2022 FC, 2022 FC 1760

Date: 20221219 Docket: IMM-8254-21 Citation: 2022 FC 1760 Ottawa, Ontario, December 19, 2022 PRESENT: The Honourable Justice Fuhrer BETWEEN:ELIJAH NYAKEBE AYAYEApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Overview [1] The Applicant, Elijah Ayaye, is a citizen of Kenya. He fears the Chinkororo militia which the Applicant asserts demanded protectionmoney from him and made threats against him and his family.

The Applicant therefore fled to Canada and claimed refugee protection. [2] The Refugee Protection Division [RPD] of the Immigration and Refugee Board dismissed his claim, the determinative issue beingcredibility. The Refugee Appeal Division [RAD] dismissed the appeal [Decision], finding the RPD was correct in determining that theApplicant is neither a Convention refugee nor a person in need of protection. [3] The Applicant seeks judicial review of the Decision, asserting that the RAD’s treatment of the following evidence was unreasonable:(

i) the Applicant’s port of entry [POE] statements; (ii) the Applicant’s supporting affidavit evidence; and (iii) omissions in theApplicant’s basis of claim [BOC] narrative. [4] The overarching issue for determination in this matter is whether the Decision was reasonable. There is no dispute that thepresumptive reasonableness standard of review applies to the Court’s review of the Decision: Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 17, 25.

I find that none of the situations rebutting the presumptive standardis present here. [5] To avoid judicial intervention, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility:Vavilov, at para 99. A decision may be unreasonable if the decision maker misapprehended the evidence before it or did notmeaningfully account for or grapple with central or key issues and arguments raised by the parties: Vavilov, at paras 126-127.

The partychallenging the decision has the onus of demonstrating that the decision is unreasonable: Vavilov, at para 100. [6] For the reasons below, I find that the Applicant here has not met his onus. I thus dismiss this judicial review application. II. Analysis A. POE Statements [7] Contrary to the Applicant’s submissions, I am not persuaded that the RAD’s reasons demonstrate an unacceptable over-reliance onthe Applicant’s POE statements.

As explained below, I find the Applicant’s reliance on Lubana v Canada (Minister of Citizenship andImmigration), 2003 FCT 116 [Lubana], is misplaced. [8] During his first interview at the POE, the Applicant stated that he feared those who provided him with falsified documents to come toCanada. When asked to clarify, the Applicant identified these people by name and described why he asked them to obtain a visa for him(they brought people to Canada for work because there are no jobs in Kenya). He also stated that his family did not accompany himbecause the children were in school studying.

Further, he came to Canada using his wife’s money and would not be welcome if he wentback. [9] At his second interview more than two months later, however, the Applicant stated that he came to Canada because the Chinkororowere looking for him in Kenya for not paying protection money and that his family was in hiding.

His basis of claim [BOC] formprovides more details regarding the Applicant’s fear of the Chinkororo. [10] I find that in the circumstances, it was not unreasonable for the RAD to conclude, having reviewed the Applicant’s POE statements,his BOC, and a psychological assessment, that the RPD was correct in drawing a negative inference regarding the inconsistencies. In myview, the RAD did not perform a microscopic examination of issues irrelevant or peripheral to the Applicant’s claim: Lubana, above atpara 11.

Instead, the RAD focussed on the central issue of the Applicant’s reasons for coming to Canada: Gaprindashvili v Canada(Citizenship and Immigration), 2019 FC 583 at para 24. [11] Further, this is not a case where the Applicant destroyed travel documents or told lies about them upon arrival following an agent’s

instructions: Lubana, above at para 11. Rather, the Applicant here admitted travelling with false documents. [12] I also am not convinced that the Decision represents a lack of sensitivity on the part of the RAD, as argued by the Applicant, inassessing the Applicant’s POE statements: Gabila v Canada (Citizenship and Immigration), 2016 FC 574 [Gabila] at para 34.

That theRAD considered the statements in the two interviews inconsistent in the face of a significant change in the Applicant’s explanations forcoming to Canada, in itself, does not demonstrate a lack of sensitivity, in my view. [13] I find that the RAD, after acknowledging the psychological assessment and accepting that the Applicant may have experienceddepression and anxiety at the time he entered Canada, explained in clear and unmistakable terms the care the POE officer took inensuring the Applicant understood the interpreter provided to him and in understanding the questions asked of him, including askingfollow up questions if the Applicant initially did not answer directly. [14] In the circumstances, it was not unreasonable in my view for the RAD to conclude the inconsistencies in his statements did notresult from his psychological condition, on a balance of probabilities.

Unlike in Gabila, the Applicant here did not provide a detailedexplanation for inconsistencies between his POE statements, BOC, and testimony, but rather stated that he did not understand himself.Further, although the Applicant did mention to the RPD that he was having medical issues during the hearing, he told the RPD that hefelt well enough to testify.

This was not a situation, like in Lubana, where the applicant broke down during testimony. [15] I find the Decision readily permits the Court to understand the RAD’s reasons for drawing negative inferences regarding theApplicant’s credibility which in my view are rationally supported: Kaur v Canada (Citizenship and Immigration), 2012 FC 1379 at para34. B.

Supporting Affidavit Evidence [16] I am not convinced that the RAD’s treatment of the Applicant’s supporting affidavit evidence, including affidavits from his spouse,neighbours/family friends, and a clan elder from the same clan as the Applicant, on the whole was unreasonable. [17] In concluding the affidavits did not comply with the requirements for preparing and commissioning affidavits in Kenya, the RADpoints to an

article from a lawyer that explains affidavits usually are prepared by lawyers and "“must”" be commissioned by someonedifferent than the lawyer who drew up the affidavit. The RAD also considers a second

article that discusses the duties of a commissionerfor oaths, which include preparing an affidavit. The RAD finds the articles are not inconsistent because there is "“no indication that thecommissioner for oaths is the same individual, who can act in this role, which can be a second commissioner for oaths.”" The RAD alsoindicates that there is no content in the second

article suggesting that there are exceptions regarding the mandatory language in the firstarticle that the person who prepares the affidavit and the commissioner must be different. [18] In my view, the RAD’s concerns with the second

article regarding the duties of the commissioner and the lack of exceptions are amisstep because the RAD focusses on what the

article does not say, rather than what it does. Further, the Respondent conceded at thejudicial review hearing that the RAD’s assessment of whether the supporting affidavit evidence was commissioned properly, in itself,would be insufficient to discount the evidence. [19] I note, however, that not every flaw or shortcoming in a decision will render it unreasonable on the whole: Metallo v Canada(Citizenship and Immigration), 2021 FC 575 at para 26, citing Vavilov, above at para 100.

I agree with the Respondent thatnotwithstanding the RAD’s misstep regarding whether the affidavits were commissioned properly, the RAD nonetheless considered thecontents of the affidavits and found other reasons for discounting the evidence including inconsistencies, a fraudulent identity card, and amissing date on which one of the affidavits was sworn. [20] In my view, the circumstances here are distinguishable from the guidance of this Court in Paxi v Canada (Citizenship andImmigration), 2016 FC 905 [Paxi], on which the Applicant sought to rely.

In Paxi, the tribunal had discounted a support letter because itwas not notarized: Paxi, above at para 51. Justice Russell noted the letter had other markers of authenticity, as it was written on churchletterhead, and was dated and signed: Paxi, above at para 52. In the case before me, the RAD did not discount the affidavit evidencesimply for not being sworn or notarized.

The evidence was considered and given no weight for other reasons concerning theirauthenticity: Mathieu v Canada (Citizenship and Immigration), 2021 FC 249 at para 29. [21] I thus find the RAD’s reasons for assigning no weight to the affidavits were not unreasonable on the whole. C.

BOC Omissions [22] I am satisfied that the RAD’s treatment of two omissions from the Applicant’s BOC was not unreasonable. [23] The Applicant’s BOC, contrary to his testimony, did not mention that his spouse was approached by the Chinkororo between Apriland September 2019, nor that his friend advised him the Chinkororo was still looking for her during that time.

The RAD found that thesewere not peripheral details and that the BOC narrative, which the Applicant prepared with the assistance of counsel and swore as to itstruth and completeness, is a sworn statement of facts describing why the Applicant needs refugee protection in Canada.

The RAD wasnot satisfied with the Applicant’s explanation that his continued shock and confusion prevented him from remembering these eventsbecause the Applicant had ample time to review and amend or revise his BOC prior to the hearing. [24] I find the RAD’s rationale and conclusion that the Applicant attempted to embellish his claim were justified in the circumstances.

Idisagree with the Applicant that it is an error to impugn credibility because of BOC omissions, having regard to the Maldonadopresumption of truthfulness, especially when there are other credibility concerns at play: Maldonado v Minister of Employment andImmigration, (FCA).

III. Conclusion [ 25 ] For the above reasons, I conclude that the Decision is justified in relation to the applicable factual context and legal constraints on the RAD: Vavilov , above at para 90 . I therefore dismiss the Applicant’s judicial review application. [ 26 ] Neither party proposed a serious question of general importance for certification and I find that none arises in the circumstances. JUDGMENT in IMM-8254-21 THIS COURT’S JUDGMENT is that : 1 . The Applicant’s judicial review application is dismissed. 2 . There is no question for certification. "Janet M.

Fuhrer" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8254-21 STYLE OF CAUSE: ELIJAH NYAKEBE AYAYE v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: December 14, 2022 JUDGMENT AND reasons: FUHRER J. DATED: December 19, 2022 APPEARANCES : Justin Heller For The Applicant Christopher Ezrin For The Respondent SOLICITORS OF RECORD : Jacqueline Lewis Lewis & Associates Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent