Date: 20061212
Docket: IMM-1987-06
Citation: 2006 FC 1483
Ottawa, Ontario, December 12, 2006
Present: THE HONOURABLE Mr. Justice Blanchard
BETWEEN:
Kwassi Wobuibe KLUTSE
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This is an application for judicial review filed
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA), of a decision of the Immigration and Refugee Board,
Refugee Protection Division (the Board), rendered on March 21, 2006. In
that decision, the applicant, Kwassi Wobuibe Klutse, was denied the status of a
“refugee,” as defined in section 96 of the IRPA, and of a “person in need of
protection,” as defined in section 97 of the IRPA.
[2]
The applicant is asking this Court to set aside
the Board’s decision and refer the matter to a differently constituted panel
for rehearing.
2. Factual Background
[3]
The applicant, a citizen of Togo, arrived in
Canada on January 7, 1998 as a foreign student and filed a refugee claim in
Canada on September 6, 2005. His application is based primarily on a fear that
the Togolese authorities will make an attempt on his life should he ever return
to Togo. The claim was heard in Montreal on January 26, 2006.
[4]
The applicant’s father, Kwassi Klutse, was prime
minister of Togo during the transitional government. Prior to that, during the
regime of Edem Kodjo, he had held the position of minister of territorial
development. In 1996 he was appointed prime minister by General Eyadema and
remained in office until May 1999. Subsequently, it appears that he kept his
position within the party as an ordinary member of parliament.
[5]
At the time of the 2003 elections, when
President Eyadema expressed his intention not to run for the presidency again,
the applicant’s father and two other people were put forward by the ruling
party to hold the office. The two other candidates declined the offer, but the
applicant’s father accepted. It appears that, at the end of the day, President Eyadema
decided to run. According to the applicant, this proposal by the party was in
fact a ruse to find out what his father’s political ambitions were.
[6]
An assassination attempt was made against Mr.
Klutse senior on May 6, 2003 by President Eyadema’s son, who was then a colonel
in the army. The applicant’s father was shot and wounded in the leg, shoulder
and stomach. The applicant, who was not in Togo at the time, but in Canada
pursuing his education, explained that this assassination attempt was covered up.
The Board, on the other hand, noted that there was no documentary evidence
confirming that this incident ever actually took place.
[7]
Following that incident, the applicant’s father
spent over six months in hospital. Four days after his arrival, soldiers
surrounded the location to exercise surveillance.
[8]
On his release from hospital, Mr. Klutse senior
was placed under house arrest and constant surveillance.
[9]
After the death of General Eyadema, one of his
sons, Faure Gnasingbe, became President, and another son, Kpatcha Gnasingbe,
Minister of National Defence. Mr. Klutse is still looked upon as a
formidable adversary by the sons of the former dictator.
[10]
The applicant claims to fear imprisonment and
death at the hands of the Togolese authorities if he returns to Togo. The
applicant explained that the authorities see his death as a means of avoiding
future political confrontations and hurting Mr. Klutse senior. In that regard,
the Eyadema family allegedly stated that they were quite prepared to eliminate
the entire Klutse family to prevent them from attempting a coup d’état.
[11]
The applicant also asserts that all opposition
supporters risk imprisonment, torture and even death; he states that his cousin
Sebastien Klutse was beaten up for that reason.
[12]
In March 2004, a childhood friend of the
applicant was arrested by Kpatcha Gnasingbe, who allegedly told the friend that
if the applicant returned to the country he would pay because his father had
tried to replace General Eyadema.
[13]
The applicant alleges that several members of
his family have taken refuge in Benin, Ghana, France and the Netherlands, and
that two of his brothers live in Quebec. His younger brother Fabrice, who lives
in Québec City and with whom he has little contact, also made a refugee claim, unbeknownst
to the applicant.
[14]
The applicant explains the lengthy interval
between his arrival in Canada and his claim to refugee status by his fear of
reprisals from the Togolese authorities if he ever returned to Togo.
3. Impugned Decision
[15]
The Board ruled on March 24, 2006, that the
applicant was neither a refugee within the meaning of IRPA section 96 nor a
person in need of protection within the meaning of IRPA section 97.
[16]
The Board found that the applicant was not
credible and that his behaviour belied any subjective fear. For these
reasons, it took the view that the applicant would not be in danger if he
returned to Togo, despite his seeking asylum in Canada. Furthermore, the Board
found it reasonable to believe that the authorities would protect him.
[17]
First, the Board based its finding that the
applicant was not credible by pointing to an inconsistency that it
characterized as significant between the applicant’s testimony and his
brother’s Personal Information Form (PIF):
-
his brother stated that his father climbed the
wall during the shooting to seek refuge with the neighbours, whereas the
applicant alleged that neighbours rushed to help his father when they heard the
gun shots; and
-
his brother seemed not to know who the people
were who tried to assassinate their father, whereas the applicant identified
the son of the former dictator.
On that score, the Board rejected the applicant’s explanation to the
effect that his brother may not have thought it necessary to provide all the
details in his PIF and that two people can have different perceptions of the
same situation.
[18]
The Board also raised the fact that the rather
substantial documentary evidence offered by the Immigration protection officer
was silent on the attempted assassination of the former prime minister of the
country. The applicant’s explanation for the absence of this information in the
documentary evidence, i.e., that his father had withdrawn from the political
scene, was rejected by the Board on the basis that Mr. Klutse senior was campaigning
to be president of the country at the time. The Board added that it found the
applicant negligent for not having saved a copy of the article that he had read
online on this subject. Counsel for the applicant alleged that this document,
as well as a letter sent by Mr. Klutse senior’s former head of security, was in
the possession of Immigration Québec, but that she did not have these documents
because of the very short period (two months) between the filing of the PIF and
the hearing. In that regard, the Board acknowledged first that the credibility
of the applicant cannot be tainted by the absence of corroborating evidence,
but that, given the fact that the applicant’s credibility was tainted, such
evidence would have been useful and, further, that its absence was surprising,
even negligent, given the notoriety of the applicant’s father. The Board drew a
negative inference from this gap in the documentary evidence and stated its
belief that Kpatcha never made the alleged threats.
[19]
Next, the Board found that the applicant’s
testimony entirely lacked credibility on the question of whether his father was
a presidential candidate in 2003. It determined that there was nothing in the
documentary evidence to indicate that he actually ran in the elections; indeed,
what it indicates is that General Eyadema always intended to stand for
election. The Board rejected the applicant’s explanation that his father’s
nomination was just a way to ascertain his ambitions, that it did not receive
media coverage and that the party’s offer was eventually withdrawn.
[20]
The Board found as well that the applicant did
not have a subjective fear because he had been without status since October 1,
2004 and did not seek refugee protection until September 2006. The Board
thus rejected the applicant’s explanation about trying during that time to
regularize his situation by applying for a Certificat d’acceptation du
Québec because he did not meet the applicable financial criteria. Nor did
it accept his explanation that he believed the death of President Eyadema meant
salvation for Togo and, consequently, the end of his need to seek protection in
Canada. Finally, given that the refugee claim process is confidential, the
Board also rejected his explanation according to which he did not want to claim
refugee status for fear of hurting his father.
4. Issue
[21]
The issue to be decided by the Federal Court in
this case is essentially whether the Board made a reviewable error by
concluding that the applicant had no credibility.
5. Standard of Review
[22]
The law is well-settled: in judicial review
proceedings, the applicable standard with respect to witness credibility
determinations is that of patent unreasonableness: see: Aguebor v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. no. 732 (QL); R.K.L.
v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. no. 162
(QL); and Khaira v. Canada (Minister of Citizenship and Immigration),
2004 F.C. 62. A decision is patently unreasonable when, in view of all the
circumstances, it is clearly abusive, flagrantly unjust, contrary to common
sense or lacking any basis in law or in fact.
6. Analysis
[23]
The applicant contends that the Board erred in
its assessment of his credibility. He argued that the Board used the testimony
of a third party, his brother, to assess his credibility. He explained the
discrepancies in their respective testimony by the fact that his brother left
Togo after he did (i.e., he experienced events that the applicant himself did
not) and by the fact that the same incident can be perceived and related
differently by two people. He added that the Board could not base its finding
on the credibility of his brother’s testimony because it was not reliable
evidence. He takes the view that if the decision-maker has doubts about a
portion of testimony and wishes to reject it, the decision-maker must do so on
the basis of reliable contrary evidence or make a ruling that such portion is
inconsistent or suspect.
[24]
The respondent counters that it was proper for
the Board to use the applicant’s brother’s PIF to assess his credibility on the
basis that there were inconsistencies between the two narratives.
[25]
The applicant also contends that the Board
should not have required corroborating documentary evidence because it had no
reason to doubt his testimony.
[26]
The respondent believes rather that the Board
came to a well-founded conclusion when it found that the assassination attempt
never took place, because the documentary evidence does not mention it, and
that the applicant was consequently never threatened.
[27]
The applicant also impugns the Board’s
conclusion that his testimony contradicted the testimonial evidence relating to
the fact that President Eyadema stood for election in 2003, whereas he
testified rather that his father had agreed to run for president because he
believed the incumbent President was withdrawing from the race. The respondent
is essentially contending the contrary.
[28]
The applicant’s final assertion is that the
Board ignored a portion of the evidence in its decision. On this latter point,
the respondent asserts that, since the Board does not believe the applicant’s
story, it had no need to examine that evidence.
[29]
There is a well-established principle in the
case law to the effect that an administrative tribunal is in an advantageous
position for evaluating the credibility of witnesses, which means that the
Court must show deference when reviewing findings in this respect. The
principle is expressed as follows in R.K.L. v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. no. 162 (QL) at paragraphs 7 to
9 :
The determination of an applicant’s credibility is the heartland of
the Board’s jurisdiction. This Court has found that the Board has
well-established expertise in the determination of questions of fact,
particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant. (Citations omitted)
Moreover, it has been recognized and confirmed that, with respect to
credibility and assessment of evidence, this Court may not substitute its
decision for that of the Board when the applicant has failed to prove that the
Board's decision was based on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it.
(Citations omitted)
Normally, the Board is entitled to conclude that an applicant is not
credible because of implausibilities in his or her evidence as long as its
inferences are not unreasonable and its reasons are set out in "clear and
unmistakable terms." (Citations omitted)
[30]
The Court recognizes that it must show deference
when reviewing conclusions relating to the credibility of witnesses.
Nevertheless, when faced with patently unreasonable errors, the Court does have
the authority to intervene on credibility issues. The principle whereby the
allegations made by an applicant under oath are presumed to be true unless
there are valid reasons to doubt their veracity has been reiterated numerous
times by the Federal Court of Appeal: Moldonado v. M.E.I., [1980] 2 F.C.
302, 305; Sathanandan v. M.E.I., [1991]
F.C.J. no. 1016 (QL); Villarroel v. M.E.I., [1979] F.C.J. no. 210
(QL). Moreover, inferences with respect to credibility must be supported by the
evidence: Frimpong v. Canada (Minister of Employment and Immigration),
[1989] F.C.J. no. 441 (QL).
[31]
On reading the Board’s decision, one sees that
its finding with respect to the applicant’s credibility relies in large part on
a number of contradictions between the applicant’s narrative and his brother
Fabrice’s PIF. Regarding that evidence, the Board found that “so many
significant inconsistencies between two versions of the same story about an
event central to the claimant’s refugee protection claim irreparably taints the
credibility of this event.”
[32]
I am in agreement with the Board’s determination
that this evidence, notably the circumstances surrounding the attempted
assassination of the applicant’s father, is at the heart of his refugee claim.
However, I disagree with the determination that the differences between the
applicant’s statements and his brother’s irreparably compromise all credibility
around the incident. It is true that in both his testimony and his PIF the
applicant states that it was the neighbours who came to the aid of his father
and not, as his brother says, his father who went to take refuge at the
neighbours’ home. It is also true that the applicant’s brother makes no mention
of the name of his father’s assailant. However, the evidence reveals that
neither the applicant nor his brother were physically present in Togo when
these events occurred, so their knowledge is purely the product of reports from
third parties. Thus, since nothing indicates that they obtained their
information from the same sources, there is nothing surprising about the fact
that their respective accounts of the incident differ. The decisive aspects of
their testimony, for comparison purposes, are the source of their fear (i.e.,
the alleged assassination attempt against their father) and the source of their
father’s problems (i.e., his decision to run in the 2003 presidential
elections).
[33]
What is more, while this Court acknowledges that
past actions of third parties may have a certain impact on the plausibility of
a narrative, it cannot accept that the written testimony of a third party,
given in the context of separate proceedings and thus not subject to
cross-examination, should be able to destroy the credibility of the applicant
on a major aspect of his narrative account. Furthermore, on the basis of the
evidence before it, the Board was in no position to pronounce on the
credibility of the applicant’s brother in these proceedings. In the case at
bar, the applicant’s brother’s PIF does not constitute valid evidence capable
of rebutting the presumption of credibility enjoyed by the applicant’s
testimony delivered under oath. To the extent that the transcripts of the Board
hearing and decision do not reveal any other reason to doubt the applicant’s
credibility on this part of his narrative, the Court must find that there is no
basis in law or fact for the Board’s conclusion in this regard. I am therefore
of the opinion that the Board erred in determining that the difference between
the applicant’s and his brother’s statements irreparably compromise all
credibility around this incident, that is, the incident at the very heart of
the refugee claim.
[34]
The respondent submitted to this Court that Mr.
Justice Michel Beaudry, in Liu v. M.C.I., [2006] F.C.J. no. 889 (QL), at
paragraph 39, ruled that the PIF of other refugee claimants could be used in
the assessment of a claimant’s credibility. Without questioning the correctness
of that decision, I cannot apply the reasoning used by Beaudry J. to the present
circumstances. In Liu, the Court determined that the applicant’s story
was a stock narrative, wholly invented, presenting major similarities to the
stories of six other refugee claimants who all dealt with the same counsel and
the same translator. In the case before us, the Board used one PIF to identify
contradictions within the applicant’s narrative account, even though there is
nothing to indicate that the applicant’s brother’s account is any more reliable
than the applicant’s.
[35]
The Board’s decision is also based on the lack
of corroborating documentary evidence. It is established in the case law that
the Board cannot reject an applicant’s evidence solely on that ground: Ahortor
v. Canada (M.E.I.), [1993] F.C.J. no. 705 (QL); Attakora v.
Canada (M.E.I.), [1989] F.C.J. no. 444 (QL). In the case at bar, the Board
concluded as it did because it deemed that the applicant was not credible, as
demonstrated in the passage below:
Although the panel cannot draw negative inferences when a claimant
fails to produce corroborating evidence, this document would have been useful
in the specific circumstances of this case because the claimant’s
credibility is tainted. Considering the renown of the claimant’s father,
the panel could reasonably expect to receive this corroboration. […] In this case, the claimant’s father is a major figure in Togo
as he was the country’s prime minister for four years. According to the
claimant’s testimony, his father was still an RPT member of parliament at the
time of the alleged assassination attempt. (my emphasis.)
[36]
It is clear, upon reading the Board’s reasons
for decision, that the erroneous finding regarding the credibility of the
central element of the refugee claim taints the Board’s entire decision. I am
of the opinion therefore that this is in and of itself a material error
warranting the Court’s intervention.
[37]
For these reasons, the application for judicial
review will be allowed. The decision of the Board will be set aside and the
matter referred to a differently constituted panel for rehearing.
[38]
The parties did not propose certification of any
serious question of general importance as contemplated in paragraph 74(d)
of the Act. I am satisfied that no such question was raised in these
proceedings. No question will be certified.
ORDER
THE COURT ORDERS AS FOLLOWS:
1. The application for judicial review is allowed.
2. The decision of the Board
is set aside and the matter referred to a differently constituted panel for
rehearing.
3. No question is certified.
Edmond P. Blanchard
Certified true translation
François Brunet, LLB, BCL
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