Date: 20010716
Docket: IMM-3705-00
Neutral citation: 2001 FCT 797
Ottawa, Ontario, Monday the 16th day of July 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
TONY GOLOMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Tony Goloman brings this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated June 20, 2000 by which the CRDD determined that Mr. Goloman was not a Convention refugee.
[2] Before the CRDD Mr. Goloman asserted that he was a 31 year old citizen of Sudan, claiming refugee status on the basis of being a Christian from southern Sudan and on the basis that he had fled from the Sudan People's Liberation Army ("SPLA") after they forcibly conscripted him to fight against the north in the ongoing civil war.
[3] The CRDD concluded that Mr. Goloman had failed to establish his identity and nationality and that in the result there was no credible evidence before the CRDD on which to find Mr. Goloman to be a Convention refugee.
The Issue
[4] It was generally conceded on Mr. Goloman's behalf in oral argument that the determinative issue is whether the adverse credibility findings made by the CRDD were made without regard to the evidence before it.
The CRDD's Decision
[5] The CRDD's analysis was brief and in whole was as follows:
The claimant was asked several questions in an attempt to establish his identity and nationality, as he did not provide any identity documents to corroborate his claim to Sudanese citizenship. The claimant told the panel that he was born in East Equatorial province in the Sudan and that he belonged to the Itema tribe. When he was asked to describe details of his family, the claimant spoke in generalities and said that he could not recall most things in his past as his entire family had been killed by the rebels when he was 14 years old. [...] He appeared to be normal and was eloquent when he volunteered information not specifically asked for. The panel found that he resorted to generalities and was evasive when asked questions directly concerning his background.
[...]
The claimant was asked what rebel army arrested him in 1996 but was unable to name the group. His knowledge of the conflict and parties to the conflict in South Sudan indicates a very superficial level that anyone reading general information of the conflict in the Sudan is able to master. The claimant was 25 years old in 1996 and the panel finds it is reasonable to expect him to be able to recall something about his alleged captors. He was not able to describe details of his flight from the Sudan to Kenya and only said he went to Mombassa. The claimant was asked to name the ship on which he allegedly travel[l]ed from Mombassa to Italy and which port he disembarked in Italy, but was not able to do so. He stated that he could not remember the name of the ship and that he disembarked near Rome. The claimant was asked the whereabouts of the identity documents he was given by the Swiss authorities in Switzerland where he made a claim for asylum, and he responded that he left them in Switzerland because the authorities were looking for him to deport him. Documentary evidence indicates that the claimant made a claim for refugee status in Switzerland and that his claim was rejected. A copy of an identity document in Exhibit M-1 indicates that the claimant's nationality was unknown. The panel finds that the claimant's vagueness in responding to the above outlined questions is a deliberate attempt to hide the truth about his circumstances. His allegations are fabricated to embellish a claim that otherwise has no foundation.
In view of the above analysis, the panel finds that the claimant has not established, on a balance of probabilities, who he is and what his nationality is. The panel does not believe that he is a citizen of Sudan. The panel does not find his allegations of arrest and escape in South Sudan to be credible. In view of the foregoing, the panel finds that there is no credible evidence on which to find that there is a reasonable chance that the claimant will be persecuted if he were to return to Sudan. [footnotes omitted]
Standard of Review
[6] It is trite law that on an application for judicial review this Court is not to substitute its decision for that of the CRDD, particularly where the CRDD has made a finding of credibility after it has heard and seen the testimony of the claimant.
[7] A finding as to credibility may only be set aside if the Court is satisfied that it was made in a fashion that was perverse or capricious, or without regard for the material before the CRDD.
Analysis
[8] The following principles apply to the assessment of a refugee claimant's credibility by the CRDD:
· When a claimant swears that certain facts are true, it is presumed that those facts are true unless there is a valid reason upon which to doubt the truthfulness of the claimant's testimony: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.);
· The tribunal must have regard to all of the evidence, both oral and documentary, and may not rely on selected portions of the evidence: Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.);
· Where a claim is rejected on the ground that the claimant lacks credibility, the CRDD must provide reasons for its credibility finding in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[9] In Hilo, supra, at page 238, the Federal Court of Appeal considered a finding of the CRDD that:
The claimant's testimony lacked detail and was sometimes inconsistent. He was often unable to answer questions and sometimes appeared uninterested in doing so. While this may be partly due to the claimant's young age, the panel was not fully satisfied of his credibility as a witness.
[10] The Court concluded, at page 238, that:
[...] the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. [...] The Board's credibility assessment quoted, supra, is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise, particulars of his inability to answer questions should have been made available.
[11] Turning to the reasons of the CRDD in the present case, the CRDD articulated six reasons why it found that Mr. Goloman had not established his identity and nationality. The reasons were:
i) Mr. Goloman spoke in generalities when describing details of his family, and resorted to generalities and was evasive when asked questions directly concerning his background;
ii) Mr. Goloman was unable to name the rebel army group which arrested him in 1996 and he was unable to recall anything about his alleged captors;
iii) Mr. Goloman's knowledge of the conflict and parties to the conflict in South Sudan was so superficial that anyone could master it reading general information of the conflict;
iv) Mr. Goloman was not able to describe the details of his flight from Sudan to Kenya and only said he went to Mombassa;
v) Mr. Goloman could not recall the name of the ship on which he asserted that he travelled to Italy and could only say he disembarked near Rome;
vi) Mr. Goloman's Swiss identity document indicated that his nationality was unknown.
[12] Two of those reasons are incorrect on the evidence before the CRDD.
[13] First, with respect to the second finding listed above, Mr. Goloman testified that he was captured by rebel soldiers of the "People's Liberation Army from the south". As to those captors, Mr. Goloman recalled and testified that they came in about five trucks and that they took about 25 people from a class in Mr. Goloman's church to the military camp. The very old were left behind. The rebels came with guns and wore "green on green".
[14] Second, with respect to finding (iv) above, Mr. Goloman did not say only that he went to Mombassa. He testified that he hid in a truck at the army barrack he was taken to, and that after four hours of driving he revealed himself to the driver who agreed to help him get into Kenya. Mr. Goloman described how he was able to hide in the truck after helping to unload the truck and how the truck came to be at the army barracks.
[15] With respect to findings (i) and (iii) above, the CRDD failed to give reasons in clear and unmistakable terms for casting doubt on Mr. Goloman's credibility. In the words of the Court of Appeal in Hilo, supra, those reasons are defective because they are couched in vague and general terms.
[16] Not only did the CRDD fail to particularize the shortcomings it perceived in Mr. Goloman's testimony, but those shortcomings are not apparent on a review of the transcript of the hearing.
[17] The transcript shows that Mr. Goloman answered questions put to him by his counsel and by the CRDD about his family including their names, that his mother and sister perished at a market in a bombing and that his father was on the farm "and they took him, (inaudible) everything finished there". He answered the questions put to him about Sudan including questions about the tribes in Sudan, the name of the leader of the SPLA, the names of the rebel groups in the south, the names of political leaders, and how the President of Sudan came to power. The CRDD in its reasons did not dispute the accuracy of those answers.
[18] With respect to finding (vi) above which related to a Swiss identity document, the CRDD apparently referenced a Refugee identity card issued by the authorities of the Swiss Confederation. However, two such cards were in evidence before the CRDD, seemingly applying to different periods of validity in Switzerland. One card described Mr. Goloman to be a citizen of Sudan. The CRDD's reliance upon one document was selective. The CRDD failed to explain why in its view the document which described Mr. Goloman's nationality as unknown was more reliable than the document which stated that he was a citizen of Sudan.
[19] In the result, of the six reasons given by the CRDD to support its conclusion that neither identity nor nationality were established, only one, its finding that Mr. Goloman could not name the ship he travelled to Italy on, is supported by the record. This finding was not on a matter central to Mr. Goloman's claim to refugee status. Accordingly, it alone is not a sufficient basis upon which to uphold the decision of the CRDD.
[20] While it may have been open to the CRDD to conclude that Mr. Goloman is not a Convention refugee, the reasons of the CRDD do not support that conclusion. It follows that the application for judicial review will be allowed and the matter will be remitted to a differently constituted panel of the CRDD for redetermination.
[21] Counsel posed no question for certification and no question is certified.
ORDER
[22] IT IS ORDERED THAT:
The decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated June 20, 2000 is hereby set aside and the matter is to be remitted to a differently constituted panel of the CRDD for redetermination.
"Eleanor R. Dawson"
Judge