Date: 20050818
Docket: IMM-8607-04
Citation: 2005 FC 1130
OTTAWA, ONTARIO THE 18th DAY OF AUGUST 2005
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
MARIAM ABDELMOUTI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mariam Abdelmouti (the "applicant") a citizen of Tchad, challenges the September 14, 2004 decision of the Refugee Division (the "tribunal") delivered from the Bench turning down her claim to be a Convention refugee or a person in need of protection.
[2] She claimed a well-founded fear of Mohammad Omar, an alleged high-ranking military officer whom the applicant refused to marry. Her evidence was that Mr. Omar, who already had three wives, had threatened her and her father if she did not comply with his wishes.
[3] The tribunal did not believe her story finding her non-credible.
[4] The tribunal discerned a major contradiction between her PIF, corroborated by what she told an immigration officer during her interview, that her father refused to give her hand and her testimony before the tribunal that he had given his consent but that consent was a false consent since given under threat of his life and which also served as a cover-up so that arrangements could be made for her to leave the country.
[5] According to the tribunal, this change in her story was a turning point in her testimony which it commented in the following terms:
Le tribunal doit mentionner que, par la suite, le témoignage de la demandeure est devenu difficile pour ne pas dire non crédible et même parfois invraisemblable. À titre d'exemple, elle dira qu'elle est allée chez sa tante pour le fait que le climat était malsain chez elle. Le tribunal s'est donc montré surpris devant ce qui précède puisqu'il y avait accord quant au non-mariage de la demandeure. Et donc, pour quel motif le climat aurait été malsain au domicile de la demandeure.
À ce qui précède, la demandeure ne nous a pas donné de réponses satisfaisantes. [emphasis mine]
[6] The tribunal also commented on a submission by counsel for the applicant to the effect it did not matter whether the parents consented or not because the fundamentals of her story was one of a forced marriage. The tribunal concluded:
Chose certaine c'est que dans l'historie originale et à Immigration Canada, la demandeure aurait quitté précipitamment pour le fait que les parents avaient exprimé leur désaccord au prétendant. Au témoignage, les parents auraient donné leur consentement mais qu'ils auraient été, de toute façon, en désaccord mais elle aurait quitté que quelques mois plus tard alors que même certains arrangements concernant le mariage aurait déjà été commencés. [emphasis mine]
[7] The tribunal noted:
Lorsqu'un demandeur jure que les faits sont véridiques, il existe une présomption à l'effet qu'ils le sont [véridiques] à moins qu'il y ait des raisons valables de douter de leur véracité. Or, un indicateur important de la crédibilité du témoin est cohérence de son récit. Or, pour les motifs élaborés au début de cette décision, le tribunal se doit de conclure que le témoignage de la demandeure st non crédible et donc, conséquemment, je ne peux pas lui donner le bénéfice du doute. [emphasis mine]
[8] Counsel for the applicant argues the tribunal's credibility finding was faulty; the inconsistency it drew was not a real one because, at bottom, her parents were always against the marriage and only consented under duress.
[9] He further argues the implausibility the tribunal drew as to the reason for the applicant going to her aunt who lives in a town some distance away from her was drawn without taking into account the entire evidence before it.
[10] Finally, he argues, the tribunal drew an unreasonable inference as to the time it took for her to leave Tchad in April 2004.
[11] The errors advanced by counsel for the applicant are essentially matters of fact which are reviewed by this Court on the standard set out by Parliament in paragraph 18.1(4)(d) of the Federal Courts Act, that is, the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it which equates to a patently unreasonable finding.
[12] The admonishment of the Supreme Court of Canada to trial judges found in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, is apt. At paragraph 85, Justice L'Heureux-Dubé wrote the following:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: [1996] 1 S.C.R. 825=">Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: [1990] 2 S.C.R. 1324=">National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. [emphasis mine]
[13] It is also useful to cite paragraph 4 of Justice Décary's decision in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.):
¶ 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [emphasis mine]
[14] A review of the tribunal's decision and a review of the certified record, including the transcript of the applicant's testimony, reveals that the tribunal did not misinterpret the evidence when it said the applicant's PIF and the immigration officer's notes say one thing - the father refused Mr. Omar's request - in contrast to her testimony of the parents' consent albeit under duress and continued as a ruse to buy time for her escape. Nowhere in the record had this latter aspect of her story appeared prior to her testimony.
[15] The tribunal record bears out that the change in her story occurred when the tribunal pointed to a law in Tschad where forced marriage (without consent) is illegal.
[16] A review of the evidence demonstrates an incongruity as to why she left for her aunt's home if the ruse was working and everybody in the family was on side, i.e. the forced marriage would not take place. It cannot be said that this implausibility was unreasonably drawn.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8607-04
STYLE OF CAUSE: MARIAM ABDELMOUTI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, AUGUST 9, 2005
REASONS FOR ORDER
AND ORDER : HON. MR. JUSTICE LEMIEUX
DATED: August 18, 2005
APPEARANCES:
Mr. Leon Damonze FOR THE APPLICANT
Ms. Matina Karvellas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Leon Damonze FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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