Date: 20070628
Docket: IMM-4255-06
Citation: 2007 FC 682
Ottawa, Ontario, June 28,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
FREDERICK
LUKE RUSSELL
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
“Even
if the panel was right to doubt some aspects of the circumstances which had led
the claimant to leave his village and ultimately his country, there were facts
in evidence, including irrefutable documentary evidence, which could provide
support for his claims that there was a real danger that he might be subject to
persecution in his country because of his nationality and the family and social
group of which he is a member. The panel did not take any account of this
evidence and completely ignored it.” (Djama v. Canada
(Minister of Employment and Immigration), [1992] F.C.J. No. 531 (F.C.A.)
(QL), justice Louis Marceau.)
JUDICIAL PROCEDURE
[2]
This
is an application under section 72 of the Immigration and Refugee Protection
Act, S.C. 2001, c-27 (IRPA), for judicial review and to set aside the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board
(Board), in which it was decided that the Applicant is not a Convention
Refugee or a person in need of protection.
BACKGROUND
[3]
The
Applicant, Mr. Frederick Luke Russell, alleges that his father was accused of
spreading false propaganda against the rebel group, the Liberians United for
Reconciliation and Democracy (LURD). Mr. Russell’s father, together with others,
was executed by the LURD rebel leader Sekou Conneh in early 2003. Conneh, also,
set fire to Mr. Russell’s family home and, as a result, Mr. Russell’s son,
sister and two step-brothers died in the blaze. Mr. Russell believes that
Conneh will not be appeased until he and his entire family are killed.
ISSUE
[4]
Did
the Board err in concluding that the Applicant lacked credibility?
Standard
of review
[5]
Findings
of fact must be shown to have been made in a “perverse or capricious manner”,
or made “without regard to the material”, thus, patently unreasonable.
Did the Board err in
concluding that the Applicant lacked credibility?
[6]
Credibility
findings are based on questions of facts generally within the proper
jurisdiction of the Refugee Protection Division; nevertheless, the Federal
Court of Appeal has clearly determined that a Board errs in law if it bases its
credibility finding on irrelevant considerations. (Salamat v. Canada (Immigration
Appeal Board) (1989), 8 Imm. L.R. (2d) 58 (F.C.A.).)
[7]
The
evidence before the Board did not support its finding that Mr. Russell’s fear
of persecution in Liberia was not objectively well-founded. To the
contrary, Mr. Russell testified extensively that he would face a dire situation
if compelled to return to his country of origin. He presented evidence to
confirm the basis of his fear of persecution in Liberia: membership in a
particular social group, with clear evidence in regard to persons in Liberia persecuted
on the basis of their affiliation to family. (Affidavit of Application; RPD
decision.) Additionally, failure to state the grounds for rejecting a claim,
based on findings of credibility, constitute a reviewable error. Speculative unsubstantiated
reasons are subject to review.
[8]
The
Board, in its reasons, described all the documents which the Applicant
submitted to corroborate his testimony. Commenting on the notary certificate,
the Board opined that there were spelling errors and as such could not have
been issued by the appropriate authorities in Liberia. In the Cheema
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 224, [2004] F.C.J. No. 255 (QL)
decision, the Court concluded that the Board committed a reviewable error by
not supporting its findings of forgery:
[7] The documents may well
be forgeries, however evidence of widespread forgery in a country is not, by
itself, sufficient to reject foreign documents as forgeries. As the Respondent
noted evidence of widespread forgery merely demonstratesS[sic] that false
documentation could be available to the Applicant. (Emphasis added.)
[9]
While
it is acknowledged that evidence of perceived discrepancy could impact on the
Applicant’s credibility, the Board cannot close its eyes to objective evidence
that supports the Applicant’s position; he was, in fact, targeted and
persecuted by the LURD rebels as a result of his affiliation to his father. The
Board, without substantiation, rejected Mr. Russell’s evidence that his family
home in the Paynesville area of Monrovia was razed to the ground
by the LURD rebels. Documentary evidence for the relevant period clearly
indicates an almost total breakdown of law and order that led to the imposition
of a curfew in the city. A BBC News report of Friday, October 29, 2004, (from
the Applicant’s record), clearly implicates ex-militants as being responsible
for the mayhem that was unleashed on the city. Even if one of the corroborating
pieces of evidence of the Applicant would have been considered, the result may
have been different. The Board failed to provide clear reasons for a finding
that there was no credible or trustworthy evidence upon which it could have
reached a favourable determination. (Pour v. Canada (Minister of Employment
and Immigration) (F.C.A.), [1991] F.C.J. No. 1282 (QL).)
[10]
In
and of itself, a lack of corroborating evidence to support the Applicant’s
testimony is insufficient reason to discredit his testimony regarding the
burning of his home and the death of his son, sister and two step-brothers in
the house. Specifically, this must be viewed against the backdrop of objective
evidence, and on the very basis of the specialized knowledge of the Board
itself, wherein the Board acknowledged that, in fact, there was a situation of an
almost, complete, breakdown of law and order in Liberia. By ignoring the key
parts of Mr. Russell’s testimony, the Board disregarded extremely pertinent
evidence corroborating both the subjective and objective elements of the Applicant’s
claim. The Board failed to consider the totality of the evidence in its
assessment of the overall credibility of Mr. Russell. (Djama, above.)
[11]
Furthermore,
by ignoring the key elements of Mr. Russell’s testimony as related to his fear
of persecution in Liberia, the Board, without stated reasons, set aside
his subjective fear of persecution in Liberia. In addition, the
Board’s analysis of the objective fear component of Mr. Russell’s claim
for refugee status is speculative and without appreciation for his testimony as
it concerns his fear of return to Liberia.
CONCLUSION
[12]
For
all the above reasons, the Board made a patently unreasonable finding as to the
credibility of Mr. Russell.
JUDGMENT
THIS COURT ORDERS the application for judicial review be allowed and the
matter be remitted for redetermination by a differently constituted panel of
the Refugee Protection Division of the Immigration and Refugee Board.
“Michel M.J. Shore”
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