Date:
20120613
Docket:
IMM-7870-11
Citation:
2012 FC 739
Toronto, Ontario, June 13, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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LUYANDA BEST MSIBI
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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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REASONS FOR
ORDER AND ORDER
[1]
The
present Application concerns a decision of the Refugee Protection Division
(RPD) in which the Applicant, a citizen of Swaziland, was determined not to be
a Convention Refugee or a person in need of protection.
[2]
The
Applicant’s claim had two elements: a s. 96 claim based on his perceived sexual
orientation, and a s.97 claim based on his occupation of his grandmother’s farm
and the related violent threats from the community and the village Chieftain to
evict him and confiscate the property. The Applicant’s PIF presented these
independent claims as merged on the basis that his perceived sexual orientation
amplified his risk and prevented him from receiving protection.
[3]
With
respect to the whole of the Applicant’s claim, the RPD made a finding of
negative credibility based on an inconsistency between the Applicant’s Port of
Entry Notes (POE) and his later filed Personal Information Form (PIF). The RPD
states the following:
The claimant’s port-of-entry
(POE) notes reference the land dispute between the claimant and the chieftaincy
in his grandmother’s village, but do not refer to the claimant having been
targeting because of his perceived homosexuality. As far as the claimant’s
allegations that he was persecuted prior to his departure because of his
perceived sexual orientation as a homosexual, the claimant’s Personal
Information Form (PIF) narrative is inconsistent with the claimant’s form IMM
5611 found in the POE notes.
(Decision, para. 12)
[4]
When
asked why there was no mention of his perceived homosexuality, the Applicant
responded in the following way:
CLAIMANT: The aspects of it, when I arrived there …
MEMBER: Um-hum.
CLAIMANT: … I wanted to tell the whole story …
MEMBER: Um-hum.
CLAIMANT: … like from beginning to the end …
MEMBER: Um-hum.
CLAIMANT: … but then when … once I was telling her,
she told me to stop like everything I am going to tell the judge like the whole
story.
MEMBER: So there is like a fair amount here and
you … the word gay does not come at all.
CLAIMANT: At that time, no, because I was drained
out from the fight [sic].
(Certified Tribunal Record, pp. 125 – 126)
[5]
Counsel
for the Applicant submits that a POE note is not expected to be as fulsome as
one would expect in the PIF narrative, and relies upon the decision in Abbey
v Canada (Minister of Citizenship and Immigration), IMM-954-05 (20060112)
to argue that great care should be taken in engaging in such a comparison and
making an ensuing finding of negative credibility. In my opinion, the RPD’s
conclusion about the contradiction is unreasonable. This is so, because other
evidence exists on the record going to prove the Applicant’s claim being an
affidavit of the Applicant’s Pastor who sheltered the Applicant following the
threats made by the Chieftain.
[6]
The
RPD rejected the affidavit of Pastor Thulani Nxumalo on the following findings:
The claimant provided an
affidavit sworn by Pastor Thulani Nxumalo on July 1, 2011. This affidavit reiterates
the claimant’s allegations set out in his PIF narrative and appears to rely
exclusively on information provided by the claimant.
[Emphasis added]
(Decision, para. 14)
In my opinion, the RPD misconstrued
the Pastor’s affidavit which clearly distinguishes between what the Pastor was
told by the Applicant and came to believe, and what the Pastor attests to from
his own observation and participation in fact scenario in issue. The Pastor’s
evidence goes to corroborate the Applicant’s testimony and the essential
features of his claim. I find that it was a reviewable error for the RPD not to
have properly considered the Pastor’s evidence before coming to the finding of
negative credibility on the basis of the comparison undertaken.
ORDER
THIS
COURT ORDERS that:
1.
The
decision presently under review is set aside, and the matter is referred back
to a differently constituted panel for redetermination.
2.
There
is no question to certify.
“Douglas R. Campbell”
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