Date: 20161017

Docket: IMM-1089-16

Citation: 2016 FC 1148

Toronto, Ontario, October 17, 2016

PRESENT:    The Honourable Mr. Justice Campbell

JUDGMENT AND REASONS

[1]               The present Application concerns the Applicant’s claim for protection that, as a citizen of Kyrgyzstan, he will suffer more than a mere possibility of persecution under s.96 of the IRPA and risk under s.97 should he be required to return. The Applicant’s claim is based on his Uyghur ethnicity and his political activism in Kyrgyzstan.

[2]               In support of this claim, the Applicant supplied an extraordinarily detailed narrative in his Basis of Claim which is quoted in the attached Appendix.

[3]               The Refugee Protection Division (RPD) found that the Applicant established his identity as a Uyghur but rejected the Applicant’s claim on findings that the Applicant was not credible about his allegations of abuse by authorities, and there was insufficient evidence on the record to establish that the discrimination that he faces in Kyrgyzstan rises to the level of persecution.  

[4]               The Applicant appealed the RPD’s decision to the Refugee Appeal Division (RAD) which, by its February 23, 2016 decision presently under review, rejected the Applicant’s appeal. The RAD found that the determinative issue in the Applicant’s claim is the Applicant’s identity as a political activist for the Uyghur cause (Decision para. 17). On this issue, the RAD rejected the Applicant’s claim for protection on a finding of negative credibility. Aside from the credibility issue, the RAD also dismissed the Applicant’s claim made on the basis of his Uyghur ethnicity based on in-country documentary evidence.

[5]               I find that the central issue for determination in the present judicial review is whether the RAD’s negative credibility finding is supportable in fact and law.

I.                   The RAD’s decision-making on the issue of credibility

[6]               The RAD’s decision was rendered prior to the Federal Court of Appeal’s decision in Huruglica v Canada (Minister of Citizenship and Immigration), (2016 FC 93). Accordingly, at paragraph 10 of the decision the RAD applied Justice Phelan’s Federal Court decision (2014 FC 799) as follows:

The RAD will recognize and respect the credibility findings of the RPD and deference will be afforded to those credibility findings of the RPD where the RPD has a particular advantage in reaching its conclusions.

[7]               At paragraph 17 of the decision is the first statement made by the RAD on the merits of the appeal:

The RAD finds that the determinative issue in this claim is the Appellant's alleged identity as a political activist for the Uyghur cause. The RPD has found that the Appellant's allegations of his political activism are not credible.

[8]               After finding  that the RPD erred in concluding on a side issue that the Applicant knew or ought to have known that his co-claimant was not Uyghur,  the RAD’s analysis of the RPD’s credibility findings proceeds under the heading “Failure to Tender Documents”. The first statements under this heading are stated at paragraphs 21 and 22 of the decision:

The RPD drew an adverse inference from the Appellant's failure to tender documents and/or records to establish his allegations, in particular, that he is politically active for the Uyghur cause and that he had been arrested by police and released with reporting conditions.

The Appellant submits that the RPD's finding is illogical. He argues that it is illogical to assume that a person who has been illegally detained and beaten or asked to pay bribes would obtain the certificates and documents easily. He also argues that the RPD failed to consider the country documentation before it which corroborates his allegations of illegal detention and bribery specifically in Kyrgyz Republic according to the Country Reports on Human Rights Practices for 2014 dated June 25, 2015.

[Footnote omitted]

[9]               At paragraph 23 of the decision, the RAD engages the corroboration issue as follows:

The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant has alleged that he was arrested and was released the last time with the condition to report to the authorities every two weeks and not to leave the country. The Appellant alleges that he reported every two weeks as required until he left the country. His explanation in testimony for why he did not have any documents to corroborate his detention and reporting conditions was that his arrests were illegal. The RAD notes, however, that the Appellant did not allege anywhere in his Basis of Claim (BoC) documents that the arrests were illegal. In fact in his schedule 'A' Background Document he states that he was arrested because he was accused of separatism. While it is true that he alleges that he was released without charges after paying a bribe, the RAD finds that this does not in itself establish that the arrests were illegal or that they would not be documented in some way.

[Emphasis added]

[Footnotes omitted]

[10]           The RAD then proceeds to determine the Applicant’s credibility by making a series of implausibility findings.

[11]           Paragraph 24 reads as follows:

The Appellant cites country documentation which does corroborate that the police frequently used false charges to solicit bribes in exchange for release. The RAD finds that the allegations of the Appellant suggest that his arrests went beyond a scheme to solicit bribes. The RAD finds that if the purpose was simply to solicit a bribe, there would be no need to have the Appellant on a reporting condition as he has alleged. Furthermore, if he were in fact on a

reporting condition, the RAD finds it is reasonable to expect that his requirement to report would be in some way documented to ensure that he did report as required. The RAD finds that the

absence of any corroborating documents to this effect undermined his allegations that he was arrested and was required to report.

[Emphasis added]

[12]           Paragraphs 25 and 26 read as follows:

The RAD further finds, according to the Appellant's allegations, that he obtained his genuine passport during the time he was under the scrutiny of the police and security forces and under the condition to report regularly to the police. He also alleges that he was ordered not to leave the country. The RAD finds that under the circumstances it is reasonable to expect that the Appellant would not have been issued a passport that would enable him to leave the country if he was being monitored by the police. The RAD notes that country documentation in the record indicates that persons of his profile can be denied a passport.

Article 46 in the Kyrgyz migration law (Law on External Migration 2000) regulates when Kyrgyz citizens may be denied exit. Passports may be temporarily denied or be seized if, amongst other things, a person has knowledge of state secrets, has been charged/prosecuted or sentenced in a criminal case, has civil proceedings brought against them, has unresolved legal obligations or has evaded such obligations (for example, alimony), is considered a danger by the court or has provided incorrect information. New passports are not issued to people who are called to military service, but the authorities do not confiscate passports that are already issued on the basis of military service (IRB Canada 2006). [RPD’s Record, Exhibit 4, NDP for Kyrgyzstan (July 17, 2015), item, 3.2]

[Emphasis added]

[13]           Paragraph 28 reads as follows:

The RAD notes that Rule 11 of the Refugee Protection Division requires that the claimant provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to provide them. Since the Appellant alleges that he was detained, tortured and is being pursued by members of the police due to his political activism, acceptable documents establishing these facts would be an essential element of the claim. The RAD finds it reasonable for the Appellant to have provided documents such as letters, sworn affidavits, newspaper articles, photographs which corroborate his political activities as well as arrest records, notices of detention or release from police custody to corroborate the consequences of his

political activities. Despite having been questioned about providing documents, the Appellant has not provided any evidence that he has made any efforts to obtain such documents and has not tendered any such documents in this appeal. The RAD finds that the Appellant failed to provide persuasive documents or testimony to corroborate his allegations in this regard.

[Emphasis added]

[14]           Putting the implausibility findings to work, the RAD reached the following statements of conclusion at paragraphs 29 and 33:

The RAD finds, on the basis of the foregoing, that the Appellant's allegations that he was arrested and required to report to the police are not credible.

[…]

Notwithstanding the unsustainable findings of the RPD, the RAD finds, on the basis of the findings noted above and on a balance probabilities [sic], that the Appellant's allegations that he was a political activist in Kyrgyzstan and that he was and continues to be at risk of persecution because of his political activism is not credible.

II.                The law on the issue of credibility

[15]           On the determinative issue, in delivering an independent assessment of the RPD decision, I find that the RAD was required to assess the Applicant’s sworn evidence in compliance with the decision in Valtchev v Canada (MCI), 2001 FCT 776 at paragraphs 6 and 7:

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. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his

testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.

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]

[Emphasis added]

III.             Analysis of the RAD’s findings according to the law

A.                Corroboration

[16]           By applying the decision in Maldonado, in order for the RAD to require corroborative evidence from the Applicant to substantiate the Applicant’s claim, it was first necessary for the RAD to find reasons to doubt the truthfulness of the Applicant’s sworn testimony. I find that the cardinal error in the RAD’s decision is the failure to follow this straight-forward point of law. Instead of clearly identifying an evidentiary reason to rebut the presumption that the Applicant was telling the truth in the giving of his evidence, the RAD engaged corroboration in an erroneous circular analysis. That is, the fact that the Applicant did not file corroborating documentary evidence in support of his claim was found by the RAD as a reason to disbelieve his sworn evidence, and, thus, upon disbelieving his sworn evidence, the Applicant was required to provide corroborating evidence to avoid the dismissal of his claim. I find that this error alone renders the RAD’s decision unreasonable. 

[17]           In addition, and in any event, in the course of the corroboration engagement, the RAD made implausibility findings which are unsupportable in law. The following analysis addresses each of the findings quoted above in Section I of these reasons.

B.                 Implausibility

[18]           With respect to paragraph 23, the Applicant chose the word “illegal” to describe the conduct of the police because, from his perspective, their actions were intended to supress his activist activities outside of the law of the country.  The RAD’s intense focus on the Applicant’s word choice is evidence that the RAD was unwilling to accept the Applicant’s perspective. In any event, I find that the effort expended on the word choice cannot result in a negative credibility finding against the Applicant.

[19]           The statement in paragraph 24 is nothing more than unsubstantiated speculation.

[20]           With respect to paragraphs 25 and 26, the RAD found that it is implausible that, as a political activist, the Applicant would be able to obtain a passport, and to use it to leave the country. According to the decision in Valtchev, in order to establish the implausibility finding, the RAD was required to apply documentary evidence that established that the Applicant could not have obtained the passport during the period of his political activities.

[21]           In my opinion, the evidence applied by the RAD does not establish that, if  he was being monitored by the police, the Applicant would not have been issued a passport that would enable him to leave the country. I find that the evidence only establishes that he might not have been issued a passport. The fact remains that he was issued a passport.  I find that the evidence relied upon by the RAD does not establish the implausibility finding advanced on a balance of probabilities.

[22]           With respect to the statement in paragraph 28, the Applicant provided sworn testimony that the RAD’s expectations were impossible to meet. As to letters, affidavits, news articles, and photos, the Applicant’s evidence is that there were none to submit. As to not acquiring the various police records, the Applicant provides the reason that it is unreasonable and illogical to expect that he would make such a request from his persecutors. I find that there is no basis for the RAD to find that it was implausible that the Applicant could not conform to the expectations set, and that his failure to do so supports a finding of negative credibility.

IV.             Conclusion

[23]           For the reasons provided, I find the RAD’s determination with respect to the Applicant’s credibility is made in fundamental error of mixed fact and law which renders the decision under review unreasonable.

JUDGMENT

THIS COURT’S JUDGMENT is that the decision under review is set aside and the matter is referred back for redetermination before a differently constituted panel.

There is no question to certify.

“Douglas R. Campbell”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD:

Appendix

[Tribunal Record, pg. 202 – pg. 208]