Date: 20060511
Docket: IMM-6143-05
Citation:
2006 FC 589
Ottawa, Ontario, May 11,
2006
Present:
The Honourable Mr. Justice Blais
BETWEEN:
AFFO AYE
KOKOU KIKINA BIACHI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[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 the decision by the
Refugee Protection Division (the panel) of the Immigration and Refugee Board, dated
September 8, 2005, that Affo Aye Kokou Kikina Biachi (the applicant) was not a
Convention Refugee or a person in need of protection within the meaning of
sections 96 and 97 of the Act.
RELEVANT
FACTS
[2]
The
applicant alleges that in 1997 he became a
member of the Union of
Forces for Change (UFC). He was not an active member but he had a membership
card substantiating
his support. The applicant attended some UFC meetings and distributed
pamphlets. In 1999, the applicant became a taxi driver.
[3]
On
January 5, 2002, three men visited the applicant, proposing that he transport
people on Mono Boulevard for six consecutive days. The next day, when the
applicant reported to the site of the meeting, the people that were there
wanted to put giant posters of President Eyadema on his car and oblige him
to wear a T-shirt commemorating the president and a cap of the Rally for the
Togolese People (UFC), the party in power. The applicant categorically refused
and, when threatened, fled.
[4]
On
the night of January 6 and 7, 2002, when returning from his shift, the
applicant stopped not far from his home and sent a friend from his
neighbourhood to his house in order to see if all was well. It was then that
his friend told him that soldiers had had carried out an aggressive raid at the
family residence. After the attack, his father and brothers left for Ghana and
his mother was transported to the hospital because she had received a violent
blow to the throat from the soldiers.
[5]
The
applicant fled to Benin. From there, he took a boat to go to Italy. On
March 11, 2002, the applicant arrived in Austria. On March 13, 2002,
the applicant filed a refugee claim in Austria, which was denied. While his refugee claim
was being appealed, the applicant left Austria with a false Belgian passport on
August 30, 2003, and sought protection when he arrived at
Pierre-Elliott-Trudeau Airport.
ISSUES
[6]
1.
Did the panel err in finding that the applicant was not credible?
2. Did the
panel err in misinterpreting the documentary evidence?
3. Did the tribunal’s decision fail to
observe sections 7 and 12 of the Charter and section 3 of the United Nations’ Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)?
ANALYSIS
1. Did the panel err in
finding that the applicant was not credible?
[7]
In Anthonimuthu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 141, [2005]
F.C.J. No. 162, at paragraph 45, my colleague Mr. Justice Yves
de Montigny reiterated that an assessment of credibility is a question of fact
and that this Court cannot intervene unless that assessment is perverse or
capricious or does not take into account the evidence:
Turning first
to the credibility issue, it is trite to say that decisions of the Board which
are based on credibility findings are to be accorded a high level of deference
given that the Board has the benefit of hearing the testimony of witnesses. As
indicated in a number of decisions, credibility determinations lie within “the
heartland of the discretion of triers of fact” and cannot be overturned unless
they are perverse, capricious or based on erroneous findings of facts (Aguebor
v. Minister of Employment & Immigration, [1993] F.C.J. no 732 (F.C.A.);
Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade
v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. no
1113; Sivanathan v. Canada (Minister of Citizenship & Immigration),
[2003] F.C.J. no 662 (F.C.).
[8]
There are
many ways to make determinations in matters of credibility. In assessing the
reliability of the applicant’s testimony the Board may consider, for example,
vagueness, hesitation, inconsistencies, contradictions and demeanour (Ezi-Ashi
v. Canada (Secretary of State) [1994]
F.C.J. No. 401, at paragraph 4). In El Balazi v. Canada (Minister of
Citizenship and Immigration) 2006
FC 38, [2006] F.C.J. No. 80, at paragraph 6, Mr. Justice Yvon
Pinard states that even in some circumstances, the applicant’s conduct may be
enough to deny a refugee claim:
The respondent correctly
says that the IRB may take into account a claimant’s conduct when assessing his
or her statements and actions, and that in certain circumstances a claimant’s
conduct may be sufficient, in itself, to dismiss a refugee claim (Huerta v.
Minister of Employment and Immigration (March 17, 1993), A-448-91, Ilie
v. Minister of Citizenship and Immigration (November 22, 1994), IMM‑462-94
and Riadinskaia v. Minister of Citizenship and Immigration (January 12,
2001), IMM-4881-99).
The claimant is not
credible. The panel is incapable of reconciling the Togolese customs work
schedule and the corruption of the soldiers assigned to traffic with the
“rights” of the Togolese population that were denied by the government. The
panel notes that the claimant was saying anything and everything to justify his
ignorance.
(Panel’s
decision, September 8, 2005, tribunal record at page 6)
[10]
The applicant alleges
that he explained, in a reasonable manner, the content of the pamphlets that he
distributed on behalf of the UFC and that the panel erred in finding that he
lacked credibility on that point. Further, the applicant claims that if his
answers seem to be vague, it is rather because he had never gone to school and
the panel was using a language that he was unable to understand. The transcript, at page 323, states:
[TRANSLATION]
Q. What did these pamphlets say?
A. I cannot
give the exact dates, but I know that I did it until I left, once in awhile
putting pamphlets in the street.
- Give me some examples.
A. The last
one that I can remember before the elections is the pamphlet saying that we had
to mobilize to confiscate, to reclaim the rights taken by the governmental
authorities.
Q. What rights were those, Sir?
A. That’s what the pamphlet said, that’s because it wasn’t
me that wrote it.
Q. Yes, but Sir, did you see the pamphlet?
A. [Not translated.]
- Okay
Q. Can you tell me what rights the government had taken
away?
A. For
example, what it was about, it was that we wanted customs to be open 24 hours a
day, for the economy, and also the arbitrary arrests of soldiers in the
streets, who asked you to park and then they asked you to give them change. The fact is that they
will ask you for papers, all the papers are in order, but they will not give
you the papers back, until you give them money. The fact also is also to share
power.
[sic]
(Transcript, June 16, 2005,
tribunal record at pages 323 and 324)
[11]
In
rereading the transcript, I am of the opinion that the applicant had an
interpreter available to him and that he understood the questions asked. Based
on his conduct, the panel made unfavourable determinations on the applicant’s
credibility when he answered questions saying anything to justify his story.
These determinations are reasonable considering that they are supported by the
applicant’s conduct at the hearing. The applicant has not succeeded in
establishing that the panel’s decision was based on erroneous findings of fact
drawn in a perverse and capricious manner and without regard to the evidence
before it. The Court need not reassess the evidence, or substitute its opinion
for that of the panel. It is the panel’s responsibility to hear the evidence
and to assess the credibility of the claimant and the documents filed in
support of his claim.
[12]
The
panel determined that the applicant did not establish that he was involved in
political activities with the UFC. The panel dismissed the probative value of
the UFC membership card because of other documentary evidence. The applicant
claims that the panel should not have disregarded his credible testimony with
regard to the steps he took to get his membership card because of the other
documentary evidence.
Moreover, when asked to describe the steps he
took to obtain his UFC membership card, the claimant said that he went to their
offices and presented his identity card and photograph. His membership card was
issued the next day. From the outset, the panel noted a discrepancy between the
claimant’s national identity card (Exhibit P–10) and his UFC membership card
(Exhibit P–11). Exhibit P–10 shows that the claimant lived in “Lomé, qt Adéwui
mson Kikina Biachi” [sic], while the address indicated on his UFC
membership card (Exhibit P–11) is “Qt. Bè-Apeyemé, Lomé/Togo.”
Furthermore, the claimant was
confronted with independent and reliable documentary evidence that relates to
Article 10 of the UFC’s statutes, which reads as follows:
ARTICLE 10
Applications for membership, as from the date of
permanent establishment of the UFC shall be made in writing, dated, signed and
sent to the National Office which will make a decision after considering
whether to accept the applicant. The decision whether to accept the applicant
may be delegated to the presidents of the federations.
The claimant changed his
testimony to say that he had signed some papers. He was confronted with another
document that stated the following:
Even though the party statutes require the
president to sign each membership card, it is Emmanuel Akitani Bob, the
executive vice-president of the UFC, who is currently signing them because the
party president, Gilchrist Olympio, resides outside the country.
The claimant was also confronted
with the fact that, on his membership card, the signature of “Gilchrist
Olympio,” president of the UFC, appears in print and that it is not an original
signature. The claimant answered that the seal had already been affixed to the
card and that many people were authorized to sign the membership cards. That
answer is contradictory to the reliable documentary evidence from a legitimate
source, which the panel finds more credible than the claimant’s testimony.
(Panel’s
decision, September 8, 2005, tribunal record at pages 6 and 7)
[13]
The panel
is entitled to prefer documentary evidence to a refugee claimant’s testimony. Mr. Justice Edmond P. Blanchard, in Meyer v. Canada (Minister of
Citizenship and Immigration), 2003 F.C. 878, states at paragraph 20:
. . . The applicant
essentially argued that the Board afforded far too much importance to the
documentary evidence and failed to properly consider the applicant’s evidence.
I reject the applicant’s argument. There is nothing before me to support the
contention that the Board has failed to have regard to the evidence before it.
The applicant may not accept the Board’s findings, but it is not the role of
the Court on judicial review to re-weigh the evidence. It is also well
established that the Board, an expert tribunal, is at liberty in assessing
evidence to prefer documentary evidence over the testimony of an applicant. [Zhou
v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1087
(QL)]. Based on the evidence before the Board, I do not find its credibility
and plausibility assessments to be patently unreasonable.
[14]
In this
case, the panel was justified in preferring the documentary evidence to the
applicant’s testimony with regard to the membership card.
[15]
The
applicant argues that the panel erred in refusing to recognize that his mother
died because of the abuses committed by the military during an illegal raid of
the family home. The applicant alleges that the panel based its refusal on
acknowledgements found on the back of his mother’s death announcement. The
applicant states that if the panel had taken into account Togo’s
particularities, it would have determined that it was normal to put the names of
persons in positions of authority on the card. The panel determined:
The panel is of the opinion that it is
completely inconsistent, in the alleged context, that people so high up in the
Togolese government would appear with their wives and children at the
claimant’s mother’s funeral and receive thanks from their hosts. This
significant inconsistency, combined with the spontaneous testimony from the
claimant that he has a large family, leads the panel to conclude that the
claimant’s mother did not die under the alleged circumstances.
(Panel’s
decision, September 8, 2005, tribunal record at page 8)
[16]
It
is my opinion that the panel took Togo’s particularities into consideration.
The panel was correct to find that the acknowledgements on the card brought an element
of negative credibility to the applicant’s story based on his conduct during
the hearing. The decision was made after a complete analysis of the evidence
and in my opinion the panel did not err in finding that the applicant lacked
credibility.
2. Did the panel err in
misinterpreting the documentary evidence?
[17]
The
applicant argues that the panel erred in law in its assessment of the exhibits
filed, by dismissing them based on certain discrepancies. The respondent
contends that considering the serious credibility problem, the panel was
correct not to assign probative value to the letters and other documents filed
by the applicant.
[18]
I
agree with the respondent’s reasoning. The fact that each of the documents
filed into evidence was not mentioned does not indicate that the panel failed
to consider it, given that the panel is assumed to have weighed and considered
all of the evidence (Florea v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 598). In this case, the panel
stated that it doubted the authenticity of several documents because the
applicant’s story lacked credibility. In Singh v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 744, at
paragraph 19, Mr. Justice Blanchard is of the opinion that this
is entirely reasonable:
Since credibility is at the root of
testimony before the Refugee Division, this Court has repeatedly taken the
position of MacGuigan J.A. in Sheikh, that a general finding of a lack of
credibility on the part of the applicant may conceivably extend to all relevant
evidence emanating from his testimony.
[19]
The
applicant’s fear is based on the fact that he is a political opponent and that
the documentary evidence on the human rights situation in Togo reports massive
and systematic repression of political opponents by the government. The
applicant alleges that the panel erred in dismissing the evidence on Togo
without explanation. However, the panel reasonably determined that the applicant
was not targeted in his country because of his political activities. The applicant’s fear cannot
be based on the factors mentioned above unless he is able to connect the
objective evidence to his personal situation. In Al-Shammari v. Canada
(Minister of Citizenship and Immigration) (2002), 23 Imm. L.R. (3d) 66, at
paragraph 24, Blanchard J. states:
This Court has repeatedly held that a
claimant must establish a credible link between his claim and the objective
situation prevailing in a country in order to be granted Convention refugee
status (Canada (Secretary of State) v. Jules, (1994), 84 F.T.R. 161).
Accordingly, it will not suffice for an applicant to present evidence showing
problems encountered by some of this fellow-citizens. He must also establish a
connection between his claim and the objective situation in his country.
[20]
The
applicant did not establish the existence of a subjective fear of persecution
because he was found to lack credibility. Because the applicant’s story was
found to lack credibility, he failed to connect the objective evidence of a fear
of persecution to his personal situation. Therefore, the panel did not err in
dismissing the evidence on Togo setting out the human rights violations
committed in regard to political opponents.
3.
Did the
tribunal’s decision fail to observe sections 7 and 12 of the Charter and
section 3 of the United Nations’ Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1984)?
[21]
The applicant contends that removing him to his country
where his life is in danger would violate his rights to life and to security of
the person as well as his right not to be subjected to any cruel and unusual
treatment or punishment, guaranteed by sections 7 and 12 of the Charter and by
section 3 of the Convention.
[22]
I do not agree with the applicant. As the respondent
stated, the argument relating to a breach of sections 7 and 12 of the Charter
or of section 3 of the Convention is premature in the sense that the panel’s
negative decision does not at all amount to a threat of deportation.
[23]
The
Court has established that section 12 of the Charter cannot be raised before
the final step of the deportation. The applicant’s argument is premature since
the issue before the panel was only to determine whether or not he satisfied
the definition of a refugee (Kabengele
v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1866; Plecko v. Canada (Minister of
Citizenship and Immigration) [1996] F.C.J. No. 567.
[24]
In Jekula v. Canada (Minister of Citizenship and
Immigration) [1999] 1 F.C. 266, at paragraph 33, Mr. Justice John
Evans refers to the scope of the rights guaranteed by section 7 of the Charter:
In summary, section 7 rights are not engaged at
the eligibility determination and exclusion order stages of the process.
However, the applicant cannot be lawfully removed from Canada without an
assessment of the risks that she may face if returned to Sierra Leone. And the
manner in which that assessment is conducted must comply with the principles of
fundamental justice.
[25]
In this case,
the panel determined that the applicant was not credible and that his fear of
returning to Togo was not justified. Further, the panel made that observation
based on the principles of fundamental justice.
JUDGMENT
The application for judicial review is
dismissed and no question will be certified.
“Pierre Blais”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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