Date: 20050421
Docket: IMM-2594-04
Neutral citation: 2005 FC 552
Toronto, Ontario, April 21st, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
AGYEKUM DAVIS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant, who is a male citizen of Ghana, claims refugee protection on the ground of his membership in a particular social group: family. The Applicant's claim for protection is based on his evidence that: he has been appointed by the Queen Mother to be successor to his father's position as Chief of the Obome Kwhau tribe, the elders of the tribe dispute his appointment, and, as a result, he will be killed if he returns. The Applicant's claim was rejected by the Refugee Protection Division ("RPD") on the basis of a number of implausibility findings.
[2] In rejecting the Applicant's claim, the RPD adopted the practice of saying it is "unreasonable" to accept the Applicant's sworn testimony. Indeed, this strategy was used six times. In at least two of these instances, I find that the RPD's failure to be specific in rejecting the Applicant's sworn testimony constitutes reviewable error.
[3] The caution necessary in making an implausibility finding is set out by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, as follows:
¶ _6_____ 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.
¶ _7_____ 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 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: Butterworts, 1992) at 8.22]
[4] First, the RPD found that the Applicant's lineage would be paternal because he is a member of the Kwahu tribe. However, the Applicant's evidence is that the lineage with respect to his appointment as Chief of the Obome Kwahu tribe, as distinct from the Kwahu tribe, follows a different practice; it can fluctuate between maternal or paternal authority. With respect to the Applicant's evidence being in conflict with the RPD's understanding, the RPD said:
The panel does not find the claimant's explanation to be reasonable. There is extensive documentary evidence the panel [sic] with respect to the Chieftaincy in Ghana. The panel finds it reasonable to believe that if such exceptions existed, the documentary evidence would have stated it.
(Decision, p. 3)
In my opinion, the failure of the RPD to specifically state why its documentary record is so infallible that it is fair to reject the Applicant's evidence constitutes a reviewable error.
[5] Second, with respect to differences between the Applicant's PIF and his testimony before the RPD about dates, the RPD dismissed the Applicant's explanation as unreasonable. The Applicant's evidence is that, a paralegal wrote his PIF, he signed it, he took it home and then read it, and realized there were mistakes in the dates. He then called his lawyer and told him of the errors, and was assured that the changes would be made. However, because his lawyer died before taking action to amend the PIF, the PIF before the RPD was not accurate. The question is: why is this explanation implausible? The RPD provided no reasons for its conclusion. In my opinion, without reasons being provided, the rejection of the Applicant's evidence constitutes a reviewable error.
[6] In addition, it is uncontested that the RPD made two errors of fact which I find to be important.
[7] First, in its decision, the RPD states that the Applicant made no mention in his PIF that he was chosen specifically by the Queen Mother, and quoted his explanation for this omission as "he did not think it was important enough to mention it". The RPD did not accept the Applicant's explanation as reasonable "in that he failed to mention significant information central to his claim" (Decision, p. 3). It is not contested that the explanation, attributed to the Applicant, is not found in the Tribunal Record.
[8] Second, as an important part of making a finding of the existence in Ghana of state protection should the Applicant be forced to return there, the RPD made the following statement:
...a person who refuses to become a Chief will not suffer serious harm. The panel prefers the documentary evidence because it comes from an independent source, without any vested interest in the claim at hand.
(Decision, p. 8)
Indeed, to the contrary, the Applicant never refused to become Chief; in fact, he wants to be Chief. There is no evidence on the record to indicate that, should he return to Ghana, he will do anything but assume his appointed position. As a result, I find that the state protection determination is made in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2594-04
STYLE OF CAUSE: AGYEKUM DAVIS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: APRIL 20, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: APRIL 21, 2005
APPEARANCES BY:
Solomon Orjiwuru FOR THE APPLICANT
Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
Solomon Orjiwuru
Law Office
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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