KHALED EL-KHATIB, ALINA FLORENTIN EL-KHATIB, SALAH EL-KHATIB, ALEXANDRA GABRI EL-KHATIB, MAHA MARIA EL-KHATIB v. MOHAMAD EL-KHATIB, 2016 FC 471

Date: 20160427 Docket: IMM-3724-15 Citation: 2016 FC 471 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, April 27, 2016 PRESENT: The Honourable Mr. Justice LeBlanc BETWEEN:KHALED EL-KHATIB, ALINA FLORENTIN EL-KHATIB, SALAH EL-KHATIB, ALEXANDRA GABRI EL-KHATIB, MAHAMARIA EL-KHATIB AND MOHAMAD EL-KHATIBApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS Introduction [1] The applicants—two brothers, their wives and the minor children of one of the couples—are from Romania. They arrived inCanada in August 2010 and claimed refugee protection on October 28 of the same year.

They claim that they fled Romania becausethey were targeted by the local mafia, who allegedly extorted, threatened and physically assaulted them. [2] On June 26, 2015, the Immigration and Refugee Board of Canada’s Refugee Protection Division (RPD) dismissed theapplicants’ refugee claims, arguing that they were neither refugees nor persons in need of protection within the meaning of sections 96and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).

The RPD essentially found that the applicants’credibility was undermined by contradictions, omissions and inconsistencies in relation to crucial elements of their story. It also foundthat by not claiming refugee protection until two months after arriving in Canada, the applicants had not behaved like people whogenuinely feared for their lives. [3] The applicants maintain that the RPD did not properly assess their credibility, that is, that it conducted a microscopicanalysis of the evidence and failed to consider and assess the accounts and testimony of the two wives.

They also feel that the RPDfailed to take into account the fact that the Palestinian background of the two brothers, Khaled and Salah, is the source of the problemsthat forced them to leave Romania. Consequently, they are seeking judicial review of the RPD’s decision and ask that the matter be sentback for redetermination by a different panel. [4] The question here is whether the RPD committed, in concluding as it did, an error justifying the Court’s intervention inaccordance with the provisions of

section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7. [5] It is well established that the standard of review applicable to this type of matter is that of reasonableness (Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [Dunsmuir]). According to this standard of review, the Court must show deference to thefindings of fact or mixed law and fact made by the RPD. [6] This deferential approach is particularly required when, as in this case, the impugned findings relate to the credibility andplausibility of the refugee claimant’s story.

In these matters, as the Federal Court noted in Cepeda-Gutierrez v. Canada (Minister ofCitizenship and Immigration) (1998), (FC), 157 F.T.R. 35 (F.C.T.D.) [Cepeda-Gutierrez], the Court should notsubstitute its view for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of itsmembers in assessing evidence relating to facts that are within their area of specialized expertise (see also: Canada (Citizenship andImmigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 89 [Khosa]; Lin v.

Canada (Citizenship and Immigration),2008 FC 1052, at paragraph 13; Martinez Giron v. Canada (Citizenship and Immigration), 2013 FC 7, at paragraph 14; Dong v. Canada(Citizenship and Immigration), 2010 FC 55, at paragraph 17; Lawal v. Canada (Citizenship and Immigration), 2010 FC 558, atparagraph 11; Quintero Sanchez v. Canada (Citizenship and Immigration), 2011 FC 491, at paragraph 12). Thus, the Court willintervene only if the RPD made its non-credibility finding without regard to the evidence (Cepeda-Gutierrez, at paragraph 14; see alsoCamara v.

Canada (Citizenship and Immigration), 2008 FC 362, at paragraph 12). [7] In this case, although the RPD appears to have conducted a microscopic examination of the applicants’ refugee claims insome respects, I am of the opinion that, when considered as a whole, the RPD’s decision has the qualities that make a decisionreasonable in that it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir,at paragraph 47). [8] The following contradictions, inconsistencies and omissions in the applicants’ story do appear to fall within this range:

a) The period during which Khaled allegedly worked in an exchange office: six years according to his account, and four yearsaccording to his testimony, which is a significant discrepancy.

b) The incident where, in 2006, Khaled’s extortionists allegedly came to the exchange office to threaten him and his clients. Khaled

did not mention this incident in his account, thinking that he only had to include the important points of his story, a justification that, in my opinion, the RPD was entitled to depart from. Khaled testified in this regard that his error had been due to the fact that someone had interpreted for him the form on which he had written his account; however, on that same form, he indicated that he had not received any assistance from an interpreter.

c) The injuries Khaled allegedly sustained at the hands of his extortionists in a police station, injuries that supposedly required hospitalization, and that are not mentioned in his account.

d) The month in which Khaled allegedly began work as a dentist: November 2009 according to his account and August 2009 according to his testimony.

e) Khaled’s inability to explain why a mere exchange office employee and dentist would be the target of extortionists.

f) The month in which Khaled allegedly stopped working at the dental office: August 2010 according to his account and July 2010 according to his testimony, the latter being the month in which he left Romania for Canada.

g) The incident in which the brothers were allegedly attacked in a nightclub. Salah mentioned it in his account, but Khaled did not.

h) The country Salah left in 1995 to study in Romania: Kuwait according to his account, and the United Arab Emirates according to his testimony. [ 9 ] In my opinion, it was reasonable for all these contradictions and omissions to cause the RPD to have doubts as to the credibility of the applicants’ story. In this context, I find that it was open to the RPD not to give weight to a local newspaper

article that describes the applicants’ alleged difficulties and that also contains inconsistencies, specifically in regards to Salah’s daughter and the school she attended, as well as the letter from Salah’s wife’s parents, a document that, moreover, is not dated ( Jia v. Canada (Citizenship and Immigration) , 2014 FC 422 , at paragraph 19 ; Huang v. Canada (Citizenship and Immigration) , 2011 FC 288 , at paragraph 21 ; Li v.

Canada (Citizenship and Immigration) , 2015 FC 1273 , at paragraph 23 ). [ 10 ] Lastly, the RPD is presumed to have considered all the evidence before it, such that the fact that Khaled’s and Salah’s wives’ evidence is not mentioned in the RPD’s decision is not, in itself, sufficient to conclude that the RPD was unaware of it ( Cepeda- Gutierrez , at paragraph 16 ; Antrobus v. Canada (Citizenship and Immigration) , 2012 FC 3 , at paragraphs 5 and 6 ).

In paragraph 6 of its reasons, the RPD clearly stated that it had [ translation ] “heard the applicants’ testimony and analyzed the evidence in the record.” [ 11 ] In any event, fear of the mafia and police remains the basis of all the applicants’ refugee claims. In this regard, the wives’ evidence adds nothing of significance to that of Khaled and Salah. In fact, they share the same fears as their husbands.

Given that the brothers’ story was found not to be credible and the wives’ refugee claims largely depended on it, this argument cannot succeed. [ 12 ] Lastly, in the context of this case, I do not find it unreasonable for the RPD to have drawn a negative inference from the fact that applicants did not claim refugee protection until two months after arriving in Canada. Nor do I find it unreasonable for it to have deemed insufficient the justifications provided by the applicants to explain the delay.

As established in the jurisprudence of this Court, failure to seek protection in Canada at the first opportunity may constitute sufficient grounds upon which to reject a claim for refugee protection, because the delay can be construed as inconsistent with the behaviour of someone who genuinely fears for his or her life ( Earl v. Canada (Citizenship and Immigration) , 2011 FC 312 , at paragraphs 46-48 ; Mesidor v. Canada (Citizenship and Immigration) , 2009 FC 1245 , at paragraph 12 ; Huerta v. Canada (Citizenship and Immigration) [sic] (1993), 157 NR 225, at paragraph 4, 40 ACWS (3d) 487 ).

Without justifying in itself the rejection of the refugee claims in this case, it was also open to the RPD to infer from this delay that the behaviour of those involved was inconsistent with that of people who fear for their lives. In my view, in the context of this case, this inference was within the range of possible, acceptable outcomes in respect of the facts and law. [ 13 ] Again, it is not for this Court to re-examine the evidence in the record and substitute its own findings for those of the RPD. As we have seen, its role is more limited.

In other words, the question is not whether another decision-maker would have concluded differently than the RPD after considering the same facts. The question is whether it was reasonable for the RPD to conclude as it did, keeping in mind that certain questions of mixed fact and law may have more than one reasonable outcome ( Dunsmuir , at paragraph 47 ; Khosa , at paragraph 59 ). I have concluded that this was the case. [ 14 ] Counsel for the parties have agreed that there is no need, in this case, to certify a question to the Federal Court of Appeal. I am also of that view. ORDER THE COURT ORDERS that: 1.

The application for judicial review is dismissed; 2. No question is certified. “René LeBlanc” Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-3724-15 STYLE OF CAUSE: KHALED EL-KHATIB, ALINA FLORENTIN EL-KHATIB, SALAH EL-KHATIB, ALEXANDRA GABRI EL-KHATIB, MAHA MARIA EL-KHATIB AND MOHAMAD EL-KHATIB v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: January 27, 2016 ORDER AND REASONS: LEBLANC J. DATED: April 27, 2016 APPEARANCES : Stéphanie Valois FOR THE APPLICANTS Charles Junior Jean FOR THE RESPONDENT SOLICITORS OF RECORD : Stéphanie Valois Barristers and Solicitors Montréal, Quebec FOR THE APPLICANTS William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT