Date: 20030908
Docket: IMM-4724-02
Cite: 2003 FC 1038
Ottawa, Ontario, September 8, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
ISMAEL BARRY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Lamine Diallo (the panel) of the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated September 20, 2002, that Ismael Barry (the applicant) is not a Convention Refugee under section 96 of the Immigration and Refugee Protection Act (the Act) or a person in need of protection under of section 97 of the Act.
ALLEGED FACTS
[2] The applicant is a citizen of the Republic of Guinea. He was born on January 1, 1977, in Conakry.
[3] He claims to have a well-founded fear of persecution from the authorities of his country because of his political opinions and his membership in a particular social group. He also claims that there is a threat to his life and a risk of torture or cruel and unusual treatment if he were to return to the Republic of New Guinea.
[4] The following are the events upon which his refugee claim is based.
[5] After receiving his bachelor's degree in the course of 1996, the applicant decided to go into business. His uncle, a successful business owner, offered the applicant a job working for him as a supervisor of his stores.
[6] At the time, Mr. Boubacar was an active member for the communal Council for the Union for Progress and Renewal (the UPR), a political party in opposition to the Party for Unity and Progress (the PUP), the party in power.
[7] The UPR was founded in September, 1988, following the merger of two parties, the Party for Renewal and Progress (the PRP) and the Union for the New Republic (the UNR).
[8] The applicant contends that he has been a member of the UPR since 1997, which is problematic, logically, because the party was founded in 1998. This point will be addressed later in the reasons.
[9] Within the UPR, the applicant helped to raise the consciousness of party members in an effort to expose the abuses of the PUP.
[10] In 2001, the PUP began a propaganda campaign to prepare the population for the extension of President Lansana Conté's mandate.
[11] On September 30, 2001, the UPR organized a demonstration in order to mobilize the population and raise their awareness of the PUP's manoeuvres.
[12] Following this event, many demonstrators were arrested. Two days later, some soldiers showed up at the home of Mr. Boubacar and the applicant, looking for the uncle, on the grounds that he was inciting young people to disturb the peace and to rebel against the government.
[13] Since Mr. Boubacar was absent, the soldiers picked the applicant up and drove him to the criminal investigation department where, without any semblance of a trial, he was imprisoned for almost two months in inhuman conditions.
[14] During his incarceration, the applicant claims to have been tortured to the point that he accepted the commandant's proposal that if he handed over his uncle, they would release him.
[15] The applicant was then released on November 15, 2001, with instructions to contact his uncle and to report to the criminal investigation department with him three days later.
[16] The applicant says he managed to contact his uncle and told him of the mission he had been assigned. Mr. Boubacar advised his nephew not to report to the criminal investigation department and to leave the house to seek refuge at a friend's home in the Ratoma commune.
[17] On the morning of November 20, 2001, one of Mr. Boubacar's employees came to warn the applicant that some soldiers had raided his uncle's home and were looking for them.
[18] That same evening, the friend with whom he was staying informed him that the situation was serious and that he could no longer stay with him; Mr. Boubacar had given him some money so that he could arrange for the applicant's escape.
[19] On November 23, 2001, the applicant managed to leave the Republic of Guinea with the documents that his uncle's friend had obtained for him, and he arrived in Canada on November 24, 2001, via Morocco and the United States. He claimed refugee status the same day.
[20] On July 23, 2002, the refugee hearing took place before the Refugee Division of the IRB.
[21] On September 20, 2002, the panel dismissed the applicant's claim.
[22] It is this decision that is the subject of this application for judicial review.
ISSUE
[23] Did the panel make an error warranting the intervention of the Court in finding that the applicant is not a Convention refugee?
ANALYSIS
Standard of Review
[24] In Ding v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1643, Madam Justice Layden-Stevenson reiterates that the applicable standard of review for questions of assessment of the facts is patent unreasonableness.
[5] The standard of review with respect to the CRDD, a specialized tribunal, is patent unreasonableness, except with respect to statutory interpretation where the standard is correctness: Pushpanathan v. Canada, [1998] 1 S.C.R. 982. The CRDD has complete jurisdiction to determine the plausibility of testimony and as long as its inferences are not so unreasonable as to warrant the Court's intervention, the findings are not open to judicial review: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). The CRDD is not obliged to confront an applicant with its implausibility findings: Matarage v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 460; Sarker v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 209; Kahandani v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1769.
[25] This Court has repeatedly held that the IRB is in a particularly favourable position to assess the credibility of a claimant. This was noted once again in Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800, (upheld by the Federal Court of Appeal, [2002] 3 F.C. 537):
[38] It is trite law that the Board has the discretion, and indeed is in the best position, to assess the credibility of an applicant: Dan-Ash v. Minister of Employment and Immigration (1988), 93 NR 33 (F.C.A.).
Did the panel make an error warranting the intervention of the Court in finding that the applicant is not a Convention refugee?
[26] In order to determine whether the panel erred in finding that the applicant was not credible, a finding based on the inconsistencies and contradictions it alleges, I carefully reviewed the documentary evidence in the record.
[27] I have read the transcript from beginning to end. I believe that the applicant answered to the best of his knowledge. Further, his answers are, for the most part, consistent and clear. It is the panel, rather, that appeared not to understand and even to misconstrue the applicant's answers. For clarification, the following is a list of points that I believe were misinterpreted or contradicted, without reason, by the panel.
[28] The first point is the year that the applicant became a member of the UPR. The panel wrote 1977 rather than 1997 in its decision. Obviously, in doing so the panel simply made a clerical error.
[29] But the point at issue has to do with what follows. It is true that the documentary evidence and the applicant's testimony indicate that the UPR was founded in 1998. The panel is unreceptive to the applicant's claim that he has been a party member since 1997. The panel writes: "When confronted, he was unable to provide an explanation that could be accepted as credible." I disagree. The applicant explains clearly that the UPR was founded upon the merger of two parties, the PRP and the UNR. Since he became a member of the PRP in 1997, a party that merged with the UNR to found the UPR, the applicant submits that he has been a member of the UPR since 1997:
[Translation]
Q. How long has the party existed?
A. The UPR party has been in existence . . . since the end of 1998, before that it was the PRP.
. . .
Q. How long has the PRP been in existence?
A. The PRP has been in existence since 1992.
Q. How do you become a member of a party that does not yet exist?
A. Well, the party . . . the UPR is a merger of two (2) parties INR and PRP. Now, it's . . . when they had the elections in '98, they merged the two parties INR and PRP to form one party. Now, I became a party member in 1997.
. . .
[Certified Record, pp. 141-142.]
[30] The parties' history is even confirmed by the documentary evidence, in a document entitled "Guinea - Introductory Survey," at pages 60 to 75 of the Certified Record (see page 72, in particular).
[31] I do not see what is implausible about the applicant's membership in one party (PRP) since 1997, while this party merged with a second (UNR) to form a third (UPR) in 1998, and he says that he has been a member of the third (UPR) since 1997. It is true that it would have been more precise to have stated 1998. The relevant question is "is the applicant credible," and not "did he give the best answer." I believe the applicant gave a credible explanation.
[32] Secondly, the panel determined that the applicant did not answer the questions regarding his uncle, namely that, according to the panel, the uncle was a member of the PUP rather than the UPR.
[33] In this regard, the applicant stated the following at the hearing:
[Translation]
A. My uncle Elhaadj Boubacar Diallo, he is a businessman, he is a member of the UPR.
. . .
Q. Since when has he been a member of the UPR?
A. Since the creation of the party that he (inaudible).
Q. In 98?
A. In 92.
. . .
A. Since 90, anybody who joins the UPR with the merger of the two (2) parties, they give them that card.
(Certified Record, pp. 157-158-163)
A. . . . His real name is Boubacar Diallo, when he went to Mecca and returned, we, we added Elage.
. . .
Q. To your knowledge, when did he leave the country?
A. Well, to my knowledge, when his friend gave me the passport, he told me that my uncle had left Guinea. He told him he was going to Senegal.
Q. When was that?
A. That was on November 20, that he told me that.
. . .
A. 2001.
(Certified Record, pp. 188-190)
Q. To your knowledge, could he have run in the 2001 elections or 2002 or 2000?
. . .
A. No, he was not presented. He was appointed communal councillor at city hall.
. . .
Q. And how many UPR representatives were at the elections in Labé, for the commune?
A. Twenty-three (23).
Q. Why did you tell us ten (10) this morning and now you are telling us twenty-three (23)?
A. Me, I know ten (10). The names, the names of ten (10) people that I know.
- But this morning we asked you how many there were, not how many you knew.
You told us I know five (5).
A. So that was an error on my part.
. . .
Q. Is it possible that your uncle is from the PUP?
A. He would, he never agreed to be on the side of the PUP. The PUP proposed that he be the youth representative in Labé, but he did not accept.
Q. Could the PUP propose this again?
A. I don't think so, no.
- You told us he was in Senegal, to your knowledge.
. . .
Q. Is he there because his life is in danger or is it a tourist trip?
A. Well, according to his friend, his friend told me that he left Guinea because he could not stay in Guinea in, at this time. So, he preferred to go to Senegal, stay over there, to save his life.
. . .
- But if we told you today that your uncle was a member of the PUP.
What would you tell us?
A. Well, I would tell you no, he is not a member of the PUP.
Q. But if he was would you be afraid to return?
A. If he was a member of the PUP, I would not have left Guinea, I would have stayed in Guinea.
(Certified Record, pp. 191-192-193-196-198)
[34] The panel bases itself on the document "[Translation] National Lists for the Proportional Selection of Candidates" to make the claim that the applicant's uncle appears to be a member of the PUP. In fact, the 76th candidate on the PUP's list is "Boubacar Diallo."
[35] However, since he made the pilgrimage to Mecca, the full name of the uncle is El Hadj Boubacar Diallo. I do not see why "El Hadj" would have been removed from the name of the applicant's uncle on the list, considering the recognition of the pilgrimage in the culture.
[36] Further, there are many other candidates named "El Hadj." It appears completely plausible to me, therefore, that this is another Boubacar Diallo, who did not make the pilgrimage to Mecca, who is listed as a member of the PUP.
[37] This statement is even more relevant in light of the number of people with the same name on the list, for example:
[Translation]
UPR: 60-Diallo Abdoulaye
74-Diallo Abdoulaye
The Green Party (EPG): 67-Lamine Camara
People's Party of Guinea: 29-Lamine Camara
PUD: 50-Diallo Ibrahima
57-Diallo Ibrahima
58-Barry Abdoulaye
70-Barry Abdoulaye
74-Barry Ibrahima
UDS: 1-Barry Ibrahima
List of Single Constituency Candidates: 12- Barry Ibrahima, UPR
[38] Further, this list is dated July 22, 2002, while the applicant and his uncle had been out of the country since November 2001.
[39] Reading the transcript of the hearing and the documentary evidence (principally "[Translation] National Lists for the Proportional Selection of Candidates" as well as "Guinea - Introductory Survey"), I believe that the panel made enough unreasonable inferences from the applicant's testimony to attract the intervention of this Court.
[40] Thirdly, the panel found it implausible that the applicant could have passed through airport inspections without difficulty. In fact, he says he travelled with a French passport. He says he destroyed this passport on the advice of the individual that gave it to him.
[Translation]
A. It was in the name of Shérif Galou (phonetic).
. . .
A. The date of birth was October 15, 1973, in Marseilles.
. . .
A. Well, that is the man who gave me the passport, he told me, do not give the name even the ones who ask me at the border. Now, once I arrived in Canada, I thought it necessary to tell you the truth, not to tell you that I do not know the name, because he had told me, no matter what happens at the border, not to tell . . . not to give anybody the name of the person appearing in the passport.
Q. Why?
. . .
A. Yes, he told me so that the authorities would not know the name that appeared in the passport, so that we would not cause any problems for the man, the owner of the passport, that's what he told me.
(Certified Record, pp. 133-155)
[41] I think that the following passage from the Federal Court of Appeal's decision in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168; [1989] F.C.J. No. 444, at paragraph 7, per Hugessen J.A., is applicable :
Finally, the Board found that the applicant's credibility was weakened by his statement that, while on the plane to Canada, he destroyed a passport, Canadian visitor's visa and airline ticket, all of which were in the name of a friend and had been used by him in order to get away. The Board, after noting that the applicant had said that he had destroyed the documents because he was afraid that, if they were discovered, he might be arrested and sent back, concluded, without more, that this element of his testimony lacked credibility.
The Board's finding on this point is, to say the least, puzzling. There is certainly nothing inherently incredible in a refugee saying that he has destroyed false travel documents in order to avoid detection and arrest once they have served their purpose. In the circumstances of this case, the destruction of such documents could not have had any conceivable relevance to any issue which the Board had to decide. [Footnote: See on this point Moustafa Salamat v. Immigration Appeal Board et al., Court file A-223-87, judgment of March 8, 1989.] I can only conclude that the Board's insistence upon its significance is founded upon some erroneous view of the law. Does the Board think that only persons who arrive here with their travel documents in order can be refugees? Or that those who arrive with false documents have some obligation to preserve them?
[42] With regard to the panel's finding that the applicant "is not subject either to a risk to his life or to a risk of cruel and unusual treatment or punishment" and that there is "no danger of torture in the Republic of Guinea," I believe that the following passages from the U.S. Department of States Report, issued March 4, 2002, establish the opposite :
The Government's human rights record was poor; although there were some improvements in a few areas, serious problems remained in many others. The Government's tight and sometimes partisan control of the electoral process, both in the 1998 presidential election and the deeply flawed 2000 municipal elections, its refusal to create an independent electoral oversight mechanism; and its prohibition of nongovernmental broadcast media, effectively restricted citizen's right to change their government. Serious human rights abuses include: Extrajudicial killings; disappearances; use of torture, beatings, and rape by police and military personnel; and police abuse of prisoners and detainees. . . .
. . .
No action was taken against the security forces who killed six persons, including a university professor, in Conakry in November 2000. There was no investigation into the clashes between security forces, ruling party militants, and opposition party supporters during the 2000 municipal elections, which resulted in the deaths of eight persons and injuries to several others. . . .
. . .
Security forces regularly used arbitrary arrest and detention, despite procedural provision in the Penal Code designed to safeguard detainees. . . .
. . .
(Certified Record, pp. 44-45-47)
[43] For all of these reasons, I am of the opinion that this application for judicial review should be allowed.
ORDER
[1] The Court allows the application for judicial review, the file will be returned to the IRB for reconsideration by a differently constituted panel, in light of this decision.
[2] No question for certification.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4724-02
STYLE OF CAUSE: BARRY ISMAEL v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: August 6, 2003
REASONS FOR ORDER: Mr. Justice Blais
DATE: September 8, 2003
APPEARANCES:
Ismael Barry FOR THE APPLICANT
Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Ismael Barry FOR THE APPLICANT
1825 Sainte-Rose
Apartment 621
Montréal, Quebec H2K 4M1
Telephone: (514) 527-4630
Federal Department of Justice FOR THE RESPONDENT
Guy-Favreau Complex
200,. René-Lévesque Blvd. West
East Tower, 5th Floor
Montréal, Quebec H2Z 1X4
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