VB6-04783

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 File No. / N° de dossier de la SAR : VB6-04783 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision February 7, 2018 Date de la décision Panel Richard Jackson Tribunal Counsel for the person(s) who is(are) Kingsley Jesuorobo Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] These are my reasons for allowing the appeal of XXXX XXXX XXXX (the "appellant") of Zimbabwe from a decision of the Refugee Protection Division (the "RPD") to reject his claim for refugee protection. The appellant claims to face persecution, a danger of torture, a risk to life or a risk of cruel and unusual treatment if he returns to Zimbabwe. [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (the "IRPA"),1 the RAD sets aside the RPD's determination and refers the matter to a differently constituted RPD panel. The appeal is allowed. [3] The determinative issues in this case are whether the RPD erred in its credibility findings or whether there has been a breach of procedural fairness. BACKGROUND [4] The appellant fears persecution and harm in Zimbabwe on the basis of his political opinion as a member and supporter of the Movement for Democratic Change (MDC). [5] In XXXX 2014 the appellant was interrogated and beaten following a police raid on a church with links to the MDC. In XXXX 2016 the appellant's family home was raided and threats were made against the appellant. The appellant was again arrested in XXXX 2016 during protests against the government political party but the appellant was able to escape custody. Following this incident the appellant left Zimbabwe for South Africa and travelled onward to Canada in XXXX 2016 when he made a claim for refugee protection. NEW EVIDENCE AND ORAL HEARING [6] The appellant neither seeks to enter new evidence nor requests an oral hearing in this appeal. ROLE OF THE RAD [7] With respect to questions of fact, mixed fact and law, I have applied the standard of correctness as per Huruglica.2 In assessing issues involving credibility of oral testimony, I have applied the RAD's modified standard of reasonableness.3 THE RPD DECISION [8] The RPD did not find the appellant's evidence to be overall credible. Specifically the RPD found that: (a) the appellant had exhibited an interest in coming to Canada prior to 2016 and that his evidence in regard to his travel history was inconsistent; (b) the appellant's evidence in regard to his support and membership in the MDC was inconsistent; (c) the appellant's acccount of his escape from authorities was implausible; (d) the appellant having a Facebook profile was inconsistent with the behaviour of a fugitive; (e) there were contradictions and inconsistencies between the testimonies of the appellant and a witness; and, (f) the appellant is neither a Convention4 refugee nor a person in need of protection. APPELLANT'S ARGUMENTS [9] In his memorandum of argument the appellant: (a) attacks the conclusions in the RPD's assessment of the refugee claim; (b) asserts that the RPD erred in regard to its treatment of the evidence; and, (c) asserts there has been a breach in the appellant's right to procedural fairness. [10] I will address the appellant's arguments in my analysis below. RAD ANALYSIS [11] In this appeal, I find that the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the appellant's testimony where the RPD would have been in a better position than the RAD to judge it. [12] In my independent analysis after reviewing the entirety of the record including the audio recording of the hearing, I find there are critical errors in the RPD decision that leads me to the conclusion that the decision must be set aside. Given the import of these errors it is not necessary for me to address all of the credibility concerns raised in the RPD reasons for decision. Therefore, I will only be dealing with the following issues that I find determinative of the appeal. Did the RPD err in making plausibility findings? [13] The appellant is entitled to the presumption of truthfulness;5 before the RPD can impeach a claimant's [appellant's] credibility, it must set out its concerns in clear and unmistakable terms. The need for clear reasons is particularly important when the RPD makes findings of implausibility; the panel must clearly articulate why the evidence is outside the realm of what could reasonably be expected in the specific circumstances.6 [14] Implausibility findings should be made only in the clearest of cases. The RPD must be careful in rendering a decision on implausibility because refugee claimants come from diverse cultures, and actions that might appear implausible when judged from Canadian standards might be plausible in the refugee claimant's milieu.7 [15] The RPD did not believe the claimant's [appellant's] evidence that he simply walked out of a police station without being re-apprehended because the station was so busy with many arrested demonstrators. In its reasons for decision the panel stated that, "I find the claimant's description of an effortless escape from the police to lack plausibility."8 [16] In reviewing the audio recording of the hearing9 the appellant described quite spontaneously and in some detail, the circumstances of his being able to simply walk out of the station. He stated that the police holding cells were full and that detainees from the rally were kept sitting on the floor in offices. The appellant went on to explain that because he was dressed more formally than the detained demonstrators, although his shoes and belt had been confiscated, he thought he could walk out of the station undetected and that he was successful in doing so. I do not find this explanation implausible and I find that the RPD has failed to explain why it disbelieved the appellant's account. [17] The RPD did not dispute the account of the appellant in regard to this incident when it was described at the hearing. In this case the RPD concluded, without evidentiary basis, that it would be implausible for someone, without shoes or a belt, to walk out of a police station unnoticed by authorities. I find no basis in the evidence for this conclusion. [18] The Federal Court has stated that plausibility findings should be made where the facts are so far outside the realm of what could reasonably be expected that it could not happen as described, or where there is documentary evidence or other evidence that demonstrates that events could not have happened as described.10 In my independent assessment of this evidence, including a review of the hearing audio-tape, I do not find the description of events by the appellant at the hearing could not have reasonably occurred as he stated. The police station was full of detainees from the rally and it is reasonable to assume that police would be both highly occupied and distracted when the appellant simply walked out the door. [19] This RPD plausibility finding was important to the overall credibility assessment of the RPD because it impugns the entirety of the appellant's evidence in regard to his fears that the police and or the Zimbawe African National Union - Patriotic Front (ZANU - PF) are searching for him and would harm him if he returned to Zimbabwe. I find that the RPD has unjustifiably doubted the truthfulness of the appellant's assertions of facts that remain without inherent contradiction.11 I also find the RPD erred in not establishing a persuasive evidentiary basis, or providing an adequate explanation for making this particular plausibility finding. [20] The RPD also concluded that the appellant had not "reasonably explained"12 why he would have a Facebook page updated to his location in Canada when he was a fugitive from Zimbabwe who's security authorities could learn of his whereabouts. While in this instance the RPD did not use the word "plausibility," in my view this is another plausibility finding based on the RPD's assumption that a fugitive in one country would not engage in social media activities in another country. Again, there is simply no basis in the evidence for this implausibility finding. The RPD failed to explain why it concluded that the appellant, if he genuinely feared for his life would not engage in social media exchanges. In this case the social media exchanges were neither political nor anti-government in nature. As the appellant has noted in his Memorandum of Argument,13 he felt safe in Canada and his whereabouts did not constitute a risk from authorities in Zimbabwe. The RPD did not refer to any objective evidence about whether the authorities in Zimbabwe monitor Facebook or other social media communications outside the country, and simply appears to have made this finding on the basis of its own view of how an appellant should behave in these circumstances. This too was an unreasonable finding. Did the RPD err in its assessment of the evidence? [21] The appellant claimed that he fears persecution because he is a supporter and member of the MDC; that he had been arrested and escaped from authorities and; that he had a previous record of arrest that would have brought him to the attention of authorities. He further claims that ZANU - PF and other authorities came to his family home. [22] In his witness testimony by phone, the appellant's father was asked to verify a number of the appellant's allegations including the visit of police and ZANU - PF activists to the family home. While the witness confirmed critical evidence provided by the appellant in regard to his political activity and the assault he suffered from ZANU - PF thugs, he referred to dates in regard to vandalism by ZANU - PF on the family home and the appellant's departure from Zimbabwe that were different, by one month, than the date submitted by appellant. [23] In listening to the audio recording of this exchange14 I find that there were serious difficulties in the establishment of a clear telephonic connection with the witness. In addition in the questioning of the appellant by his counsel and in the submissions of the appellant's counsel at the hearing15 it is noted that the appellant's father is elderly and can forget details. [24] The appellant points out that the contradiction in dates was not brought to the appellant's attention at the RPD hearing. Consequently, there was no opportunity for the appellant to explain why the witness testified to events happening on a different date than the date that was provided by the appellant. The appellant argues this was a breach of procedural fairness. [25] There is a general duty for the RPD to confront a claimant with inconsistencies and give them an opportunity to respond.16 Whether or not the inconsistency must be explicitly put to the claimant depends on the facts of each case.17 The Federal Court has held that the duty of fairness does not require a panel to "alert a claimant to a potentially adverse credibility finding in every case or in matters of trivial importance."18 [26] In my independent assessment of the evidence in this case, I find this was a situation where the appellant should have been given an opportunity to respond to the inconsistency. This was not a matter of trivial importance. The RPD found that the appellant was not credible and concluded that the evidence of the witness further undermined the credibility of the appellant's evidence. As the appellant pointed out on appeal, there could be an explanation for the inconsistency but the appellant was never given an opportunity to provide it. Perhaps the witness was confused or did not think the detail of the date was important. These might or might not be sufficient explanations - but in the particular circumstances of this case, any such explanations should have been solicited, considered and weighed by the RPD. [27] Although it was not the only inconsistency found, the RPD's credibility finding with respect to this contradiction in the evidence was significant to the determination of the appellant's refugee claim. The RPD found that the appellant's father had contradicted the appellant's evidence in regard to the dates he left Zimbabwe and when his family home was attacked. It was also at this point in the RPD reasons19 that the RPD concluded that the appellant was generally lacking in credibility. [28] In these circumstances, as in Tanase,20 the duty of fairness is strong. In Ngongo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627 at paragraph 16, the court established a list of factors that should be weighed in determining whether a refugee claimant should be confronted with inconsistencies in his or her testimony before the Immigration and Refugee Board: In my view, regard should be had in each case to the fact situation, the applicable legislation and the nature of the contradictions noted. The following factors may serve as guidelines: 1. Was the contradiction found after a careful analysis of the transcript or recording of the hearing, or was it obvious? 2. Was it in answer to a direct question from the panel? 3. Was it an actual contradiction or just a slip? 4. Was the applicant represented by counsel, in which case counsel could have questioned him on any contradiction? 5. Was the applicant communicating through an interpreter? Using an interpreter makes misunderstandings due to interpretation (and thus, contradictions) more likely. 6. Is the panel's decision based on a single contradiction or on a number of contradictions or implausibilities? [29] I find the RPD breached procedural fairness by failing to confront the principal appellant with the inconsistency in the witness testimony and then making a negative credibility finding without considering the appellant's explanation. There were unquestionably some technical problems in regard to the telephone connection and the witness interview was cut short. However, it was open to the RPD to confront the appellant about discrepancies following the witness interview or to reconvene the call if further testimony were required. [30] The RPD erred in its treatment of the above noted credibility concerns, and as such the overall credibility determination cannot stand. I must also consider, however, whether this error is fatal to the determination of the appellant's refugee claim. [31] The appellant was denied procedural fairness when the RPD failed to confront the appellant with a significant inconsistency. The RPD also made two findings based on unsubstantiated plausibility findings. The resulting overall credibility finding permeates the rest of the RPD's decision. [32] The RPD made other credibility findings that, as I have noted, are not necessary for me to address given the findings above. It is clear from the RPD's reasons that the implausibility findings I have noted and the lack of evidence and analysis in regard to the witness testimony formed significant parts of the RPD's overall credibility analysis, and key components of its finding with respect to the appellant's fear of authorities in Zimbabwe. Those findings are in error and the RPD's determination must consequently be set aside. [33] In this case I am not in a position to substitute my own determination of the appellant's refugee claim. There remain credibility concerns, and the RPD did not undertake an analysis of country conditions or the level of risk to the appellant upon return. Such an analysis might be necessary if the appellant is found to be credible. CONCLUSION [34] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the RPD's determination and refers the matter to a differently constituted RPD panel. The appeal is allowed. (signed) "Richard Jackson" Richard Jackson February 7, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 As per X (Re), 2017 CanLII 33034 (CA IRB). 4 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 6 Isakova v. Canada (Citizenship and Immigration), 2008 FC 149; paras. 10-11. 7 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776; para. 7. 8 Refugee Protection Division (RPD) Decision, para. 36. 9 RPD Hearing Audio Recording at 1:07:00 and onward. 10 Xu v. Canada (Citizenship and Immigration), 2007 FC 274. 11 Lachowski v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d), 134 (F.C.T.D.). 12 RPD Decision, para. 42. 13 Appellant's Record, p. 43. 14 RPD Hearing Audio Recording at 1:35:00 and onward. 15 RPD Hearing Audio Recording at audio 1:50 and onward. 16 Mohamed v. Canada (Citizenship and Immigration), 2015 FC 1379. 17 Ongeldinov v. Canada (Citizenship and Immigration), 2012 FC 656. 18 Tanase, Florenta v. M.C.I. (F.C.T.D., no. IMM-2756-99), Muldoon, January 11, 2000. 19 RPD Decision, para 46. 20 Tanase, Florenta v. M.C.I. (F.C.T.D., no. IMM-2756-99), Muldoon, January 11, 2000. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB6-04783 RAD File No. / N° de dossier de la SAR : VB6-04783