Docket: IMM-1089-16
Citation:
2016 FC 1148
Toronto, Ontario, October 17, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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RUSTAM
KHAMDAMOV
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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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JUDGMENT AND REASONS
[1]
The present Application concerns the Applicant’s
claim for protection that, as a citizen of Kyrgyzstan, he will suffer more than
a mere possibility of persecution under s.96 of the IRPA and risk under
s.97 should he be required to return. The Applicant’s claim is based on his Uyghur
ethnicity and his political activism in Kyrgyzstan.
[2]
In support of this claim, the Applicant supplied
an extraordinarily detailed narrative in his Basis of Claim which is quoted in
the attached Appendix.
[3]
The Refugee Protection Division (RPD) found that
the Applicant established his identity as a Uyghur but rejected the Applicant’s
claim on findings that the Applicant was not credible about his allegations of
abuse by authorities, and there was insufficient evidence on the record to
establish that the discrimination that he faces in Kyrgyzstan rises to the
level of persecution.
[4]
The Applicant appealed the RPD’s decision to the
Refugee Appeal Division (RAD) which, by its February 23, 2016 decision presently
under review, rejected the Applicant’s appeal. The RAD found that the
determinative issue in the Applicant’s claim is the Applicant’s identity as a
political activist for the Uyghur cause (Decision para. 17). On this issue, the
RAD rejected the Applicant’s claim for protection on a finding of negative
credibility. Aside from the credibility issue, the RAD also dismissed the
Applicant’s claim made on the basis of his Uyghur ethnicity based on in-country
documentary evidence.
[5]
I find that the central issue for determination
in the present judicial review is whether the RAD’s negative credibility
finding is supportable in fact and law.
I.
The RAD’s decision-making on the issue of
credibility
[6]
The RAD’s decision was rendered prior to the
Federal Court of Appeal’s decision in Huruglica v Canada (Minister of
Citizenship and Immigration), (2016 FC 93). Accordingly, at paragraph 10 of
the decision the RAD applied Justice Phelan’s Federal Court decision (2014 FC
799) as follows:
The RAD will recognize and respect the
credibility findings of the RPD and deference will be afforded to those
credibility findings of the RPD where the RPD has a particular advantage in
reaching its conclusions.
[7]
At paragraph 17 of the decision is the first
statement made by the RAD on the merits of the appeal:
The RAD finds that the determinative issue
in this claim is the Appellant's alleged identity as a political activist for
the Uyghur cause. The RPD has found that the Appellant's allegations of his
political activism are not credible.
[8]
After finding that the RPD erred in concluding
on a side issue that the Applicant knew or ought to have known that his
co-claimant was not Uyghur, the RAD’s analysis of the RPD’s credibility
findings proceeds under the heading “Failure to Tender Documents”. The first
statements under this heading are stated at paragraphs 21 and 22 of the
decision:
The RPD drew an adverse inference from the
Appellant's failure to tender documents and/or records to establish his
allegations, in particular, that he is politically active for the Uyghur cause
and that he had been arrested by police and released with reporting conditions.
The Appellant submits that the RPD's finding
is illogical. He argues that it is illogical to assume that a person who has
been illegally detained and beaten or asked to pay bribes would obtain the
certificates and documents easily. He also argues that the RPD failed to
consider the country documentation before it which corroborates his allegations
of illegal detention and bribery specifically in Kyrgyz Republic according to
the Country Reports on Human Rights Practices for 2014 dated June 25, 2015.
[Footnote omitted]
[9]
At paragraph 23 of the decision, the RAD engages
the corroboration issue as follows:
The RAD is not persuaded by the Appellant's
argument in this regard. The RAD notes that the Appellant has alleged that he
was arrested and was released the last time with the condition to report to the
authorities every two weeks and not to leave the country. The Appellant alleges
that he reported every two weeks as required until he left the country. His
explanation in testimony for why he did not have any documents to corroborate
his detention and reporting conditions was that his arrests were illegal.
The RAD notes, however, that the Appellant did not allege anywhere in his Basis
of Claim (BoC) documents that the arrests were illegal. In fact in his schedule
'A' Background Document he states that he was arrested because he was accused
of separatism. While it is true that he alleges that he was released
without charges after paying a bribe, the RAD finds that this does not in
itself establish that the arrests were illegal or that they would not be
documented in some way.
[Emphasis added]
[Footnotes omitted]
[10]
The RAD then proceeds to determine the
Applicant’s credibility by making a series of implausibility findings.
[11]
Paragraph 24 reads as follows:
The Appellant cites country documentation
which does corroborate that the police frequently used false charges to solicit
bribes in exchange for release. The RAD finds that the allegations of the
Appellant suggest that his arrests went beyond a scheme to solicit bribes. The
RAD finds that if the purpose was simply to solicit a bribe, there would be no
need to have the Appellant on a reporting condition as he has alleged.
Furthermore, if he were in fact on a
reporting condition, the RAD finds it is
reasonable to expect that his requirement to report would be in some way
documented to ensure that he did report as required. The RAD finds that the
absence of any corroborating documents to this
effect undermined his allegations that he was arrested and was required to
report.
[Emphasis added]
[12]
Paragraphs 25 and 26 read as follows:
The RAD further finds, according to the
Appellant's allegations, that he obtained his genuine passport during the time
he was under the scrutiny of the police and security forces and under the
condition to report regularly to the police. He also alleges that he was
ordered not to leave the country. The RAD finds that under the circumstances
it is reasonable to expect that the Appellant would not have been issued a
passport that would enable him to leave the country if he was being monitored
by the police. The RAD notes that country documentation in the record indicates
that persons of his profile can be denied a passport.
Article 46 in the Kyrgyz migration law (Law
on External Migration 2000) regulates when Kyrgyz citizens may be denied exit.
Passports may be temporarily denied or be seized if, amongst other things, a
person has knowledge of state secrets, has been charged/prosecuted or sentenced
in a criminal case, has civil proceedings brought against them, has unresolved
legal obligations or has evaded such obligations (for example, alimony), is
considered a danger by the court or has provided incorrect information. New
passports are not issued to people who are called to military service, but the
authorities do not confiscate passports that are already issued on the basis of
military service (IRB Canada 2006). [RPD’s Record, Exhibit 4, NDP for
Kyrgyzstan (July 17, 2015), item, 3.2]
[Emphasis added]
[13]
Paragraph 28 reads as follows:
The RAD notes that Rule 11 of the Refugee
Protection Division requires that the claimant provide acceptable documents
establishing identity and other elements of the claim. A claimant who does not
provide acceptable documents must explain why they were not provided and what
steps were taken to provide them. Since the Appellant alleges that he was
detained, tortured and is being pursued by members of the police due to his
political activism, acceptable documents establishing these facts would be an
essential element of the claim. The RAD finds it reasonable for the
Appellant to have provided documents such as letters, sworn affidavits,
newspaper articles, photographs which corroborate his political activities as
well as arrest records, notices of detention or release from police custody to
corroborate the consequences of his
political activities. Despite having been questioned about providing documents, the
Appellant has not provided any evidence that he has made any efforts to obtain
such documents and has not tendered any such documents in this appeal. The RAD
finds that the Appellant failed to provide persuasive documents or testimony to
corroborate his allegations in this regard.
[Emphasis added]
[14]
Putting the implausibility findings to work, the
RAD reached the following statements of conclusion at paragraphs 29 and 33:
The RAD finds, on the basis of the
foregoing, that the Appellant's allegations that he was arrested and required
to report to the police are not credible.
[…]
Notwithstanding the unsustainable findings
of the RPD, the RAD finds, on the basis of the findings noted above and on a
balance probabilities [sic], that the Appellant's allegations that he was a
political activist in Kyrgyzstan and that he was and continues to be at risk of
persecution because of his political activism is not credible.
II.
The law on the issue of credibility
[15]
On the determinative issue, in delivering an
independent assessment of the RPD decision, I find that the RAD was required to
assess the Applicant’s sworn evidence in compliance with the decision in Valtchev
v Canada (MCI), 2001 FCT 776 at paragraphs 6 and 7:
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]
[Emphasis added]
III.
Analysis of the RAD’s findings according
to the law
A.
Corroboration
[16]
By applying the decision in Maldonado, in
order for the RAD to require corroborative evidence from the Applicant to
substantiate the Applicant’s claim, it was first necessary for the RAD to find reasons
to doubt the truthfulness of the Applicant’s sworn testimony. I find that the
cardinal error in the RAD’s decision is the failure to follow this straight-forward
point of law. Instead of clearly identifying an evidentiary reason to rebut the
presumption that the Applicant was telling the truth in the giving of his
evidence, the RAD engaged corroboration in an erroneous circular analysis. That
is, the fact that the Applicant did not file corroborating documentary evidence
in support of his claim was found by the RAD as a reason to disbelieve his
sworn evidence, and, thus, upon disbelieving his sworn evidence, the Applicant
was required to provide corroborating evidence to avoid the dismissal of his
claim. I find that this error alone renders the RAD’s decision unreasonable.
[17]
In addition, and in any event, in the course of
the corroboration engagement, the RAD made implausibility findings which are
unsupportable in law. The following analysis addresses each of the findings
quoted above in Section I of these reasons.
B.
Implausibility
[18]
With respect to paragraph 23, the Applicant chose
the word “illegal” to describe the conduct of the police because, from his
perspective, their actions were intended to supress his activist activities
outside of the law of the country. The RAD’s intense focus on the Applicant’s
word choice is evidence that the RAD was unwilling to accept the Applicant’s
perspective. In any event, I find that the effort expended on the word choice
cannot result in a negative credibility finding against the Applicant.
[19]
The statement in paragraph 24 is nothing more
than unsubstantiated speculation.
[20]
With respect to paragraphs 25 and 26, the RAD
found that it is implausible that, as a political activist, the Applicant would
be able to obtain a passport, and to use it to leave the country. According to
the decision in Valtchev, in order to establish the implausibility
finding, the RAD was required to apply documentary evidence that established
that the Applicant could not have obtained the passport during the
period of his political activities.
[21]
In my opinion, the evidence applied by the RAD does
not establish that, if he was being monitored by the police, the Applicant would
not have been issued a passport that would enable him to leave the country.
I find that the evidence only establishes that he might not have been
issued a passport. The fact remains that he was issued a passport. I find that
the evidence relied upon by the RAD does not establish the implausibility finding
advanced on a balance of probabilities.
[22]
With respect to the statement in paragraph 28,
the Applicant provided sworn testimony that the RAD’s expectations were
impossible to meet. As to letters, affidavits, news articles, and photos, the
Applicant’s evidence is that there were none to submit. As to not acquiring the
various police records, the Applicant provides the reason that it is
unreasonable and illogical to expect that he would make such a request from his
persecutors. I find that there is no basis for the RAD to find that it was implausible
that the Applicant could not conform to the expectations set, and that his
failure to do so supports a finding of negative credibility.
IV.
Conclusion
[23]
For the reasons provided, I find the RAD’s determination
with respect to the Applicant’s credibility is made in fundamental error of
mixed fact and law which renders the decision under review unreasonable.
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