Date: 20090505
Docket: IMM-4819-08
Citation: 2009 FC 454
Ottawa, Ontario, May 5, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
TAHIR
HASSAN YOUSSOUF
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant is a citizen of Chad, who sought refugee protection in Canada.
He claimed to have a well-founded fear of persecution based upon his Gorane
ethnicity and the political activities of his father. The Refugee Protection
Division of the Immigration and Refugee Board dismissed the claim, finding that
much of the applicant’s testimony was not credible.
[2]
Notwithstanding the considerable degree of deference owed to the Board’s
credibility findings, I am satisfied that several of the Board’s key findings
were simply not reasonable. As a consequence, the application for judicial
review will be allowed.
Background
[3]
The applicant alleged that his life was at risk in Chad as a result of
his father, a career military officer, having joined the anti-government “Union
des forces pour la démocratie et le développement” movement (the “UFDD”).
According to the applicant, his father informed him of his involvement with the
UFDD on September 2, 2006, cautioning the applicant that as the oldest son in
the family, the applicant could himself be in danger as a result of his
father’s activities. The applicant says that his father advised him that he
should leave Chad and to go to stay with his uncles in Niger.
[4]
Before he was able to leave the country, the applicant says his family
home came under attack by government forces. On September 6, 2006, a group of
soldiers descended on the home, searching the premises, and brutalizing the
applicant’s mother and younger brothers. The applicant was not at home at the
time. The soldiers wanted to know which members of the family had gone with
the father, and specifically asked about the applicant. A neighbour told the
applicant what had happened, and he then went into hiding.
[5]
Two days later, the applicant left Chad and went to stay with his
maternal uncles in Niger. The uncles advised the applicant that he would be
safer if he were to clandestinely return to Chad, where he could get the
assistance of Bechir Ahmed, a close friend of one of the uncles. The Applicant
says that he re-entered Chad on September 25, 2006, staying in hiding with Mr.
Ahmed. Mr. Ahmed organized the applicant’s escape, and he left Chad on
February 7, 2007, ultimately arriving in Canada.
The Board’s Decision
[6]
The Board identified what it said were numerous inconsistencies in the
applicant’s story, leading it to a general finding of lack of credibility on
the part of the applicant.
[7]
Not only did the Board not believe the applicant’s story of the attack
on his home by government agents, the Board also rejected the story of the
applicant’s father having left the military to join the UFDD. Indeed, the
Board did not even believe that the applicant was of Gorane ethnicity.
[8]
Given the Board’s generalized finding as to the applicant’s lack of
credibility, it decided to give no weight to documentary evidence purportedly
from the UFDD attesting to the veracity of the applicant’s story.
Was the Board’s Decision Unreasonable?
[9]
While it is clear that there were inconsistencies in the stories told by
the applicant at the port of entry, in his Personal Information Form (or
“PIF”), in his PIF update, and at his refugee hearing, a number of the Board’s
central credibility findings simply do not stand up to scrutiny, even on the
deferential standard of reasonableness.
[10]
For example, the Board took issue with the fact that the applicant’s
original PIF made no mention of the fact that his mother and brothers had been
forced to flee Chad for Sudan. The first time that this was mentioned was in
the applicant’s PIF update filed approximately one year later.
[11]
The difficulty with this finding is that it appears from the applicant’s
PIF update that the flight of the applicant’s family to Sudan took place well
after the applicant had filed his original PIF. As such, the applicant can
hardly be faulted for having failed to mention an event in his PIF that had not
yet occurred.
[12]
It appears that the Board may have confused the forced departure of the
family from their home, in September of 2006, with the flight of the family
from Chad in early 2008. It is clear from the transcript, however, that after
the family left their home in 2006, they did not flee to Sudan, but simply went
to stay with friends.
[13]
The Board identified this purported inconsistency in the applicant’s
evidence variously as “une incohérance majeure”, “[une] omission importante qui
a grandement nui à sa crédibilité”, and “[une] omission cruciale”. As such,
the Board’s finding in this regard was clearly material to the outcome of the
applicant’s case.
[14]
The Board also identified inconsistencies where none really existed. An
example of this was the Board’s finding of an inconsistency with respect to
whether or not the applicant had been personally threatened. At the port of
entry, the applicant was asked “Avez-vous eu des menaces personnellement?” to
which the applicant responded “Non, j’ai seulement écouté mon père”.
[15]
At his refugee hearing, the applicant gave similar evidence as to
whether he had personally been threatened. He also noted that he had not been
present at his home when the military authorities were searching for him. Further
on in his testimony, however, when discussing the visit of the soldiers to his
family home, the applicant was asked “Est-ce que vous considérez, ce que vous
venez de me dire, comme étant une menace personnelle? On vous cherchait
vous?”, to which the applicant answered in the affirmative.
[16]
A fair reading of the exchange leading up to this response reveals that
there was no inconsistency in the applicant’s evidence in this regard. It is
clear from the record that the applicant understood the questions posed to him,
both at the port of entry and at his hearing, with respect to “des menaces
personnelles” as relating to whether any threats had been made directly to his
face. He consistently denied that this had ever occurred. The applicant’s
subsequent agreement that having military authorities coming to his home
searching for him amounted to a personalized threat was not inconsistent with
his earlier testimony that no threats had been made directly to his face.
[17]
Other inconsistencies in the applicant’s evidence identified by the
Board can only be described as microscopic. By way of example, the Board took
issue with the fact that, at one point, the applicant testified that his father
had told him that “il avait l’intention de joindre la rébellion”, whereas the
applicant later stated that his father had told him that “il avait pris la
décision de joindre la rébellion”. According to the Board, this was “une
incohérence importante”. With respect, it was a distinction without a
difference.
[18]
While I acknowledge that the Board had several other reasons for finding
that the applicant’s evidence was generally not credible, the errors identified
above relating to what the Board itself identified as major, important or
crucial inconsistencies in the applicant’s evidence are sufficient to render it
unsafe to allow the Board’s decision to stand.
[19]
The Board elected to assign no weight to a letter purportedly from the
UFDD, attesting to the applicant’s father’s past military career, his
involvement with the UFDD movement, and the resulting persecution of his family
by governmental authorities, because of its finding that the applicant’s story
was generally not credible. To the extent that the Board’s credibility findings
were unreasonable, it follows that this finding also cannot stand.
[20]
Finally, the Board stated that because of the complete absence of
credibility on the part of the applicant, it did not believe that the applicant
was even Gorane. It should be noted that the applicant’s ethnicity was never
questioned at his hearing, raising concerns with respect to the fairness of the
process followed in arriving at this conclusion. Moreover, as with the finding
regarding the UFDD letter, given that the Board’s finding with respect to the
applicant’s ethnicity was based solely on his general lack of credibility, it
is also unreasonable.
Conclusion
[21]
For these reasons, the application for judicial review is allowed.
Certification
[22]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a differently constituted panel for re-determination;
and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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