Docket: IMM-1792-12
Citation:
2015 FC 512
Toronto, Ontario, April 21, 2015
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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TOMAS LACKO
MARCELA BALAZOVA
TOAMS LACKO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
With respect to the present Application, the
Applicants are a family composed of a father, (the claimant), mother (the
female claimant), and their dependent child, who are Roma citizens of the Czech
Republic and who claim protection pursuant to s. 96 of the Immigration and
Refugee Protection Act, SC 2001, c 27, on the basis of their ethnicity, and
protection pursuant to s. 97 on the basis of fear of right-wing racist
extremists. In a decision dated February 3, 2012, the Refugee Protection
Division (RPD) rejected the Applicants’ claim.
[2]
I find two reasons to set aside the RPD’s
decision: a breach of a duty of fairness owed to the claimant, and a
significant erroneous finding of fact.
I.
Breach of a Duty of Fairness
[3]
A central finding in the RPD’s decision is a
negative credibility finding based on a perceived discrepancy between the
claimant’s statements in his PIF and his testimony at the hearing of his claim.
The following emphasized passage from the decision is the finding:
There were some credibility concerns. For
example, the claimant was asked, between 1999 and November 2008, how
many times he was attacked by skinheads; he replied many times. Then
he indicated that he did not include all the times
he was attacked. Asked if he was saying that they [sic] were other
attacks by skinheads that he didn't mention his PIF narrative
(instead of answering the question directly), he replied, ''What I
wrote down is what I wrote down, and what I didn't, I didn't; the
interpreter I had we just put in what we had time to put
in." The panel finds his answer to what was simply a
straightforward question to be evasive.
The panel, however, repeated the
question to which the claimant replied, "Yes," He was then
asked why he didn't write down all the attacks against him in his
PIF narrative (the panel notes that he went back to being evasive);
he replied, "Whatever we wrote down is what we wrote down."
But later he added that ''Whatever I remembered at that time we
wrote down." The claimant was asked how many times he wrote (in
his PIF narrative) that he was attacked; he replied, five times. The
panel notes that his PIF narrative indicates that he was attacked
seven times. Noting that in his oral testimony the claimant said he
was attacked seven times, and in his PIF narrative the number of times he was attacked amount to
seven times, but when he was asked how many times he wrote in
his PIF narrative that he was attacked, he replied
five times; the panel did not pursue an adverse credibility finding
with respect to that discrepancy. The panel believes the claimant
was credible with respect to the number of times he stated that he
was attacked by skinheads in his PIF narrative which largely
corresponded with the number of times in his oral testimony. However,
the panel does not believe that he
was indeed attacked and assaulted by
any skinheads at any time, particularly
as he now claimed that he was
assaulted more times than he wrote
in his PIF narrative. If indeed he was attacked
by skinheads as he stated, especially more than the seven times over
the nine year period (1999-2008) indicated in his Personal Information Form
(PIF) narrative, on a balance of probabilities, he would not have been
evasive in his response to the question when he was asked "if he
was saying that they [sic] were other attacks by skinheads that he didn't
mention his PIF narrative." He would have simply answered the question
directly. Therefore, the panel finds his evasiveness to undermine his credibility
and rejects his allegation that he was ever attacked by skinheads in
his country.
[Emphasis added and footnotes in the original omitted]
(Decision, paras. 9 and 10)
[4]
During the course of the hearing, out of
fairness to the record, Counsel for the Respondent drew my attention to the
following critical passage from the transcript of the hearing before the RPD:
COUNSEL: Mr.
Board Member at the last sitting there were a number of questions, how many
times you were attacked, how many times did you go to the police and so forth,
like that. Does…I just want to focus my questioning…does the Board have any
significant issues in terms of the claimant’s recounting of the number of times
he was attacked, the number of times he went to the police or anything of
that nature or is that evidence, whether identical to the [PIF], close enough
that there is not serious credibility concerns?
MEMBER: There
is no…I can go on record and tell you that there is no real..I..I was reviewing
the evidence in preparation for today and when I..I..I was going through it I
am realizing that there is no serious discrepancy. When I count the amount of
incidents there were about nine and he said seven, but…but I..I do not see that
as…as the number of times. There might be issues around some of the information
he provided in regards to the..the..the incidents, but I, going through it I
did not foresee a problem with how many times he said he was assaulted or his
relatives were assaulted. And I do not think it would be fair for me to use
that to…even if there were some slight discrepancy there, because he is saying
that he was assaulted but also his relatives were assaulted.
[Emphasis added]
(Certified Tribunal Record at p. 680)
[5]
The breach of the duty of fairness owed to the
claimant is the RPD’s commitment made during the course of the hearing, which
had the potential of limiting evidence and argument in support of the
claimant’s claim, and the subsequent breach of the commitment, by making a
finding which is used to reject the claimant’s claim.
II.
Erroneous Finding of Fact
[6]
In the decision, the RPD used documented general
descriptions of practices and procedures in the Czech Republic to find, as a
fact, that those practices and procedures were actually applied in the scenario
at hand without a shred of evidence to support the finding. In the following
paragraphs of the decision, the RPD finds that, because police are required to
respond to a complaint, it is implausible that the police did not respond to
the Applicant’s complaint:
In addition, the panel also notes that
the claimant testified that despite making several complaints to the
police - at least three times by telephone and two times in person at
the police station - yet he received no assistance from the police. The
panel does not believe that if he was attacked these [sic] many times
by skinheads and made these several reports to the police, he would
not have received some form of assistance. The panel prefers the
documentary evidence over the claimant's testimony since they are drawn
from a wide range of publicly accessible documents from reliable
non-government and government organizations which states that by law,
police must respond to all distress calls and notify parties of the
outcome of their complaints. […]
[Emphasis added]
(Decision, para. 11)
III.
Conclusion
[7]
Given the breach of fairness, and the erroneous
finding of fact, I find that the decision is made in reviewable error.
[8]
Independent from the findings made with respect
to the content of the decision, I have an obiter comment to make
regarding the process used by the RPD to make implausibility findings.
[9]
The RPD begins its analysis of the Applicants’
claim by making the following statements of law regarding implausibility
findings:
With regard to credibility, the panel is
guided by the Federal Court of Appeal which has ruled that testimony
given under oath is presumed to be true, unless there is a valid reason
to doubt its truthfulness. The assessment the panel must use to test
the truth of a story of a witness is that it be in harmony with the
preponderance of probabilities which a practical and informed
person would readily recognize as reasonable in that place and
in those conditions. Furthermore, the panel cannot be satisfied that, “the
evidence is credible or trustworthy unless satisfied that it is probably
so, not just possibly so”. [Faryna v Chorny, [1952] 2 D.L.R. 354
(B.C.C.A.) at 357, per O’Halloran, J.A.)
[…] The panel is entitled to make reasonable findings based
on implausibility, common sense and rationality,
and may reject evidence if it is not consistent with the probabilities
affecting the case as a whole.
The RPD’s
statements do not fully reflect the now long-standing accepted approach to the
making of implausibility findings as stated in the decision of Valtchev v Canada
(MCI), 2001 FCT 776 at paragraph 7 as follows:
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]
[10]
While the RPD’s quote from the decision in Faryna
v. Chorny does speak to the need for a decision-maker to be objectively “informed”, the present evidentiary standard makes
more precise demands. To avoid the application of speculation, implausibility
findings must be made on the basis of evidence on the record through a
process of fact finding which produces verifiable results. This point is
expressed in the decision in Zakhour v Canada (MCI), 2011 FC 1178 at
paragraph 5:
Therefore, in the present case, from
evidence on the record, the RPD was required to: first, clearly find what might
reasonably be expected by way of a Hezbollah response to the Applicant’s actions;
then make findings of fact about the response that was made by Hezbollah; and,
finally, conclude whether the response conforms with what might be reasonably
suspected. In the present case this process of critical analysis was not
followed. On this basis I find that the RPD’s implausibility findings are
unsupported speculations, and, therefore, the decision under review is not defensible
on the law and the facts.
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