Date: 20071130
Docket: IMM-6423-06
Citation: 2007 FC 1259
Ottawa, Ontario, November 30, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CHARITY MALUNGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Charity
Malunga is a citizen of Zimbabwe who claimed refugee protection on the basis of
her political opinion. She says that she is a supporter of the Movement for
Democratic Change party (MDC) in Zimbabwe and, as such, she fears persecution
by members of the ruling party, the Zanu–PF.
[2] Her
claim to refugee protection was rejected by the Refugee Protection Division of
the Immigration and Refugee Board (RPD or Board) because it did not believe her
testimony. Notwithstanding the thorough and thoughtful submissions of counsel
for the Minister, the application for judicial review is allowed because the
RPD erred in law by failing to make clear credibility findings. Further,
notwithstanding its credibility concerns, the RPD, on the evidence before it, erred
in law by failing to assess the consequences arising from Ms. Malunga's
acknowledged membership in the MDC.
The Board’s credibility
findings
[3] The
Board began its credibility analysis as follows:
Because of a significant number
of inconsistencies in her evidence, implausibilities, and some significant
omissions in her PIF narrative, the panel has serious questions about the
veracity of the central allegation made by the claimant, that she fears she
will be killed by the Zanu-PF if she returns to Zimbabwe because of her
experiences with the Zanu-PF which led her to flee Zimbabwe. The panel’s
reasons follow. [underlining added]
[4] The
Board then reviewed its five concerns with Ms. Malunga's testimony:
(i) Her demeanor. The RPD noted that it had to remind Ms.
Malunga on several occasions to be responsive to its questions and observed
that it found her responses to appear to be "on the evasive side".
(ii) On the same day that Ms. Malunga’s counsel filed a medical
report with the Board, counsel also filed an amendment to her Personal
Information Form (PIF). The amendment qualified a statement made in her PIF
that her finger was broken in a beating by Zanu-PF militia. In the amendment,
she stated that her previously broken finger was again hurt in the beating.
From this, the RPD concluded that Ms. Malunga had "at the very least and
embellished her injuries and at worst, contrived all of them as well as the
incident with the militia".
(iii) The RPD found a “serious unexplained inconsistency" in
Ms. Malunga's testimony because she wrote in her PIF that the Zanu-PF militia
had told her that she “had 30 days to live”. At the port of entry, she had
told an immigration officer that "I had 30 days to leave or they would
kill me".
(iv) The RPD found a further "serious omission" from her
PIF narrative. At the port of entry, she had written in her background
declaration that "[s]omeone came to where I worked and signed to me that
he was going to kill me". In her PIF, she had simply written that "[t]hese
assailants also went to my place of work to persecute me". (The PIF
expressly stated that the narrative was a summary and that further details
would be provided at the hearing).
(v) Ms. Malunga testified about a telephone threat she received in
which the caller advised her that they were coming over to kill her. The Board
found it to be implausible that anyone meaning to harm Ms. Malunga would
"telegraph his intention".
[5] The
Board then concluded its credibility analysis as follows:
It may be that
if examined individually, some of the panel’s findings might not, each on its
own, sustain an overall finding on non-credibility. However, the panel finds
that it is the cumulative effect of the inconsistencies, implausibility and
significant omission which leads it to disbelieve the claimant and to
conclude that she does not face a serious possibility of being persecuted if
she returns to Zimbabwe.
With respect
to the claimant’s MDC card filed in evidence, the panel finds that membership
in the MDC in and of itself cannot provide the basis of a well-founded fear of
persecution absent a finding that such a fear has been found to be credible.
The panel therefore cannot place weight on the mere MDC membership of being
supportive of the underlying facts of the claimant’s story.
[underlining
added, footnotes omitted]
Applicable legal principles
[6] It
is trite law that the Board's credibility findings are findings of fact that
are to be reviewed on the most deferential standard of review. However, there
are two other principles of law that are also relevant to the Board's decision.
[7] First,
the Board is required to make clear findings as to what evidence it believes or
disbelieves. See, for example, Pour v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 1282 (C.A.) and Bains v. Canada
(Minister of Employment and Immigration) (1993), 63 F.T.R. 312.
[8] Second,
the Board is required to assess any evidence that it finds to be credible.
This is because a finding of incredibility does not prevent a person from being
found to be a refugee if other evidence meets the test for refugee status.
See: Attakora v. Canada (Minister of Employment and
Immigration) (1989), 99 N.R. 168 (F.C.A.).
Application of the law to the
Board's decision
[9] As
set out above, at no point in its reasons does the RPD state what evidence it
finds was or was not credible. The Board appears to have accepted that Ms.
Malunga is a member of the MDC; however, the Court is left in doubt as to
whether the Board disbelieved all of Ms. Malunga’s testimony or only
"the veracity of the central allegation". As such, the Board erred
in law and its decision will be set aside.
[10] The
Board further erred by failing to consider the consequences that flowed from
Ms. Malunga's membership in the MDC. While the Board correctly noted that
mere membership did not make Ms. Malunga's evidence to be true, the country
condition documentation before the Board required an assessment of the
consequence of such membership.
[11] For
example, the 2005 United States Department of State report for Zimbabwe
reported that:
·
Throughout the time Ms. Malunga claimed to be persecuted, persons
perceived to be supporters of the opposition were singled out for assault or
intimidation.
·
Zanu-PF supporters, sometimes with government support or
acquiescence, intimidated and abused persons perceived to be associated with
the opposition.
[12] While
I accept counsel for the Minister's submission that Ms. Malunga would have had
to be known or perceived to be a MDC supporter in order to attract persecution,
she testified before the RPD that she participated in an anti-government
demonstration, distributed t-shirts and pamphlets on behalf of the MDC, and was
identified as an MDC supporter by a local Zanu-PF organizer. Unknown and
unascertainable from the Board’s reasons is what, if any, part of that
testimony was accepted as truthful. On the evidence before it, the Board was
obliged to consider whether Ms. Malunga's membership in the MDC could establish
a well-founded fear of persecution.
Other concerns
[13] The
errors described above require that the Board's decision be set aside and that
Ms. Malunga's claim for protection be considered afresh by a different
member of the RPD.
[14] It
is important that such consideration be de novo and that the member not
be influenced at all by the Board's credibility findings in this case. This is
important in this case because I find the majority of the Board's credibility
findings to be patently unreasonable.
[15] To
briefly illustrate:
(i) Counsel for the Minister fairly acknowledged that the RPD
erred when it characterized Ms. Malunga’s evidence to having “30 days to live”
versus “30 days to leave or they would kill me” as a "serious unexplained
inconsistency". While counsel valiantly argued that it was nonetheless an
inconsistency, any inconsistency is, in my respectful view, a distinction
without a difference. As Ms. Malunga explained in her evidence, but the RPD
did not appear to appreciate, she had 30 days to leave or her persecutors
would kill her after 30 days. As she said, after 30 days “if they see me
existing me [sic] they will kill me”.
(ii) Two concerns arise in respect of the Board’s concern about
the failure of the PIF to explain the workplace threat in as much detail as Ms.
Malunga explained at the port of entry. First, the RPD must always distinguish
between the situation where a matter is omitted entirely from the PIF and a
situation where the oral evidence merely adds detail. In the latter case, an
adverse inference should generally not be drawn. Second, the significance of a
material omission from a PIF is that it gives rise to a concern that the later
testimony is not true, but rather an afterthought designed to strengthen the
claim. This concern does not arise when the information was disclosed at the
port of entry, prior to the preparation of the PIF.
(iii) The Board reached its decision that it was implausible that
Ms. Malunga would receive a death threat that gave her time to flee her home,
without apparently considering the possibility that the purpose of the
telephone call was not to warn, but rather to intimidate. The Board should
have considered whether that was an equally plausible explanation before
finding Ms. Malunga's testimony to be implausible.
[16] Finally,
I note that the Board's concerns with respect to Ms. Malunga's demeanor were
only expressed at the hearing after it vigorously questioned her about the
above three matters.
[17] For
these reasons, the application for judicial review is allowed. Counsel posed
no question for certification, and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated November 16, 2006 is hereby
set aside.
2. The matter is remitted to a different panel of the Refugee
Protection Division for redetermination de novo in accordance with these
reasons.
“Eleanor R. Dawson”
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