoza v Canada (Citizenship and Immigration), 2021 FC 203 at para 43.
(3) Delay in leaving Tanzania
[13] I also am not convinced that the RAD unreasonably considered Mr. Hassan’s delay of two and a half years in leaving Tanzania after he indicates he was detained by police after being discovered in a hotel room with Mohamed. The RAD does not draw any negative credibility inference for delay related to the Covid pandemic and, further, intelligibly explains why his efforts to leave Tanzania, or lack, prior to the pandemic were unreasonable in the circumstances (i.e. as someone actively pursued by authorities).
[14] In addition, the RAD notes that Mr. Hassan continued working at the same factory that he had been employed at for almost a decade up until the time just before he left for Canada, including time that he asserts he was in hiding from the police. It cannot be said, in my view, that the RAD’s finding he lacked subjective fear is unreasonable in the circumstances. As this Court previously has held, the RAD can assess an applicant’s behaviour and conclude that a subjective fear has not been shown, taking into account an applicant’s travel, including the time between the crystallization of their fear and their departure from their country or their claim for protection: Cherifi v Canada (Immigration, Refugees and Citizenship), 2023 FC 458 at para 24.
(4) Fraudulent court and police documents
[15] Finally, I find that the RAD, not unreasonably, considers the evidence cumulatively to determine the police and court documents filed by Mr. Hassan are not genuine because the presumption that foreign government documents are authentic has been rebutted. Although the RAD may have erred in its reliance on country conditions evidence pointing to the prevalence and availability of fraudulent identity cards in Tanzania (that it extrapolated to documents more broadly), this is not a fatal error, in my view, given the other credibility and implausibility findings summarized in the Decision that contributed to the RAD’s determination.
[16] In sum, I am not satisfied that Mr. Hassan has met his onus of demonstrating that the Decision is unreasonable.
III. Conclusion
[17] For the above reasons, the judicial review application will be dismissed.
[18] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.
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