Date: 20061116
Docket: IMM-472-06
Citation: 2006 FC 1383
Ottawa, Ontario, the 16th day of
November 2006
Present:
The Honourable Mr.
Justice Shore
BETWEEN:
WALTER
GARANDE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[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.
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