Date: 20050620
Docket: IMM-9426-04
Citation: 2005 FC 876
PRESENT:
AMEIR (MAKAME) AMEIR
Applicant,
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] The Applicant, Ameir (Makame) Ameir, seeks judicial review of the October 19, 2004, decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), wherein he was found not to be a Convention refugee nor a person in need of protection.
[2] The Applicant asks this Court to quash the Board's decision.
FACTUAL BACKGROUND
[3] The Applicant, a citizen of Tanzania, claims to have a well-founded fear of persecution at the hands of Tanzanian authorities based on his political opinion as a member of the Civic United Front ("CUF"), which he joined in 1994.
[4] The Applicant's claim is based on the following allegations of fact. Due to his membership in the CUF, he was repeatedly arrested, detained, beaten and tortured. In 1995, members of the ruling Chama Cha Mapinduzi ("CCM") party came to the Applicant's residence, beat him and threatened to kill him if he continued to support the CUF. In 1998, he was arrested along with three other CUF members, detained for three weeks and beaten. In 1999, members of the CCM beat him so brutally that he had to undergo surgery. In 2000, he was arrested and detained for seven days and tortured. He was also beaten several times by the police and CCM members during that year. In January 2001, while attending a demonstration organized by the CUF, the Applicant was beaten by the police, and his mother was attacked by CCM members. Finally, in 2003, the Applicant and his best friend, Ali Shaban, were in a group being chased by the police. His friend was unable to escape and was beaten to death.
[5] In early November 2003, the Applicant states that he travelled, to Tanga, Tanzania, on the Kenyian border. He eventually made his way to the capital, Dar es Salaam, where he made arrangements to come to Canada. He arrived in Toronto on November 9, 2003, and made his refugee claim at the port-of-entry.
[6] The Board heard the Applicant's claim on September 8, 2004, and dismissed it on October 19, 2004. Leave to commence judicial review was granted on February 18, 2005.
IMPUGNED DECISION
[7] In addition to the Applicant's testimony, the Board had the following documentary evidence before it: the Applicant's Personal Information Form ("PIF"), his amended PIF, the port-of-entry notes, a psychologist's report, a medical report and documents on country conditions in Tanzania.
[8] The Board found the Applicant to be neither a credible nor a trustworthy witness and as a result he had not established his subjective fear of persecution. The Board did not believe that the Tanzanian authorities targeted him because he was a member of the CUF. The Board also found that the Applicant's fear of persecution was not objectively well-founded, due to changes in the situation in Tanzania.
[9] With respect to the Applicant's subjective fear of persecution, the Board held that the central issue in the claim was whether it is credible that the Tanzanian authorities targeted the Applicant because of his membership in the CUF. The Board drew negative inferences from the discrepancies between the Applicant's testimony, the answers he gave to an immigration officer during the port-of-entry interview and the information contained in his PIF and amended PIF.
[10] In finding that the Applicant's fear was not objectively well-founded, the Board relied on documentary evidence which points to a change in circumstances in Tanzania since the signing of the October Accord, a political reconciliation agreement, between the CCM and CUF. This led thousands of Tanzanians who had fled to Kenya to return home as of May 2001, including members of parliament and a number of CUF members. The documentary evidence further indicated that all political detainees arrested following January 27, 2001, were released and that charges pending against CUF members were dropped.
[11] Finally, the Board decided that, due to his lack of credibility, the Applicant could not be considered a person in need of protection within the meaning of subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27, ("IRPA"). His claim was denied.
ISSUES
[12] The following issues are raised in this judicial review application:
1. Did the Board err in assessing the Applicant's credibility?
2. Did the Board err in finding no objective basis for the Applicant's fear of persecution?
3. Did the Board err by rendering a decision by disregarding evidence before it?
4. Did the Board breach the duty of fairness owed to the Applicant by using "boiler plate reasoning"?
ANALYSIS
1) Did the Board err in assessing the Applicant's credibility?
[13] The Applicant takes issue with certain findings of the Board with respect to his credibility. The Respondent argues that the Board`s credibility findings are not patently unreasonable.
[14] The Applicant argues the Board erred in impugning his credibility on the following factors:
- the Applicant did not immediately make his refugee claim on arrival but on the advice of his agent stated that he was visiting Canada on business;
- the Applicant testified that he asked his mother, in March 2004, to obtain a letter from the CUF attesting to his membership. The Board noted that the letter was dated January 20, 2004, prior to when the Applicant had requested it;
- the letter from the CUF stated that the Applicant attended and organized certain demonstrations whereas he wrote in his PIF that he only attended these demonstrations. The Board also drew a negative inference from the fact that the letter did not mention the Applicant having been arrested, beaten and/or tortured;
- the Board noted that the Applicant stated in his original PIF that he had been a member of the CUF since 1994, but that he amended his PIF to reflect the fact that the letter from the CUF stated he had been a member since 1995;
- the Board accorded no weight to the psychologist's report and the medical report in establishing that the Applicant suffered the harm that he claimed;
- the Board held that the PIF amendment included an allegation of an arrest warrant for the Applicant in Zanzibar which was not mentioned in the original PIF despite it having been written only a month after the Applicant was allegedly informed of the warrant. The Board held that this information "led him to flee the country of his nationality", there is therefore no reason that he would have forgotten such significant information.
[15] It is accepted law that the standard of review applicable to credibility determinations is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, online: QL; R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162, online: QL. Paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, also provides for a high threshold before the Court may intervene on findings of fact.
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18. Grounds of review (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
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18. Motifs (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas :
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; |
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[16] The Board drew an adverse inference from the fact that the Applicant did not immediately claim protection upon arrival at the port-of-entry. He had initially told the Immigration Officer, that he was visiting Canada for business purposes and it was only after further interrogation that he claimed Canada`s protection. The Board rejected the Applicant's explanation that he was only following his agent's advice and wanted to meet the Zanzibar community in Toronto and seek their assistance before making a refugee claim. There is jurisprudence of this Court to support the notion that those fleeing persecution with false documents often, as a result of their fear and vulnerability, simply act in accordance with the instructions of agents who organized their escape. This same jurisprudence suggests that being untruthful about travel documents has little direct bearing on whether the person is indeed a refugee: Takhar v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 240, online: QL.
[17] While the Board drew an adverse inference in respect to the incident at the port-of-entry, it cannot be said the Board weighed heavily on the circumstances surrounding the Applicant's delay in claiming refugee status at the port-of-entry. In my view, the Board would have erred in doing so, particularly when the evidence in this case establishes that he did claim protection at the port-of-entry shortly after being interrogated. It is a factor to be weighed in determining the Applicant's credibility but clearly insufficient on its own to warrant finding the Applicant generally not credible. Other factors must be present. The Respondent argues that other factors which justify the Board's conclusion are present. I will now turn to these factors.
[18] The Applicant attest that he testified he had asked his mother to obtain a letter form the CUF at the beginning of the year and not in March as found by the Board. The Applicant argues there is no discrepancy in his evidence and explains that his mother mailed the letter, which is dated January 20, 2004, in March. The Respondent argues "...that the Board's reasons would have to contain a complete fabrication, not simply a mis-hearing of a piece of testimony, in order for the Applicant's version of events to be true."
[19] The Board made a number of errors in its reasons, some simple and obvious. These errors, which for the most part are not material, do indicate that the Board was inattentive to detail and clearly exhibited careless and superficial work in consideration of the evidence and preparation of its reasons. The following examples taken from the reasons are not exhaustive. The Board, on more than one occasion, referred to the claimant as a female and misspelled the name of the Applicant's friend "Shaban" and aunt "Lukia Mohammed Ali". The Board confused the date of an article in the documentary evidence with the date of the signing of the agreement to preserve the implementation of the October Accord. Further the Board indicated, that in coming to its decision, it considered the "Gender Guidelines" relating to Women Refugee Claimants Fearing Gender-Related Persecution. These guidelines clearly have no application to the Applicant since he is a male. There are other examples of the Board misapprehending the evidence which are material to certain findings of the Board which I will deal with more fully later in these reasons. Suffice it to say, I am left with little assurance that the Board applied the required degree of scrutiny to its treatment of the evidence in this case. It is for this reason that I reject the Respondent's plea that I accept the Board's version of events and, in consequence, find that the Board failed to have regard to the Applicant's testimony in respect to the date the letter from the CUF was requested and mailed, I find the Board erred in impugning the Applicant's evidence on this factor.
[20] The Applicant contends the Board erred when it impugned the Applicant's credibility by finding that the CUF letter indicated that the Applicant was an organizer of the January 27, 2001, demonstration when in his PIF he stated that he only attended the demonstration. I think it useful to reproduce the pertinent passage from the letter. "..., and as expressed by the United Nation Charter for Human Right 1948, Mr. Ameir Makame has been unconstitutional charges by the authorities in Zanzibar to have participate and for organizing the demonstration against the Revolutionary Government of Zanzibar in a well know opposition rally on the 27th January, 2001...". The Respondent maintains that more than one interpretation can be given to these words and that it was open to the Board to read the letter as it did and find that the author had indeed written that the Applicant had been charged with organizing the demonstration and, as a consequence, this evidence contradicted his PIF. In my view, the more plausible interpretation is that the author of the letter was simply recounting that the Applicant was charged by the authorities for participating and organizing the demonstration, a charge denied by the Applicant. In such circumstances, the Applicant should have been afforded the benefit of the doubt. In any event, on these facts, it was not open to the Board to find that the letter contradicted the Applicant's PIF and thereby impugn his credibility.
[21] The Board also impugned the Applicant's credibility on the fact that he amended his PIF to state that he joined the CUF in 1995 and not in 1994 as originally indicated. The Board found that since the amendment to the PIF was subsequent to the issuance of the CUF letter, which indicated that the Applicant was a member since 1995, it is probable that the Applicant made the amendment to corroborate his testimony. The Applicant explained that the error was simply a typographical error. Although, the Board found this explanation to be plausible, it nevertheless impugned the Applicant`s credibility in light of his "overall testimony". In my view the Board's credibility finding is patently unreasonable. Subsection 6(4) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules), affords the parties the opportunity to amend their PIF. In the circumstances, it was not open to the Board to find as it did based on the Applicant's "overall testimony". A plausible explanation for the amendment was offered by the Applicant and the opportunity to amend a PIF is provided for in the Rules. The Board gave no valid reason to impugn the Applicant's credibility on these facts. The credibility finding is patently unreasonable.
[22] The Applicant made what the Board considered a significant amendment to his PIF in April 2004, stating that "...I have obtained information that a warrant for my arrest has been issued in Zanzibar due to my involvement in political activity". The Board did not accept the Applicant's explanation that he had not included this information in his original PIF narrative because he "forgot to mention it". Reasoning that since this was important information which caused the Applicant to flee the country, the Board found that there was no reason not to include such important information in the original PIF and in consequence the Board found that the information was added to fabricate his refugee claim.
[23] The Applicant counters that the PIF is a brief recitation of a claimant's claim, not a documentation of his whole case : Singh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1034, online: QL. The Applicant contends that he testified before the Board that he omitted to mention some details in his PIF because he was worried that, if he explained his entire story, it would be too long and that he also had difficulty remembering everything at once while filling out his PIF. Further, the Applicant contends that the Board incorrectly concluded that this information led him to flee Tanzania since the Applicant never made such a statement. He argues that the Board, early in its reasons, dealt with what caused him to flee Tanzania. In its summary of allegations, the Board stated, " In year 2003, the claimant's friend, "Ali Shavan", was beaten to death in a politically motivated murder. Hence in November 2003, the claimant travelled to Tanga and made arrangements to flee Tanzania.". At this point in the reasons, no mention is made of the arrest warrant as a reason to flee Tanzania.
[24] The Respondent argues that the Board's finding that the arrest warrant had caused the applicant to flee was open to it since the Applicant had not sworn in his affidavit that this was not one of the reasons for his flight.
[25] While it may be arguable on the evidence which factor caused the Applicant to flee Tanzania, it is clear from the record, that the Applicant did not amend his PIF by adding this information to fabricate his refugee claim, since the information was already before the Board. The Board had before it the port-of-entry notes which clearly indicate that the Applicant had mentioned the arrest warrant in responding to questions from the Immigration Officer. The Board made no mention of this evidence in its reasons. In my view, the Board could not conclude that the information was added to fabricate his refugee claim without dealing with the Applicant's evidence at the port-of-entry, which supports a different conclusion than that reached by the Board. I am left to conclude that determination was made without regard to the evidence and in consequence constitutes an error.
[26] The above errors are sufficient to impugn the Board's finding in respect to the Applicant's general lack of credibility. In consequence, the Board's conclusion that the Applicant has failed to adduced sufficient credible and trustworthy evidence to establish the well-foundedness of his claim cannot stand.
[27] The Board gave no weight to two medical reports. First, Dr. Devin's psychological report which dealt with the Applicant's symptoms resulting from the ill-treatment he received allegedly at the hands of the Tanzanian authorities. Second, Dr. Hirsz's clinical opinion that the Applicant suffered an assault and his scars were consistent with the history of trauma. These two medical reports were given no probative weight because the Board did not find the Applicant credible in establishing the well-foundedness of his claim. The Applicant argues that these reports relate to his credibility and should have been considered by the Board in assessing his credibility and before making a credibility finding. Instead, the Applicant argues the Board based its decision to reject the reports on its determination that he lacked credibility. It is not for a medical expert to assess and determine a claimant's credibility, that is the function of the Board. It is open to the Board to afford no probative value to a medical report if that report is founded essentially on a claimant's story which is disbelieved by the Board. However, there may be instances where reports are also based on clinical observations that can be drawn independently of the claimant's credibility. In the instant case, Dr. Hirsz's medical report is based, at least in part, on independent and objective testing. In such cases, expert reports may serve as corroborative evidence in determining a claimant's credibility and should be dealt with accordingly before being rejected. The Board here, however, rejected the two reports based solely on its finding that the Applicant was generally not credible. Given my determination that the Board erred in its general credibility finding, it follows that its finding in respect to these reports is not sustainable.
[28] I will now turn to the Board's determination that the Applicant's claim was not objectively well-founded.
2. Did the Board err in finding no objective basis for the Applicant's fear of persecution?
[29] The Applicant argues that country condition information shows repression and violence by the governing party CCM against the opposition party CUF of which the Applicant was a member. The Applicant acknowledges that as a result of the January 3, 2002, agreement there were temporary lulls in the repression. It is the Applicant's position, however, that by the time of the hearing and decision, repression was again in full bloom. In support of his position the Applicant filed evidence indicating that the Accord of January 3, 2002, had not held. The Applicant argues that the Board had an obligation to expressly acknowledge this evidence which directly contradicts its finding and erred by failing to do so.
[30] The Respondent argues that the evidence referred to by the Applicant does not directly contradict the Board's finding. There is only one incident of unacceptable conduct by the Police targeting the CUF, in arresting one of its MP. Though disturbing, the Respondent argues that this evidence was insufficient on its own to support the Applicant's contention that the Board erred in finding that changes in Tanzania were sufficiently meaningful to find that the Applicant's fear of persecution was not objectively well-founded.
[31] I find that there is evidence to support the Applicant's contention that the situation in Tanzania since the signing of the Accord of January 3, 2002, is still problematic for the CUF. The Board's failure to expressly acknowledge this evidence in its reasons amounts to a reviewable error. In other circumstances, I may have arrived at a different conclusion. Assessing documentary evidence on country conditions is within the purview of an expert tribunal and deference by the Court is warranted. However, given the Board's approach to the subjective component of the Applicant's claim, particularly in repsect to its demonstrated lack of careful attention to the evidence, I have little comfort in the Board's objective analysis and the level of scrutiny it would have afforded the documentary evidence on country conditions in Tanzania since the signing of the January 3, 2002, Accord.
CONCLUSION
[32] Since I have found that the Board committed reviewable errors in its assessment of both the subjective and objective components of the Applicant's claim, the within application for judicial review will be allowed. Since the errors are determinative it is unnecessary to deal with the other issues raised in the application.
[33] Counsel are requested to serve and file any submission with respect to certification of a question of general importance, if any, within ten (10) days of receipt of these reasons. Each party will have a further four (4) days to serve and file any reply to the submission of the opposite party. Following consideration of those submissions, an order will issue allowing the application for judicial review and disposing of the issue of a serious question of general importance as contemplated by section 74(d) of the IRPA.
"Edmond P. Blanchard"
Judge
Ottawa, Ontario
June 20, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-9426-04
STYLE OF CAUSE: Ameir (Makame) Ameir v. MCI
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 11, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: June 20, 2005
APPEARANCES BY:
David Matas For the Applicant
Sharlene Telles-Langdon For the Respondent
SOLICITORS OF RECORD:
David Matas For the Applicant
602-225 Vaughan Street
Winnipeg, MB
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
301-310 Broadway
Winnipeg, MB