Docket: IMM-1570-17
Citation:
2017 FC 1187
Ottawa, Ontario, December 21, 2017
PRESENT: The
Honourable Mr. Justice Ahmed
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BETWEEN:
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ANESU CEPHAS
JUNIOR SIBANDA
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(A.K.A ANESU
SIBANDA)
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review by
Anesu Cephas Junior Sibanda (the “Applicant”)
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA). On March 15, 2017, a member of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the “Member”) determined that the Applicant was neither a
Convention refugee nor a person in need of protection. The Member refused the
Applicant’s refugee claim (the “Decision”),
primarily on the ground that he was not credible. The Applicant seeks the
Member’s Decision be set aside and the matter be referred back for
redetermination by a differently constituted panel.
II.
Evidence
[2]
The Applicant is 25 years old and a citizen solely
of Zimbabwe. He and his family are supporters of the Movement for Democratic
Change (“MDC”), an opposition political party. Prior
to leaving Zimbabwe for the United States in August 2011, the Applicant was engaged
in activities in support of the MDC. For instance, in December 2010, he put up
posters for an MDC rally and attended that rally in January 2011. For this, he
was arrested, interrogated, slapped, and subsequently released. In March 2011, the
Applicant attended an MDC house party that was broken up by the police. While
fleeing, he was struck on his back. In August 2011, the Applicant left Zimbabwe
to pursue his post-secondary education in the United States.
[3]
From the United States, the Applicant continued
to support the MDC through donations to the party. In June, July and August
2016, the Applicant sent money to his mother in Zimbabwe via “MoneyGram” to donate on his behalf.
[4]
On September 22, 2016, the police visited the
Applicant’s parents’ house in Bulawayo, Zimbabwe. His parents hid, and his
sister told the police that the parents were not at home. The police searched
the residence and discovered the donation receipts. They asked the Applicant’s
sister about the donation receipts, threatening and mistreating her. They then
informed her that they would beat and arrest her brother, should he return to
Zimbabwe, for funding “enemies of the state.” Out
of fear for their lives, the Applicant’s parents and sister fled to Botswana
that evening.
[5]
On January 8, 2017, the Applicant left the
United States. Upon arriving at the Port of Entry (“POE”)
in Canada, he made a claim for refugee protection.
III.
Issues
[6]
There is one central issue that arises in this
matter: did the Member err in fact and in law when it impugned the Applicant’s
credibility by basing its decisions on erroneous findings of fact and law?
IV.
Analysis
A.
Standard of Review
[7]
The Member’s finding with respect to the
Applicant’s credibility is reviewable upon a standard of reasonableness, as it
is a question of mixed fact and law.
In Dunsmuir v New Brunswick, 2008 SCC
9, the Supreme Court of Canada explained the role of a court in conducting a
review on the reasonableness standard. Notably, it includes inquiries into the
qualities that make a decision reasonable, including both the process of
articulating the reasons and the outcome. On judicial review, reasonableness is
concerned with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law. In Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para. 15, the Supreme Court of Canada affirmed that a reviewing court may look
beyond the reasons under review and examine the record to assess the
reasonableness of a decision.
B.
Credibility
[8]
It is trite law that when a claimant testifies
and swears to the truth of certain allegations, a presumption is created that
those allegations are true unless there are reasons to doubt their
truthfulness: Maldonado v Canada (Minister of Employment and
Immigration), [1979] F.C.J. No. 248 at para. 5 (Maldonado). Adverse credibility
findings based on implausibility may only be made in the “clearest of cases” and the decision-maker has a duty
to justify such findings with clear reference to the evidence: Valtchev v
Canada (MCI) 2001 FCT 776 at paras.7 and 8 (Valtchev). Applying this
principle in Peter v. Canada (Citizenship and Immigration), 2015 FC 619
at para 7 (Peter), Mr. Justice Campbell wrote:
[…] To find that a person is lying is a
serious matter. Convincing reasons must support reaching such a conclusion. It
is not every contradiction, discrepancy, or inconsistency that can ground such
a finding. Each such incident must be carefully considered in the context in
which it arises to reasonably and fairly determine whether its existence is
evidence going to prove that a lie has been, or is being, told. If such a conclusion
is reached, the reasons for reaching it must be carefully and clearly
explained.
[9]
I am deeply concerned about the credibility
analysis presented by this Member in this Decision. Applying the principles discussed
in Peter to the case at hand, it is clear that the Member takes minor
inconsistencies to draw sweeping negative credibility inferences across the
entirety of the Applicant’s evidence, rather than carefully considering these
alleged discrepancies in context. I will develop some examples in the discussion
that follows.
(1)
Knowledge of the MDC / Political Opinion
[10]
The Member opens the discussion on credibility
with the professed expectation that, “… [t]he claimant
is a young man with a university degree from the USA and the panel expected his
oral evidence be more forthcoming and articulate with regards to his political
opinion” (Decision, para. 6). The Member indicates that the Applicant “…lacked credibility in that he was unable to describe his
alleged political opinion with any clarity and coherence” (Decision,
para. 7).
[11]
The Applicant provided substantial evidence and testimony
which illustrates his knowledge and opinion about the political situation in Zimbabwe.
For example, he knew that the MDC was founded in 1999. He knew that David
Coltart was formerly a government Minister. He knew that the main faction of
the MDC is the MDC-T and that its leader is Morgan Tsvangirai. He knew that Morgan
Tsvangirai was a member of the government and that he stopped being part of the
Government of National Unity in 2013. He knew about the formation of the People
First Party, knew that it is led by Joice Mujuru, and knew the circumstances
under which she left the governing party. He knew that last elections took
place in 2008 and 2013, that the next elections are scheduled to take place in
2018, and that a coalition was forming in opposition to the government for
those elections. He knew about the #ThisFlag movement, and knew that the movement
is led by Pastor Evan Mawarire. He knew about his country’s constitutional
revision process, including changes to the presidential term limits and the
inclusion of human rights provisions. It is also true that the Applicant did
not know about the MDC party structure, the name one faction of the MDC
(namely, the “MDC-N”), and the name of the
MDC-N’s leader. He was also unsure about the year that Morgan Tsvangirai became
the Prime Minister.
[12]
The Decision shows no evaluation or analysis of
what the Applicant knew in relation to what he did not know. Instead,
the Member drew a negative credibility inference because the Applicant lacked
some specific knowledge. In my view, the Applicant’s testimony demonstrates a
degree of knowledge about the political situation in his country that is
consistent with what one might reasonably expect of a 25 year old person. Not
to be forgotten is the fact that he has been absent from Zimbabwe for the past
6 years, and thus one might even say that he possesses an impressive knowledge of
his country’s history and politics. Similar to the facts in the Maldonado case
cited above, the Member has drawn conclusions about the Applicant’s political
opinion that not only appear to ignore substantial portions of the evidence,
but also contradict his testimony and sworn affidavit. In so doing, the Member
committed a reviewable error.
[13]
Furthermore, there are multiple statements about
the Applicant’s political knowledge that are misconstrued or factually
misstated in the Decision. The Member finds that the Applicant “…knew nothing about the MDC Youth Assembly” and “…did not know anything about MDC chapters in North America”
(Decision, para. 11). Nowhere in the transcript does the Member ask what the
Applicant knew of the MDC Youth Assembly. Instead, he was asked whether he had
ever been a member of the MDC Youth Assembly and whether he had ever
volunteered for it, and the Applicant responded to both questions in the
negative (Certified Tribunal Record (“CTR”), p.
234). Nowhere in the transcript does the Member ask the Applicant what he knew
about MDC chapters in North America. Rather, he was asked whether he was aware of
the MDC chapter in the United States. He responded by noting that he had heard
about a chapter in Indiana (CTR, p. 226).
[14]
A misapprehension of oral testimony is not only
a problem for drawing credibility inferences; it can be fatal to a decision: Gur
v. Canada (Citizenship and Immigration), 2012 FC 992; Hosini v. Canada
(Citizenship and Immigration), 2014 FC 1007. In the case at hand, the
Member drew a negative credibility inference with respect to the Applicant’s
political opinion – a cornerstone of this case – on the basis of a misapprehension
of his testimony. As such, I find that having done so, the Member committed a
reviewable error.
(2)
Implausibility: Donations to the MDC
[15]
The Member finds it “implausible”
that the Applicant sent money to his mother to donate to the MDC on his behalf.
The Member in its Decision states:
…Firstly, when asked why the claimant did
not directly send money to the MDC in USA, he testified he wanted to support
the MDC in Bulawayo. When asked why then did he not send the money directly to
the MDC party and write down his name, the claimant had no explanation. The
claimant’s evidence concerning sending money through his mother to MDC party in
Bulawayo lacks rationality and common sense.
[Decision, para. 16]
[16]
I have two concerns about this implausibility
finding. First, the account of the Applicant’s testimony is, again, factually
incorrect. The Applicant was only asked whether he knew about the MDC chapter
in the United States, and why he did not donate through it. He never testified
that he wanted to support the “MDC in Bulawayo,”
and when asked why he did send his donation through the MDC in the United
States, he was not without an explanation – he testified that he thought it was
“…more direct to just send it home to [his] mom”
(CTR, p. 226). Thus, the implausibility finding by the Member – that is, that
the money did not go to the MDC and therefore the Applicant’s name would not be
on the list of donors in the Bulawayo chapter of the MDC – is regrettably based
upon the Member’s own version of evidence rather than that of the Applicant. Considering
that issue of the donations is central to this claim, this error is
particularly serious.
[17]
Second, the Decision is absent any reasons for
which the Member rejects the Applicant’s explanation for donating through his
mother as implausible. This Court has held that implausibility findings are to
be restricted to the clearest of cases: Valtchev; Chen v. Canada
(Citizenship and Immigration), 2014 FC 749; Meng v. Canada (Citizenship
and Immigration), 2015 FC 365. In cases of alleged implausibility, a
decision-maker cannot simply assert that an individual’s choice is irrational or
lacks common sense when confronted with an explanation. Reasons must be given. The
absence of those reasons, and the much more serious error of improperly drawing
credibility inferences from a misapprehension of the testimony, renders the
Member’s implausibility finding on this crucial area of the evidence unreasonable.
(3)
Delay
[18]
The Member draws a negative credibility inference
“…with respect to the claimant’s failure to seek
protection at the earliest opportunity in the USA or five previous times the
claimant entered Canada as a visitor” (Decision, para. 22). Although the
Applicant explained that he did not file a claim on those occasions because his
brother advised him to concentrate on his studies and because he thought the
situation in Zimbabwe would improve, the Member rejects this explanation,
finding that the Applicant “… did not demonstrate to me
that he had any ongoing knowledge of what was happening over the years in the
MDC party” (Decision, para. 22).
[19]
I have already explained why it was improper, in
my view, to draw a negative credibility finding based on the Applicant’s lack
of specific knowledge about the MDC’s structure and organization. However, the
use of this lack of knowledge to discredit the Applicant’s view about the
improving situation in Zimbabwe is unintelligible. The two are hardly related. On
the contrary, the Applicant gave cogent reasons why he thought the situation
was improving:
There was…there was a constitution. There
was a new constitution that was introduced and it had provisions to protect
people from being torture or....or attacked. And if….and they were
going to investigate any human rights violations. If...if there was
a…it’s…it’s…it hasn’t been applied until now. I thought if…I thought it
would be applied.
[Emphasis added]
[CTR, p. 218]
[20]
At no point in the Decision did the Member
address this explanation. By ignoring this evidence, and by the failure to even
comment on its weight in the Decision, the Member committed a serious
reviewable error. It is yet another example, like in Maldonado, of the
Member drawing a conclusion without regard to relevant, uncontradicted
testimony. Thus, the negative credibility inference was improperly drawn.
IV.
Conclusion
[21]
While I have refrained from commenting on all
credibility findings in the Decision, it is my view that the above discussion
exposes sufficient reviewable errors with respect to credibility to render it
unreasonable.
V.
Certification
[22]
Counsel for both parties was asked if there were
questions requiring certification, they each stated that there were no
questions arising for certification and I concur.
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