Date: 20031031
Docket: IMM-5858-02
Citation: 2003 FC 1275
Ottawa, Ontario, October 31, 2003
Present: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
BETWEEN:
SERGE PATRICK KANDOT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by the Refugee Division of the Immigration and Refugee Board (the panel), dated October 29, 2002. In this decision, the panel found that the applicant did not qualify as a "Convention Refugee" under section 96 or as a "person in need of protection" under subsection 97(1) of the Act.
ISSUE
[2] Did the panel err in unfairly discounting the applicant's credibility regardless of the evidence and his testimony?
[3] For the following reasons, I answer this question in the negative and the application for judicial review will therefore be dismissed.
FACTUAL CONTEXT
[4] The applicant claims to have a well-founded fear of persecution because of his political opinions and his membership in a particular social group and to be exposed to a risk of torture and a threat to his life or to the risk of cruel and unusual treatment or punishment. In the panel's opinion, the applicant did not establish the truthfulness of some of the facts alleged hereunder.
[5] The applicant was born on April 5, 1964 in Brazzaville. He lived in Pointe-Noire.
[6] In January 1992, he joined the Pan-African Union for Social Democracy (UPADS). On January 21, 1993, he was promoted to president of the Commission of Monitoring and Assessment for the Pointe-Noire region. In this position, he was responsible for all of the party's activities with the youth of the region.
[7] In 1993, the applicant was captured by the Cobras (the militia of Denis Sassou Nguesso) while on a visit to Brazzaville for his brother's funeral. He was kept for a few days and was mistreated, then released.
[8] On October 15, 1997, when the military forces of Denis Sassou Nguesso invaded Pointe-Noire, the applicant and several members of his party were arrested. For 21 days, they were beaten and kept in cells at staff headquarters at the entrance to the port of Pointe-Noire. The applicant was again mistreated and then released on November 5, 1997.
[9] On August 13, 2001, while leaving his office in Pointe-Noire, the applicant was stopped by three armed individuals in civilian clothes and was put in a car. In a residence, he was questioned about the existence of the party's office and the preparations of the UPADS to overthrow the existing government before the date of the National Day, which is held on August 15. Late in the evening, the applicant was dropped off at an intersection and ordered not to leave the city. After speaking to his wife, he spent the night at a friend's house. The following day, he returned to work. Around 11:00 a.m. he received a call from the Directorate of Territorial Security (DST), and was asked to come to the DST office in the early afternoon. The applicant fled to the home of a friend of Congolese origin and French nationality, who gave him his passport. On August 19, 2001, the applicant took a plane bound for the United States, via Abidjan and Dakar. Upon his arrival at Lacolle on August 21, he claimed refugee status.
DISPUTED DECISION
[10] The panel found that the applicant was not a refugee or a person in need of protection because the applicant's testimony was devoid of credibility. First of all, the panel did not believe that the incident of August 13, 2001 had occurred. In fact, even though the applicant had described this incident in his Personal Information Form (PIF), he did not mention it in the document that he filled out at the point of entry only eight days after the alleged event. This is a significant omission that cannot be justified by the fact that the applicant received the document to fill out at around 11:00 p.m. and that the immigration officer was rushing him to finish his statement. Further, if he had been abducted and interrogated by the officers of the DST about the UPADS' preparations to overthrow the government before National Day on August 15, it is unlikely that the applicant would have been released late on the evening of August 13, 2001. Finally, it is unlikely that the applicant would have "[Translation] gone to work the next day with complete peace of mind" following the incident of August 13, 2001.
[11] The panel also did not believe, on a preponderance of the evidence, that the applicant was involved with the UPADS after this party lost power in 1997. He was president of the regional Commission of Monitoring and Assessment until 1997. After that, the party no longer functioned as such, but the applicant was operating "discretely", meaning that he was meeting with six other individuals in private homes. The documentary evidence submitted (exhibit A-5, Country Reports on Human Rights Practices - 2001 (Republic of Congo)) shows that the government allowed opposition political parties to function and to meet.
[12] The panel did not believe that the applicant had been arrested on October 15, 1997, either. In fact, the applicant alleges in his PIF that he was beaten, mistreated and imprisoned for 21 days. In the form that he filled out at the point of entry, the applicant states that he was incarcerated for several days in 1997. This is a significant difference, not a minor difference: when a person is incarcerated for three weeks and is mistreated, that person will remember it when applying for international protection.
[13] The panel did not find the applicant's explanations about the passport that he used reasonable: the applicant had passed through security without difficulty at the airports in Pointe-Noire, Abidjan, Dakar and New York even though it was his friend's photo that was on the passport. In destroying the passport and the plane ticket as his friend had instructed, the applicant voluntarily deprived the panel of information that could have confirmed or negated his claims about the route that he took to Canada. The panel believed, rather, that the applicant voluntarily failed to produce the passport in order to avoid divulging information that would have jeopardized his claim.
THE APPLICANT'S SUBMISSIONS
[14] The panel's decision is unreasonable because it assigned too much importance to details and not enough to the evidence as a whole.
[15] The panel erred in taking the point of entry statement as a precise and detailed account of the grounds for the claim; the purpose of the statement was not to assess the merits of the fear of persecution (Asfaw v. Canada (Minister of Citizenship and Immigration), _1999_ F.C.J. No. 407, paragraph 10 (F.C.T.D.) (QL)) but rather to facilitate the processing of the application for admission (Montfort v. Minister of Employment and Immigration), [1980] 1 F.C. 478 (C.A.), page 482, cited in Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053). No further assessment can be made of the claimant's credibility at this stage. For example, a false statement or contradictory statement at the point of entry may be indicative of a lack of credibility, whereas an error in the dates or a vague story in this statement does not mean there is a lack of credibility. In this case, there is not a major discrepancy between the statement and the PIF, only some adjustments: the statement does not mention the incident of August 13, 2001 though it is reported in the PIF, and the "21 days" of imprisonment in 1997 does correspond with "several days" in the statement.
[16] Moreover, according to the panel's reasons, the DST would not have released the applicant so hastily if he were indeed a suspect in an attempt to overthrow the government. To this the applicant responds that the panel cannot know how the DST acted and its motives are nothing but pure speculation. Further, the applicant's testimony as well as the documentary evidence (exhibit A-5, supra) show that many arbitrary arrests occurred in Congo-Brazzaville at that time.
[17] The panel did not believe that the arrest on August 13, 2001, had taken place because the applicant returned to work the following day. Yet, the applicant justified his return to work, saying that he thought he had given a convincing explanation to the DST, which had decided to leave him in peace. Besides, the applicant had to provide for the needs of his four children.
[18] The panel concluded that the applicant did not continue to work for the UPADS after 1997. Yet, the applicant testified that his party no longer functioned as it did before the coup, but continued its activities discretely, holding meetings in private residences in the hope that the country could get back on the road to democracy.
[19] The panel erred in concluding that the applicant destroyed the passport and his plane ticket in order to conceal facts. In fact, the applicant provided the name of the true owner of the passport and he explained that he destroyed this passport at the latter's request and said he had lost his own passport when procuring another for himself.
RESPONDENT'S SUBMISSIONS
[20] In order to allow an application for judicial review that is based on an issue of credibility, as in this case, the Court must find that the panel made a patently unreasonable error. (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), _1993_ F.C.J. No 732 (QL); Pissareva v. Canada (Minister of Citizenship and Immigration) (2001), 11 Imm. L.R. (3d) 233, _2000_ F.C.J. No. 2001 (F.C.T.D.) (QL); Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280, _1999_ F.C.J. No. 1283 (F.C.T.D.) (QL); Ismaeli v. Canada (Minister of Citizenship and Immigration, _1995_ F.C.J. No. 573 (F.C.T.D.) (QL)). The same is true for findings of fact (Chen v. Canada (Minister of Citizenship and Immigration) (1999), 240 N.R. 376, _1999_ F.C.J. No. 551 (C.A.) (QL)).
[21] The panel substantiated its decision very well by stating - in clear, unequivocal language - its reasons for doubting the truthfulness of the applicant's allegations and his credibility. The panel could consider the many discrepancies between the applicant's testimony, his statement at the point of entry and his PIF (Mostajelin v. Canada (Minister of Employment and Immigration ), _1993_ F.C.J. No. 28 (C.A.) (QL)).
[22] The applicant cannot, in the context of an application for judicial review, attempt to justify the parts of his testimony that the panel found unsatisfactory after the fact. These explanations were presented to the panel and the panel did not find them credible (Muthuthevar v. Canada (Minister of Employment and Immigration ), _1996_ F.C.J. No. 207 (F.C.T.D.) (QL)).
[23] The panel was justified in faulting the applicant for having destroyed the passport and his plane ticket: it is reasonable that the Board would attach great importance to these documents that establish the identity of the applicant and his journey to Canada (Elazi v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 205, _2000_ F.C.J. No. 212 (F.C.T.D.) (QL)).
ANALYSIS
[24] It is well established that in matters of credibility, as in this case, the error of the panel must be patently unreasonable before the Court can intervene (Aguebor, supra, Pissareva, supra and Singh, supra).
[25] In this matter, the panel gave at least three reasons for not believing that the incident of August 13, 2001 actually took place. It referred to the applicant's own words during the hearing and to the documentary evidence to justify its belief that the applicant was not involved with the UPADS after the party lost power in October 1997. The panel eventually stated that it did not believe there was an incident on October 15, 1997 because of the fairly significant discrepancies between the period of imprisonment indicated in the applicant's statement at the point of entry and the one referred to in his PIF. Ultimately, the panel clearly indicated why it did not believe the applicant. It correctly based its findings on the differences between the applicant's testimony, the statement at the point of entry, the PIF and the documentary evidence. In Mostajelin, supra, the Federal Court of Appeal states:
The Board's conclusion that the appellant's evidence was not credible or trustworthy is based upon the appellant's demeanour, the conflict between the Personal Information Form and his oral testimony and a series of inconsistencies and implausibilities in his oral testimony. Such credibility findings are beyond the review of this Court. [my emphasis].
[26] As for the issue of the destruction of the passport and plane ticket, I do not think that it can be inferred that the applicant necessarily wished to hide information from the panel. In fact, it is conceivable that people who illegally help in the flight of individuals in danger would not be particularly enthusiastic about the idea that evidence of their illegal acts has been kept. In this matter, however, it was not patently unreasonable for the panel to find that the destruction of the passport and the plane ticket deprived it of information that could have confirmed or negated the applicant's allegations about his route to Canada.
[27] Simply put, it was open to the panel to determine the credibility of the applicant and, in doing so, the panel did not make any patently unreasonable error.
[28] The parties did not propose the certification of a question of general importance and no question will be certified.
ORDER
THE COURT ORDERS that
1. The application for judicial review is dismissed.
2. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5858-02
STYLE OF CAUSE: SERGE PATRICK KANDOT v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 29, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE MICHEL
BEAUDRY
DATED: October 31, 2003
APPEARANCES:
Évelyne Fiset FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Évelyne Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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