Date: 20050617
Docket: IMM-9274-04
Citation: 2005 FC 866
BETWEEN:
BUNGA DODY LUMINGU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review from a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) on October 1, 2004, that the applicant, a citizen of the Democratic Republic of the Congo, is not a Convention "refugee" nor a "person in need of protection" according to the definition given in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] For the following reasons, the IRB did not believe the applicant's story:
[TRANSLATION]
- It is inconsistent that the applicant could have found work as a "chief computer specialist" in the same government-owned business where his father had made his career if, as he alleged in his story, such serious charges were laid against his father that he was incarcerated for six years.
- The applicant did not know which day of the week corresponded to October 31, 2003, although he was supposedly on vacation during that period and was invited to a prayer vigil, which given the importance of the event is surprising.
- Despite their allegedly sophisticated methods and leading-edge technology, and despite the fact that the military had known where the applicant lived since 1998 at least, they waited until the night of November 1 to 2, that is over 24 hours later, to come and get him at the home of his grandmother.
- The applicant did not establish that the raid by the military at his workplace on October 31, 2003 actually took place nor that his father had experienced the problems alleged. The result is that the panel also does not believe that two of his sisters were raped and his grandmother brutally treated, nor that his sister Bibiche was kidnapped by the military.
- Since the panel did not believe the applicant's story of persecution and the threat to his life, the panel concluded that the document submitted by the pastor, corroborating the applicant's story, was a document of convenience. The applicant did not file the original and there is only the date of transmission, with no mention of the sender's name.
[3] The applicant submitted two arguments, one relating to procedural fairness and the other to the assessment of the facts.
[4] Regarding procedural fairness, the applicant submitted that the IRB erred in that it was the member who began his interrogation. This argument must be examined in light of subsection 162(2) of the Act, which indicates that the IRB has complete control of its procedure and must operate informally and quickly. In the case at bar, the questions put by the member, both in substance and form, were entirely appropriate. Counsel for the applicant subsequently had every opportunity to put questions and make her arguments. Not only was no objection made at the time regarding the procedure followed, but at the close of the hearing, in response to questions from the member, the applicant expressly confirmed that he had said everything, as appears from the following passage from the transcript:
[TRANSLATION]
Q. Do you have anything to add, sir, before concluding the hearing?
A. No, I will simply say that I'm fine, I have answered all your questions. I have nothing to add.
Q. You have indeed answered the questions, but do you have anything that you would like to say?
A. Yes, I think I have said everything.
- That is what is important. Thank you.
[5] Thus, not only was the procedure followed not prohibited, and on the contrary was similar to that set out in "Guideline 7 - Concerning the Preparation and Conduct of a Hearing in the Refugee Protection Division", adopted pursuant to paragraph 159(1)(h) of the Act, but the applicant did not think it necessary to object and did not establish the existence of any harm.
[6] In view of the particular circumstances of the case at bar, the argument now relied on by the applicant as to unfairness of the procedure is entirely without basis.
[7] As to the second argument, regarding the assessment of facts by the IRB, I am not persuaded, after reviewing the evidence and hearing counsel for the parties, that the inferences drawn by this specialized tribunal could not reasonably have been drawn (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)). In general, the implausibilities and inconsistencies noted by the panel are fully supported by the evidence. In the circumstances, it is not for this Court to substitute its own view of the facts for that taken by the IRB. The applicant was far from meeting the heavy burden imposed on him to establish a patently unreasonable or clearly irrational assessment of the facts.
[8] For all these reasons, the application for judicial review is dismissed.
[9] The applicant submitted the following question for certification:
[TRANSLATION]
Does a member who imposes and/or himself undertakes the examination-in-chief of a refugee status claimant abandon his judicial role, thereby committing an excess of jurisdiction or a breach of the rules of natural justice or fairness?
[10] In view of the particular circumstances of the case at bar, I consider based on the written submissions of the respondent that the question is not conclusive as to the application for judicial review. Accordingly, there is no certification.
OTTAWA, ONTARIO
June 17, 2005
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9274-04
STYLE OF CAUSE: BUNGA DODY LUMINGU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 19, 2005
REASONS FOR ORDER: Pinard J.
DATED: June 17, 2005
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Martine Valois FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon & Morin FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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