VB8-07468

RAD File / Dossier de la SAR : VB8-07468 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 30, 2020 Date de la décision Panel Cynthia Pay Tribunal Counsel for the person who is the subject of the appeal H. Wayne Gardner Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This decision is about XXXX XXXX XXXX (the Appellant), who is a citizen of Mozambique. He claims to be a Convention refugee or a person in need of protection based on his claim that the government harassed and tortured him because of his involvement with a non-governmental organization (NGO) that is viewed as in opposition to the government. His claim was heard by the Refugee Protection Division (RPD) on November 13, 2018. The RPD found that the Appellant had not established his claim based on a number of findings of omissions, inconsistencies, and implausibilities in his evidence, as well as a lack of expected corroboration. The Appellant argues that the RPD erred in making implausibility findings ungrounded in evidence; in making factual errors and misconstruing the evidence; and in improperly rejecting his explanation for omissions and inconsistencies between his testimony and his written evidence. [2] Based on my review of the arguments and the record, I find that the RPD did make errors in some of its significant findings and that I cannot uphold its decision, but that because of gaps in the evidence and outstanding credibility concerns, I am unable to make a final determination, and must return his claim to the RPD for a redetermination hearing. DECISION [3] I allow the appeal and refer the Appellant's claim back to the RPD for redetermination by a differently constituted panel pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act. BACKGROUND [4] The Appellant claims that he fears returning to Mozambique because of persecution by the government there. He claims that during XXXX XXXX, he began to work with a non-governmental organization focusing on XXXX XXXX XXXX XXXX XXXX XXXX. During 2014, there was an election there. The ruling party requested that his group provide support during the election, but they refused because they were a non-partisan organization. This party lost in the Appellant's region, and the Appellant claims that his organization was blamed for the loss. He claims that he faced harassment and torture by the police, and that eventually he attempted to flee to Malawi to claim refugee status there but was told to return to Mozambique by local officials. He obtained a visa to travel to the United States (US) to attend a conference related to his work, and then made his way to Canada and made a refugee claim here. [5] The RPD heard his claim in 2018 and rejected his claim on the basis of credibility. It found that it was not credible that he led an organization of XXXX people because he was only a XXXX XXXX student at the time, and because he had omitted this work from his Schedule A form. Further, it found that it was implausible that he claimed the 2014 election results were delayed for two years until 2016, when he claimed that he was targeted by the police. The RPD found that his testimony that he was targeted by the police 15 times was inconsistent with his Basis of Claim (BOC) form, which only specifically mentioned three incidents involving the police; and that he also omitted from his BOC form the claim that a number of his colleagues were murdered. The RPD found his claim regarding his travel to Malawi and the US to be implausible, and that he lacked expected corroboration of his claims. [6] The Appellant argues that the RPD erred in using an incorrect legal test; in making improper implausibility findings; in making factual errors and misconstruing evidence; and that it erred in relying on omissions from his BOC and Schedule A, as he explained the person who helped him fill out the forms had only limited English, and he was confused and put down only the beginning and end of the series of incidents involving the police. He does not present new evidence or request an oral hearing, and therefore, I have no basis to hold one. ROLE OF THE REFUGEE APPEAL DIVISION [7] As held by the Federal Court of Appeal in Huruglica, the Refugee Appeal Division must review the RPD's decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of evidence. In this appeal, I was able to review and clearly understand the record, including the transcript of the hearing provided by the Appellant. I therefore do not find that the RPD was in an advantageous position in assessing the evidence, and I do not apply a deferential standard.1 ANALYSIS [8] Based on my review, I find that the RPD erred in a number of its main credibility findings and I cannot uphold its decision. Because of outstanding credibility issues such as insufficient details regarding the Appellant's allegations, however, I cannot make a final determination, and must return the claim for redetermination by the RPD. Impermissible plausibility findings [9] The RPD found that it was "not probable" that the Appellant would be employed as a leader of an organization of XXXX people because he was "a XXXX XXXX student at the time,"2 which contributed to its finding that this claim was not credible. [10] The Appellant argues that the RPD erred in its finding, as it assumes that a XXXX XXXX student could not be in such a paid position, which is an implausibility finding ungrounded in evidence. Further, he argues that this assumption is based on Canadian assumptions and norms. [11] I agree and find that the RPD erred in this finding. Such implausibility findings should only be made in the clearest of cases, such as when the facts as presented are outside the realm of what could be reasonably expected.3 That is not the case here, as it is not outside the realm of what could be reasonably expected that an NGO would employ a person who was a 18-year-old XXXX XXXX student, especially an organization focused on XXXX of young people. The RPD also went on to find that it was "very difficult to comprehend" that he "would have the profile that could affect national elections" or that he "would be personally blamed" for the election result.4 Again, this finding is a plausibility finding ungrounded in evidence and not outside the realm of what could be reasonably expected. Further, as argued by the Appellant, he did not claim that he had a profile that impacted the national elections or that he was personally blamed, but rather that his organization was blamed for not supporting the ruling party. I find that the RPD erred in misconstruing his evidence here. Factual errors/misconstrued evidence [12] The RPD asked the Appellant why he was only targeted in XXXX 2016, two years after the elections took place in October 2014. It found that the Appellant responded by saying that in Mozambique, you have to wait for the election results for over two years. Because the objective country condition evidence suggested that Mozambique has a "barely" passing grade on the fairness of its elections, the RPD found that it was "hard to believe that two years could pass by without election results being known."5 [13] The Appellant argues that the RPD erred in misconstruing his evidence on this point, as he did not say that the election results take two years, only that there is often delay in the results. Further, he did not say that the targeting started in 2016, but rather that it intensified at that time. [14] Based on my review of his testimony, I agree with the Appellant that he did not testify that in Mozambique there is a two-year wait for election results. I find that he testified only that there is often delay. Further, I find that he did testify that the targeting intensified in 2016.6 As a result, I agree with his argument that the RPD made a factual error in misconstruing his evidence in this area. Outstanding credibility issues [15] I have found that the RPD erred in a number of its most significant credibility findings. I also determine that the other findings made by the RPD are also flawed or insufficient to enable me to uphold its decision in this claim; for example, in its assessment of omissions from his BOC, the panel did not address the Appellant's explanation that the person who helped him complete his BOC only had "broken English."7 As a result, I will not address the Appellant's other arguments. [16] Nevertheless, I find that, based on the evidence before me, there is insufficient evidence to substitute my own positive determination in his claim. In particular, I find that the details of his alleged torture and harassment by the police are too sparse to establish these allegations on a balance of probabilities, and that these issues were insufficiently canvassed during his hearing. The Appellant provided only general statements in his testimony that he was beaten up, harassed and tortured with no further detail, and these allegations were not further canvassed.8 His BOC and other written statements also only state that he was "threatened," "harassed," "tortured" and "beaten," with no further detail to establish these claims. I find that the available evidence is insufficient to establish these allegations on a balance of probabilities.9 As a result, I cannot make a final determination in the Appellant's claim, and must return the claim to be re-heard by the RPD. CONCLUSION AND DIRECTION [17] I allow the appeal and refer the matter back to the RPD for redetermination by a differently constituted panel pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act. (signed) Cynthia Pay Cynthia Pay September 30, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 3. 3 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), at para. 7. 4 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 4. 5 Ibid. 6 Exhibit P-2, Appellant's Record, at pp. 21-23. 7 Ibid., at p. 12. 8 Ibid., at pp. 23-24. 9 Exhibit RPD-1, RPD Record, Exhibit 3, at pp. 8, 9, 71. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-07468 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français