Docket: IMM-2577-16
Citation:
2016 FC 1325
Toronto, Ontario, December 2, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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X.Y.
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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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AMENDED JUDGMENT AND REASONS
[1]
The present application concerns a life story
that was under humanitarian and compassionate consideration in the decision
presently under review. For the reasons that follow, I find that the decision
is unreasonable.
[2]
The Applicant’s
story is detailed and tragic. She is a 33-year-old Ethiopian woman who arrived
in Canada on February 5, 2013. Ten days later, she claimed refugee protection
on the basis of actual and imputed political opinion. Approximately one month
later, during her medical examination, she learned she was HIV positive.
[3]
On April 24, 2013, the RPD denied her claim on
the grounds of identity and credibility. She never disclosed her HIV status to
her lawyer before the RPD, in part due to her fear that her lawyer’s Amharic
interpreter would leak the information to the Ethiopian community. She also
kept her HIV status from the lawyer who prepared her merit assessment for Legal
Aid, due to intense shame. Her appeal to the RAD was dismissed on November 1,
2013 for failure to perfect.
[4]
On November 27, 2013, the Applicant’s
mother passed away leaving her with no family members in Ethiopia.
[5]
When she was unable to receive legal aid, the
Applicant found herself without counsel and could not perfect her
application for leave and judicial review of the RAD decision. As a result, her
application was dismissed on January 1, 2014.
[6]
In February 2014, the Applicant disclosed
her immigration issues to her HIV doctor, who pointed her in the direction of
the HIV & AIDs Legal Clinic of Ontario [HALCO]. Her current counsel advised
her to disclose her HIV status in her H&C and PRRA applications.
[7]
On December 21, 2014, the Applicant
submitted her first H&C application, based on hardship in Ethiopia due to
her HIV status and her establishment in Canada. She was represented by a
private bar lawyer because HALCO did not have the capacity to assist her at
that time. This first application was rejected on March 6, 2015. On May 13 and
July 10, 2015, the Applicant submitted a PRRA and second H&C
application, respectively. The Applicant’s second H&C application
was based on hardship in Ethiopia due to her HIV status, having no remaining
family in Ethiopia, and her establishment in Canada. This time, she had the
assistance of HALCO. The same Officer denied her PRRA and second H&C
application on July 2, 2016. The present Application is a challenge to the
H&C decision.
[8]
In any event of the merits of the Applicant’s
detailed plea for humanitarian and compassionate relief, the Officer that heard
the plea chose to reduce the weight of the Applicant’s evidence on the basis of
vague implausibility finding. Two critical passages of the decision speak to
this point.
[9]
After a brief statement of the history of the
Applicant’s lengthy attempt to seek relief in Canada, the very first finding in
the decision under review is as follows:
The RPD was not satisfied that the applicant
had established her identity. She provided additional evidence however I have
concerns with respect to the documentation she has provided to establish her
identity owing to the crude presentation of the coat of arms in the stamp/seal
on the birth certificate and the misspelling of the word assistant in the title
Assistant Director on her secondary school certificate. I find she has not
sufficiently established her identity as a citizen of Ethiopia and this weighs
negatively in this assessment.
(Decision, p. 2)
[10]
And the very last finding in the decision under
review is as follows:
[The Applicant’s] establishment in
Canada was accorded little weight, and her inability to credibility establish
her identity also weighed negatively into this assessment. Even with the
moderate weight accorded to the consideration of the level of discrimination
she may face, I found it insufficient to tilt this application to a positive.
(Decision, p. 5)
[11]
In my opinion, the first finding is an unfounded
implausibility finding which constitutes an erroneous negative credibility
finding. In effect, the Officer found that, without any evidence in support, it
is implausible that the government in Ethiopia would issue a birth certificate with
the perceived deficiencies noted, and, therefore, the document is fraudulent.
As a consequence, because the Applicant tendered a fraudulent document, the
Officer found that she must bear the weight of a negative credibility finding which
impinges on the merits of her plea for humanitarian and compassionate relief. I
find that to so decide is remarkably unfair.
[12]
The law on making an implausibility finding is
stated in Vodics v Canada (Minister of Citizenship and Immigration), 2005
FC 783 at paragraphs 10 and 11:
With respect to making negative credibility
findings in general, and implausibility findings in particular, Justice Muldoon
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 acts 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 in the original]
It is not difficult to understand that, to be fair to a person who
swears to tell the truth, concrete reasons supported by cogent evidence must
exist before the person is disbelieved. Let us be clear. To say that someone is
not credible is to say that they are lying. Therefore, to be fair, a
decision-maker must be able to articulate why he or she is suspicious of the
sworn testimony, and, unless this can be done, suspicion cannot be applied in
reaching a conclusion. The benefit of any unsupported doubt must go to the
person giving the evidence.
[13]
Therefore, in the present case, from evidence on
the record, the Officer was required to clearly find what might reasonably be
expected about the appearance of government documents from Ethiopia, and then
to conclude whether the documents under consideration conform with what might
be reasonably expected. In the present case this process of critical analysis
was not followed. As a result, I find that the Officer’s implausibility finding
is made in error of law which renders the decision under review unreasonable.
The Officer’s decision must be set aside and the matter referred back for
reconsideration by a different decision-maker.
[14]
I wish to end these reasons with a reminder with
respect to the conduct of the redetermination. Empathy leading to compassion
must be alive in the mind and heart of a person who is charged with the
critically important task of making a decision to relieve pain in another
person’s life. Remember, we all would ask for that careful and kind treatment
should we be in that person’s shoes.
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