Date: 20080221
Docket: IMM-1504-07
Citation: 2008 FC 226
Ottawa, Ontario, February 21,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CRAIG
DANIEL MAIMBA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated March 23, 2007
concluding the applicant, Craig Daniel Maimba, was not a Convention refugee or
a person in need of protection.
FACTS
[2]
The
applicant, a 36-year-old Zimbabwean citizen, seeks refugee protection in Canada on account
of his political opinion and membership in the Zimbabwe opposition
party, Movement for Democratic Change (MDC). The applicant states his problems in
Zimbabwe began after
he became the chairperson of a youth league chapter of the MDC.
[3]
In
his Personal Information Form (PIF), the applicant alleges two specific incidents
of persecution that caused him to leave Zimbabwe. First, the
applicant recounts an occasion in July 1999 when youth members of the ruling
Zimbabwe African National Union – Patriotic Front (ZANU-PF) confronted the
applicant and other MDC members at a bus terminal and began threatening and
harassing them. The altercation was violent. The ZANU-PF members drew weapons
and beat the applicant and his companions. The applicant states he was
seriously injured in the attack, receiving a cracked jaw and requiring dental
surgery. The applicant states that while he reported this event to the police, it
was never seriously investigated and the perpetrators were never caught.
[4]
The
second incident raised by the applicant occurred in April 1999, when he was
confronted and arrested by state security agents. According to the applicant,
the security agents threatened to torture or kill him if he did not provide
them with information about the MDC and its activities. The applicant states
that he was interrogated for three days and released when the security agents realized
that the applicant would not provide any information. The applicant states after
being released, security forces monitored his whereabouts.
[5]
In
August 2000, the applicant left Zimbabwe and traveled to the United
States
on a student visa. From August 2000 until February 2006, the applicant remained
in the United
States,
attending college in Wichita, Kansas. On February 15, 2006,
the applicant arrived in Canada and filed a claim for refugee protection.
His claim was heard by the Board on January 18, 2007.
Decision under review
[6]
On
March 23, 2007, the Board rejected the applicant’s refugee claim. In its
decision, the Board found the applicant lacked credibility and did not believe
his allegations of persecution. As the Board held at page 1 of its decision:
I have found that the claimant is neither
a Convention refugee, nor a person in need of protection. I do not find
credible the allegations made by the claimant in support of his claim, in light
of inconsistencies and implausibilities in his testimony. I further find a lack
of subjective fear due to failure to claim elsewhere. …
Accordingly,
the Board dismissed the claim.
ISSUES
[7]
The
applicant raised a number of issues in his written memorandum. However, the
Court will rephrase the issues as follows:
1. Did the Board
err in concluding the applicant’s testimony lacked credibility;
2. Did the Board
err in concluding the applicant lacked a subjective fear of persecution by delaying
his departure from Zimbabwe; and
3. Did the Board
err by ignoring and misinterpreting the objective evidence that the applicant,
as a member of the MDC, was a person in need of protection?
STANDARD OF
REVIEW
[8]
The
issues raised in this application concern the Board’s assessment of the
applicant’s credibility. It is well settled that issues of credibility and the
plausibility of testimony are entitled to the highest level of deference and
will only be set aside if found to be patently unreasonable: see Gonzalez v.
Canada (Minister of
Citizenship and Immigration), 2008 FC 128.
ANALYSIS
Issue No. 1: Did the
Board err in concluding the applicant’s testimony lacked credibility?
[9]
The
applicant argues the Board made a number of serious errors in reaching its
decision that he lacked credibility. Specifically, the applicant argues the
Board erred by:
1.
drawing a
negative inference from alleged inconsistencies between the applicant’s port of
entry declaration and his PIF narrative;
2.
drawing a
negative inference from the applicant’s testimony regarding the specific events
of persecution and in not properly considering his corroborating evidence;
3.
basing its
negative determination on the fact that the applicant did not leave Zimbabwe until August 2000; and
4.
finding
that it was implausible that the applicant could be involved in the MDC youth
movement prior to the party’s creation in September 1999.
Inconsistencies in the various
statements
[10]
In
its decision, the Board found that the applicant’s testimony at the port of
entry differed significantly from the allegations of mistreatment contained
within his PIF narrative. Specifically, the applicant stated at the port of
entry that he was detained by security agents in approximately 1995, while his
PIF narrative stated that the detention occurred in April 1999. Further, while
the port of entry declaration stated the applicant was assaulted at work, his
PIF narrative states that he was assaulted at a bus terminal. The applicant
argues that both of these findings are “more illusory than real,” and that the
Board’s findings in this regard were made in error.
[11]
The
Court does not accept the applicant’s statement that the he was working at the
bus terminal when he was assaulted by the group of ZANU-PF youth members. While
the Court accepts that the applicant was employed by a company engaged in
commuter and tourism transportation, the applicant’s testimony before the Board
clearly establishes that the attack occurred while he was waiting at the bus
terminal with friends and relatives. There is a clear inconsistency between the
applicant’s statement at the port of entry and that which was given before the
Board. Accordingly, the Board was justified in reaching a negative credibility
inference on this basis.
[12]
Further,
the Court also does not accept the applicant’s submission that the Board failed
to provide reasons for rejecting his explanation that he was unsure of the exact
date he was arrested. In its decision, the Board clearly states at page 2 that
it was simply not plausible for the applicant to have miscalculated the date of
arrest by four years. This is a significant difference in accounts between
the port of entry declaration and the PIF narrative. Accordingly, the Board’s
finding was justified on the evidence.
Applicant’s account of events
and corroborating evidence
[13]
In
its decision, the Board drew a negative inference from the applicant’s vague testimony
surrounding the two incidents of harassment in Zimbabwe. The Board
stated at pages 2-3 of its decision:
… He did not remember the date of the
assault in July 1999 and did not disclose the date of his detention in April
1999. If the events did occur in that order, he did not follow the instructions
to list the events in chronological order in his PIF. His PIF gives the
impression the assault occurred before the detention. He sent in a revised PIF
narrative and instead of clarifying the dates added “approximately” before
April 1999, thereby further obfuscating the dates in his allegations. … At
least three letters of support, including one from his mother, make reference
to the assault with a “knuckle-duster” and yet none of them mention a date of
occurrence. The medical note attesting to his injuries in July 1999 is also
undated. For these reasons I find his documentary evidence and oral testimony
unreliable and I am not persuaded his allegations are credible.
[14]
The
applicant challenges this finding on a number of fronts. First, he states the PIF
amendment was not an attempt to obfuscate the dates, but was merely a
clarification to reflect the fact that the applicant is not particularly good
with dates. Second, the applicant states that the Board applied a “specious
test for credibility” and rejected his submissions merely because they were not
listed in chronological order. Finally, he argues that the Board was dismissive
of his corroborating evidence simply because the medical report was not dated.
[15]
However,
the Court concludes that when taken as a whole, the applicant’s testimony and
evidence creates serious concerns over when the alleged events occurred. The
applicant has an onus to proffer evidence corroborating his claims of persecution:
see Kovacs v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1473, [2006] 2 F.C.R. 455. While
the applicant in the case at bar provided a number of personal letters attempting
to support his claim, none of them include any reference to when the alleged
events occurred. As well, while the medical report attests to a date of
treatment, the letter itself is not dated. Accordingly, when taken as a whole,
the applicant’s testimony and corroborating evidence made it reasonable for the
Board to reach a negative credibility finding.
[16]
Further,
given that the Board found the applicant lacked credibility in respect of his
testimony surrounding the alleged attack, it was open to the Board to conclude
that the letters should be accorded little weight as evidence of the
applicant’s story: Kalangestani v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1528, [2006] F.C.J. No. 1916 (QL); Hamid v. Canada
(Minister of Employment and Immigration), [1995] F.C.J. No. 1293 (T.D.)
(QL).
[17]
Finally,
the applicant also argues the Board erred in its negative inference that it was
implausible for a high-profile MDC member to not be stopped from leaving
Zimbabwe, stating that such a conclusion conflicted with the applicant’s
uncontradicted testimony that there are no exit controls in Zimbabwe. However,
the respondent notes that the Board’s decision was not premised on the
existence of exit controls, but on the applicant’s own testimony that security
agents continued to monitor his whereabouts from April 1999 until he left the
country. Accordingly, it was open to the Board to conclude that if the security
agents were truly interested in the applicant, they would have known he was
leaving Zimbabwe and would
have prevented him from doing so.
Applicant’s membership in the
MDC
[18]
The
applicant argues the Board erred in finding that it was implausible for him to
have been engaged in the MDC in January 1999 despite the fact that the MDC was
not officially created until September 1999. The Court concludes that the applicant’s
lack of evidence in this regard justified the Board’s finding. Further, it is
clear that even if the Board had accepted the applicant’s testimony that he was
involved in the MDC prior to its official formation, there are sufficient other
findings upon which the Board’s negative decision can properly rest.
Accordingly, the Court concludes that the Board was justified in finding the
applicant lacked credibility, and will not intervene on this basis.
Issue No. 2: Did the
Board err in concluding the applicant lacked a subjective fear of persecution
by delaying his departure from Zimbabwe?
[19]
The
applicant argues the Board erred in basing its decision, in part, on his delay
in leaving Zimbabwe. The Court
agrees. The Board’s reasons refer to the delay as evidence of a lack of
subjective fear.
[20]
The
applicant submits, and the Court agrees, that since the Board’s screening form
did not identify delay as a potential issue, the Board breached procedural
fairness in relying on any such delay without first notifying the applicant.
Issue No. 3: Did the
Board err by ignoring and misinterpreting the objective evidence that the
applicant, as a member of the MDC, was a person in need of protection?
[21]
The
applicant argues the Board erred in failing to consider the objective
documentary evidence that MDC members in Zimbabwe continue to face
a serious risk of persecution. Accordingly, the Board should have accounted for
this objective credible evidence despite finding that the applicant failed to
provide credible testimony. In support is the Federal Court decision in Mylvaganam
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1195 (QL), where Mr.
Justice Gibson stated at paragraph 10:
¶ 10 The CRDD had before it substantial documentary
evidence attesting to the difficulties that all young Tamil males, particularly
those from the north, face in Sri
Lanka. Even if it rejected outright,
as it did, the applicant’s own alleged experience of persecution, in its
analysis in support of its decision in this matter, it does not appear to have
rejected the applicant’s identity as a young Tamil male from the north of Sri
Lanka. Having accepted this identity, the CRDD then ignored the substantial
evidence before it that a person such as this applicant might well be subjected
to persecution if he were required to return to Sri Lanka and that
therefore he might very well have had not only a subjective fear of persecution
but also potentially a well-founded objective basis to that fear. In failing to
so much as even consider this possibility, I am satisfied that the CRDD reached
its decision in this matter without taking into account all of the evidence
that was before it….
[Emphasis added.]
[22]
Having
reviewed the evidence and the applicant’s submissions in this regard, the Court
concludes that the Board erred in its assessment of the documentary evidence.
The case law is clear that when assessing an applicant’s objective risk of harm
in returning to their country of origin, there may be instances where, having
accepted the applicant’s identity, the objective documentary evidence is such
that the claimant’s particular circumstances make him a person in need of
protection despite the fact that the Board has found the claimant lacks
credibility: see Kandiah v. Canada (Minister of Citizenship and Immigration),
2005 FC 181, [2005] F.C.J. No. 275 (QL) per Martineau J. However, Mr. Justice
Martineau also states that such assessments are to be made on a case-by-case
basis depending on the nature of the evidence presented in the particular case.
[23]
While
the Board held at page 3 of its decision that it was not persuaded that the
applicant had a high profile in the MDC, the Board did not find that the
applicant was not a member of the MDC. The Board did not address relevant and
important evidence of the applicant’s membership in the MDC, namely his MDC
membership card from Zimbabwe, the letter from the MDC in Zimbabwe that the
applicant is an active member, and a letter from the Office of the Secretary
General of the MDC dated April 25, 2002, confirming that the applicant was a
“very active member of the MDC” and that his father is the MDC Councillor for
Ward 22-Hatfield in Zimbabwe.
[24]
As
Mr. Justice Evans held in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration (1998), 157 F.T.R. 35, the Board has a burden
of explaining why it did not consider this evidence about the applicant’s
membership in the MDC when the documents appear squarely to contradict the Board’s
conclusion. As I held in my January 16, 2008 Judgment in Chavi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 53, [2008] F.C.J. No. 63 (QL) at
paragraph 14:
¶ 14 The U.S. Department of State report [for Zimbabwe] is objective evidence that
membership in the MDC is sufficient to place a person at risk of harm. …
[25]
In
that case, I held that the Board’s failure to consider this important objective
evidence is an error of law in considering whether a member of the MDC in Zimbabwe is a person
in need of protection. In Canada, the applicant was a member of a Canadian
branch of the MDC. The applicant testified that if he returned to Zimbabwe, he would
intend to continue being a member of the MDC. In this regard, the Board must
assess whether the applicant is at risk of serious injury from the Zimbabwe government
in accordance with my Judgment in Chavi, above.
CONCLUSION
[26]
For
these reasons, the Court concludes that the Board did provide valid reasons for
finding that the applicant lacked credibility, and such credibility findings are
entitled to the highest degree of curial deference. However, the Board erred in
law in basing its decision, in part, on the applicant’s delay in leaving Zimbabwe. The Board
further erred in failing to consider the objective documentary evidence that
the applicant may be a person in need of protection due to his membership in
the MDC. The Court does not consider that the Board made a finding that the
applicant was not a member of the MDC, only that the applicant was not a “high-profile”
member as claimed.
[27]
Accordingly,
the Court must allow this application for judicial review and remit the matter
back to the Board for redetermination in accordance with these reasons.
[28]
Both
parties and the Court agree that this case does not raise a question that
should be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed; and
2. The
Board’s decision is set aside and the matter is referred back to a differently
constituted panel of the Board for redetermination in accordance with these
reasons.
“Michael
A. Kelen”
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