Date: 20070118
Docket: IMM-2969-06
Citation: 2007 FC 51
Ottawa, Ontario, January 18,
2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
PEDRO
MANUEL AFONSO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction and
Background
[1]
The
question raised in this judicial review application by Pedro Manuel Afonso, a
citizen of Angola, is whether the Refugee Protection Division, (the tribunal),
in its decision of April 26, 2006, erred when it determined the applicant had
not provided any credible and trustworthy evidence in support of his refugee
claim.
[2]
The
applicant’s story is not complicated. He says he worked in Camarca Prison in Luanda as an
administrator in charge of provisions. On April 20, 2005, when at work very
early in the morning, he heard cries and then gunshots. He went to the scene;
he saw two men lying on the ground, blooded. Over them stood Commissaire
Mussolo, a military officer who was the head of security at the prison.
[3] Commissaire Mussolo questioned him
why he was at work so early; he cautioned him not to leave the prison without
his permission. That same afternoon, three soldiers entered his office. He
was questioned, struck with their truncheons and slapped.
[4] He alleges they took him inside the
prison to a cell which he did not recognize; it was a holding-cell for
prisoners. He was incarcerated there for a month and interrogated twice during
that time frame including a visit from Commissaire Mussolo and two other
soldiers where he was tortured, struck in the back, the head and the face.
[5] Some days after the incident with
Commissaire Mussolo he says he was transported by military vehicle to the
Criminal Investigation Directorate (the Directorate) and put in a cell with two
Congolese individuals suspected of diamond smuggling; he acted as interpreter
for them.
[6] A few days later, he and the two
Congolese individuals were taken to a field by military personnel; he was asked
to dig three graves. There was much confusion when one of the soldiers
guarding them fell to the ground and the soldier who was in front of him went
to see what was happening.
[7] The applicant, seeing his
opportunity, started running towards the forest. He was shot in the leg but
made it to a village where he obtained assistance from a priest who called his
parents who arranged his flight to Canada through Zaire, the Congo, South
Africa by plane to Rio de Janeiro and from there to Toronto where he arrived at
in September, 2005 but lost all of his documents to someone who befriended him;
he made his way to Ottawa where, with the assistance of a Catholic Refugee
Organization, he made a refugee claim on October 11, 2005.
The Tribunal’s Decision
[8] The tribunal based its credibility
findings on implausabilities, omissions which the tribunal considered important
in his personal information form (PIF), contradictions between what he said to
his psychologist and what he wrote in his PIF and he testified to,
contradictions between his PIF and his testimony and a conflict between his
port of entry notes (POE) and his PIF and testimony. I summarize the
tribunal’s credibility findings.
[9] The tribunal drew an implausibility
when it stated “the claimant provided no trustworthy testimony on why Mussolo
did not kill him, if that was his intention, instead of detaining him for one
month and beating him then taking him to the Directorate…from where he was
taken to be killed.” The tribunal reasoned:
“It is reasonable to believe that if Mussolo killed two men
and was disturbed that the claimant saw their bodies and could implicate him he
would try to get the claimant out of the way as early as possible instead of
detaining him for one month, then taking him to [the Directorate] to act as an
interpreter, and then taking him to a field to be killed”
[10] Dr.
Lorne Weiner provided a letter to the applicant’s legal counsel. That letter
stated
“there is a scar on the claimant’s thigh that is
consistent with a bullet entry site; there are two scars on his back that are
consistent with being lacerated with a knife; scars on his abdomen are
consistent with the history of burn from an iron; and lesions on his chest and
arms are consistent with cigarette burns.” The tribunal stated in the
claimant’s PIF, “however, there is no mention of such torture” pointing out
that he had written “they assaulted me, hitting me in the back, the head, the
face” with the soldiers coming back approximately ten days later asking him the
same questions and “constantly hit me.” The tribunal reasoned:
“It
is reasonable to believe that if he had been slashed with a knife and burned
with cigarettes and with an iron he would have included this traumatic
punishment in his narrative when he described his fear of return to his
country. The claimant has had 17 years of education and a responsible job. He
had professional help in preparing his PIF and narrative. It is reasonable
to believe that if this torture had really taken place this very important
information would have been included in the claimant’s narrative or the
amendment to his PIF that he submitted later. Asked repeatedly why he had
not included this information in his PIF, the claimant stated that he had.
But this information is not in the narrative or the amendment to that narrative
that was sent by counsel later.” [Emphasis mine]
[11] The tribunal referred to Dr. Voss’
psychological report which states, according to Mr. Afonso, he was subsequently
imprisoned and the beating and torture continued over the months that
followed.” The tribunal stated “this contradicts the claimant’s PIF narrative
and his oral testimony” because his PIF narrative stated he was imprisoned for
approximately one month. It stated “this narrative does not say he was
detained or tortured for months. He was asked about the contradiction, he
responded that he was kept in detention for about a month, taken to the
Directorate and “the following day” was taken to the field.” The tribunal
wrote “this explanation not only contradicts the psychologist’s statement that
the claimant was tortured for months, it also contradicts the claimant’s
narrative he was left in a cell with two Congolese men and “a few days later”
soldiers took all three of them away.” The tribunal said he was asked to
explain the contradiction and he provided no reasonable response. The tribunal
concluded:
“I
find that if these incidents had really taken place the claimant would have
been able to provide a reasonable explanation for these contradictions.”
[12] The tribunal noted the applicant in his
PIF wrote the soldiers took him and the two Congolese to a field where
eventually “other soldiers arrived”. The applicant was asked how many soldiers
arrived at the field later and replied “no other soldiers arrived and the only
soldiers on scene were the ones who had taken him and the Congolese men
there.” The tribunal wrote “asked to explain this contradiction the claimant
did not provide a reasonable response” and concluded:
“I
find that if this incident had really taken place the claimant would have been
able to provide a reasonable explanation for this contradiction.”
[13] The applicant was asked how long it had
taken to dig the three holes. The tribunal wrote “the claimant stated that he
did not remember.” The tribunal reasoned:
“I
find that if this incident had really taken place the claimant would have had
some idea of how long it took him to dig the three man-sized pits.”
[14] The tribunal mentioned the applicant
“was also asked why the soldiers did not ask the two Congolese men also to dig
holes instead of everybody waiting while the claimant dug one hole after
another”, and stated the claimant, “responded that the soldiers did not ask the
Congolese men to dig the holes and that the Congolese men just cried.” The
tribunal reasoned:
“I
find that if this incident had really taken place it is reasonable to believe
that the soldiers would have asked the Congolese men also to dig the holes
instead of waiting while the claimant dug one hole and then another and then
another.”
[15] The tribunal then described what the
applicant had written in his PIF of the circumstances that led him to start
running towards the forest: the soldier collapsing, the other soldier coming to
see what happened, his run for it and the “soldiers fired at him. A bullet hit
me in the left thigh” and he heard soldiers yelling “catch him” but managed to
escape. The tribunal then wrote “However, according to the claimant, there were
two other soldiers there, Mussolo and a driver” and reasoned:
“I
do not find it reasonable to believe that the claimant would be able to run
away, after digging three holes, from the three soldiers even though he stated
that a bullet had hit him. I find it hard to believe that he would only be hit
by one bullet in the thigh when there were four soldiers on the scene, though
one had collapsed. The claimant offered no reasonable response for how he was
able to escape.”
[16] The tribunal then mentioned the
applicant having written in his PIF he “started to run toward the forest” and
was asked how long it took him to reach the forest with the applicant
responding “they were in the forest actually.” The tribunal reasoned:
“He
provided no answer as to how long it took him to get away from the soldiers.
The claimant’s oral testimony (that they were already in the forest)
contradicted his PIF narrative that the soldiers had taken the three prisoners
to a field and that when one soldier collapsed he started running towards the
forest. The claimant provided no reasonable explanation for the
contradiction. I find the claimant’s failure to explain the contradiction in
the two versions, and also from his allegation that only he was asked to dig
the three holes and that he managed to run away despite being hit by a bullet
and the presence of three soldiers, and a further one who collapsed, that this
incident did not take place.”
[17] The tribunal mentioned the applicant
made an amendment to his PIF narrative adding information members of the
military went to his home and the home of his parents looking for him at which
time they mistreated his wife and children who fled to her parent’s home. The
tribunal wrote “it is normal for the claimant to submit amendments if they
receive new information or if they find an error in the original narrative or
PIF.” The tribunal said the applicant was asked how he learned that the
military had gone to his house and testified his father told him when he
visited him at the clinic where he stayed for a week after his escape. The
tribunal asked why he had not included this information in his original
narrative concluding “the claimant provided no reasonable response”. While
acknowledging amendments can be made any time prior to twenty days before the
hearing the tribunal opined his legal counsel could not provide a “reasonable
explanation for why this very important information, which is of considerable
relevance to his fear of return, was not included in his original PIF narrative
and was added later.” The tribunal inferred:
“I
find if this incident had really taken place the claimant would have included
this important information in his narrative instead of submitting it later as
an amendment to his PIF narrative.”
[18] The tribunal next referred to the POE
notes and the applicant’s answer that he had never been arrested or detained.
The tribunal said he was asked to explain the contradiction with his PIF and
that he responded “since he was innocent and had done no wrong he does not
consider that he was jailed or detained properly and so he responded that he
had never been arrested or detained.” The tribunal reasoned:
“I
do not find this response reasonable. The form does not ask whether the claimant
had been jailed legally. It merely asks whether a person had been detained or
jailed and, if so, it provides space for the claimant to explain the
circumstances of his detention. I find that if the claimant’s story had been
true it is reasonable to believe that he would have told the Immigration
Officer that he had been detained but that he was innocent and had been
detained in a frame-up.”
[19] The tribunal referred to the
applicant’s testimony about his Bakongo origins, that his parents had been
militants in the FNLA and his plight was also associated with his parent’s
political association. The tribunal stated “However, there is no reference in
his POE or PIF to his parents having been militants in the FNLA.” The tribunal
also referred to his testimony he had a good job and “this led to jealousy on
the part of some.” The tribunal added “but there is nothing in his POE, PIF or
oral testimony that detailed his family or his suffering or his fearing
persecution because of his ethnic origins. His trouble started and his fear of
persecution stems from the April 20, 2005 incident according to the evidence.”
The tribunal found “I find that the evidence that the claimant provided is not
reliable or trustworthy.”
[20] Concerning the psychological report and
the report from his physician the tribunal stated “they did not determine
whether those wounds were sustained in the manner the claimant described or had
been the result of some other cause in a country that has had violence and a
civil war. The two reports do not assess the claimant’s credibility in the
incidents he has written about.”
[21] The tribunal concluded by finding “many
claimants have undergone much trauma and are unable to explain all of the
contradictions that they are asked about.” The tribunal then went on to write
“all panels are sensitive to this situation, and are respectful toward court
guidance on the assessment of credibility of people under considerable
stress.” The tribunal then said that nonetheless it weighed the evidence very
carefully and came to its finding of non-credibility.
Analysis
(a)
Standard of Review
[22] It is settled law that credibility
findings are findings of fact and that decisions based on findings of fact
cannot be set aside unless they meet the criteria set out in section 18.1(4)(d)
of the Federal Courts Act, 1998 (the Act) which provides the tribunal
may set aside a decision if that tribunal based its decision on an erroneous finding
of fact that it made “in a perverse or capricious manner or without regard to
the material before it” which is a standard of review akin to patent
unreasonableness.
[23] Much of the tribunal’s reasoning is
based on inferences which brings into play the words of Justice Décary in Aguebor
v. Minister of Employment and Immigration (1993) 160 N.R. 316 (F.C.A.)
at paragraph 4:
4 There
is no longer any doubt that the Refugee Division, which is a specialized
tribunal, has complete jurisdiction to determine the plausibility of
testimony: who is in a better position than the Refugee Division to gauge the
credibility of an account and to draw the necessary inferences? As long as the
inferences drawn by the tribunal are not so unreasonable as to warrant our
intervention, its findings are not open to judicial review. In Giron, the
Court merely observed that in the area of plausibility, the unreasonableness of
a decision may be more palpable, and so more easily identifiable, since the
account appears on the face of the record. In our opinion, Giron in no way
reduces the burden that rests on an appellant, of showing that the inferences
drawn by the Refugee Division could not reasonably have been drawn. In this
case, the appellant has not discharged this burden. [Emphasis mine]
[24] I am also reminded of what Justice
L’Heureux-Dubé wrote at paragraph 85, on behalf of the Supreme Court of Canada
in Canadian Union of Public Employees, Local 301 v. Montréal (City) [1997]
1 S.C.R. 793.
85 We
must remember that the standard of review on the factual findings of an
administrative tribunal is an extremely deferent one: Ross v. New
Brunswick School District No. 15,
[1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not
revisit the facts or weigh the evidence. Only where the evidence viewed
reasonably is incapable of supporting the tribunal's findings will a fact
finding be patently unreasonable. An example is the allegation in this case,
viz. that there is no evidence at all for a significant element of the
tribunal's decision: see Toronto Board of
Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per
McLachlin J. Such a determination may well be made without an in-depth
examination of the record: National Corn Growers Assn. v. Canada
(Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[Emphasis mine]
[25] In terms of credibility findings, in Asad
Javed Sheikh v. The Minister of Citizenship and Immigration, docket:
(IMM-315-99, April 25, 2000), this Court made the following observations:
[22] However, credibility
findings by the Refugee Division are not immune from this Court's supervision
and this principle has been established in a long series of cases.
[23] The discrepancies relied
on by the Refugee Division must be real (Rajaratnam v. M.E.I., 135 N.R. 300
(F.C.A.). The Refugee Division must not display a zeal "to find instances
of contradiction in the applicant's testimony... it should not be over-vigilant
in its microscopic examination of the evidence" (Attakora v. M.E.I (1989),
99 N.R. 168 at paragraph 9). The alleged discrepancy or inconsistency must be
rationally related to the applicant's credibility (Owusu-Ansah v. Minister of
Employment and Immigration (1989), 98 N.R. 312 (F.C.A.). Explanations which are
not obviously implausible must be taken into account (Owusu-Ansah, supra).
[24] Moreover, another line
of cases establishes the proposition that the inconsistencies found by the
Refugee Division must be significant and be central to the claim
(Mahathmasseelan v. Canada (M.E.I.), 15 Imm.L.R. (2d) 30 (F.C.A.) and must not
be exaggerated. Marceau J.A. in Djama v. The Minister of Employment and
Immigration (A-738-90, June 5, 1992, expressed the principle in the following
manner:
In our opinion, the members of the
panel clearly exaggerated the import of a few apparent contradictions,
hesitations or vague statements which they succeeded in detecting in the
comments of the claimant, and they could not on that basis alone treat his
testimony as a whole as being the testimony of a liar. It seems to us that
their fixation on the details of what he stated to be his history caused them
to forget the substance of the facts on which he based his claim.
[26] Moreover, in Sadat Jamil v. The
Minister of Citizenship and Immigration 2006 FC 792, I reiterated certain
principles related to credibility findings at paragraphs 24 and 25 as follows:
[24] There is a
well-recognized line of cases from the Federal Court of Appeal and this Court
which has conveniently been summarized by Justice Martineau in R.K.L v. Canada
(Minister of Citizenship and Immigration) 2003 FCT 116 that a Refugee Board
must not be zealous to find an applicant not to be credible and “must not be
over-vigilant in its microscopic examination of the evidence of persons who
testify through interpreters and tell tales of horror in whose objective
reality there is reason to believe.” See the Federal Court of Appeal’s
decisions in Attakora v. Canada (Minister of Employment
and Immigration) (1989) 99 N.R. 168, along with Owusu-Ansah v. Canada
(Minister of Employment and Immigration) (1989) 98 N.R. 312 and Frimpong
v. (Canada Minister of Employment and Immigration) (1989) 99
N.R. 168.
[25] These cases
as applied by the Federal Court of Appeal itself and by this Court proscribe
credibility findings arrived at by, for example:
§
Findings for which there was no evidence;
§
Findings of the tribunal based on conjecture, resulting in unjustified and
unsupported inferences regarding the circumstances leading to an application
for refugee status;
§
Inconsistencies drawn between POE notes and an applicant’s testimony or
the applicant’s PIF where a tribunal dwells on details and not on the substance
of the claim and leads to misconstruction of the evidence. Any such
inconsistencies should be major and not minor and sufficient by itself to call
into question the applicant’s credibility. (See Mushtaq v. Canada (Minister
of Citizenship and Immigration) 2003 FC 1066; and
§
The tribunal must be reasonable in rejecting an applicant’s explanation
when confronted with a contradiction and must not be quick to apply North
American logic and reasoning to a claimant’s behaviour, (see R.K.L., supra,
at para 12);
§
The tribunal must assess the applicant’s claim against the totality of the
evidence.
[27] As I perceive it, the various
credibility findings made by the tribunal resulted in the tribunal not
believing any part of the applicant’s story. According to these findings, the
Mussolo incident did not occur, the applicant was not detained in a cell at the
Camarca Prison and tortured, and that he was not taken to a field to be shot
but escaped.
[28] In my view, this judicial review
application must be allowed for the following reasons.
[29] First, as argued by counsel for the
respondent, the major credibility finding made by the tribunal related to the
omission of not having detailed his injuries and wounds which he allegedly
received during his one month or so detention in the prison cell. I find the
tribunal came to this conclusion without regard to the totality of the evidence
before it and specifically, what the applicant wrote and told the Immigration
Officer when he was interviewed, in French, on October 11, 2005 which preceded
the filing of his PIF on November 16, 2005.
[30] In answer to question whether his body
had scars, he wrote that he had bullet scars and wounds to his back and left
leg. He also told the interviewing officer he had been “persecuted, kidnapped,
tortured and was to be executed and was shot at” (see Certified Tribunal
Record, pages 146, 162 and 165).
[31] To the extent the descriptions of his
wounds and their causes in his PIF could be said to be not sufficiently
detailed, the tribunal erred in not taking into account the evidence which was
before it in the form of the psychological report of Dr. Voss dated March 28,
2006 (see, Certified Tribunal Record, pages 59 and 60) in which Dr. Voss
concluded the applicant’s profile was consistent with post-traumatic stress:
“he reports a high level of intrusive experiences (e.g. nightmares and
flashbacks), despite efforts to defensively avoid any memories related to
the trauma he suffered as well as a high level of anxious arousal (e.g. frequently
feeling nervous or jumpy and easily startled.)” [Emphasis mine]
[32] In my view, the tribunal failed to take
the applicant’s psychological condition into account when assessing the
applicant’s credibility contrary to what the Federal Court of Appeal’s
decision in Reyes v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 282
(F.C.A.).
[33] Second, the tribunal had before it the
evidence of Dr. Weiner who examined the applicant and set out his observations
in a letter dated February 13, 2006 to counsel for the applicant (see Certified
Tribunal Record, page 58). Dr. Weiner described the applicant’s wounds and
indicated they were consistent with a number of causes. The tribunal erred, in
my view, in rejecting this evidence because Dr. Weiner “did not determine
whether those wounds were sustained in the manner the claimant described or had
been the result of some other cause in a country that has had violence and a
civil war.” As to the last assertion, the tribunal had no evidence before it
the applicant had participated or was exposed, in any way, in the conflict in Angola and, in terms of the
first proposition, the tribunal compounded its minimalizing of the
psychological report and the trauma and further ignored evidence which he gave
at the POE.
[34] Third, the tribunal came to the
conclusion the Mussolo incident did not occur because it said it was reasonable
to believe Mussolo would have killed the applicant on the spot rather than
taking the trouble of detaining him, torturing him and having him executed in a
field approximately a month later. In my view, the tribunal had no evidence on
which it could base this finding. It was pure speculation on the part of the
tribunal.
[35] Fourth, the same observation can be
made on the tribunal’s finding the incident in the field did not occur because
if it had taken place it was reasonable to believe that the soldiers would have
asked the Congolese men also to dig the holes instead of waiting while the
claimant dug one hole and then another. When the tribunal asked the applicant
to comment on the point, the applicant did not only say the Congolese men just
cried. At page 192 of the Certified Tribunal Record, he answered he did not
know why because he was not the one deciding. His answer was reasonable and
brings to mind the words of Justice Muldoon in Valtchev v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 776 (T.D.) at paragraph 13 where he
wrote: “One cannot understand how the tribunal expects the applicant to
explain logically the illogical actions of the authorities.”
[36] Fifth, the tribunal ignored the
applicant’s answer he told Dr. Voss his detention and torture was over a month
or so and not over several months (see Certified Tribunal Record, page 200).
[37] Sixth, when it concluded it did not
find it reasonable that the applicant “would be able to run away, after digging
three holes, from the three soldiers even though he stated that a bullet hit
him”… and that “I find it hard to believe that he would only be hit by one
bullet in the thigh when there were four soldiers on the scene, although one
had collapsed.” The tribunal misread or ignored the evidence. The applicant
had explained to the tribunal (see Certified Tribunal Record, page 191).
Mussolo and his driver were not at the grave site but further back in their
car.
[38] Seventh, the same can be said of the
tribunal’s finding the applicant should have known how long it would have taken
him to dig a grave. At pages 191 and 192 the applicant explained he did not
have a watch but more importantly he explained, in the particular situation he
was in, his mind had not focused on the point. The tribunal, in my view,
should not have ignored the explanation which I find reasonable in the
circumstances.
[39] Eight, the applicant did indicate in
his POE questionnaire he had not been detained or imprisoned (see Certified
Tribunal Record, page 149) and also told the Immigration Officer he had not
been arrested, charged and convicted for a crime. The tribunal erred in
rejecting his explanation which was that he stated he was not arrested or
imprisoned because he never committed any crime. According to his testimony he
was put in prison after being kidnapped and was not in prison because he had
been convicted. There is substance of his explanation because the very
question asked of him on the interview form is whether the applicant had been
arrested, charged and convicted for a crime [Emphasis mine, Certified
Record, page 163].
[40] Finally, I would not interfere with the
tribunal’s findings of inconsistencies on account of what he had written in his
PIF and his testimony in respect of the following:
§
What
“other soldiers” eventually came to the grave site;
§
When he was transported
to the field whether it was a “few days” or the “next day” of his being placed
in a cell at the Directorate;
§
Was he digging the
graves in the “field” or in the “forest”?
[41] The applicant gave explanations which
in some cases I would consider reasonable but that is not the test which I must
apply because it is not my decision to make, it being within the tribunal’s
mandate to make inferences.
[42] However, in context, such
inconsistencies are very minor in nature and do not justify the tribunal
concluding the event to which they related did not occur. These
inconsistencies were marginal at best and did not go to the heart of the
applicant’s story.
JUDGMENT
For all of these reasons, this judicial review
application is allowed, the tribunal’s finding is set aside and the applicant’s
refugee claim is remitted back to the Board for re-determination by a
differently constituted tribunal. No certified question was suggested.
“François
Lemieux”
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