Date: 20050210
Docket: IMM-1716-04
Citation: 2005 FC 217
Toronto, Ontario, February 10th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
GERIES ZAKI EL MOUSSA, WAKIM NIHAY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicants are Palestinian Christians who fear return to Lebanon. In its decision rejecting their claim for refugee protection, the Refugee Protection Division ("RPD") found that, in the global sense, while Palestinians are subject to discrimination in Lebanon, they are not subject to persecution. While this finding is challenged by the Applicants, a more central argument is made with respect to the RPD's findings of credibility.
[2] In particular, Counsel for the Applicants points to the following three findings:
The principal claimant then testified that between 1984 and 1990, his family home was periodically visited by members of various militias and they extorted money and personal belongings from the family on account of their Palestinian Christian background. In the panel's opinion this testimony is not credible. The panel notes that there is no reliable documentary evidence of such extortion attempts and, even of there was, in the panel's opinion, this would be criminal in nature and not under any Convention refugee grounds. Further, there is no reliable documentary evidence that Palestinian Christians were forced out of their homes on periodic occasions by such groups. In the panel's opinion, if this type of behaviour was rampant against Christian Palestinians in Lebanon, there would be reliable documentary evidence as to these occurrences.
(Tribunal Decision, p. 12)
According to the principal claimant's evidence, he suffered very serious injuries after he was allegedly rushed to the hospital. The panel notes that there is no documentary evidence to support the fact that the claimant was in hospital during this period.
The panel notes that the onus of proving one's claim is on the claimant. In the panel's opinion, if he was in the hospital because of an accident, he would have reliable documentary evidence to attest to this fact.
(Tribunal Decision, p.13)
In addition, the principal claimant states that in 1996, there was an arrest campaign against Palestinians over a murder of an Islamic leader in Lebanon. Again, the panel was unable to find any reliable documentary evidence indicating that Palestinians were rounded up in 1996. And, in the panel's opinion, there would be no reason why the authorities would target the principal claimant, as there is no reliable evidence that he was politically active. And, indeed, there is no reliable trustworthy evidence that he had been previously arrested by the authorities (noting that the alleged arrest of the principal claimant when he was 13 was not by the present authorities) for any reason.
(Tribunal Decision, p. 15)
[Emphasis added]
[3] It is apparent that, in each of the credibility findings quoted, the RPD approaches the principal Applicant's statements with suspicion; that is, they are not to be believed unless they are supported by documentary evidence. However, Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.) at 305 establishes that, where a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there is reason to doubt their truthfulness. As a result, I find that the RPD adopted an erroneous approach to evaluating the Applicant's evidence.
[4] Unless there is a very high level of certainty that a documentary record on in-country conditions is completely comprehensive, which might be very difficult to prove and was not done in the present case, a lack of evidence in the documentary record does not prove that an incident did not occur.
[5] The point is that, if a generally descriptive documentary record is taken as the authority with respect evaluating a refugee claimant's evidence, there would be little purpose in making an attempt to evaluate an Applicant's credibility. That is, because, in such a case, the process would be only one of comparison where, if the documentary record does not support a statement of fact coming from an Applicant, the statement is automatically rejected as untrue. This is not an acceptable standard for reaching a determination on credibility. In my opinion, the process of evaluation adopted by the RPD is such an unacceptable method of evaluating complex sworn testimony.
[6] In addition, with respect to the second credibility finding noted above, either before or during the hearing of the claim, the RPD did not provide any reason for the Applicant to believe that hospital records would be expected to substantiate his sworn statement. Indeed, I find that it is a breach of due process for the RPD to make the negative determination it did without giving the Applicant an opportunity to either provide the record, or at least explain why it had not been produced.
[7] As a result, I find that the RPD's credibility findings as quoted are made in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for re-determination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1716-04
STYLE OF CAUSE: GERIES ZAKI EL MOUSSA, WAKIM NIHAY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: FEBRUARY 7, 2005
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: FEBRUARY 10, 2005
APPEARANCES BY:
Waikwa Wanyoike For the Applicant
Stephen Jarvis For the Respondent
SOLICITORS OF RECORD:
Waikwa Wanyoike
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
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