Docket: IMM-242-14
Citation:
2014 FC 907
Montréal, Quebec, September 23, 2014
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MOHAMED BADR DABAA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant seeks a judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board [RPD], dated December 13, 2013, wherein, it was determined that he was
not a Convention refugee under section 96 nor a person in need of protection
under section 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
[2]
The RPD found that the Applicant lacked overall
credibility based on significant omissions, which undermine both the subjective
and objective basis of the Applicant’s alleged fear of persecution.
II.
Background
[3]
The Applicant, Mr. Mohamed Badr Dabaa, is a 47-year-old
musician from Aleppo, Syria. The Applicant claims that he is from a region that
is particularly affected by the confrontations between the rebels and the
government, in the context of the ongoing civil war in Syria.
[4]
Before the Applicant’s arrival to Canada, the Free Syrian Army [FSA] approached the Applicant on different occasions, in an
effort to recruit him.
[5]
The Applicant claims that the FSA threatens to
kill those who refuse to join its ranks.
[6]
In August 2012, the FSA intercepted the
Applicant outside of his home whereby, out of fear, he promised that he would
join it.
[7]
In September 2012, the Applicant came to Canada on a contract to perform with the Syrian singer, Shadi Gamil.
[8]
On October 16, 2012, the Applicant claimed
Canadian refugee protection in Canada.
[9]
After his arrival in Canada, the Applicant’s
wife informed him by way of a letter that the FSA was still looking for him and
that it was killing those who did not join its ranks.
[10]
The Applicant’s wife and children fled to Jordan and are now living in a refugee camp.
III.
Decision under Review
[11]
On December 13, 2013, the RPD found Mr. Dabaa to
be neither a Convention refugee for the reason of imputed political opinion nor
a person in need of protection due to a danger of torture or a risk of cruel
and unusual treatment or punishment, pursuant to sections 96 and 97 of the
IRPA.
[12]
The Tribunal concluded that “on a balance of probabilities, the claimant’s allegations are
not credible as far as being persecuted or targeted by the Free Syrian Army in Syria”.
[13]
The RPD based its decision on finding “a number of crucial omissions” in his Personal
Information Form [PIF] and initial testimony, which were only revealed by the
Applicant at the hearing. The RPD found that particular incidents involving the
Applicant’s close family members should have been mentioned at the outset of
the hearing.
[14]
These significant omissions include:
A.
The fact that the Applicant’s son, as well as
the Applicant’s brother, have been threatened on different occasions by the FSA;
B.
The fact that the Applicant’s brother-in-law and
nephew were kidnapped and threatened by the FSA;
C.
The fact that the FSA personally identified the
Applicant by his name when it intercepted him in August 2012.
[15]
At the hearing, when the RPD asked the Applicant
why he had omitted this information from his PIF, the Applicant answered that
he thought he had to tell his own story (not that of his family members) and
that if he had to explain everything, he would need more than five pages. The
Tribunal found this explanation unsatisfactory.
[16]
In the RPD’s view, the most significant omission
was the Applicant’s failure to mention that his own son had been threatened by
the FSA. The RPD deemed it reasonable that the Applicant should have mentioned
this incident in his initial testimony, given that his son is allegedly being
targeted because of the Applicant’s own problems with the FSA.
[17]
The RPD also rejected the Applicant’s wife’s
letter, which was submitted to corroborate his allegations. In the RPD’s view,
this short letter, which is considered “self-serving”,
should be given no probative value given the Applicant’s overall lack of
credibility.
[18]
The RPD found there to be a lack of an objective
basis to the Applicant’s alleged fear and that the Applicant’s “circumstances are essentially similar to other young male
members of his family in Syria”.
[19]
The RPD also found that the Applicant
demonstrated a lack of subjective fear and made a negative inference from the
Applicant’s action of hiding in his own residence from April to September 2012,
given that his residence is located in an area which is allegedly “far more dangerous” than other regions of Syria and
where the FSA was actively looking for him. The RPD concluded that “the claimant cannot effectively hide where his alleged agent
of persecution knows where to find him”.
[20]
Finally, the RPD held that the Applicant’s
circumstances are essentially similar to other young males in Syria. Also, the fact that none of his family members have had any incidents with the FSA
since January 2013 further undermines the objective basis to the Applicant’s
alleged fear of the FSA.
IV.
Issues
[21]
The central issue to be determined by this
application for judicial review is: Did the RPD commit a reviewable error in
its determination that the Applicant lacked overall credibility?
V.
Relevant Legislative Provisions
[22]
The following are the relevant
legislative provisions:
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96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
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96. A qualité de réfugié au sens de la Convention — le réfugié —
la personne qui, craignant avec raison d’être persécutée du fait de sa race,
de sa religion, de sa nationalité, de son appartenance à un groupe social ou
de ses opinions politiques :
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(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
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a) soit se trouve hors de tout pays dont elle
a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer
de la protection de chacun de ces pays;
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(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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b) soit, si elle n’a pas de nationalité et se
trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut
ni, du fait de cette crainte, ne veut y retourner.
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a
country of nationality, their country of former habitual residence, would
subject them personally
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97. (1) A qualité de personne à protéger la personne qui se trouve
au Canada et serait personnellement, par son renvoi vers tout pays dont elle
a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait
sa résidence habituelle, exposée :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
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b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne peut
ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
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(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the risk is
not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted international standards, and
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(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
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(iv) the risk is
not caused by the inability of that country to provide adequate health or
medical care.
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(iv) la menace ou
le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VI.
Position of the parties
The Applicant’s position:
[23]
The Applicant submits that the RPD has committed
reviewable errors in its determination of:
A.
The lack of credibility due to omissions in the
Applicant’s PIF and the Applicant’s responses at the hearing;
B.
The lack of subjective credibility in regards to
the Applicant hiding from the FSA in his own residence;
C.
The lack of objective basis to the Applicant’s
claim;
D.
The absence of probative value given to the
Applicant’s wife’s letter.
[24]
The Applicant argues that the RPD committed an
error by finding that he lacked subjective fear because he hid from the FSA in
his own residence. The Applicant submits that the RPD failed to consider his
cultural background and wrongfully analyzed his choice of hiding in his own
residence from its own perspective rather than from the perspective of the
Applicant.
[25]
The Applicant submits that the RPD erred in
finding that the Applicant failed to demonstrate an objective basis to his
claim. According to the Applicant, the RPD has incorrectly made a negative
inference from the fact that the Applicant and his family members have had no
incidents of persecution during a certain period of time.
[26]
The Applicant submits that this is an error in
law because the applicable test to determine the objective basis to a claim is
one of a fear of persecution. Physical harm or mistreatment is not necessary to
establish past persecution (Amayo v Canada (Minister of Employment and Immigration),
[1982] 1 FC 520).
[27]
The Applicant argues that the RPD failed to
consider the abundant documentary evidence confirming the ongoing “armed and violent struggle between the Syrian government and
the FSA, the human rights abuses committed by the FSA, the lack of state
protection from FSA threats and the absence of any internal flight alternative”.
[28]
Finally, in respect of the Applicant’s wife’s
letter corroborating the risk of persecution faced by the Applicant, the
Applicant submits that it was given no probative value. Thus, the unjustified
rejection of the wife’s letter constitutes a reviewable error.
The Respondent’s Position:
[29]
The Respondent submits that the only issue
before this Court is whether it was reasonable for the RPD to conclude that the
Applicant’s story was not credible.
[30]
The Respondent submits that when reviewing
conclusions of the RPD regarding the credibility of refugee claimants, the
applicable standard of review is that of reasonableness. Thus, the RPD’s
conclusions were reasonable given the Applicant’s significant omissions, which
undermine his credibility.
[31]
The Respondent further submits that the
Applicant’s behavior (i.e. hiding in his own house, and staying in a
neighborhood which allegedly is under attack) is not compatible with that of a
person who feels that his life is in danger. These elements undermine the
Applicant’s credibility.
[32]
It was therefore reasonable for the RPD to
conclude that rather than being specifically targeted by the FSA, the Applicant
faces a generalized risk, which does not justify granting refugee protection.
[33]
The Respondent argues that the fact that the
Applicant’s own son and brother were threatened by the FSA and that the
Applicant’s brother-in-law and nephew were both kidnapped by the FSA are
important omissions, which should have appeared in his written narrative.
[34]
The Respondent submits that the Applicant gave
no reasonable explanation to justify the omissions.
[35]
Finally, the Respondent submits that the
Applicant’s wife’s letter and the documentary evidence submitted by the
Applicant were in fact considered by the RPD; however, the letter was not given
much probative value, given the “many problems that arose
from the Applicant’s difficult testimony”.
VII.
Standard of Review
[36]
The standard of review in regards to findings of
credibility is that of reasonableness. In Gutierrez v Canada (Minister of Citizenship and Immigration), 2009 FC 487, Justice Beaudry
stated:
[7] Assessing credibility and weighing
the evidence fall within the jurisdiction of the administrative tribunal called
upon to assess the allegation of a subjective fear by a refugee claimant (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration 1998 CanLII 8667 (FC),
(1998), 157 F.T.R. 35(F.C.T.D.), 83 A.C.W.S. (3d) 264 at paragraph 14). [...]
[14] The panel is in the best position to
assess the explanations provided by the applicant with respect to the perceived
contradictions and implausibilities. It is not up to the Court to substitute
its judgment for the findings of fact drawn by the panel concerning the
applicant’s credibility (Singh v. Canada (Minister of Citizenship and
Immigration), 2006 FC 181 (CanLII), 2006 FC 181, 146 A.C.W.S. (3d) 325 at
paragraph 36; Mavi v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 1 (F.C.T.D.) (QL)).
[37]
In Perez v Canada (Citizenship and
Immigration), 2010 FC 345, in assessing credibility, the Court stated the
applicable standard of review :
[26] [...] The Court will only intervene if the Board based its decision on an
erroneous finding of fact made in a perverse of capricious manner or if it made
its decision without regard to the material before it (Aguebor v. Canada
(Minister of Employment and Immigration), (1993), 160 N.R. 315, 42 A.C.W.S.
(3d) 886 (F.C.A.)). Since Dunsmuir v. New Brunswick, 2008 SCC 9
(CanLII), 2008 SCC 9, [2008] 1 S.C.R. 190, the applicable standard of review is
reasonableness.
VIII.
Analysis
[38]
The Court is of the view that three core issues
are relevant:
A.
Did the Applicant demonstrate an objective basis
to his claim?
B.
Did the Applicant demonstrate a subjective fear
of persecution?
C.
What probative value is to be given to the
Applicant’s wife’s letter?
Did the Applicant demonstrate an objective basis to his
claim?
[39]
The Federal Court of Appeal has determined that
a refugee claimant’s fear of persecution must have both a subjective and an
objective basis to it. Also, evidence of past persecution is one of the most
persuasive means for demonstrating that a fear of future persecution is
objectively well-founded (Rajudeen v Canada (Minister of Employment and
Immigration), (1984) 55 NR 129 (FCA).
[40]
In respect of the consequences of an Applicant
returning to his or her country of origin, the Federal Court of Appeal has
repeatedly emphasized that it is the well-foundedness of a fear of future
persecution that is tested in its determinations (Fernandopulle v Canada
(Minister of Citizenship and Immigration), 2005 FCA 91).
[41]
Applicants who face a generalized risk, such as
those in situations of indiscriminate war, are generally not protected under
section 97(1)(b)(ii) of the IRPA. This issue was addressed by this Court
in De Parada v Canada (Minister of Citizenship and Immigration), 2009 FC
845. In this decision, the Court found that the RPD had not erred in its
determination that the risk faced by the Applicants was a generalized risk:
[22] I agree with my colleagues that an
increased risk experienced by a subcategory of the population is not
personalized where that same risk is experienced by the whole population
generally, albeit at a reduced frequency. I further am of the view that where
the subgroup is of a size that one can say that the risk posed to those persons
is wide-spread or prevalent then that is a generalized risk.
[23] That is precisely what the Board
found in this case. The subgroup of the population of El Salvador that the Applicants were found to belong to was described by the Board as "business
people" whom it stated were those who "operate a business, work for a
business or own and operate transportation units in El Salvador." That is
a very large subgroup, encompassing almost all in the country who legitimately
work for a living. That determination, based on the evidence was not unreasonable;
neither was the finding of generalized risk.
[42]
Furthermore, it is well established in the
jurisprudence that PIF omissions and inconsistencies may constitute a basis for
an adverse credibility finding (Garcia v Canada (Minister of Citizenship and
Immigration), 2006 FC 611 at para 10). At the hearing, the RPD asked the
Applicant if, after he had left Syria, any incidents had occurred in respect of
other male members of his family, to which the Applicant answered no. Only when
asked by the RPD Member if incidents had taken place between the FSA and his
son did the Applicant mention that his son had been threatened. This
significant omission in the Applicant’s PIF and even in the relating of his
narrative prior to probing questions undermines the Applicant’s credibility.
[43]
It is the Court’s view that the Applicant failed
to demonstrate how his particular circumstances differ from those of the
general Syrian population. It appears that the Applicant faces a generalized
risk, given the civil war in Syria and in particular to the Applicant, in the Aleppo region. The RPD considered the documentary evidence before it and its decision
rejecting the Applicant’s claim on the basis of a lack of credibility is
reasonable.
Did the Applicant demonstrate a subjective fear of
persecution?
[44]
At paragraph 27 of Gurung v Canada (Minister of Citizenship and Immigration), 2010 FC 1097, Justice Zinn found
that:
[27] […] A finding that a claimant’s
subjective fear is not objectively well-founded is fatal to a refugee claim: Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 S.C.R.
689. The law is clear that this is a separate element required to establish
persecution under s. 96 of the Act; accordingly, errors with respect to
discrete elements of a refugee claim will not invalidate a decision as a whole
where the Board reaches an independent determination of lack of objective fear
[…].
[45]
At the hearing, the RPD raised its concern in
respect of the lack of subjective fear, given that the Applicant hid in his own
house between April 2012 and September 2012, despite allegations that the FSA
was looking for him.
[46]
The implausibility raised by the RPD in this
respect is not, in and of itself, sufficient to dismiss the Applicant’s
subjective fear; however when considered in the context of the Applicant’s
omissions and overall lack of credibility, it further undermines his
credibility.
[47]
Also, in respect of the RPD’s negative finding
of credibility regarding the Applicant’s allegation that the FSA approached him
personally and knew his name, the Court finds that the RPD’s conclusion is
reasonable, given that this had not been mentioned by the Applicant prior to
the hearing and the RPD’s finding that the Applicant’s claim lacked overall
credibility.
What probative value is to be given to the Applicant’s
wife’s letter?
[48]
The RPD dismissed the Applicant’s wife’s letter
for issues of credibility and for being “self-serving”.
The Applicant submits that the RPD erred in not giving any probative value to
the Applicant’s wife’s letter and that the letter must not be discredited
solely because it was written by a person interested in the Applicant’s claim.
[49]
In Taborda v Canada (Minister of Citizenship
and Immigration), 2013 FC 957, the probative value of a letter submitted by
a family member was discussed by this Court:
[27] As noted by Justice O’Keefe in (S
M D v Canada (Minister of Citizenship and Immigration), 2010 FC 319 at para
37) “it would seem to me that any letter written to support the applicant’s
claim would be, by the Board’s reasoning, self-serving. This cannot be the
case. An applicant has to be able to establish their case.”
[28] [...]
[28] In light of this
jurisprudence, and under the circumstances, I do not believe it was reasonable
for the Officer to award this evidence low probative value simply because it
came from the Applicants’ family members. Presumably, the Officer would have
preferred letters written by individuals who had no ties to the Applicants and
who were not invested in the Applicants’ well-being. However, it is not
reasonable to expect that anyone unconnected to the Applicants would have been
able to furnish this kind of evidence regarding what had happened to the
Applicants in Mexico. The Applicants’ family members were the individuals who
observed their alleged persecution, so these family members are the people
best-positioned to give evidence relating to those events. In addition, since
the family members were themselves targeted after the Applicants’ departure, it
is appropriate that they offer first-hand descriptions of the events that they
experienced. Therefore, it was unreasonable of the Officer to distrust this
evidence simply because it came from individuals
connected to the Applicants.
[50]
This Court finds that the RPD explicitly
considered the evidentiary value of the letter and decided not to give it any
probative value. In its reasons, the RPD explained that this was not due to the
wife’s interest to the claim, but rather to the overall lack of credibility in
the Applicant’s claim.
IX.
Conclusion
[51]
The RPD considered the evidence submitted by the
Applicant and denied him refugee status under sections 96 and 97 of the IRPA.
[52]
The Applicant’s evidence is replete with
significant omissions, which undermine the Applicant’s credibility.
[53]
The most significant omissions are:
A.
No mention is made in the Applicant’s PIF that
his son had been threatened by the FSA, coupled with a lack of corroborative
evidence to support this allegation;
B.
No mention is made in the Applicant’s PIF that
he had been personally recognized by members of the FSA;
C.
No mention is made by the Applicant in his PIF
of serious incidents involving the FSA and members of his family. The
Applicant’s explanation that he thought that he only had to explain “his own story” in the narrative does not lend itself to
credibility. The PIF clearly states: “Indicate the
measures taken against you and members of your family, as well as similarly
situated persons, and by whom these measures were taken”. Thus, the RPD
considered the additional testimony of the Applicant as an embellishment.
[54]
At the hearing, the RPD Member gave the
Applicant a number of opportunities to provide further explanations for these
obvious and significant omissions. The RPD was reasonably not satisfied with
the explanations given by the Applicant.
[55]
Therefore, for all of the above reasons, the
application for judicial review is dismissed.
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