Ottawa, Ontario, the 16th day of November 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] 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]
(Elezi v. Canada (Minister of Citizenship and Immigration), 2003 FCT 210, [2003] F.C.J. No. 275 (QL), per Mr. Justice Douglas Campbell of the Federal Court).
[6] In addition, the Board imposed an excessive burden on the Applicant by expecting him to explain entries made by MDC officials, especially with regard to the location of the signatures appearing on the subscription schedule appearing on the MDC card issued in Dallas. Given the fact that the Board had no evidence before it as to the nature and the format of MDC membership cards, it also wrongly impugned the MDC card issued in Harare, on the basis that the card in question made no mention of when it was issued or when the Applicant obtained it (Adamarasha v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1886, 2005 FC 1529).
(Mhaka v. Canada (Minister of Citizenship and Immigration), 2006 FC 1212, [2006] F.C.J. No. 1522 (QL), per Mr. Justice Luc Martineau of the Federal Court).
NATURE OF THE JUDICIAL PROCEEDINGS
[2] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated January 12, 2006, concluding that the applicant is not a Convention refugee (section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 29 (Act)) or a person in need of protection (section 97 of the Act).
FACTS
[3] The applicant, Walter Garande, alleged the following facts:
[4] Mr. Garande, who is 32 years old, was born in Mazowe, a city located in the Republic of Zimbabwe. In 1998, Mr. Garande became a member of the Movement for Democratic Change (MDC). His role mainly consisted in promoting the MDC by distributing pamphlets and T‑shirts. At that time, he worked under the supervision of Morgan Tzvangarai, the president of the party. In 1999, the MDC became the official opposition party. At that time, the Zimbabwe African National Union-Patriotic Front (ZANU-PF) was in power.
[5] In February 2000, Mr. Garande acted as one of the leaders of the MDC in a demonstration organized by Mr. Tzvangarai, which was held in Harare, the capital city of Zimbabwe. During this demonstration, ZANU-PF soldiers beat Mr. Garande and threatened to kill him. Three other members of the MDC were shot and killed, and one of Mr. Garande’s close friends, Learn More Jongwe, was arrested. In spite of the injuries sustained, hospitalization or medical treatment was not considered to be necessary. After this incident, Mr. Garande went home and found his sister there, sobbing. She said she had been raped by ZANU-PF soldiers.
[6] In spite of these events, Mr. Garande subsequently participated in MDC meetings in the cities of Norton and Bulawayo.
[7] In October 2002, Mr. Garande left Zimbabwe for the United States to study journalism in Texas. He was expecting to return to Zimbabwe once his studies were completed. That year, Mr. Garande married an American citizen, but that marriage ended two years later.
[8] Later on, Mr. Garande met Reverend Walter Sithole, a renowned personality from the MDC political party in Texas. Reverend Sithole introduced him once again to the political activities of the MDC, urging Mr. Garande to become a member of the party once more.
[9] During 2003, Mr. Garande learned of the death of his friend, Learn More Jongwe, in a prison in Zimbabwe. Mr. More had been arrested once again by the ZANU-PF for his political activities. Mr. Garande then decided to apply for refugee protection in the United States. His application was rejected because his student visa had expired, and he was obliged to return to Zimbabwe.
[10] On August 30, 2005, Mr. Garande entered Canada and claimed refugee protection. He alleged a fear of persecution by members of the ZANU-PF because of his ties to the MDC.
IMPUGNED DECISION
[11] The Board held a hearing on January 12, 2006. It rejected Mr. Garande’s application because it was of the view his fear of persecution if he returned to his native country was not credible.
ISSUE
[12] Did the Board make a patently unreasonable error in concluding that Mr. Garande was not credible?
STANDARD OF REVIEW
[13] The assessment of the credibility of witnesses and the weighing of evidence is within the Board’s jurisdiction. It has well-established expertise to rule on questions of fact and, more specifically, to assess the credibility and the fear of persecution of a claimant for refugee protection (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph 14).
[14] The standard of review applicable to an application for judicial review concerning issues of credibility is that of patent unreasonableness. The Court must show great deference, as it is up to the Board to weigh the testimony of an applicant and assess his or her credibility. If the Board’s conclusions are reasonable, intervention is unwarranted. However, the Board’s decision must be based on the evidence. It must not be rendered in a capricious manner on the basis of erroneous findings of fact or without regard for the material before it. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39 (QL), at paragraph 38; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL), at paragraph 4.)
ANALYSIS
[15] The Court has considered the written and oral submissions of the parties has heard the representations of counsel.
[16] Mr. Garande challenges the Board’s findings of lack of credibility and alleges that it essentially made two mistakes: (1) the Board’s decision is based on its own opinions and not on the facts disclosed by testimony; (2) the Board did not assess the evidence submitted by the applicant.
[17] Mr. Garande specified that he did not belong to any organization. His statements were reviewed during his testimony in Court, where he specified that at the entry point he did not think about the question properly because everything happened so quickly. In Mr. Garande’s mind, the MDC is a political party or a movement, rather than an organization.
[18] Mr. Garande submitted documentary evidence of his membership in the MDC political party, as his affidavit and Exhibit D show.
[19] By refusing to accept Mr. Garande’s explanation, an error was committed in connection with an exhibit submitted at the hearing. Inherent logic would dictate that under such circumstances the Board would give the applicant the benefit of the doubt as to the plausibility of his testimony, considering that he submitted documentary evidence to prove his membership in the MDC. The Board breached its duty of understanding without having had any fact on the basis of which a contradiction could have been shown.
[20] This is a patently unreasonable error, because when considered on a balance of probabilities, the membership card is important evidence that wins out over the hasty mistake committed by Mr. Garande, which he corrected in his sworn testimony.
[21] Another patently unreasonable error was committed when the Board gave no reasons for refusing to admit Mr. Garande’s evidence of attendance at meetings in June 1999. The MDC was only officially founded in September 1999.
[22] In the context of Zimbabwe, being suspected of membership in the MDC is a sufficiently serious reason for persecution. The refugee protection officer disclosed Exhibit F, in which the situation of persons merely suspected of membership in the MDC was described. A lady named Itaai, whose story begins in the second paragraph, went through hell in her own country simply because she was suspected of being a member of the MDC.
[23] Attendance at meetings and participation in public demonstrations are very serious situations which entail persecution in the context of Zimbabwe. A patently unreasonable mistake of fact was committed in concluding that Mr. Garande was evasive about his activities in the MDC. This conclusion is completely disconnected from the evidence submitted to the Board by the refugee protection officer to allow it to assess Mr. Garande’s claim for refugee protection in the context of his country.
[24] The U.S. Department of State Country Reports and the The Europa World Year Book 2004 give details about the human rights situation in Zimbabwe and persecution of members of the MDC.
[25] Undisputed evidence also shows that youngsters from the MDC who distributed “flyers, t‑shirts, posters...” were persecuted.
[26] This evidence was not considered, although we note that it corroborates Mr. Garande’s activities in his party.
[27] Contrary to the case law cited at the beginning of the decision, the Board’s decision is not supported by the evidence on the record, including the general documentary evidence, the specific documentary evidence submitted by Mr. Garande, and his testimony given under oath.
[28] In addition, Mr. Garande affirmed the following in his affidavit:
o. On page 4 of his grounds, the member stated that I was not arrested in Harare or interrogated. This wrong finding made the member to conclude that I am not a member of MDC. It is clearly stated in my testimony and in my Personal information form (Exhibit “E” from line 8 to line 20). Soldiers questioned me why were we demonstrating. Before I answer they gunned down my friends, tear gassed to us, beat me up, arrested my friend Learn More Jongwe. When I got home I found that my sister was raped and my car was burnt. This evidence was before the Board. These events made me to be very fearful for my life.
p. Although I like my country, when I learned that my friend Learn More Jongwe was rearrested and put in jail and found dead, I was more fearful then ever. I attempted to find out if I could apply for refugee status in the US, I was told that I could not because I had a visa that has expired and that they would deport me.
q. I am married to an American woman but my marriage did not work. I am separated from my American wife and I was living in fear of being deported to Zimbabwe. I could not make it living in fear of being deported to my country where I know that I will be persecuted because of my membership and support to MDC and even killed.
r. I indicated to the Board that I was beaten because of my participation in the demonstration and my membership to MDC. The member is talking about me being one of the ringleaders. I indicated several times that I am an ordinary member of the party. Only that at the demonstration of February 2000, I was one of the ringleaders. This was only for the youth of my constituency to participate in the demonstration. It was not a permanent position. It is clear from my PIF (“E”).
s. The board member is making findings, which are not based on the facts and evidence that were before him but rather, he based his findings on his thoughts which are far from the reality that I faced in Zimbabwe.
[29] In this specific case, Mr. Garande showed that he felt safe when he was in the United States, following his marriage and the status he obtained. According to his allegations, Mr. Garande did not claim refugee protection in the United States except when he felt in danger of being removed to Zimbabwe after having lost what he thought was his safety, that is to say, his marriage to an American woman. He reported to the Canadian authorities to claim protection, as he had been told in the United States that he could not claim refugee protection there once he had lost his status (student visa).
[30] Concerning page 6 of the reasons, where the decision mentions the “Claimant’s Profile”, the law is properly summarized, but the conclusion is not supported. Mr. Garande had been assaulted, his sister raped, and his automobile burned because of his participation in demonstrations and his membership in the MDC. This appears in his oral and written testimony, as well as in his Personal Information Form (PIF). These facts were not taken into consideration.
[31] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL), the Supreme Court of Canada adopted a position to the effect that:
They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference . . . .
[32] Mr. Garande may make an immaterial error in writing under pressure, according to the explanations he gave, about the distinction between an organization and a political party.
[33] To be a Convention refugee, the standard required is evidence on a balance of probabilities, but not more than 50 percent. However, the way the evidence was assessed shows an intention to seek evidence beyond a reasonable doubt. Mr. Garande’s personal circumstances were shown so they could be assessed according to the context of his country.
[34] In Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, [1989] F.C.J. No. 67 (QL), Mr. Justice Mark R. MacGuigan stated the following:
[98] What is evidently indicated by phrases such as “good grounds” or “reasonable chance” is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a “reasonable” or even a “serious possibility”, as opposed to a mere possibility.
[35] The standard of a reasonable possibility of persecution and the fact that Mr. Garande does not have to show he was persecuted in the past or would be persecuted in the future has also been discussed in Salibian v. Canada (Minister of Citizenship and Immigration) (F.C.A.), [1990] 3 F.C. 250, [1990] F.C.J. No. 454 (QL), in which Mr. Justice Robert Décary stated the following:
It can be said in light of earlier decisions by this Court on claims to Convention refugee status that
(1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;
(2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
3) . . .
(4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin
[36] This test was also confirmed by the Federal Court of Appeal in Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] F.C.J. No. 1 (QL), at paragraphs 10 to 12.
[37] Canadian law also recognizes that the truthfulness of claimants for refugee protection is presumed. In discussing the presumption of truthfulness and plausibility, Campbell J. stated the following in Elezi, supra:
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]
[38] In this case, a lack of inherent logic necessary to understand Mr. Garande’s situation was shown. An analysis of the transcript sheds some light on the matter. What the Court is seeking is not necessarily its own logic but an inherent logic, which could nevertheless show the existence of sound reasoning. There is no apparent indication of sound reasoning in this decision.
[39] The presumption of truthfulness recognized by case law according to Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) was not applied.
[40] This Court cannot take the Board’s decision into consideration, because of the erroneous conclusions based on a lack of inherent logic. The documentation on country conditions was not examined on the basis of Mr. Garande’s evidence, and thus the context of his personal evidence was set aside without any consideration for the special context existing in the foreign national’s country. The only way of determining if there is an inherent logic in evidence is by analyzing the personal background of the claimant and the conditions in the country in question to see if both may be reconciled on the basis of inherent logic.
[41] It is not up to the Court to reassess evidence or to substitute its decision for that of the Board. Judicial review is not an appeal, and even in a case in which the matter is referred to a differently constituted panel for rehearing and redetermination, the Board is an independent tribunal which assesses and rules on the credibility of the evidence submitted. The Board has jurisdiction as a specialized tribunal of original jurisdiction, and this Court can only intervene if the Board acts ultra vires its functions in an arbitrary or malicious manner or without any inherent logic, as is the case here. That is to say, there does not seem to be any inherent logic in this case.
[42] Mr. Garande made the following correction to the facts presented by the respondent at paragraph 5 of the memorandum. Mr. Garande never said that he organized the demonstration in the capital city of Harare in February 2000. He had stated that it was the party leader, Morgan Tsvangirai, who had organized the demonstration, and he was among the well-known persons who led the demonstration. The following is mentioned at page 000212 of the transcript:
BY PRESIDING MEMBER (to claimant)
- Who organized the demonstration?
BY CLAIMANT
- Our leader, Mr. Morgan Tsvangirai, who is the chairman and president of the opposition party, MDC. He is the one who organized that demonstration.
[43] At paragraph 8, Mr. Garande added that he intended to return to continue the political struggle with the other groups still in his country. He changed his plans after his former spouse advised him that he should not come back, because as a member of the MDC he should not even attempt to make an appearance. At pages 000256-000257 of the transcript, he added that when he contacted people in his country and learned that even his friend Len Mongone (spelling error in the transcript–Learn More Jongwe) had been arrested and found dead in jail, he decided not to return to Zimbabwe, fearing for his life. (Pages 000251, 000256 and 00257 of the transcript)
[44] Mr. Garande claimed refugee protection and was told that he had been in the United States past the expiry of his visa and was not eligible to claim refugee protection. He did not insist, because he thought he would return to his country to continue the political struggle. The respondent’s statement without ever asking about refugee status is incorrect, without explaining his testimony. (Pages 000255 and 00056 of the transcript).
[45] Speaking about implausibilities, the respondent claimed that, in other words, the unruly military forces in the service of a dictatorship could not have raped Mr. Garande’s sister unless they had first arrested the applicant, or unless there had been problems before or after the demonstration! Such an inference is not supported by any facts, because the documentation containing general information on Zimbabwe shows that MDC supporters and their families have been attacked. (Page 00095 of the transcript, US Country Reports on Human Rights Practices).
[46] It is patently unreasonable to conclude that according to the facts Mr. Garande had to be arrested or mistreated before or after the demonstration for the rape of his sister to be believed.
[47] The implausibility concerning his never having belonged to a political organization is unfair. He did state, however, that he never belonged to any organization. He added to his answer to this question by specifying in his testimony that he was a member of the MDC political party and submitted documentary evidence of that. The information hastily given at the border was not the only exhibit submitted to the Board in answer to this question. Although this answer was valid for social organizations, it was not for political organizations, because Mr. Garande stated under oath and in his PIF, as well as in his membership card, the original of which had been submitted to the Board, that he was indeed a member of the MDC.
[48] As far as the facts are concerned, it is patently unreasonable not to take all the evidence into consideration and to cling stubbornly to a single piece of information for which it has been clearly established that Mr. Garande, when at the border, gave no details in terms of whether or not he belonged to a political organization.
[49] The respondent alleged that Mr. Garande was vague, evasive and hesitant. The respondent gave as an example of this the fact that Mr. Garande could not count the number of times he attended MDC meetings, how many times the MDC leader gave him T-shirts, or how many T-shirts he sold; that he stated there was no procedure for joining the MDC; and that he described his participation in a vague manner.
[50] This is what Mr. Garande said in 1999: “I attended several of them. I cannot remember the number”. This answer is clear and not evasive. He attended several meetings and cannot say exactly how many.
[51] The MDC was just starting out, and there was no formal bureaucratic procedure for becoming a party member. The explanations given by Mr. Garande at the hearing are consistent with the reality of his party during those years. Mr. Garande submitted that an unreasonable position had been adopted and that his answers were not vague or hesitant; the transcript does not show any such vagueness or hesitation.
CONCLUSION
[52] In light of the preceding, the findings of fact made by the Board were patently unreasonable because they were not supported by the evidence submitted. Accordingly, intervention by this Court is warranted. For all these reasons, the matter is returned to the Board for rehearing and redetermination before a differently constituted panel.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-472-06
STYLE OF CAUSE: WALTER GARANDE v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING November 6, 2006
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
APPEARANCES:
|
François Kasenda Kabemba
|
FOR THE APPLICANT |
|
Alex Kaufman
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
CABINET FRANCOIS K. LAW OFFICE Ottawa, Ontario
|
FOR THE APPLICANT |
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |