Date: 20100511
Docket: IMM-4826-09
Citation: 2010
FC 516
Toronto, Ontario, May 11, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ROBERT
HACHEM
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present application concerns a Christian citizen who claims refugee protection
under s.96 and s.97 of the IRPA for fear of more than a possibility of
persecution and risk to his life at the hands of the terrorist organization
Hezbollah should he be required to return to Lebanon. The Applicant’s claim for protection
was rejected by the Refugee Protection Division (“RPD”) on a finding of negative
credibility. In my opinion, the negative credibility finding is unreasonable,
and for the reasons which follow, I find that the decision under review is made
in reviewable error.
[2]
The
negative credibility finding is based on a principle feature of difference
between the Port
of Entry Notes and the Applicant’s PIF. The
essence of the Applicant’s application relates to his involvement with “The
March 14th Movement” which is an opposition political group to
Hezbollah. With respect to his affiliation, in the Port of Entry Notes in
answer to the question whether he was a member, an associate or had supported a
political, social, youth, student or vocational organization the Applicant
stated, “I don’t belong to any organization.” (Tribunal Record, p. 89). The
interview record produced at the time of his entry provided the following
answer to this question: “Are you, or have you been, a member of any political
or other organizations?”:
No – however, subject was a supporter of
the “14th March Movement” which asks for full independence of Lebanon. Subject took part in
rallies and demonstrations. No violence.
(Tribunal Record, p. 95).
In answer to the request that the Applicant “explain why you
are seeking refugee status and/or why you cannot return to your home country”
the Applicant is recorded as providing the following answer:
I am afraid from Hezbollah group. I am
afraid of torturing and killing. They have threatened and beat me because of
my involvement with the “14th March Movement”.
(Tribunal Record, p. 99).
[3]
In his PIF
the Applicant checked off the boxes with respect to being a member in a
particular social group and claiming on grounds of political opinion (Tribunal
Record, p. 18). In the PIF narrative he made the following statement:
I was never a member of a political
party, until the day President Rafik al-Hariri was assassinated on February 14,
2005, along with his friends, the crime which happened on this date was against
humanity and was the main reason for me to join the March 14th
group. The largest demonstration in Lebanon
history occurred on this day, demanding freedom, peace and independence.
After the 14th of March, I
participated in every demonstration.
In his PIF the Applicant
explains that as a result of his activity with the March 14th Group
on February 17, 2007 he was beaten and that “they then told me that, this was a
small lesson for the next time would be the end of me, if I continued to
support the 14th of March group” (Tribunal Record, p. 19).
[4]
In its analysis
the RPD makes the following statements at paragraphs 6 and 7 of the decision
rendered:
[6] In assessing this claim, the
determinative issue is the credibility of the claimant’s story. The claimant
was asked, since he stated he was a member of a political party, if he had
proof of membership. The claimant responded that he had none as he did not
register officially, and that he is a supporter of the March 14th
party which represents the majority in the parliament, with over 64 seats
according to the claimant. The Panel finds that the claimant embellished his
association with the March 14th political group in his Personal
Information Form (PIF) narrative, and then when confronted with questions about
the said party, the claimant states that he was not a member, but rather a
supporter of the party. The claimant provided insufficient evidence he was a
supporter of the March 14th political party which allegedly was the
basis for his problems from Hezbollah, which in part caused him to leave Lebanon.
[…]
The Panel notes the claimant did not
indicate in his PIF that he is afraid of Hezbollah as a result of the beating
received on February 17, 2007 or that he believed Hezbollah was responsible for
the beating.
[5]
In my
opinion, there is no substantiation for the conclusion that the Applicant
“embellished his association with the March 14th political group in
his PIF narrative”. While there are differences the differences were
extensively explained during the testimony the Applicant gave at the hearing
before the RPD under stringent questioning by the Hearings Officer and the
Member concerned. It is apparent that the differences grounded the negative
credibility finding without including the explanations given by the Applicant
for the differences. A key element in the evidence is as follows:
REFUGEE PROTECTION OFFICER: Are you a
member now of a political party?
CLAIMANT: Yes.
REFUGEE PROTECTION OFFICER: What party is
that?
CLAIMANT: It’s – they call them 14 of
March Group. This party happen after the assassination of the President Rafik
al-Hariri, which is happen on 14 of February 2005.
REFUGEE PROTECTION OFFICER: M’hm. All
right. You’re a member, and unless I’m mistaken, I didn’t see any cards or any
other document in this ---
CLAIMANT: Yes.
REFUGEE PROTECTION OFFICER: --- thing.
CLAIMANT: I didn’t register officiously [sic]
yet, but ---
REFUGEE PROTECTION OFFICER: To show.
CLAIMANT: --- I was an effective
supporter.
REFUGEE PROTECTION OFFICER: Yeah. When
did you begin to support this March 14th Group?
CLAIMANT: I start supporting after they
assassinate President Rafik al-Hariri, 14 of February 2005.
REFUGEE PROTECTION OFFICER: Yeah. And
you have been a member until you came to Canada?
CLAIMANT: Yes.
REFUGEE PROTECTION OFFICER: Are you still
a Member?
CLAIMANT: In my soul, yes.
MEMBER: Mr. Martin, sorry to interrupt.
REFUGEE PROTECTION OFFICER: M’hm.
MEMBER: I just want to clarify that the
Claimant did change his statement to say that he didn’t have proof of
membership but he’s just a supporter So it looks like ---.
REFUGEE PROTECTION OFFICER: All right
MEMBER: --- according to the evidence,
he’s just a supporter of the group.
REFUGEE PROTECTION OFFICER: So you are
not a member?
CLAIMANT: I understand the question wrong
in the beginning.
MEMBER: Okay.
REFUGEE PROTECTION OFFICER: It’s all
right. I just missed that answer. Thank you, Mr. Member. Okay.
So tell me why you’re in Canada today.
CLAIMANT: I’m seeking refugee here in Canada because I’ve been
threatened. My life is in danger over there. That’s why I came to Canada to claim as a refugee.
REFUGEE PROTECTION OFFICER: It’s in
danger because you’re – you are a supporter of the March 14 Group? Is that
correct?
CLAIMANT: Absolutely.
(Tribunal Record, pp. 237-238)
[6]
In my
opinion, the unwillingness of the RPD to accept the Applicant’s statement for
the differences in the evidence with respect to the Applicant’s affiliation
with the March 14th Group reflects a mind unwilling to learn.
Throughout his evidence the Applicant maintained he was a supporter and,
clearly, variously described his support as membership. In my opinion, the
RPD’s finding that the “claimant provided insufficient evidence he was a
supporter of the March 14th political party” is groundless.
[7]
As a
result, I find that the decision under review is made in reviewable error.
ORDER
THIS COURT ORDERS that:
I set aside the decision and refer the matter
back to a differently constituted panel for re-determination.
There is no question to certify.
“Douglas
R. Campbell”
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