Date:
20121220
Docket:
IMM-2213-12
Citation:
2012 FC 1509
Ottawa, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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CLOUD WARDI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant brings judicial review to set aside a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board), dated February 8, 2012. The Board found that the applicant was neither
a Convention refugee nor a person in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27
(IRPA).
For the reasons that follow this application is granted.
Facts
[2]
The
applicant is a citizen of Syria. Before the Board he claimed to have been
targeted by the Syrian government after discussing the need for political
reform with customers at his restaurant. He alleges that he was arrested in
October 2009 under the pretext of drug charges. While detained, he claims to
have been interrogated and tortured with beatings, sleep deprivation, trauma to
his feet, suspension and electric shocks. He claims that his right hand was
broken as well as some of his teeth.
[3]
On
January 17, 2010, a Syrian judge ordered the release of the applicant. He was
still required to report to the state security and security officers would
regularly come to his restaurants to steal meals and harass his customers.
Using a previously issued passport, he traveled to Canada on August 8, 2010 and
claimed refugee protection.
Decision Under Review
[4]
The
Board rejected the applicant’s claim, having determined that the applicant
lacked credibility. The Board cited the following inconstancies:
i.
Assault
on his father – At the hearing, the applicant testified that the police
assaulted his father while arresting him. This detail was not included in his
Personal Information Form (PIF).
ii.
Timing
of the drug test - In his PIF, the applicant wrote that he was tested for drugs
before being taken to an underground cell. At the hearing, he testified that
he was taken to the underground cell first.
iii.
Timing
of his broken teeth - In his PIF, the applicant wrote that his teeth were
broken during torture. At the hearing, he stated that his teeth were broken
during the arrest.
iv.
Timing
of the drug allegations - In his PIF, the applicant stated that the police
alleged he used drugs while arresting him. At the hearing, he stated that he
did not learn about drug charges until he was in detention.
v.
Treatment
for his broken hand - The applicant testified that his doctor said a splint
would cause nerve damage. However, he provided a doctor’s note which
specifically referred to a splint. When challenged on the inconsistency the
applicant explained that the doctor would not break his hand and reset the bone
with a splint.
vi.
Frequency
of reporting - In his PIF, the applicant alleged that he reported to the state
security every week after being released. At the hearing he stated that he had
to report every couple months. The applicant then explained that the security
officers came to his work every week but he only had to report every two
months.
vii.
Plight
of his parents - The applicant testified that his parents fled to Lebanon to escape the authorities. However, in his PIF he wrote that they lived in Syria. When faced with this discrepancy he explained that he did not know about their
departure when writing his PIF.
[5]
The
Board did not accept the applicant’s explanations for the discrepancies: that
he gave more details at the hearing out of excitement, that there may have been
translation problems with his PIF and that he had memory problems as a result
of torture. The Board noted that the applicant spoke English “fluently” at the
hearing. Additionally, the applicant did not provide medical evidence to
substantiate any memory problems.
[6]
The
Board also noted that the applicant had been able to leave Syria using his true passport even though Syria prevents anti-regime activists from leaving the
country. The Board considered it to be implausible that the applicant could
have left Syria if he was considered to be opposed to government.
[7]
The
applicant provided submissions from his Syrian lawyer, police forms and medical
statements. However, the Board stated that this evidence did not establish the
cause of his injuries or that he was targeted for political beliefs, as opposed
to drug allegations. The Board faulted the applicant for not obtaining an
additional letter from his Syrian lawyer and a letter from a priest who
assisted him in obtaining legal representation.
[8]
Finally,
the Board considered whether the applicant would be in need of protection as a
failed refugee claimant. The documentary evidence showed that those who are
known to the Syrian security services will be detained upon return. The Board
reasoned that the applicant was accused of a relatively minor drug offence
acquitted of all charges and left Syria legally. Therefore, the Board decided
that there was only a mere possibility that the applicant would face harm as a
failed refugee claimant.
Issue
[9]
The
issues for this judicial review are whether the applicant was denied procedural
fairness and whether the Board’s credibility findings were reasonable: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
Procedural
fairness
[10]
Guideline
8 on Procedures with Respect to Vulnerable Persons Appearing Before the IRB
(the Guideline) provides that torture victims may require special accommodation
for their hearings before the Board. It is designed to ensure that members are
alert to the fact that the testimony of victims of torture may not be of the
same quality and consistency as other witnesses.
[11]
In
this case, the Board’s failure to consider Guideline 8 goes to the
reasonableness of the decision, not procedural fairness. The applicant has not
specified any accommodation which ought to have been in place for his hearing.
As he does not claim any problem with the procedure followed, he has not established
a breach of procedural fairness.
[12]
The
respondent correctly notes that the Guideline requires refugee claimants to
request consideration as a vulnerable person. I note that the Guideline also
places an obligation on the Board to make inquiries on this issue. This
ensures that claimants receive consistent treatment. As the applicant’s PIF
disclosed allegations of torture I would have expected the Board to raise the
issue of whether the applicant is a vulnerable person. Nonetheless, there is,
in the circumstances of this case, no breach of procedural fairness.
Reasonableness
[13]
While
the Board’s failure to consider the applicant’s special vulnerability did not
breach procedural fairness, the findings with respect to credibility lead to an
unreasonable decision.
[14]
In
addition to Guideline 8, the Board has a Training Manual on Victims of Torture
(the Manual). While policies do not have the force of law, they are an
important aid for assessing the evidence: Borisovna Abbasova v Canada (Citizenship and Immigration), 2011 FC 43, para 53.
[15]
Both
policy documents emphasize that torture victims may have difficulty with
memory, consistency and coherence. Additionally, the policies note that
torture victims may be fearful of persons in authority. The Manual explains
that claimants will often have difficulty testifying without outwardly
exhibiting any problems. It urges Board members to “[r]emember that problems
with testifying do not mean the story is false – we would expect the legitimate
victim of torture to have difficulties testifying”.
[16]
At
the hearing, the applicant testified that he was “a little frightened” and
confused about dates. He said, “Really I’m a sick person. I suffer a memory
loss because of that beating; obviously it was severe and brutal.” The Board
should have considered whether this affected the consistency of his testimony.
It did not.
[17]
The
Manual provides detailed explanations about how torture may affect memory.
For example, the Manual notes that traumatic memory is dissociated and
initially stored as sensory fragments, rather than in coherent sequence.
[18]
In
this context, it is noteworthy that the applicant testified: “… I don’t have
this arranged in sequence; in chronological sequence - when I recount the
details at full length what happened, the scene is visiting me in my memory as
if I am living it again, another time, as if it is real.” Therefore, it was
unreasonable for the Board to have fixated on the exact chronology of events,
many of which were closely interrelated and occurred over a short timeframe,
rather than the overall truthfulness of the applicant’s recollection.
[19]
The
Manual cautions against dwelling on credibility concerns relating to peripheral
details of a traumatic event. The Board should not have inflated expectations
in terms of accuracy and consistency of recall. Most of the “inconsistencies”
at issue are peripheral details. For example, the applicant was inconsistent
on when exactly the authorities tested his blood for drugs. The test is said
to have occurred at the time of arrest and detention. It was one of the most
minor events that the applicant experienced while detained.
[20]
Given
the frailties of a witness’ memory, the Manual urges Board members to look to
the surrounding evidence that supports or refutes a claimant’s story. Here,
the applicant provided the written submissions of his Syrian lawyer, which
described that the applicant was detained and tortured in relation to drug
charges. The Board incorrectly stated that the submissions did not support
“key elements” of the claim. Being detained and tortured are the most critical
components of the applicant’s allegations. Additionally, while the medical
evidence did not specify the cause of his injuries it did corroborate his claim
to have a broken hand and teeth. There was no question as to the authenticity
of these documents or the contents.
[21]
The
Manual also notes that a claimant may be fabricating aspects of a story but
still fulfill the criteria for refugee protection. False allegations exist on
a spectrum, from a slightly distorted report to a complete fabrication.
Accordingly, the Board was obliged to carefully consider what aspects of a
story could be corroborated with supporting evidence. In this case, there was
evidence which corroborated the allegations of being arrested, detained and
tortured. It was summarily discounted.
[22]
There
are other errors in the Board’s reasoning. The Board considered it significant
that Syria permitted the applicant to leave using his existing passport, even though
it has prevented approximately 400 critics of the regime from leaving.
However, the evidence states that human rights activists, political reformers
and civil society leaders are targeted for exit controls. The applicant was
not an activist, politician or civic leader.
[23]
The
Board gave inadequate consideration to whether the applicant would face risks
as a failed refugee claimant. There was evidence before the Board to the
effect that making a refugee claim is perceived by the Syrian government as manifesting
opposition to the regime. For example, the Austrian Red Cross report found
that failed asylum seekers “would generally face detention and investigation
upon return.”
[24]
The
Board concluded that, even if the applicant’s evidence showing his arrest were
believed, the applicant would not face risks because he was not known to the
security services. As the applicant states, this reasoning is contradictory.
If the applicant was arrested, then he is known to security services. He may
now be listed as a wanted person for failing to report. The chain of reasoning
in this regard does not meet the requisite standard of transparency. Nor was
it clear how the Board concluded that drug charges were considered relatively
minor in Syria. The evidence before the Board was to the opposite effect.
[25]
This
Court is not the trier of fact, and does not have the benefit of observing the
witnesses. It is not its role to re-assess findings of credibility. Indeed,
the standard of review requires the Court to uphold otherwise legally
sustainable decisions, even if it might have come to a different conclusion.
Here, however, the cumulative effect of a number of errors in the assessment of
the evidence renders the decision unsound. In conclusion, this result would have
been reached regardless of Guideline 8 or the Manual. The root of the error
lies in the general principles governing the assessment of evidence, and not in
the deviation from the policies.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. There is no question for certification.
"Donald J.
Rennie"
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