Montréal, Quebec, November 17, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 30, 2004, in which Chitanhu Tawanda Eustace (the applicant) was determined not to be a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a 21-year-old citizen of Zimbabwe. Towards the end of April, 2004, the applicant was stopped by the Zimbabwe African National Union Patriotic Front (ZANU-PF) militia for lying about the completion of his military service.
[3] The ZANU-PF took the applicant to a military camp where he suffered starvation, beatings and torture for a period of eight days. He managed to escape with some other detainees. He went back to his home and then moved to his grandmother's house. The ZANU-PF militia found him and beat him, as well as his grandmother. Their neighbours rescued them from the militia; however, the applicant's grandmother died a month later.
[4] Subsequent to these events, the applicant's father made arrangements for his son to leave the country. The claimant obtained a false passport from Botswana and traveled with it to Canada where he landed on August 14, 2004, having left Zimbabwe four days before. The applicant claimed refugee status at the airport upon arrival in Canada.
ISSUE
1. Did the Board err in its finding that the applicant was not credible?
ANALYSIS
[5] It is well established that findings of credibility and plausibility lie particularly within the Board's jurisdiction and, therefore, the Court's intervention is merited only when such findings are completely unreasonable. (Aguebor v. Minister of Employment and Immigration) (1993), 160 N.R. 315 at paragraph 4 (F.C.A.)). The standard of review applicable to the Board's findings of fact and assessment of credibility is patent unreasonableness.
[6] One of the common tools the Board uses for testing credibility is comparing the applicant's evidence at three different times during the refugee claim process: the Port of Entry (POE) notes; the Personal Information Form (PIF) statement; and, theoral evidence at the hearing. (Rrukaj v. Canada(Minister of Citizenship and Immigration), 2004 FC 605, [2004] F.C.J. No. 745, at paragraph 10).
[7] In the present matter, the tribunal drew its most important negative inference and credibility finding from the applicant's POE notes. According to the PIF and the testimony, the applicant was detained and tortured because he refused to perform his military service. There is no trace of this in the POE notes, and this constitutes a major omission. The applicant submits that the Board should not have drawn an adverse inference from the POE notes because he provided a reasonable explanation for the inconsistencies arising from the notes. The applicant explained that the omission was due to his state of mind at the time and the fact that he was not asked any question by the immigration officers at the airport about his problems in Zimbabwe.
[8] The applicant refers to the recent decisions of Samarakkodije v. Canada (Minister of Citizenship and Immigration) 2005 FC 301, [2005] F.C.J. No. 371 and Sawyer v. Canada (Minister of Citizenship and Immigration) 2004 FC 935, [2004] F.C.J. No. 1140, whereby this Court had to decide whether the Board had erred in impugning a claimant's credibility on the basis of omissions from the POE notes.
[9] The applicant submits that the information provided in the above decisions demonstrates the reality of how eligibility interviews by immigration officers are conducted and that it is plausible that an immigration officer would not ask a refugee claimant any questions about the actual claim. From the applicant's standpoint the fact that the immigration officer did not ask questions about his claim of detention and persecution is a valid explanation as to why such events were not mentioned in the POE notes. As a result, the applicant submits that a negative credibility finding should not be deduced from the omission of the alleged torture and detention in the POE notes.
[10] In its reasons, the Board considered the explanation provided by the applicant but determined that the POE notes were nonetheless reliable. In my view, the Board did not commit a reviewable error in coming to this conclusion. It is well established that a Board may draw a negative inference from inconsistencies between statements recorded in the POE notes and the content of subsequent testimony. In Parnian v. Canada(Minister of Citizenship and Immigration) (1995), 96 F.T.R. 142, Justice Wetston held at paragraph 10:
Since I have found that the port of entry notes were properly before the Board, and considering that the main credibility findings were based upon inconsistencies between those port of entry notes and the applicant's PIF, as well as his oral testimony, I am of the opinion that there is no basis upon which the Court can interfere with the credibility findings of the Board.
[11] This sentiment was echoed in Chen c. Canada(Ministre de la Citoyenneté et de l'Immigration, 2005 CF 767, [2005] A.C.F. no 959 by Justice Blanchard's statement at paragraph 23 :
La jurisprudence indique que des divergences entre la déclaration au point d'entrée et le témoignage d'un demandeur sont suffisantes pour justifier une conclusion de non-crédibilité lorsqu'elles portent sur des éléments centraux d'une demande : Nsombo c. Canada (M.C.I.), [2004] A.C.F. no 648, IMM-5147-03; Shahota c. Canada (M.C.I.), [2004] A.C.F. no 1540; Neame c. Canada (M.C.I.), [2000] A.C.F. no 378.
[12] In Sava v. Canada(Minister of Citizenship and Immigration) 2005 FC 356, [2005] F.C.J. No. 445, Justice von Finckenstein outlines the Court's position regarding omissions at POE interviews as they relate to issues of persecution. Such reasoning, as outlined below, could easily apply to the situation in the present matter.
Second, while it is true that in Sawyer, supra, the application was partially allowed because the Board interpreted a failure to show a photo at the POE interview against the applicant, it does not stand for the proposition that omissions at a POE interview cannot be held against the applicant. In a case such as this where the Applicant says he is apolitical and makes no claim of persecution at the POE interview and then makes elaborate claims in his PIF and during the interview in respect of persecution, the Board is certainly entitled to draw negative inferences from that omission.
[13] Such reasoning was confirmed by Justice Blanchard in Chen c. Canada(Ministre de la Citoyenneté et de l'Immigration (supra) at paragraph 26, as it relates to omissions of essential issues:
Je ne peux non plus accepter la prétention du demandeur selon laquelle il n'a pas mentionné spécifiquement le Falun Gong aux agents d'immigration parce qu'ils n'y ont pas fait allusion ou référence. Les transcriptions de l'audience devant la Commission démontrent clairement que le demandeur avait compris que l'agent lui demandait s'il avait une association avec de groupes quelconques. Il a omis d'indiquer le Falun Gong. Il est donc raisonnable que la Commission ait tiré une inférence négative du témoignage du demandeur sur une question essentielle à sa demande d'asile.
[14] The applicant claims that the Board erred in determining that the applicant was not telling the truth at the hearing due to the unclear manner in which he answered questions. I cannot agree with the applicant's assertion with regard to this issue. It is well established that the Board may base its credibility finding on the applicant's behaviour at the hearing and his ability to answer questions in a clear and coherent manner. (Tong v. Canada (Secretary of State) [1994] F.C.J. No. 479, at paragraph 3).
[15] The applicant claims that it was unreasonable for the Board to doubt his detention and escape from the National Youth Service Camp. Specifically, the applicant suggests that the Board erred in not making reference to any of the documents submitted which support the repressive conditions at the training camp. Concerning the later point, I agree with the submission of the respondent who states that the conditions at the training camp are irrelevant considering that the Board disbelieved that the applicant had been detained and tortured by the ZANU-PF in the first place. The applicant has not established a correlation between the particular facts of his case and the documentary evidence outlining the conditions of the camp. Further, I find that the applicant has failed to illustrate that the Board's decision of disbelief towards the detention and torture was patently unreasonable.
[16] The applicant submits that the Board erred in drawing a negative inference from his earlier applications for a Canadian visa. Even if the Board was unjustified in taking the past visa applications into consideration, such an action is inconsequential given most of the Board's other negative findings of credibility and plausibility. The visa applications were not a determining factor in the Board's ruling, as there were other more compelling indicia which cast doubt on the applicant's credibility.
[17] The applicant claims that the Board committed factual errors regarding his assertion of a lack of knowledge concerning his brother's claim for refugee status in Canada. Upon reading the transcript of the hearing, it is clear that the Board was making reference in its decision to the applicant testifying to not knowing what his brother had done or experienced in Zimbabwe to warrant a claim for refugee status in Canada. The Board found it strange that when applying for a visitor's visa back in 2001, the applicant would not have knowledge of the motivation behind his brother's refugee claim which had commenced in 2000. I find that the Board did not commit any factual errors regarding this issue.
[18] The Board found it suspect that the applicant did not seek out medical treatment for the torture he allegedly suffered. The applicant, however, submits that the Board erred in failing to consider his explanation regarding this issue. As stated in Sinan v. Canada(Minister of Citizenship and Immigration), 2004 FC 87, [2004] F.C.J. No. 188 at paragraph 11:
When the standard of review is, as here, one of patent unreasonableness, it is not sufficient to present an alternative line of reasoning - even where that may present a reasonable explanation. What the Applicants must do is to point to a conclusion of the Board that is not supportable in any way on the evidence.
[19] Upon reading the transcript and the vivid description of the alleged torture and punishment suffered by the applicant, I do not find the Board's findings unreasonable. Further, the applicant has failed to persuade me that the Board's conclusion regarding the failure to seek medical attention is not supportable based on the evidence provided.
[20] It is apparent from a review of the record, including the transcript of the hearing itself, that there were numerous inconsistencies in the evidence of the applicant. Although the applicant has attempted to explain these inconsistencies, the overwhelming effect of the totality of the testimony is that it is not credible.
ORDER
THIS COURT ORDERS that:
The application for judicial review be dismissed.
No question for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2660-05
STYLE OF CAUSE:
CHITANHU TAWANDA EUSTACE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: October 27, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
APPEARANCES:
| Styliani Markaki
|
|
| Marie-Claude Paquette
|
SOLICITORS OF RECORD:
| Styliani Markaki Montréal, Quebec
|
|
| John H. Sims, Q.C. Attorney General of Canada Montréal, Quebec |