Ottawa, Ontario, January 18, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and Background
[1] The question raised in this judicial review application by Pedro Manuel Afonso, a citizen of Angola, is whether the Refugee Protection Division, (the tribunal), in its decision of April 26, 2006, erred when it determined the applicant had not provided any credible and trustworthy evidence in support of his refugee claim.
[2] The applicant’s story is not complicated. He says he worked in Camarca Prison in Luanda as an administrator in charge of provisions. On April 20, 2005, when at work very early in the morning, he heard cries and then gunshots. He went to the scene; he saw two men lying on the ground, blooded. Over them stood Commissaire Mussolo, a military officer who was the head of security at the prison.
[3] Commissaire Mussolo questioned him why he was at work so early; he cautioned him not to leave the prison without his permission. That same afternoon, three soldiers entered his office. He was questioned, struck with their truncheons and slapped.
[4] He alleges they took him inside the prison to a cell which he did not recognize; it was a holding-cell for prisoners. He was incarcerated there for a month and interrogated twice during that time frame including a visit from Commissaire Mussolo and two other soldiers where he was tortured, struck in the back, the head and the face.
[5] Some days after the incident with Commissaire Mussolo he says he was transported by military vehicle to the Criminal Investigation Directorate (the Directorate) and put in a cell with two Congolese individuals suspected of diamond smuggling; he acted as interpreter for them.
[6] A few days later, he and the two Congolese individuals were taken to a field by military personnel; he was asked to dig three graves. There was much confusion when one of the soldiers guarding them fell to the ground and the soldier who was in front of him went to see what was happening.
[7] The applicant, seeing his opportunity, started running towards the forest. He was shot in the leg but made it to a village where he obtained assistance from a priest who called his parents who arranged his flight to Canada through Zaire, the Congo, South Africa by plane to Rio de Janeiro and from there to Toronto where he arrived at in September, 2005 but lost all of his documents to someone who befriended him; he made his way to Ottawa where, with the assistance of a Catholic Refugee Organization, he made a refugee claim on October 11, 2005.
The Tribunal’s Decision
[8] The tribunal based its credibility findings on implausabilities, omissions which the tribunal considered important in his personal information form (PIF), contradictions between what he said to his psychologist and what he wrote in his PIF and he testified to, contradictions between his PIF and his testimony and a conflict between his port of entry notes (POE) and his PIF and testimony. I summarize the tribunal’s credibility findings.
[9] The tribunal drew an implausibility when it stated “the claimant provided no trustworthy testimony on why Mussolo did not kill him, if that was his intention, instead of detaining him for one month and beating him then taking him to the Directorate…from where he was taken to be killed.” The tribunal reasoned:
“It is reasonable to believe that if Mussolo killed two men and was disturbed that the claimant saw their bodies and could implicate him he would try to get the claimant out of the way as early as possible instead of detaining him for one month, then taking him to [the Directorate] to act as an interpreter, and then taking him to a field to be killed”
[10] Dr. Lorne Weiner provided a letter to the applicant’s legal counsel. That letter stated
“there is a scar on the claimant’s thigh that is consistent with a bullet entry site; there are two scars on his back that are consistent with being lacerated with a knife; scars on his abdomen are consistent with the history of burn from an iron; and lesions on his chest and arms are consistent with cigarette burns.” The tribunal stated in the claimant’s PIF, “however, there is no mention of such torture” pointing out that he had written “they assaulted me, hitting me in the back, the head, the face” with the soldiers coming back approximately ten days later asking him the same questions and “constantly hit me.” The tribunal reasoned:
“It is reasonable to believe that if he had been slashed with a knife and burned with cigarettes and with an iron he would have included this traumatic punishment in his narrative when he described his fear of return to his country. The claimant has had 17 years of education and a responsible job. He had professional help in preparing his PIF and narrative. It is reasonable to believe that if this torture had really taken place this very important information would have been included in the claimant’s narrative or the amendment to his PIF that he submitted later. Asked repeatedly why he had not included this information in his PIF, the claimant stated that he had. But this information is not in the narrative or the amendment to that narrative that was sent by counsel later.” [Emphasis mine]
[11] The tribunal referred to Dr. Voss’ psychological report which states, according to Mr. Afonso, he was subsequently imprisoned and the beating and torture continued over the months that followed.” The tribunal stated “this contradicts the claimant’s PIF narrative and his oral testimony” because his PIF narrative stated he was imprisoned for approximately one month. It stated “this narrative does not say he was detained or tortured for months. He was asked about the contradiction, he responded that he was kept in detention for about a month, taken to the Directorate and “the following day” was taken to the field.” The tribunal wrote “this explanation not only contradicts the psychologist’s statement that the claimant was tortured for months, it also contradicts the claimant’s narrative he was left in a cell with two Congolese men and “a few days later” soldiers took all three of them away.” The tribunal said he was asked to explain the contradiction and he provided no reasonable response. The tribunal concluded:
“I find that if these incidents had really taken place the claimant would have been able to provide a reasonable explanation for these contradictions.”
[12] The tribunal noted the applicant in his PIF wrote the soldiers took him and the two Congolese to a field where eventually “other soldiers arrived”. The applicant was asked how many soldiers arrived at the field later and replied “no other soldiers arrived and the only soldiers on scene were the ones who had taken him and the Congolese men there.” The tribunal wrote “asked to explain this contradiction the claimant did not provide a reasonable response” and concluded:
“I find that if this incident had really taken place the claimant would have been able to provide a reasonable explanation for this contradiction.”
[13] The applicant was asked how long it had taken to dig the three holes. The tribunal wrote “the claimant stated that he did not remember.” The tribunal reasoned:
“I find that if this incident had really taken place the claimant would have had some idea of how long it took him to dig the three man-sized pits.”
[14] The tribunal mentioned the applicant “was also asked why the soldiers did not ask the two Congolese men also to dig holes instead of everybody waiting while the claimant dug one hole after another”, and stated the claimant, “responded that the soldiers did not ask the Congolese men to dig the holes and that the Congolese men just cried.” The tribunal reasoned:
“I find that if this incident had really taken place it is reasonable to believe that the soldiers would have asked the Congolese men also to dig the holes instead of waiting while the claimant dug one hole and then another and then another.”
[15] The tribunal then described what the applicant had written in his PIF of the circumstances that led him to start running towards the forest: the soldier collapsing, the other soldier coming to see what happened, his run for it and the “soldiers fired at him. A bullet hit me in the left thigh” and he heard soldiers yelling “catch him” but managed to escape. The tribunal then wrote “However, according to the claimant, there were two other soldiers there, Mussolo and a driver” and reasoned:
“I do not find it reasonable to believe that the claimant would be able to run away, after digging three holes, from the three soldiers even though he stated that a bullet had hit him. I find it hard to believe that he would only be hit by one bullet in the thigh when there were four soldiers on the scene, though one had collapsed. The claimant offered no reasonable response for how he was able to escape.”
[16] The tribunal then mentioned the applicant having written in his PIF he “started to run toward the forest” and was asked how long it took him to reach the forest with the applicant responding “they were in the forest actually.” The tribunal reasoned:
“He provided no answer as to how long it took him to get away from the soldiers. The claimant’s oral testimony (that they were already in the forest) contradicted his PIF narrative that the soldiers had taken the three prisoners to a field and that when one soldier collapsed he started running towards the forest. The claimant provided no reasonable explanation for the contradiction. I find the claimant’s failure to explain the contradiction in the two versions, and also from his allegation that only he was asked to dig the three holes and that he managed to run away despite being hit by a bullet and the presence of three soldiers, and a further one who collapsed, that this incident did not take place.”
[17] The tribunal mentioned the applicant made an amendment to his PIF narrative adding information members of the military went to his home and the home of his parents looking for him at which time they mistreated his wife and children who fled to her parent’s home. The tribunal wrote “it is normal for the claimant to submit amendments if they receive new information or if they find an error in the original narrative or PIF.” The tribunal said the applicant was asked how he learned that the military had gone to his house and testified his father told him when he visited him at the clinic where he stayed for a week after his escape. The tribunal asked why he had not included this information in his original narrative concluding “the claimant provided no reasonable response”. While acknowledging amendments can be made any time prior to twenty days before the hearing the tribunal opined his legal counsel could not provide a “reasonable explanation for why this very important information, which is of considerable relevance to his fear of return, was not included in his original PIF narrative and was added later.” The tribunal inferred:
“I find if this incident had really taken place the claimant would have included this important information in his narrative instead of submitting it later as an amendment to his PIF narrative.”
[18] The tribunal next referred to the POE notes and the applicant’s answer that he had never been arrested or detained. The tribunal said he was asked to explain the contradiction with his PIF and that he responded “since he was innocent and had done no wrong he does not consider that he was jailed or detained properly and so he responded that he had never been arrested or detained.” The tribunal reasoned:
“I do not find this response reasonable. The form does not ask whether the claimant had been jailed legally. It merely asks whether a person had been detained or jailed and, if so, it provides space for the claimant to explain the circumstances of his detention. I find that if the claimant’s story had been true it is reasonable to believe that he would have told the Immigration Officer that he had been detained but that he was innocent and had been detained in a frame-up.”
[19] The tribunal referred to the applicant’s testimony about his Bakongo origins, that his parents had been militants in the FNLA and his plight was also associated with his parent’s political association. The tribunal stated “However, there is no reference in his POE or PIF to his parents having been militants in the FNLA.” The tribunal also referred to his testimony he had a good job and “this led to jealousy on the part of some.” The tribunal added “but there is nothing in his POE, PIF or oral testimony that detailed his family or his suffering or his fearing persecution because of his ethnic origins. His trouble started and his fear of persecution stems from the April 20, 2005 incident according to the evidence.” The tribunal found “I find that the evidence that the claimant provided is not reliable or trustworthy.”
[20] Concerning the psychological report and the report from his physician the tribunal stated “they did not determine whether those wounds were sustained in the manner the claimant described or had been the result of some other cause in a country that has had violence and a civil war. The two reports do not assess the claimant’s credibility in the incidents he has written about.”
[21] The tribunal concluded by finding “many claimants have undergone much trauma and are unable to explain all of the contradictions that they are asked about.” The tribunal then went on to write “all panels are sensitive to this situation, and are respectful toward court guidance on the assessment of credibility of people under considerable stress.” The tribunal then said that nonetheless it weighed the evidence very carefully and came to its finding of non-credibility.
Analysis
(a) Standard of Review
[22] It is settled law that credibility findings are findings of fact and that decisions based on findings of fact cannot be set aside unless they meet the criteria set out in section 18.1(4)(d) of the Federal Courts Act, 1998 (the Act) which provides the tribunal may set aside a decision if that tribunal based its decision on an erroneous finding of fact that it made “in a perverse or capricious manner or without regard to the material before it” which is a standard of review akin to patent unreasonableness.
[23] Much of the tribunal’s reasoning is based on inferences which brings into play the words of Justice Décary in Aguebor v. Minister of Employment and Immigration (1993) 160 N.R. 316 (F.C.A.) at paragraph 4:
4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [Emphasis mine]
[24] I am also reminded of what Justice L’Heureux-Dubé wrote at paragraph 85, on behalf of the Supreme Court of Canada in Canadian Union of Public Employees, Local 301 v. Montréal (City) [1997] 1 S.C.R. 793.
85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. [Emphasis mine]
[25] In terms of credibility findings, in Asad Javed Sheikh v. The Minister of Citizenship and Immigration, docket: (IMM-315-99, April 25, 2000), this Court made the following observations:
[22] However, credibility findings by the Refugee Division are not immune from this Court's supervision and this principle has been established in a long series of cases.
[23] The discrepancies relied on by the Refugee Division must be real (Rajaratnam v. M.E.I., 135 N.R. 300 (F.C.A.). The Refugee Division must not display a zeal "to find instances of contradiction in the applicant's testimony... it should not be over-vigilant in its microscopic examination of the evidence" (Attakora v. M.E.I (1989), 99 N.R. 168 at paragraph 9). The alleged discrepancy or inconsistency must be rationally related to the applicant's credibility (Owusu-Ansah v. Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.). Explanations which are not obviously implausible must be taken into account (Owusu-Ansah, supra).
[24] Moreover, another line of cases establishes the proposition that the inconsistencies found by the Refugee Division must be significant and be central to the claim (Mahathmasseelan v. Canada (M.E.I.), 15 Imm.L.R. (2d) 30 (F.C.A.) and must not be exaggerated. Marceau J.A. in Djama v. The Minister of Employment and Immigration (A-738-90, June 5, 1992, expressed the principle in the following manner:
In our opinion, the members of the panel clearly exaggerated the import of a few apparent contradictions, hesitations or vague statements which they succeeded in detecting in the comments of the claimant, and they could not on that basis alone treat his testimony as a whole as being the testimony of a liar. It seems to us that their fixation on the details of what he stated to be his history caused them to forget the substance of the facts on which he based his claim.
[26] Moreover, in Sadat Jamil v. The Minister of Citizenship and Immigration 2006 FC 792, I reiterated certain principles related to credibility findings at paragraphs 24 and 25 as follows:
[24] There is a well-recognized line of cases from the Federal Court of Appeal and this Court which has conveniently been summarized by Justice Martineau in R.K.L v. Canada (Minister of Citizenship and Immigration) 2003 FCT 116 that a Refugee Board must not be zealous to find an applicant not to be credible and “must not be over-vigilant in its microscopic examination of the evidence of persons who testify through interpreters and tell tales of horror in whose objective reality there is reason to believe.” See the Federal Court of Appeal’s decisions in Attakora v. Canada (Minister of Employment and Immigration) (1989) 99 N.R. 168, along with Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989) 98 N.R. 312 and Frimpong v. (Canada Minister of Employment and Immigration) (1989) 99 N.R. 168.
[25] These cases as applied by the Federal Court of Appeal itself and by this Court proscribe credibility findings arrived at by, for example:
§ Findings for which there was no evidence;
§ Findings of the tribunal based on conjecture, resulting in unjustified and unsupported inferences regarding the circumstances leading to an application for refugee status;
§ Inconsistencies drawn between POE notes and an applicant’s testimony or the applicant’s PIF where a tribunal dwells on details and not on the substance of the claim and leads to misconstruction of the evidence. Any such inconsistencies should be major and not minor and sufficient by itself to call into question the applicant’s credibility. (See Mushtaq v. Canada (Minister of Citizenship and Immigration) 2003 FC 1066; and
§ The tribunal must be reasonable in rejecting an applicant’s explanation when confronted with a contradiction and must not be quick to apply North American logic and reasoning to a claimant’s behaviour, (see R.K.L., supra, at para 12);
§ The tribunal must assess the applicant’s claim against the totality of the evidence.
[27] As I perceive it, the various credibility findings made by the tribunal resulted in the tribunal not believing any part of the applicant’s story. According to these findings, the Mussolo incident did not occur, the applicant was not detained in a cell at the Camarca Prison and tortured, and that he was not taken to a field to be shot but escaped.
[28] In my view, this judicial review application must be allowed for the following reasons.
[29] First, as argued by counsel for the respondent, the major credibility finding made by the tribunal related to the omission of not having detailed his injuries and wounds which he allegedly received during his one month or so detention in the prison cell. I find the tribunal came to this conclusion without regard to the totality of the evidence before it and specifically, what the applicant wrote and told the Immigration Officer when he was interviewed, in French, on October 11, 2005 which preceded the filing of his PIF on November 16, 2005.
[30] In answer to question whether his body had scars, he wrote that he had bullet scars and wounds to his back and left leg. He also told the interviewing officer he had been “persecuted, kidnapped, tortured and was to be executed and was shot at” (see Certified Tribunal Record, pages 146, 162 and 165).
[31] To the extent the descriptions of his wounds and their causes in his PIF could be said to be not sufficiently detailed, the tribunal erred in not taking into account the evidence which was before it in the form of the psychological report of Dr. Voss dated March 28, 2006 (see, Certified Tribunal Record, pages 59 and 60) in which Dr. Voss concluded the applicant’s profile was consistent with post-traumatic stress: “he reports a high level of intrusive experiences (e.g. nightmares and flashbacks), despite efforts to defensively avoid any memories related to the trauma he suffered as well as a high level of anxious arousal (e.g. frequently feeling nervous or jumpy and easily startled.)” [Emphasis mine]
[32] In my view, the tribunal failed to take the applicant’s psychological condition into account when assessing the applicant’s credibility contrary to what the Federal Court of Appeal’s decision in Reyes v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 282 (F.C.A.).
[33] Second, the tribunal had before it the evidence of Dr. Weiner who examined the applicant and set out his observations in a letter dated February 13, 2006 to counsel for the applicant (see Certified Tribunal Record, page 58). Dr. Weiner described the applicant’s wounds and indicated they were consistent with a number of causes. The tribunal erred, in my view, in rejecting this evidence because Dr. Weiner “did not determine whether those wounds were sustained in the manner the claimant described or had been the result of some other cause in a country that has had violence and a civil war.” As to the last assertion, the tribunal had no evidence before it the applicant had participated or was exposed, in any way, in the conflict in Angola and, in terms of the first proposition, the tribunal compounded its minimalizing of the psychological report and the trauma and further ignored evidence which he gave at the POE.
[34] Third, the tribunal came to the conclusion the Mussolo incident did not occur because it said it was reasonable to believe Mussolo would have killed the applicant on the spot rather than taking the trouble of detaining him, torturing him and having him executed in a field approximately a month later. In my view, the tribunal had no evidence on which it could base this finding. It was pure speculation on the part of the tribunal.
[35] Fourth, the same observation can be made on the tribunal’s finding the incident in the field did not occur because if it had taken place it was reasonable to believe that the soldiers would have asked the Congolese men also to dig the holes instead of waiting while the claimant dug one hole and then another. When the tribunal asked the applicant to comment on the point, the applicant did not only say the Congolese men just cried. At page 192 of the Certified Tribunal Record, he answered he did not know why because he was not the one deciding. His answer was reasonable and brings to mind the words of Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration) 2001 FCT 776 (T.D.) at paragraph 13 where he wrote: “One cannot understand how the tribunal expects the applicant to explain logically the illogical actions of the authorities.”
[36] Fifth, the tribunal ignored the applicant’s answer he told Dr. Voss his detention and torture was over a month or so and not over several months (see Certified Tribunal Record, page 200).
[37] Sixth, when it concluded it did not find it reasonable that the applicant “would be able to run away, after digging three holes, from the three soldiers even though he stated that a bullet hit him”… and that “I find it hard to believe that he would only be hit by one bullet in the thigh when there were four soldiers on the scene, although one had collapsed.” The tribunal misread or ignored the evidence. The applicant had explained to the tribunal (see Certified Tribunal Record, page 191). Mussolo and his driver were not at the grave site but further back in their car.
[38] Seventh, the same can be said of the tribunal’s finding the applicant should have known how long it would have taken him to dig a grave. At pages 191 and 192 the applicant explained he did not have a watch but more importantly he explained, in the particular situation he was in, his mind had not focused on the point. The tribunal, in my view, should not have ignored the explanation which I find reasonable in the circumstances.
[39] Eight, the applicant did indicate in his POE questionnaire he had not been detained or imprisoned (see Certified Tribunal Record, page 149) and also told the Immigration Officer he had not been arrested, charged and convicted for a crime. The tribunal erred in rejecting his explanation which was that he stated he was not arrested or imprisoned because he never committed any crime. According to his testimony he was put in prison after being kidnapped and was not in prison because he had been convicted. There is substance of his explanation because the very question asked of him on the interview form is whether the applicant had been arrested, charged and convicted for a crime [Emphasis mine, Certified Record, page 163].
[40] Finally, I would not interfere with the tribunal’s findings of inconsistencies on account of what he had written in his PIF and his testimony in respect of the following:
§ What “other soldiers” eventually came to the grave site;
§ When he was transported to the field whether it was a “few days” or the “next day” of his being placed in a cell at the Directorate;
§ Was he digging the graves in the “field” or in the “forest”?
[41] The applicant gave explanations which in some cases I would consider reasonable but that is not the test which I must apply because it is not my decision to make, it being within the tribunal’s mandate to make inferences.
[42] However, in context, such inconsistencies are very minor in nature and do not justify the tribunal concluding the event to which they related did not occur. These inconsistencies were marginal at best and did not go to the heart of the applicant’s story.
JUDGMENT
For all of these reasons, this judicial review application is allowed, the tribunal’s finding is set aside and the applicant’s refugee claim is remitted back to the Board for re-determination by a differently constituted tribunal. No certified question was suggested.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE:
PEDRO MANUEL AFONSO
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 10, 2007
REASONS FOR JUDGMENT
& JUDGMENT: JUSTICE LEMIEUX
APPEARANCES:
Ms.
Laura Setzer FOR
THE APPLICANT
Ms. Jennifer Francis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Laura Setzer FOR THE APPLICANT
Barrister & Solicitor
24 Bayswater Avenue
Ottawa, ON K1Y 2E4
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice