Docket: IMM-4715-13
Citation:
2014 FC 979
Toronto, Ontario, October 15, 2014
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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ATIQULLAH MUJADIDI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
The Applicant, a citizen of Afghanistan, claims
refugee protection in Canada because of subjective and objective fear that,
should he be required to return to Afghanistan, he will suffer more than a mere
possibility of persecution under s. 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA], or
probable risk under s. 97 at the hands of the Taliban.
[2]
The present Application concerns the rejection
of the Applicant’s claim by the Refugee Protection Division of the Immigration
and Refugee Board (RPD) on the core issue of the Applicant’s credibility with
respect to his evidence of the reason for claiming protection.
[3]
The RPD’s cardinal conclusion that dominates the
rejection of the Applicant’s claim is that it has no basis in truth because the
Applicant is a liar (Decision, paragraph 81). This conclusion is primarily based
on the RPD’s finding that there is a purported difference between the
Applicant’s statements at the Port of Entry (POE) and his statements in his
Basis of Claim (BOC) completed two weeks after arrival. For the reasons
provided below, I find that the RPD’s conclusion was reached in disregard of
the law on the making of credibility findings.
[4]
However, first, a determination is required as
to whether the hearing before the RPD was unfairly conducted.
I.
Hearing Conducted in Breach of the Duty
of Fairness
[5]
At the opening of the hearing before the RPD, a
serious complication arose on the issue of the interpretation of the
Applicant’s evidence. The Applicant is a Dari speaking individual from
Afghanistan. In his BOC, the Applicant explained interpretation problems he
experienced at the POE because he was given a Farsi speaking interpreter from
Iran. As a result, for the hearing of his Application, the Applicant
specifically requested an interpreter who speaks the Afghani dialect of Dari
(see BOC, p. 9).
[6]
However, for the hearing the Applicant was
provided with an interpreter from Iran, not Afghanistan, and, thus, Counsel for
the Applicant made a formal objection to proceeding without the requested
interpreter.
[7]
As a prelude to making the objection, Counsel
for the Applicant referred to the communication problems the Applicant experienced
during the POE interview:
COUNSEL: Right. And as specified in the Basis
of Claim form, Mr. Mujadidi did request a Dari interpreter, specifically with
Afghan, specifically from Afghanistan. At the border he had some problems
understanding and being understood by the interpreter who was from Iran, was
Farsi speaking. This is not questioning the competence of the interpreter we
have today. It is not a question of that but there are different words that are
used in Farsi and Dan and in my client’s ---
(Tribunal Record, p. 389)
In addition, the Applicant explained that
the accents between a Dari speaker from Afghanistan and a Dari speaker from
Iran are different:
CLAIMANT: Some of the words from your side and
my side could be different. That’s why I just don’t want to have any mistakes
here.
PRESIDING MEMBER: But do you know they are
different?
CLAIMANT: Yes, the accents from Afghanistan and
Iran are different.
(Tribunal Record, p. 389)
[8]
Nevertheless, the RPD chose to proceed as
follows:
PRESIDING MEMBER: So are you having any
difficulty understanding [the interpreter]?
CLAIMANT: Not at the moment but the more we go
ahead the problems may arise.
PRESIDING MEMBER: Okay. So, Mr. Interpreter,
are you having any difficulty understand him?
INTERPRETER: No I don’t.
PRESIDING MEMBER: Okay. So I would propose that
we continue and if he has any difficulty he can say so right away.
COUNSEL: If we notice.
PRESIDING MEMBER: I wouldn’t notice, I don’t
speak Dari.
COUNSEL: Nor do I.
PRESIDING MEMBER: But the claimant wouldn’t
be able to understand something then he could say I don’t understand. So far he
seems to be okay. We just have to make sure the microphones are turned around.
[Emphasis added]
COUNSEL: I just want to note for the record
my objection to proceeding however I will give my client some instructions.
PRESIDING MEMBER: Okay.
COUNSEL: Okay. If there is anything you don’t
understand please let us know as soon as you can, okay?
PRESIDING MEMBER: Now I know you know some
English because you have responded before translation and have proceeded to
respond in English. So it’s important to wait for the translation because I
want to make sure you fully understood what’s being asked of you. And it’s also
important, it’s in your interest to communicate in your Dari language because
although you may feel inclined to respond in English you may not communicate or
say something that you intend to say.
(Tribunal Record, pp. 389-390)
[9]
Thus, rather than acceding to Counsel for the
Applicant’s objection, the RPD chose to disregard it and to proceed by placing
responsibility on the Applicant for the translation itself. In my opinion, this
was manifestly unfair.
[10]
The record discloses that, as a result of the
RPD’s approach to the interpretation issue, there certainly were serious problems
with the interpretation of the Applicant’s evidence at the hearing, which
resulted in highly contested findings of negative credibility made by the RPD.
In the result, I find that the RPD’s conduct of the hearing was in breach of the
duty of fairness owed to the Applicant.
II. Law on Making
Credibility Findings Disregarded
[11]
The Applicant entered Canada from the United
States at Fort Erie. At the POE, the Applicant was interviewed to determine his
eligibility to claim protection. In the decision rendered, the RPD sets out the
questions asked and the answers given and continues to describe a purported
difference between the Applicant’s statements at the POE and his statements in
his BOC as follows:
In the course of that interview at Fort Erie,
the claimant declared to the CBSA that he did not want to return to Afghanistan
because of the general situation in his country. That exchange went as follows:
Q: What was your purpose for travelling
to the USA?
A: I came for a visit, because the
situation in Afghanistan is not very good and the opportunity arised for me to
come to Canada since I don't have anyone in the USA.
Q: Did you know you were going to come
to Canada before you left Afghanistan?
A: No, I didn't have the intention to
come to but then they told me the situation in Afghanistan is really bad and
that's when I decided to come to Canada.
Q: What is the situation you are
referring to?
A: There are bombings, there are
kidnappings.
Q: Ok, but it has been like that all
along, what changed once you arrived in the USA?
A: Before I left Afghanistan there was
always stress going from the house to the office, but once I was in the USA
there was an incident that broke a lot of glass in the offices, and I was
informed I shouldn't come back, and there is a lot of talk about NATO going out
of Afghanistan 2014 and if that happens things will get a lot worse with the
Taliban. And for that reason from the youngest to the oldest there is a lot of
fear for what is going to happen to Afghanistan.
The panel noted to the claimant that his BOC
allegations are different; namely that he has been threatened by the Taliban
and is being pursued by them. The panel gave the claimant the opportunity to
clarify his inconsistent evidence. He stated:
Because when I was in Vive la Casa I
started contacting the counsel. There was a counsel there. Her name was Alex. I
talked to her and asked her if it is ok if I give all the information when I
get to the border. She mentioned that in my opinion don't give all the
information there. She advised me that the more you talk about your case the
more they question you. [Emphasis added]
The panel asked him if there was anything else.
He stated:
And the second point is that I was
unable to sleep that night until the next morning because there is the car to
transfer us to the borderline and so that I don't miss the interview, the car
was supposed to be there on time to transfer me from the Viva la Casa to the
borderline. And then I thought to myself if cannot tell them the whole thing in
details then they are going to ask me for documents and I was not sure how long
I was going to stay if they ask me for documentation and I thought to myself if
I stay there, my family will be stressed out back home in Afghanistan and my
aunt here in Canada. All together these were the reasons that I mentioned that
story.
(Decision, paras. 16 – 18)
[12]
The Applicant’s BOC narrative gives extensive
detail on threats made against the Applicant by the Taliban in Afghanistan. The
POE statements are not mentioned in the BOC (see Tribunal Record, pp. 26 – 31).
[13]
The conclusion reached by the RPD with respect
to the difference between the Applicant’s statements at the POE and his
statements in his BOC is as follows:
A claimant is expected to pursue his claim
diligently. Part and parcel of this diligence is making reasonable efforts to
provide all information relevant to his claim. Indeed, he had every opportunity
to do so. The reason why a claimant left his country is the very reason why a
claimant seeks refugee protection, and it is reasonable to expect this
reason to be consistent throughout all the stages of the application process.
This applies even if this would somehow inconvenience the claimant by having
him answer more questions or providing more information. The panel also notes
that in this case the claimant's reasons for seeking Canada's protection in his
POE notes are not contained in his BOC. Therefore, this is not a matter of him
having failed to mention details, but rather a matter of him failing to
mention the very core of his claim, and him having mentioned allegations that
he subsequently failed to.
The claimant's inconsistent evidence as to
the very basis of his refugee claim undermines his credibility. His credibility is further diminished by the shifting explanations
he provided for the inconsistent evidence. [Emphasis added] (Decision, paras.
30 and 31)
[14]
Thus, the RPD essentially found that that if the
Applicant was telling the truth he would have given the same story at the POE
and in the BOC. Put another way, it is implausible that the Applicant was
telling the truth at the POE and in his BOC, because the statements in each are
different.
[15]
The law with respect to credibility findings is
well settled in Vodics v 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 (Minister of Citizenship and Immigration) (Fed.
T.D.), states the standard to be followed:
6. 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.
7. 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 added]
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.
[16]
To believe that a truthful person would tell the
same story when questioned is also to believe that a person who is lying would
tell different stories. However, the corollary beliefs might also be true: a
lying person would tell the same story when questioned because it is necessary
to appear to be completely consistent, while a truthful person might tell
different stories when questioned because that is the way the situation at hand
unfolded. Without verifiable evidence to bring certainty to the beliefs, each
belief is sheer speculation.
[17]
Because there is no evidence on the record to
support the RPD’s speculative implausibility conclusion, I find that it is made
in reviewable error.
[18]
Furthermore, the Applicant’s sworn testimony of
his reasons for not giving a full description of the basis of his claim at the
POE, and for not including what he said at the POE in his BOC was effectively
disregarded by the RPD in the decision rendered. Because the RPD was required
to accept the Applicant’s sworn testimony, unless supportable reasons to doubt its truthfulness were clearly stated, and
this requirement was not met, I find that the decision under review was made in
further reviewable error.
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