Date:
20090910
Docket: IMM-4891-08
Citation: 2009 FC 607
Ottawa, Ontario, June 10, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
ALAIN
ANGE KINYOMVYI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act), the applicant is seeking a judicial review of the decision dated October 14, 2008, by the Refugee Protection Division of the
Immigration and Refugee Board
(panel), determining
that he is neither a ‘‘refugee’’ nor a ‘‘person in need of protection’’ as
defined in sections 96 and 97 of the Act. Consequently, his refugee
claim was denied.
II. Facts
[2]
A citizen
of Burundi, the applicant alleges that he fears persecution by
members of a rebel movement opposed to his work as part of a government agency
fighting deforestation in Burundi.
[3]
The applicant, Alain
Ange Kinyomvyi, a citizen of Burundi, had, since 1998, apparently worked as a
volunteer for the Organisation pour la Défense de l’Environnement au Burundi (ODEB).
According to his Personal Information Form (PIF), he had started working for
the ODEB as of November 2003 as
a program manager, and as of April 2004 had been appointed finance manager
assigned to the gathering of forestry statistics and raising environmental
awareness among the Burundi people.
[4]
In June 2006, the
applicant apparently went to the Kayokwe region to verify the massive
deforestation reported to be occurring there. After having confirmed the
veracity of this report, the applicant allegedly identified the guilty party. Once
back in Bujumbara, the applicant apparently reported the offence to the
authorities in charge of environmental protection who, after investigating the
matter, were eventually able to arrest those responsible for the illegal tree
cutting.
[5]
Two weeks later, the
applicant purportedly began to receive anonymous threatening telephone calls
and informed police of this in order to seek their protection. Nonetheless, the
applicant apparently continued to receive subsequent threats up until he left
for the United States on February 25, 2007, to attend a conference organized by
the United Nations’ Economic and Social Council in New York.
[6]
After the conference
on March 2, 2007, the applicant allegedly made his way to the border, where he
remained without seeking refugee protection in the country hosting the
conference, preferring instead to come to Canada on April 2, 2007, to claim
refugee status.
III. Impugned
decision
[7]
The panel did not
believe the applicant’s claims of persecution because it did not find him to be
credible. This credibility finding is essentially based on a contradiction
regarding the date on which the applicant started work and his inability to
clearly explain the exact nature of his work with the ODEB and the statistical
methods implemented.
IV. Issue
[8]
The Court is
addressing only one issue:
Did the panel make an unreasonable error
in basing its negative credibility finding on a minor contradiction in the
reasons cited by the applicant in his claim, without giving him the slightest
chance to explain this?
V. Analysis
Judicial standard of
review
[9]
The panel’s decision
is based on the applicant’s lack of credibility. It is well established that
the assessment of witnesses’ credibility falls within the panel’s jurisdiction
and that it has the necessary expertise to analyze and weigh the questions of
fact allowing it to assess both the credibility and the subjective fear of
persecution of a refugee claimant (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL), at paragraph 14).
[10]
In the context of an
application for judicial review addressing credibility issues, the appropriate
standard to be applied is that of reasonableness as articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190. Accordingly, the Court must show considerable deference since it is
incumbent on the panel to weigh the testimony of a claimant and assess his or
her credibility. If the panel’s findings are reasonable, no intervention is
warranted. However, its decision must be supported by the evidence; it should
not be made capriciously on the basis of erroneous findings of fact or of
peripheral details or without regard for the material before the panel (Mugesera
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, at paragraph 38).
Unreasonable
decision
[11]
The applicant is
right to complain of the principal ground given for impugning his credibility,
prompting the Panel to say that it [translation] ‘‘goes to the very heart of the
[refugee] claim and undermines his credibility’’. The exact date on which the
applicant started work has no bearing on the applicant’s reasons for claiming refugee
protection to the point of irreparably undermining his credibility. Rather, it
seems the panel is using a false pretext to jump to a hasty conclusion which a
more careful analysis of the evidence would have avoided.
[12]
Furthermore, the
Court is of the opinion that the contradiction noted by the panel is not as
clear as is claimed when care is taken to properly examine the evidence on
record. If the panel saw such a substantial discrepancy in the applicant’s
employment dates, why then did it not give him the opportunity to explain the
information already in the record and, more specifically, in the applicant’s
PIF narrative: in 1998, volunteer work for the ODEB; end of November 2003 until
February 24, 2007, program manager.
[13]
And what does the ODEB
employment certification (D-3) say which would contradict the PIF? It merely
says that [translation] ‘‘from
April 2004 up until this day (23/02/2007)’’ the applicant worked for the ODEB [translation] ‘‘as finance manager, but also in the
gathering of forestry statistics and raising environmental awareness among the
people of Burundi’’. The Court finds it difficult to understand how the ODEB
employment certification, which confirms that from a certain date onwards the
applicant held a different position within the organization than that which he
had previously held and which he had stated in his PIF, could constitute a
significant contradiction, given that the ODEB certification and the
information in the PIF do not refer to the same periods of employment. At the
very least, if the panel doubted or misunderstood the two information sources,
it should have given the applicant the chance to explain himself before drawing
a significant negative inference as to the applicant’s credibility. The panel
might then have been able to correct its misunderstanding of the evidence on
this point.
[14]
With
all due deference to the panel’s decision, the Court cannot do otherwise than
to find that in this case it was unreasonable for it to have put such great
emphasis on the perceived contradiction without giving the applicant the
opportunity of addressing the issue.
Furthermore, the Court sees no contradiction between the evidence offered by
the applicant concerning both the dates of his employment and positions he held.
This evidence did not support the panel’s finding, in its unreasonable
decision, that [translation] ‘‘such
inconsistency . . . goes to the very heart of the claim’’.
[15]
In its decision, the
panel referred to the applicant’s inability to clearly describe the nature of the
work he performed for the ODEB and the statistical methods that he was using.
[16]
The applicant does
not offer the most eloquent description regarding his work in relation to
meeting people from various villages and his efforts to make them more aware of
environmental issues. However,
the Court is of the view that the panel clearly exaggerated the import of a few
apparent contradictions, hesitations or vague statements that it noted in the
comments of the applicant. The panel appears to have
overlooked the fact that the applicant’s work in the field took place in an
unusual environment where eloquence was not everyone’s lot in life. Sometimes
people who are well informed have trouble expressing their store of knowledge
and experience, which does not preclude them from being qualified for the work
they are asked to carry out. The applicant may not have been very expressive on
the subject of the ODEB, but the panel could not from this fact conclude
[translation] ‘‘that
he could not have experienced the incidents he alleges’’ and in the same breath
and without valid reason dismiss all of the documentary evidence that
corroborates the applicant as to these incidents.
[17]
The fact remains
that the panel relied on peripheral and insufficient details to reach its negative
credibility finding. In focusing on details of no real consequence to the
subject matter of the claim, the panel seems to have forgotten the substance of
the facts on which the applicant based his claim, which it should not have done (Afonso v. Canada (Minister of Citizenship and Immigration),
2007 FC 51 quoting Asad Javed Sheikh v. Minister of Citizenship
and Immigration, (IMM-315-99, April 25, 2000).
[18]
Nothing
justifies the panel’s disregarding of the letter dated August 28, 2006, from
the Department of Justice of Mwaro submitted as corroborating evidence, which
confirms the threats to the applicant at the time of the above-mentioned
incident and the complaint filed against the person who issued the threats. Additionally,
nothing justifies the panel in dismissing out of hand the ODEB report which
mentions attacks against the applicant.
[19]
Even if the Court
were to accept the panel’s credibility finding as being correct, which it does
not, this would in no way exempt the panel from having to analyze and assess
evidence that could support the applicant’s claim for protection. In fact, it
is trite law that a negative credibility determination under s. 96 of the Act
is not necessarily dispositive of considerations arising under s. 97 of
the Act: Ozdemir v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 1242 (QL); Kandiah v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 275 (QL); Bouaouni v. Canada (Minister
of Citizenship and Immigration), [2003] F.C.J. No. 1540 (QL).
[20]
In other words, a claimant may not be entirely credible in his or
her testimony yet still face a risk to his or her life or a risk of torture,
having regard to country conditions and other objective criteria. In its haste
to find the applicant not credible on grounds that the Court finds inadequate
and unreasonable, the panel did not exercise fair judgment and made an
unreasonable error.
VI. Conclusion
[21]
For these
reasons, the application for judicial review will be allowed, and since no
questions of general importance were proposed or deserve to be, none will be
certified.
JUDGMENT
FOR THESE
REASONS, THE COURT:
ALLOWS
the application for judicial review;
SETS ASIDE the
decision dated October 14, 2008; and
REFERS the matter
back to the Board for redetermination by a differently constituted panel.
‘‘Maurice E. Lagacé’’
Certified true translation
Sebastian Desbarats, Translator
Email this Content