Date: 20030507
Docket: IMM-2353-02
Ottawa, Ontario, May 7, 2003
PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU
Between:
THEIRRO HAMIDOU BARRY
IBRAHIMA BARRY
Plaintiffs
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review is dismissed.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030507
Docket: IMM-2353-02
Citation: 2003 FCT 551
Between:
THEIRRO HAMIDOU BARRY
IBRAHIMA BARRY
Plaintiffs
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on May 2, 2002, that the plaintiffs were not Convention refugees. The latter are asking the Court to reverse the decision and order that the case at bar be referred back for hearing before a panel of different members.
[2] The plaintiffs, citizens of Guinea, alleged they had a well-founded fear of persecution in their country for their alleged political opinions and membership in a particular social group, as sons of merchants.
[3] The principal plaintiff Hamidou Barry is the son of a prosperous merchant, who allegedly had as his partner his brother Mamadou Ciré Barry, the father of the plaintiff Ibrahima Barry. In the course of the said business the principal plaintiff's father and his uncle were members of the merchants' association of Conakry and Mamou. As such, they participated in the financing of opposition parties, since they were against the government of Lansana Condé.
[4] The principal plaintiff said he began working in his father's business in 1999 after giving up his studies. The latter sent him to political demonstrations. It was at a demonstration of the Rassemblement du peuple guinéen ("RPG"), in October 1999, that the principal plaintiff was arrested and held for a week. He was allegedly released on condition he took no further part in political demonstrations.
[5] In April 2000 the plaintiff Ibrahima Barry allegedly came to the home of the principal plaintiff's father in Mamou to tell him that his father Mamadou and his brother Alpha had been arrested by the military on a charge of complying with the merchants association's order to refuse to open shops as a protest against the government. Ibrahima also warned the principal plaintiff's father not to go to Conakry, as the military were arbitrarily arresting merchants.
[6] On June 30, 2000, soldiers came to the principal plaintiff's home and, after searching the house and brutalizing the entire family, arrested his father on a charge of financing the opposition. The principal plaintiff said that since that day he has had no more news of his father.
[7] Fearing for their lives, the principal plaintiff's family and that of his uncle Ciré allegedly all went to seek refuge in Madina at the home of their grandmother. Despite this, on August 15, 2000, rebels looking for young boys forced their way into the house to take away the plaintiffs. Fortunately, they were able to flee through the window, but when they returned a short while later both families had disappeared: to date the plaintiffs have had no news of them.
[8] As they no longer knew what to do, and despite the risk, the plaintiffs went to their uncle's home in Conakry. As he did not want to run any risk he took steps to enable them to leave their country, Guinea.
[9] The plaintiff Ibrahima Barry alleged that since the age of 18 he had been trained in the business by his father and had pursued his studies while working in the shop. It was when his father and brother were arrested in April 2000 that he went to Mamou to tell his uncle of the arrests and warn him not to go to Conakry. The remainder of his allegations is identical to the facts related by the principal plaintiff.
[10] The plaintiffs left Guinea for Canada on September 3, 2000. They claimed refugee status three days later.
[11] The first hearing of the plaintiffs' claims before the Refugee Division took place on August 21, 2001. The delay before proceeding with the hearing was due to a request by the panel to have the plaintiffs' birth certificates checked. On May 2, 2002, the date on which the Refugee Division's decision was rendered, it had still not received the results of the check. In view of the fact that these results would not have changed the substance of the decision the Refugee Division decided, in agreement with counsel for the plaintiffs, to take the case under advisement.
[12] The Refugee Division dismissed the plaintiffs' claims on the ground that the evidence submitted was insufficient to allow it to conclude there was a reasonable possibility of persecution if they returned to Guinea. The Refugee Division found that the plaintiffs were not credible.
[13] In its decision, the Refugee Division noted that the principal plaintiff could give no details about the circumstances of the demonstration of October 1999 during which he was allegedly arrested, and following which he was allegedly held for a week in distressing conditions, nor about his arrest and detention. He simply repeated word for word his account in his Personal Information Form ("PIF"). His replies were also confused and hesitant. The panel concluded that the principal plaintiff's inability to provide details about the events related in support of his claim undermined his credibility.
[14] The Refugee Division further noted that the plaintiffs stated that they feared the military, but could not explain why when they were asked to do so, then added that it was their uncle who had told them that. Further, although they said they feared the rebels the principal plaintiff could not explain who the rebels were, but simply indicated that the rebels were looking for young boys. The Refugee Division concluded that the allegation of fearing the rebels made by the plaintiffs was not supported by the documentary evidence and so dismissed this part of their testimony.
[15] The Refugee Division further noted that the plaintiffs did not know whether the leader of the opposition, Alpha Condé, had been released. They found this unlikely since if the principal plaintiff alleged he had participated in a demonstration to denounce the arbitrary detention of Mr. Condé, during which he was arrested and detained, he should at least have known that the latter was released.
[16] Finally, the Refugee Division noted a contradiction between the point of entry statement by the plaintiffs that they were students and the account given in their PIF. The latter indicated that the principal plaintiff had given up his studies in 1999 to work in his father's business and the plaintiff Ibrahima was studying part-time. When this contradiction was put to him at the hearing the principal plaintiff answered that though he was working with his father, he had not given up his studies. However, he could not explain why he simply said he was a student in his point of entry statement. Ibrahima repeated the account he gave in his PIF, without adding further details. The panel concluded that this contradiction undermined the plaintiffs' credibility.
[17] The plaintiffs alleged a breach of natural justice from the fact that, due to a technical fault, there was no transcript of the hearing before the Refugee Division. They submitted that the failure to record the hearing deprived them of their grounds of review in this Court to corroborate their version of the facts.
[18] The defendant submitted that there was no breach of natural justice, since the record before the Court enabled it to rule appropriately on the application for judicial review. Further, he alleged that the Refugee Division's findings of fact were not patently unreasonable and did not warrant intervention by this Court.
[19] In Zeeshan Ahmed v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 312, at paras. 4-5 (F.C.T.D.), Dawson J. summed up as follows the test to be applied when the transcript of a hearing is not available:
The jurisprudence is to the effect that, in the absence of any statutory provision requiring recording, the court must determine whether the record before it allows it to properly dispose of the application for judicial review. If the record does allow the court to properly dispose of the application, the absence of the transcript will not violate the rules of natural justice. (See Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville) [1997] 1 S.C.R. 793; 210 N.R. 101.)
In the present case, there is no statutory right to a recording. Therefore, the issue to be determined is whether the record before the court allows it to properly dispose of the application for judicial review. If there is a serious possibility that the absence of a transcript will deny the applicant a proper review, a new hearing must be ordered.
[20] The Refugee Division concluded in the case at bar that the plaintiffs' testimony was riddled with improbabilities, inconsistencies and contradictions. Accordingly, its decision was based simply on the plaintiffs' lack of credibility. The instant application for judicial review therefore involves a two-step procedure. First, the Court must decide whether it is necessary to know the words used at the hearing in order to properly dispose of the application at bar. If not, it must determine whether the conclusions drawn by the panel on credibility and probability were patently unreasonable.
[21] Although counsel agreed as to the legal rule on the absence of a transcript, they differed as to how this rule should be applied to the circumstances of the case at bar. To determine whether the absence of a transcript makes it unlikely that the plaintiffs will get a proper judicial review, I must consider the findings of fact made by the panel and the questions raised by the plaintiffs.
[22] In view of the absence of a transcript, the latter chose to complete the panel's record by an affidavit in which they stated in general terms what they had said at the hearing about the questions of credibility and probability considered by the Refugee Division in its reasons. Their affidavit was neither contradicted nor corroborated: the plaintiffs were not cross-examined and no one else submitted an affidavit. I set out in full the objections raised by the plaintiffs in their affidavit to the findings of fact made by the Refugee Division:
[TRANSLATION]
13. I first began to answer the RCO's questions, which concerned the reason for my stay in prison, the stay itself, and whether I could live elsewhere than Madina Woula, Mamou or Conakry;
. . .
15. My cousin was then questioned about his knowledge of the country, what happened at Madina Woula, his fear of return and the last contact with our relations;
. . .
29. Contrary to what the decision wrongly stated, there was no contradiction, hesitation, improbability or inability to provide details in our testimony to the IRB;
30. Moreover, no contradiction, hesitation, improbability or inability to provide details was noted at the hearing by any of those present or in the RCO's comments;
31. The only point noted was that the officer mistakenly understood that I had testified I could live elsewhere in my country, which I did not do, and this was corrected at the hearing;
. . .
33. My cousin and I answered all questions put at the hearing in detail and I explained the circumstances of the October 1999 demonstration in which I was arrested and the conditions of the detention.
[23] The Refugee Division concluded that the principal plaintiff's inability to provide details on certain events related in support of his claim undermined his credibility. In the absence of part of the transcript, I am unable to make the necessary checks to determine whether, as alleged by the Refugee Division, the principal plaintiff was unable to describe how the October 1999 demonstration took place as well as his arrest and detention. However, his affidavit could have been much more explicit about what his testimony at the hearing contained on these points, since the events of October 1999 were key aspects of his claim. The following comments by Pratte J.A. of the Federal Court of Appeal in Kandiah v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 232, at paras. 5 and 9 (F.C.A.) are very relevant in the case at bar:
[5] Before answering that question, four observations are in order:
. . .
3. An appellant cannot succeed unless he shows that the decision under appeal is wrong; the record before a court of appeal must therefore be sufficient to enable the court to form the opinion that the judge below was wrong, otherwise, the appeal must dismissed . . .
. . .
[9] I am ready to assume, for sake of discussion, that the principles of fundamental justice require that the decisions of the Refugee Division be subject to judicial review. However, a meaningful right of review may exist without a transcript or a recording of the proceedings. In the absence of a transcript, the appellant may establish by other means what transpired at the hearing. This is especially true of the hearings before the Refugee Division where the applicant is always present and, in most cases, is the only witness heard. [My emphasis.]
[24] Accordingly, I feel that the principal plaintiff's affidavit does not contain enough information to raise a serious possibility of negation of a ground of review.
[25] The Refugee Division based its unfavourable conclusion about the plaintiffs' credibility on several grounds. It found that their allegation of fear of the rebels was not supported by the documentary evidence. The latter established that the Ulimo-M of Alhadji Kramah rebels recruited young persons from the Malinke tribe, whereas the plaintiffs are from the Peulh tribe. It also found it unlikely that the plaintiffs did not know of the release of Alpha Condé, which they admitted in para. 39 of their affidavit, although they had such an interest in him that they participated in a demonstration to denounce his arbitrary detention. Finally, the Refugee Division found a contradiction between the plaintiffs' point of entry statement that they were students and the account given in their PIF.
[26] I feel that the hearing transcript is of no use in revealing the inconsistencies, improbabilities and contradictions mentioned above. These can be identified simply from reading the documentary evidence in the record. There is therefore no basis for referring this case back for rehearing, since I feel that the record before the Court enables it to dispose appropriately of the application for judicial review.
[27] In their affidavit, the plaintiffs only challenged two of the findings of fact made by the Refugee Division in support of its negative decision on their credibility. First, they submitted that the rebel groups, whose identity they said they did not know in para. 36 of their affidavit, forcibly recruited all the young men in their tribe, and did this in several tribes, not only the Malinke tribe. Second, the principal plaintiff argued there was no contradiction between the point of entry documents and his PIF. He submitted that the latter asks applicants to indicate studies completed, whereas the point of entry form asks, without further details, for schools attended and occupation in the country of origin. He added that since he had no occupation he explained to the Refugee Division that he considered himself a student, and this is what he said at the point of entry, as otherwise he was helping his father in his business.
[28] Before beginning my analysis, I must make a comment here. The principal plaintiff's allegation in his affidavit that he described in detail and without hesitation the circumstances of the October 1999 demonstration and his subsequent arrest and detention amounts to questioning the honesty and integrity of the panel. This is a serious allegation, which cannot be made lightly. It cannot be based simply on a statement that [TRANSLATION] "contrary to what the decision wrongly stated, there was no contradiction, hesitation, improbability or inability to provide details in our testimony to the IRB", without specific evidence to indicate actions contrary to the usual standard.
[29] In the case at bar, it would have been necessary to use evidence extrinsic to the record, since there was no transcript of the hearing. As mentioned, it would not have been difficult for the principal plaintiff to indicate much more clearly in his affidavit what his testimony at the hearing contained about the circumstances surrounding the October 1999 demonstration, and in particular to indicate where in his view the panel was mistaken in the assessment of his testimony. In the absence of such evidence, I have to assume that what the Refugee Division indicated in its reasons reflects what actually happened at the hearing. In these circumstances, I consider that the panel could take into account, as a basis for challenging his credibility, the way in which the principal plaintiff testified at the hearing and the lack of details he provided regarding the October 1999 demonstration and his subsequent arrest and detention.
[30] Further, the plaintiffs' argument that there was no contradiction between their point of entry statements and their PIF cannot be accepted. The principal plaintiff indicated in reply to question 37 of his PIF that he had given up his studies in July 1999 to work in a family business, although he indicated "Student" at the point of entry under the heading [TRANSLATION] "Occupation and address of workplace in country of origin" (panel's record, at pp. 22 and 46). The plaintiff Ibrahima Barry indicated, in reply to question 37 on his PIF, that at the same time as he was studying he was working in the same family business, although he indicated "Student" at the point of entry under the heading [TRANSLATION] "Occupation and address of workplace in country of origin" (panel's record, pp. 35 and 62). In my view, the Refugee Division could draw a negative conclusion as to credibility from the obvious contradiction between the statements made by the plaintiffs at the point of entry and the account given in their PIF.
[31] Though I have certain reservations about the other two findings of fact made by the Refugee Division in its decision, I feel that when taken together the aforesaid contradictions, improbabilities and inconsistencies suffice to support its conclusion that the plaintiffs lacked credibility. The plaintiffs did not establish to my satisfaction that the panel's findings on these points were patently unreasonable.
[32] Consequently, this application for judicial review is dismissed.
OTTAWA, Ontario
May 7, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-2353-02
STYLE OF CAUSE: THIERRO HAMIDOU BARRY ET AL. v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: April 30, 2003
DATE OF REASONS: May 6, 2003
APPEARANCES:
Johanne Doyon FOR THE PLAINTIFF
Patricia Deslauriers FOR THE DEFENDANT
SOLICITORS OF RECORD:
Doyon & Montbriand FOR THE PLAINTIFF
Limited partnership
6337 rue St-Denis
Montréal, Quebec
H2S 2R8
Federal Department of Justice FOR THE DEFENDANT
Complexe Guy-Favreau
200 ouest, Boul. René-Lévesque
Tour Est, 5e étage
Montréal, Québec
H2Z 1X4
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