Date:
20060928
Docket:
IMM-513-06
Citation: 2006 FC 1153
[ENGLISH TRANSLATION]
Ottawa, Ontario, September 28, 2006
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GLORIA
MONGOZA NAKATELITE
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for leave regarding a
decision by the Refugee Protection Division of the Immigration and Refugee
Board (the Panel), whereby the applicant, a citizen of the Democratic Republic
of the Congo (the DRC), is not credible. Therefore, the Panel found that the
applicant was not a “refugee” pursuant to section 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) or a “person
in need of protection” under section 97 of the Act.
[2]
The applicant alleges that she was wanted by the
military as part of investigations into the assassination of Congolese
President Laurent-Désiré Kabila. More specifically, the applicant alleges that
her uncle, Mr. Razzak, has been wanted by DRC authorities since January 2001
because he was suspected of being complicit in the assassination of President
Kabila.
[3]
The applicant claims that she thus left the DRC
following the arrest of her brother in July 2003. He was also accused of
sheltering rebels and being complicit in the assassination of President Kabila
due to his family ties to Mr. Razzak.
[4]
After having assessed all the submitted
evidence, the Panel did not believe that there was a fear of persecution as
alleged by the applicant for three main reasons. First, the applicant’s
behaviour was incompatible with the alleged fear in that she went through two
countries that are signatories to the Convention, Côte d’Ivoire and Morocco,
but did not apply for refugee status. Second, Mr. Razzak is not on the
list of convicted persons, while all of President Kabila’s presumed assassins,
including those who were absent, were convicted in January 2003. In
addition, the Panel found it unlikely that the Congolese authorities would have
sent her a passport if she was wanted by them as she claimed.
[5]
It is very well established that the standard of
review for decisions affecting credibility is patent unreasonableness. “A
patently unreasonable decision has been described as ‘clearly irrational’ or ‘evidently
not in accordance with reason’”: Law Society of New Brunswick v Ryan,
2003 SCC 20, [2003] 1 S.C.R. 247, at paragraph 52. In this case, the only
issue is to determine whether the Panel’s conclusion of a lack of credibility is
patently unreasonable.
[6]
The applicant first argues that the Panel erred
by drawing a negative inference from her failure to apply for refugee status in
the Convention signatory countries and, alternatively, that she ought to have
been interrogated as to the reasons why she did not apply for refugee status in
those countries. However, it is very well recognized by this Court that,
although this factor is not a determinant, the Panel is entitled to consider,
when assessing the story’s credibility, the applicant’s failure to apply for
refugee status in the Convention signatory countries: Ilie v. Canada
(Minister of Citizenship and Immigration) (1994), FTR 220 (FC Trial
Division); Ali v. Canada (Minister of Citizenship and Immigration)
(1996), 112 FTR 9 (FC Trial Division); Skretyuk v. Canada (Minister of
Citizenship and Immigration) (1998) 47 Imm. L.R. (2d) 86 (FC Trial Division);
Foka v. Canada (Minister of Citizenship and Immigration), 2004 FC 1556,
[2004] FCJ no. 1887 (QL).
[7]
In her factum, the applicant remarks to the
Court that this is the second time that she must address the Court for a
judicial review of a negative decision regarding her application for
protection.
[8]
She
claims that the Panel repeated the same error that it had made during the first
decision, in which the Panel drew a negative inference from the fact that Mr. Razzak’s
name did not appear on the list of accused.
[9]
The respondent maintains that the list to which
this administrative tribunal referred in its reasons is not the one to which
Gauthier J. referred in her judgment. In fact, Gauthier J. found that
the Panel had made an error by drawing a negative inference from the fact that
Mr. Razzak’s name was not on the list of people who had been arrested
since the applicant’s uncle had never been arrested and was still wanted. In this
case, the Panel did not consider the list of arrested persons, but rather the
list of those who were convicted based on the documentary evidence that
highlighted the fact that all of President Kabila’s presumed assassins, even
those who were absent, were convicted “in absentia” on January 21,
2003.
[10]
In those circumstances, the Panel was able to
rightly draw a negative inference as to the credibility of the applicant’s
story from the fact that the name of her uncle, Mr. Razzak, was not on the
list of convicted persons (Adu v. Canada (Minister of Employment and
Immigration), [1995] FCJ no. 114 (C.A.)(QL)).
[11]
As for her passport, the applicant alleges that
the Panel’s conclusion is only supported by its own opinion and that there is no
evidence to support it. However, the documentary evidence (exhibit 2.7)
reported the following:
[translation]
Both parties reported that even for ordinary
passports, it would be unthinkable to appear before the governmental
authorities, without taking high risks, to ask for the passport of another
person who is wanted by the security forces.
[12]
Thus, the Panel’s conclusion that it was
unlikely that the authorities would have sent a passport to the applicant while
she claimed to be wanted was supported by the documentary evidence and therefore
cannot be described as being patently unreasonable.
[13]
The applicant also alleges that the Panel failed
to consider one of the reasons that made her fear a possible return to the DRC,
which was the escape of her brother and sister, who were also likely wanted. In
that regard, the applicant maintains that the Panel erred by making no
reference to her sister’s testimony, since that testimony was corroborating,
and the story told by her sister received a positive decision from the IRB.
[14]
In reply, the respondent argues that since the
Panel did not believe the main allegation of the applicant’s application for
refugee status, i.e. that Mr. Razzak was wanted, it did not have to
elaborate further on the other allegations, since they stemmed from the main
allegation. In fact, the applicant alleged that her sister and her brother had
been detained due to their family ties to Mr. Razzak.
[15]
I concur with the respondent. Given the Panel’s
conclusions regarding the applicant’s uncle, the Panel was not obligated to
conduct an analysis of the escape of her brother and her sister because their
story relied on their family ties to Mr. Razzak.
[16]
As
for the three letters entered into evidence by the applicant to show that she
was in hiding during the two years that followed her sister’s arrest, the Panel’s
conclusion that those letters were able to establish that in 2003, the
applicant had a well-founded fear, cannot be qualified as clearly “irrational”
or “not in accordance with reason” such that it is patently unreasonable. I recall that it is not up to the Court to reassess the elements of
evidence that were at the Panel’s disposal on the grounds that it may reach a
different conclusion.
[17]
As a result, this application for judicial
review is dismissed.
JUDGMENT
The application for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
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