Mbarde v. Canada (Minister of Citizneship and Immigration), 2003 FCT 609

Date: 20030515

Docket: IMM-5418-01

Neutral citation: 2003 FCT 609

Ottawa, Ontario, this 15th day of May, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

MBAKA DOH MBARDE

                                                                                                                                                       Applicant

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated October 3, 2001 (rendered in Chambers) and October 18, 2001 (written reasons), wherein it was determined that the applicant was not a Convention refugee.

[2]                 The applicant seeks an order setting aside the decision of the Board.

Background

[3]                 The applicant claims to be a citizen of Chad, from the Ngambaye tribe.

[4]                 The applicant claims that her family was targeted by the authorities because of their relationship with her brother, Laoukayn Mbarde. Because of this relationship, she claims that on July 20, 1996, her husband was killed by presidential guard soldiers and her daughter, Ngoro Rando, was savagely attacked. She claims she took her daughter to the hospital, made arrangements to have her husband buried and the same night went into hiding. She claims she then went to a small village outside of their home town of Bebedga and remained there.

[5]                 Eventually, the applicant claims she received news that her daughter, Ngoro Rando had made her way to Canada. The applicant claims arrangements were made for her other two daughters, Remadji and Adeline, to join Ngoro in Canada. Her son, Meyene refused to leave Chad and his whereabouts are unknown. The applicant claims she stayed behind because there was not enough money for all of them to travel so she waited until arrangements could be made for her to leave.

[6]                 Ngoro Rando's claim was filed in November 1996. Ngoro's narrative states that her problems relate to her relationship with her father and her uncle, Laoukayn Mbarde. She claims that she is a member of the Ngambaye tribe and that her uncle was leading a rebel federalist group against the Deby government. On July 7, 1996, she claims that presidential guard soldiers were looking for weapons as they suspected that her father was supplying arms to her uncle. One week later the soldiers returned and made accusations. On July 20, 1996, Ngoro alleges that soldiers returned again, killed her father and assaulted her. She claims in her narrative that she left the hospital about six days later and was told by a neighbour that her family had left. She then made her way to Cameroon and then to Canada, where she was found to be a Convention refugee.

[7]                 On December 31, 1998, the Personal Information Forms (PIFs) of Remadji and Adeline were filed with the Board. On August 10, 1999, their joint hearing was held with Ngoro as their designated representative. The narrative of Ngoro was used in evidence in their claims. By reasons dated September 15, 1999, Remadji and Adeline were determined to be refugees.

[8]                 On September 24, 2000, the applicant arrived at the Canadian border with a birth certificate. She made a refugee claim stating that she feared her life would be in danger should she be forced to return to Chad.

[9]                 On October 3, 2001, the Board held a hearing. The same day a decision was rendered determining that the applicant was not a Convention refugee. On October 18, 2001, written reasons were provided by the Board.

Reasons of the Convention Refugee Determination Division of the Immigration and Refugee Board

[10]            At the outset of the hearing, the issues identified were credibility, identity, well-founded fear of persecution, change of circumstances and compelling reasons. Ngoro was the designated representative for the applicant.

[11]            This was a de novo hearing as part way through a previous hearing there was a complaint by the applicant that she did not fully understand the Chadian Arabic interpreter. At the de novo hearing, the Board could not find an interpreter in her tribal language, Ngambaye, so Ngoro translated between Ngambaye and Chadian Arabic. The Chadian Arabic was then translated into English by an interpreter. The Board considered the difficulties in interpretation in making its determination that it did not have credible or trustworthy evidence to find that the applicant was who she claimed to be or that she had a well-founded fear of persecution.

[12]            The Board did not find that it had before it credible or trustworthy evidence to find that the applicant was who she claimed to be, namely the mother of Ngoro, Remadji and Adeline, and the sister of Laoukayn. Even if the Board was satisfied as to the applicant's identity, it would not find that the applicant had a well-founded fear of persecution for a Convention ground in Chad, either at the time she allegedly left Chad in September 1998, or at the present time. It also did not find that compelling reasons were applicable.

[13]            The Board did not accept as reasonable or credible that a mistake was made indicating that the mother was born in 1953, as noted on all three of the daughters' PIFs, when it should have been 1939. Similarly, the daughters' PIFs placed their mother in Sarh, Chad, at the time they were prepared, in 1996 and 1998. The applicant's PIF stated she was in Chad until September 2000. However, the applicant testified that she was in Bebedga until 1998, when she went to Boigoro, and then to Cameroon where she stayed for two years. The explanation given was that there was a mistake in the original PIF. The applicant later provided evidence she was not in Bebedga until 1998, but left there shortly after her husband's death. The Board found it did not have before it credible or trustworthy evidence as to who the applicant was or when she left Chad.

[14]            The Board also considered the applicant's birth certificate, issued in 1972, stating that she was born in 1939. According to the Board, from the applicant's own evidence, she should have been married at this time. The Board stated that the applicant indicated she got the birth certificate because her husband retired, however Ngoro's PIF stated that the husband would have retired in 1991.    The applicant also testified she obtained the birth certificate when she moved to Boigoro, which would have been in 1996 or 1998. The Board found this not to be a trustworthy document as to the applicant's identity.

[15]            At the hearing, when the applicant was asked to name her brothers, as none were listed in her PIF, she did not name a brother by the name of Laoukayn Mbarde. When confronted with this information, the applicant said that the proper name of her brother named Pierre was Laoukayn. When shown documentary evidence stating that Laoukayn has a brother named Guinambaye, the applicant testified this was not her brother, but a cousin. The Board preferred the documentary evidence over the applicant's evidence.

[16]            The Board also found there was a conflict as to when Remadji and Adeline left Bebedga. The evidence at the hearing indicated it was in 1996, but the daughters' PIFs indicated it was 1998.

[17]            The Board found the applicant did not have a well-founded fear of persecution for a Convention ground at the time she left Chad. Her PIF was amended to state that she left Chad in September 1998. By May 1998, a peace accord had been signed with FARF, also known as the Armed Forces of the Federal Republic, the group that the Board stated the applicant's alleged brother, Laoukayn, was the leader of. FARF also became a legally recognized political party. The Board found that at the time the applicant left Chad, she did not face a serious possibility of persecution because of her relationship with her brother. Even if the applicant did have a well-founded fear of persecution for a Convention ground, the Board found there were not compelling reasons arising out of any previous persecution for the applicant's refusal to avail herself of the protection of Chad.

[18]            This is the judicial review of the decision of the Board finding the applicant not to be a Convention refugee.

Applicant's Submissions

[19]            The applicant submits that her children were accepted as Convention refugees by two panels based on the same occurrences which the applicant described in her narrative. Since the Board accepted Ngoro, as her designated representative, it is submitted that the Board had to have accepted the family filiation.

[20]            Regarding her age, the applicant submits it is a well known factor for panels specializing in African matters that the dates of birth for elderly Africans is not an exact science as careful records of birth were not kept when she was young and her culture does not attach age as an important factor. Of concern to the applicant, is that the Board did not tell her during her hearing that they had concerns about her filiation and family link with her children. It is submitted that the Board had an obligation to explicitly confront the applicant and tell her that they did not believe her to be the mother of the designated representative and her siblings. If this had been done, she would have been able to call herself and her other children as witnesses. Ultimately, even blood tests could have been effected by the applicant to establish her family link.

[21]            The applicant also has concerns that she was not able to converse with the Board in an appropriate manner as she needed a Ngambaye interpreter to translate directly into English or French. Instead, the Board allowed Ngoro to interpret from Ngambaye to Chadian Arabic, which was then translated into English. It is submitted that this form of interpretation is quite unusual as it stops the Board from being able to audit the interpretation. The applicant fears this confused the Board.

[22]            The applicant submits that by ignoring its own ruling allowing Ngoro to be the designated representative, the Board ignored and misconstrued cogent evidence before it.

[23]            The applicant submits that the Board never contradicted the main assertions of the applicant's claim, nor did it state that the occurrences and events which led the applicant's family to come to Canada were erroneous.

[24]            Because the Board did not put it to the applicant that her filiation to Ngoro was erroneous and, as such, the applicant was not able to present any additional evidence to alleviate these concerns of the tribunal, it is submitted that the Board failed to consider all the evidence before it and there was a breach of natural justice and procedural fairness.

Respondent's Submissions

[25]            The respondent submits that the applicant's rights to natural justice were not breached. It is submitted that the applicant cannot now raise the issue that she had difficulty communicating with the Board as no objection was taken as to the quality of the interpretation at the time of the hearing. Further, it is submitted that there is no evidence that the applicant was unable to participate in her hearing through her designated representative or that the interpretation arrangements were not adequate.

[26]            The respondent submits that the fact the applicant could not produce credible evidence to establish her identity as a citizen of Chad who has a well-founded fear of persecution does not mean that natural justice was breached in this case.

[27]            The respondent submits that the standard of review in this particular case is whether the Board acted in a patently unreasonable manner.

[28]            The respondent submits that the Board did not commit a reviewable error in finding the applicant not credible. It is submitted that the Board's analysis is not so unreasonable as to warrant the Court's intervention. The respondent submits that it was open to the Board to find that the applicant had not presented credible evidence of her identity or when she had last been in Chad based on the inconsistencies in her evidence. The respondent submits that it was open to the Board to find that the applicant's omission of her brother's name from her PIF was significant and inadequately explained. The respondent also submits that the Board is entitled to prefer the documentary evidence over the applicant's testimony with respect to Laoukayn's siblings as it clearly explained its reasons for doing so and its conclusion was reasonable in the context of the evidence as a whole. It is submitted that deference should be shown to the Board in regard to the overall credibility of testimony.

[29]            The respondent submits that a designated representative need not be related to a claimant in a refugee hearing and that the Board was entitled to find that the designated representative was the applicant's daughter without finding that the applicant's identity as a person who had a well-founded fear of persecution had been established. It is further submitted that the appointment of Ngoro as designated representative is not inconsistent with the Board's finding that the applicant had not established her identity as a citizen of Chad with a well-founded fear of persecution for a Convention reason.

[30]            The respondent submits that the Board was not bound by the credibility findings made by the panel that found the applicant's daughters to be Convention refugees. It is submitted that it was open to the Board to find that the applicant did not meet her onus of establishing her identity as a citizen of Chad and the sister of Laoukayn Mbarde. It is submitted that the Board did not misconstrue, misapprehend or ignore the evidence before it, but rather made findings of fact open to it on the evidence.

[31]            The respondent submits that the Board did not err by not putting its credibility concerns to the applicant. However, it is submitted that the Board did put contradictions and inconsistencies to the applicant, and that her inconsistent explanations confirmed the Board's adverse credibility findings. Even if the Board's finding concerning the applicant's birth date is not helpful to the determination of the claim, it is submitted that this finding was not determinative of the decision as the Board found many reasons why the applicant was not credible.

[32]            It is submitted that the applicant failed to demonstrate that the conclusion of the Board that she had not established her identity as a member of a particular social group was not open to it and, as such, the Court should not intervene. Alternatively, even if the Board had accepted the applicant's identity, it is submitted that it was open to the Board to find that she did not have a well-founded fear of persecution. It is submitted that it was open to the Board to conclude that there was no issue with respect to compelling reasons as the applicant had not established that a change of circumstances had occurred since she left Chad.

[33]            Lastly, the respondent submits that even if it is found that there was a breach of natural justice or that the Board erred in its findings with respect to the applicant's identity or credibility, such a breach would be immaterial as there is clear evidence the applicant is not a Convention refugee given country conditions. As such, the respondent submits it would be pointless to return the case for redetermination.

Issues

[34]            1.          Did the Board err by basing its decision on an erroneous finding of fact, namely that the applicant lacked credibility, that it made in a perverse or capricious manner or without regard to the material before it?

2.          Did the Board err by not putting its credibility concerns to the applicant?

3.          Was the applicant denied a fair hearing because of inadequate interpretation?

Relevant Statutory Provision

[35]            The relevant subsection of the Immigration Act, R.S.C. 1985, c. I-2, reads as follows:

[36]            The relevant subsection of the Convention Refugee Determination Division Rules, SOR/93-45, reads as follows:

Analysis and Decision

[37]            Issue 1

Did the Board err by basing its decision on an erroneous finding of fact, namely that the applicant lacked credibility, that it made in a perverse or capricious manner or without regard to the material before it?

Credibility

The jurisprudence with respect to credibility was outlined by the Court of Appeal in Aguebor v. Canada (Minister of Employment and Immigration),[1993] F.C.J. No. 732 (QL) (C.A.) at paragraph 4:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

Based on the evidence before it, the Board stated at page 3 of its reasons:

The panel finds that it does not have credible or trustworthy evidence to find that the [applicant] is who she claims to be, has a well-founded fear of persecution in Chad, nor that at the time she left Chad did have a well-founded fear of persecution for a Convention ground, nor that compelling reasons are applicable.

The Board then went on to make specific credibility findings.

[38]            Designated Representative

The applicant submits that because the Board accepted Ngoro as her designated representative, then the Board had to have accepted the family filiation.

[39]            Subsection 69.(4) of the Immigration Act, supra states:

[40]            As noted by the respondent, there is no requirement in this provision, that the designated representative be related to the claimant in a refugee hearing. As such, I am of the view that just because the Board accepted Ngoro as the designated representative, does not mean that the Board accepted the family filiation.

[41]            Birth Date

The three daughters' PIFs indicate that their mother, Mbaka Mbarde was born in 1953. The applicant stated in her PIF that her date of birth was January 1, 1939. She also had a birth certificate alleging that she was born in 1939. The Board, however, found this not to be a trustworthy document. The birth certificate appears to have been issued in 1972 (see tribunal record pages 54 to 55). The Board noted that the marriage certificate is not completed on the back of the document, despite the applicant's own evidence indicating that she would have likely been married at this time. The Board's finding is one of the findings it could have made.

[42]            Location of Applicant

The PIF of Ngoro places the mother in Sarh, Chad when her PIF was signed in 1996. The PIFs of Remadji and Adeline were prepared in 1998 and originally indicated that their mother was in Sarh, Chad. The applicant's PIF initially said she was in Chad until September 2000. At the beginning of the hearing, the applicant testified that she was in Bebega until 1998, when she moved to Boigoro, and then to Cameroon in the same year (see transcript pages 8 to 10). Later during the hearing, the applicant stated that after her husband was killed, they moved to Boigoro (see transcript page 32).

[43]            The transcript of the hearing at page 36 states:

PRESIDING MEMBER:        . . . I have a question for Ngoro. Why, in you PIF and in your sister's PIF, and you are their designated representative, did you put your mother born in 1953?

MS. RANDO:                          This is mistake . . .

PRESIDING MEMBER:        . . . Why during your hearing in '96, you put your mother being in Sarh, S A R H, Chad?

MS RANDO:                   Because at that time I don't know where my parents are.

PRESIDING MEMBER:        So, why did you put Sarh?

MS. RANDO:                          I don't know.

[44]            In Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481(QL) at paragraph 1, the Federal Court of Appeal commented that "internal contradictions, inconsistencies, and evasions [are] the heartland of the discretion of triers of fact". I am of the view that it was reasonable for the Board to find the applicant had not provided credible or trustworthy evidence based on the above noted internal contradictions and inconsistencies in the evidence.

[45]            Brother's Name and Siblings

The applicant's original PIF did not name any brothers. When asked to name any brothers at the hearing she stated that she had three brothers by the names of Elfonce, Jacques and Pierre. The applicant then said that Pierre is the proper name of Laoukayn (transcript pages 39 and 40). According to the Board, when shown documentary evidence that Laoukayn had a brother named Guinambaye, the applicant testified this was a cousin (transcript page 41). The Board stated that it preferred the documentary evidence over the evidence of the applicant.

[46]            The omission of a significant or important fact from a claimant's PIF can be the basis for an adverse credibility finding (see e.g. Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, F.C.J. No. 332 (QL) (T.D.), Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (QL) (T.D.)). I am therefore of the view that it was reasonable for the Board to use the fact the applicant did not originally state that she had a brother in her PIF as a basis to find her not credible.

[47]            The Board is also entitled to prefer the documentary evidence (stating that Guinambaye is Laoukayn's brother) over the applicant's testimony (stating that Guinambaye is Laoukayn's cousin) so long as it states its reasons for doing so in clear and unmistakable terms (see e.g. Okyere-Akosah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 (QL) (C.A.)). The Board stated that the documentary evidence was from "independent and reliable sources". Further, when confronted with this discrepancy of information, the applicant stated that "in [her] village, your cousin is your brother" and they are the same (transcript page 42). Based on these reasons, I am of the view that the Board was entitled to prefer the documentary evidence over the testimony of the applicant in regard to this issue.

[48]            Well-Founded Fear of Persecution

The applicant's PIF was amended to state that she left Chad in 1998. The Board notes that the PIFs of the daughters, Ramadji and Adeline, indicate they left Chad in August 1998. The Board also notes that in May 1998, a peace accord had been signed with FARF - the group Laoukayn was the leader of. Referencing documentary evidence found at page 40 of the tribunal record, the Board wrote:

. . . FARF was also legally recognized as a political party. There has been no guerilla activity reported in FARF areas. A number of resistance fighters have rallied to the government and the government has released FARF prisoners.

[49]            The Board found that compelling reasons were not applicable as the applicant did not have a well-founded fear of persecution based on a Convention ground when she left Chad. Even if this was the case, the Board found "there were not compelling reasons arising out of any previous persecution for the [applicant's] refusal to avail herself of the protection of Chad."   

[50]            Based on the documentary evidence, I am of the view that this conclusion by the Board was reasonable.

[51]            In conclusion on Issue 1, I am of the view that the Board did not make the errors alleged by the applicant. Its decisions were open to it to make.

[52]            Issue 2

Did the Board err by not putting its credibility concerns to the applicant?

I have reviewed the transcript of the hearing and I am satisfied that the Board did put its concerns to the applicant. By way of examples, see transcript at pages 20 to 22, 36, 40 and 42 to 44.

[53]            Issue 3

Was the applicant denied a fair hearing because of inadequate interpretation?

There is no question that the applicant is entitled to have competent interpretation when giving her testimony. That is not the issue in this case. The Board, at pages 2 to 3 of its decision stated:

. . . The claimant had a hearing which was scheduled and proceeded in February and June 2001. Part way through the hearing there was a complaint by the claimant that she did not fully understand the Chadian Arabic interpreter. The hearing went de novo with efforts being made by the Board to find an interpreter in her tribal langauge, Ngambaye. Despite efforts by the Board, this interpreter could not be located. Counsel suggested that the claimant's daughter, Ngoro, translate for her mother. The panel agreed. Ngoro was designated the designated representative for the claimant at the outset of the hearing.

The hearing was conducted in Chadian Arabic with the interpreter interpreting to Ngoro in that language, which is a language the claimant understood somewhat. Ngoro would then translate for the claimant in Ngambaye language. The claimant's answers were translated through her daughter in Chadian Arabic and then translated to the panel in English by the interpreter.

[54]            I have reviewed the transcript of the hearing and I cannot locate any areas where there appeared to be problems with translation. I cannot come to the conclusion that the applicant was denied a fair hearing on the particular facts of this case. The Board did not make a reviewable error in this respect.

[55]            The application for judicial review is dismissed.

[56]            Neither party wished to propose a serious question of general importance for my consideration.

ORDER

[57]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                    "John A. O'Keefe"           

                                                                                                      J.F.C.C.                     

Ottawa, Ontario

May 15, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-5418-01

STYLE OF CAUSE: MBAKA DOH MBARDE

- and -

MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Wednesday, November 20, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Thursday, May 15, 2003

APPEARANCES:

Mr. Dariusz Wroblewski

FOR APPLICANT

Ms. Alexis Singer

FOR RESPONDENT

SOLICITORS OF RECORD:

Laurence Cohen

50 Richmond Street East

Suite 101

Toronto, Ontario

M5C 1N7

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT