Date: 20050506
Docket: IMM-4344-04
Citation: 2005 FC 613
BETWEEN:
RICHARD MUSANGO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated April 23, 2004, wherein the Board found the applicant not to be a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Richard Musango (the applicant) is a citizen of the Republic of Burundi. On October 9, 2003, he arrived in Canada via Kenya, Holland, and the United States, and claimed refugee status on the same day. He alleges a well-founded fear of persecution in his country based on his political opinions and his membership in a particular social group.
[3] The Board based its decision on a negative credibility finding. In questions of credibility, this Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7). The Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[4] Contradictions existed between the applicant's testimony, his Personal Information Form (PIF) and his Point of Entry notes (POE). The applicant alleged in his written declaration that he was in jail from November 26, 2002 until April 3, 2003, but answered "no" on his POE to the question of "Have you ever been detained or put in jail?" He also answered on his POE that he was afraid of family on his wife's side, however did not include the police, as he did in his PIF. The applicant also failed to mention at his POE that his house was attacked and his wife was killed. These factors undermine the applicant's credibility.
[5] Furthermore, the applicant has the onus of establishing his claim pursuant to Rule 7 of the Refugee Protection Division Rules, SOR/2002-228, which reads:
| 7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them.
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7. Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer.
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[6] I am of the opinion that the Board did not impose an unreasonable burden on the applicant when it stated at page 4 of its decision: "il lui appartient également de prouver qu'il était au pays et qu'il y vivait au moment de la persécution alléguée." Moreover, the Board did not accept the applicant's explanation that he preferred to claim asylum in Canada instead of the United States, where he stayed for two months before coming to Canada to make his claim. It was not unreasonable for the Board to consider this fact as undermining the applicant's credibility, as a delay in claiming refugee status is inconsistent with a subjective fear of persecution.
[7] Rule 7 also requires the claimant to provide documents establishing his claim, and if he doesn't, he must provide a reasonable explanation. In this case, the applicant did not provide any documents, other than a wedding certificate, to support his allegations that he was persecuted. The Board required him to produce his "registre de commerce", his driver's license, and various documents relating to his wife's rape and death to prove his claim. The Board did not accept the various explanations the applicant gave, especially since he was able to have his wedding certificate sent to Canada. Given the applicant's lack of credibility, it was not patently unreasonable for the Board to conclude that at that time, the applicant should have made more effort to have the other documents sent.
[8] The application for judicial review is therefore dismissed.
JUDGE
OTTAWA, ONTARIO
May 6, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4344-04
STYLE OF CAUSE: RICHARD MUSANGO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 6, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: May 6, 2005
APPEARANCES:
Mr. Anthony Kako FOR THE APPLICANT
Ms. Diane Dagenais FOR THE RESPONDENT
SOLICITORS OF RECORD:
Anthony Kako FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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