Docket: IMM-2142-11
Citation: 2011 FC 1178
Ottawa, Ontario, October 18, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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ELIAS BECHARA ZAKHOUR
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Applicant
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and
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MINISTRY OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
With
respect to the present Application, the Applicant, a citizen of Lebanon,
claimed refugee protection under s.96 on the basis of religious and political
opinion and risk protection under s.97 for fear of Hezbollah in Lebanon should
he be required to return to that country. The Refugee Protection Division (RPD)
rejected the Applicant’s claim on a negative finding of credibility principally
based on a number of implausibility findings. For the following reasons, I find
that the law with respect to the making of implausibility findings was not
followed and, consequently, I find the decision is made in reviewable error.
[2]
As
quoted in the decision under review, the Applicant’s evidence supporting his
claim is as follows:
On November 26th, 2006, a convoy of three
vehicles arrived at the checkpoint whereby the driver of the first vehicle
identified himself as Hezbollah and continued on his way, until the claimant
ordered him to stop aiming his gun at the driver. He then proceeded to inspect
the vehicles and found one of the vehicles was transporting weapons.
He called his supervisor, Chawky Damen
(referred to as Chawky from now on), a Muslim Shiite, who briefly spoke to the
Hezbollah group and let them proceed. Shortly thereafter, the claimant
questioned Chawky about his lack of behaviour toward the Hezbollah men whom he
had stopped, at which point Chawky dismissed the claimant’s concerns.
On December lst, 2006, the claimant
reported the incident to his boss at headquarters in Zahle, Ziad, also a
Christian, who granted the claimant’s request for a transfer to work out of the
police station at headquarters, as the claimant was uncomfortable continuing to
work at Dahr El Baydar checkpoint, given the incident of November 26th and
given he was the only Christian working there.
As he gathered his belongings at the
checkpoint on December 3rd, 2006, he was confronted by Chawky who warned the
claimant that he was in trouble and wanted to know whether headquarters had
asked him to come and spy. The claimant left without responding.
On December 8th or 9th, 2006, the mayor
of the town warned the claimant’s father that some people were looking for his
son. The claimant’s father notified the claimant to remain at the police
station as he suspected Hezbollah was looking for him. Ziad allowed the
claimant to live at headquarters for his protection and safety.
(Decision, paras. 4 to 8)
[3]
With
respect to the Applicant’s evidence, the following are the RPD’s implausibility
findings which, in my opinion, constitute the heart of the rejection of the
Applicant’s claim:
“If indeed Chawky and the Hezbollah
believed the claimant to be a threat to them and as a result had wanted to harm
him, the panel finds that the followers of Hezbollah including Chawky would
have retaliated much sooner than later”; […] “Based on the documentary evidence
describing the Hezbollah’s intense presence in the area, the panel finds it
reasonable that Chawky or any member of Hezbollah would have easily located the
claimant between Chawky’s threat on December 3rd and the date that
the claimant’s father allegedly received the waning from the mayor on December
8th or 9th. All they had to do was simply follow the claimant home
after one of his shifts” (Decision, at para. 19); and, “Obviously, the members
of Hezbollah were aware of the claimant’s position as a police officer and
Chawky was aware of the claimant’s transfer to headquarters in Zahlé; all that
was left to do was place a surveillance crew near the police station. It is not
credible to the panel that Hezbollah would send agents to search on the streets
in a town the size of Mreijat (according to the claimant, about 200
inhabitants), for the claimant’s whereabouts” (Decision, at para. 20).
[4]
I
find that each of the implausibility statements quoted do not conform with the
existing law for the making of implausibility findings as stated in Vodics v
Canada (Minister of Citizenship and Immigration), 2005 FC 783 at paragraphs
10 and 11:
With respect to making
negative credibility findings in general, and implausibility findings in
particular, Justice Muldoon in Valtchev v Canada (MCI), 2001 FCT 776 [at
paragraphs 6 and 7]:
The tribunal adverts to the principle
from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant swears to the
truth of certain allegations, a presumption is created that those allegations
are true unless there are reasons to doubt their truthfulness. But the
tribunal does not apply the Maldonado principle to this applicant, and
repeatedly disregards his testimony, holding that much of it appears to it to
be implausible. Additionally, the tribunal often substitutes its own version of
events without evidence to support its conclusions.
A tribunal may make adverse findings of
credibility based on the implausibility of an applicant's story provided the
inferences drawn can be reasonably said to exist. However, plausibility
findings should be made only in the clearest of cases, i.e., if the facts as
presented are outside the realm of what could reasonably be expected, or where
the documentary evidence demonstrates that the events could not have happened
in the manner asserted by the claimant. A tribunal must be careful when
rendering a decision based on a lack of plausibility because refugee claimants
come from diverse cultures, and actions which appear implausible when judged
from Canadian standards might be plausible when considered from within the
claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON:
Butterworths, 1992) at 8.22]
[Emphasis in the original]
It is not difficult to understand that,
to be fair to a person who swears to tell the truth, concrete reasons supported
by cogent evidence must exist before the person is disbelieved. Let us be
clear. To say that someone is not credible is to say that they are lying.
Therefore, to be fair, a decision-maker must be able to articulate why he or
she is suspicious of the sworn testimony, and, unless this can be done, suspicion
cannot be applied in reaching a conclusion. The benefit of any unsupported
doubt must go to the person giving the evidence.
[5]
Therefore,
in the present case, from evidence on the record, the RPD was required
to: first, clearly find what might reasonably be expected by way of a Hezbollah
response to the Applicant’s actions; then make findings of fact about the
response that was made by Hezbollah; and, finally, conclude whether the
response conforms with what might be reasonably suspected. In the present case
this process of critical analysis was not followed. On this basis I find that
the RPD’s implausibility findings are unsupported speculations, and, therefore,
the decision under review is not defensible on the law and the facts.
ORDER
THIS COURT
ORDERS that
The decision
under review is set aside and the matter is referred back for redetermination
by a differently constituted panel.
There is no
question to certify.
“Douglas
R. Campbell”
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