Date: 20040226
Docket: IMM-1504-03
Citation: 2004 FC 289
Toronto, Ontario, February 26th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
FRANCISCO MAWAKA LUSWA
and MARIE OKITAPENGE-OPUNGA MAWAKA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Francisco Mawaka Luswa and Marie Okitapenge-Opunga Mawaka are a husband and wife from the Democratic Republic of the Congo (DRC). The female applicant arrived in Canada in August of 2001, whereas the male applicant came to this country some six months later. Both claimed refugee protection based upon their alleged fear of persecution because of their political opinions and membership in a particular social group, that is members of the Parti démocratique et social chrétien (PDSC). The female applicant also based her claim on her membership in a politically active family.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected the applicants' refugee claim, finding that they had not provided credible evidence that the male applicant was in the DRC during the period of his alleged persecution. As a result, the Board found that he was neither a Convention refugee nor a person in need of protection. Having based her claim on that of her husband, the Board said, the claim of the female applicant must also fail.
[3] The applicants now seek to have the Board's decision set aside, asserting that the Board's credibility findings relating to the male applicant were unreasonable, and were reached in a manner that was unfair. The applicants further assert that the Board wrongfully excluded the female applicant from a portion of the hearing, and failed to consider her claim independently of that of her husband.
Background
[4] The male applicant was a student in Germany from February of 1989 until August of 1998, at which point he says that he returned to the DRC. The female Applicant alleges that she had always lived in the DRC prior to coming to Canada in August of 2001.
[5] Both applicants claim to be members of the PDSC. In the case of the male applicant, he says that he joined the party in March of 1995, and, upon his return to the DRC in 1998, became a national secretary of the party. In addition to being a member of the PDSC in her own right, the female applicant also claims to come from a politically active family.
[6] The male applicant says that upon his return to the DRC, he went to work for the "JMB" business as a technical director. This employer had a contract with the Congolese armed forces. An explosion at a navy depository occurred in May of 2001, and the male applicant alleges that he was interrogated in connection with the investigation of the explosion. After a violent demonstration in July of 2001, the male applicant claims that he was apprehended and accused of collaborating with enemies of the government. After this incident, the male applicant says that he went into hiding.
[7] Both applicants attempted to leave the country on August 7, 2001, but the male applicant was apprehended by immigration authorities and was imprisoned. The female applicant travelled to Canada on her own.
[8] Having been covertly released from prison, the male applicant says that he then left the country on January 30, 2002 and travelled to Canada to join his wife.
[9] The female applicant did not give evidence at the hearing, other than to corroborate her husband's testimony.
The Board's Decision
[10] The Board found that there were real problems with the male applicant's credibility. These problems were sufficiently serious as to cast doubt on all other aspects of his story.
[11] While he was able to provide numerous official documents pertaining to his education in Germany, the male applicant produced no documents that would substantiate his assertion that he was even in the DRC between 1998 and 2002.
[12] When the presiding member expressed concern at the hearing about the lack of documentation establishing his presence in the DRC at the time in question, the male applicant spontaneously produced airline tickets and a boarding pass which he says he used to exit the DRC in January of 2002. The Board found the plane tickets to be highly suspect, as the name of the passenger had been erased. The "frontispice" of the ticket was in the name of "MAWAKA/AIME". According to the male applicant's Personal Information Form (PIF), Aimé Mawaka is his son. The PIF indicates that Aimé Mawaka is still in the DRC.
[13] The Board was also very troubled by the male applicant's evidence with respect to the fraudulent passport that he says that he used to travel to Canada. While he testified that he travelled on a Belgian passport, the male applicant testified that he did not know what name the passport was in. The Board found it implausible that someone would travel a long distance, through a number of different airports where he was liable to be subjected to questioning, without knowing the name on the passport that he was carrying.
[14] The Board also found it suspicious that the male applicant had no recent proof of his alleged membership in the PDSC.
[15] As a result of these concerns, the Board concluded that the male applicant was not in the DRC during the relevant time period, and rejected his claim. Given the Board's understanding that the claim of the female applicant was based entirely on that of her husband, her claim was rejected as well.
Issues
[16] This application raises the following issues:
1. Were the Board's credibility findings with respect to the male applicant reached in a manner that was unfair and were they patently unreasonable?
2. Did the Board err by failing to assess the claim of the female applicant independently from that of her husband? and
3. Did the Board err by excluding the female applicant from a portion of the hearing?
Analysis
Were the Board's credibility findings with respect to the male applicant reached in a manner that was unfair and were they patently unreasonable?
[17] The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. As a trier of fact, the Board is entitled to make reasonable findings regarding the credibility of a claimant's story, based on implausibilities, common sense, and rationality. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that such finding is patently unreasonable: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 40, and Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[18] The applicants allege that the Board's findings with respect to the credibility of the male applicant were unreasonable, and were reached in a manner that was unfair. Specifically, the applicants argue that it was unfair of the Board to rely so heavily on the erasures on the boarding pass and airplane tickets, and to the fact that the "frontispice" of the ticket appeared to be in the name of the male applicant's son, without alerting the male applicant to the Board's concerns and giving him the opportunity to explain. The applicants also contend that the failure of the Board to mark the "frontispice" as an exhibit at the is fatal to the decision. In this regard, the applicants rely on the decision in Aquino v. Canada (Minister of Employment and Immigration), (1992), 144 N.R. 315 (F.C.A.).
[19] A review of the Board's reasons discloses that the Board analysed the evidence of the male applicant carefully. It compared his testimony at the hearing with information that he had previously supplied. The Board noted that the male applicant's testimony was marked by inconsistencies, implausible scenarios and unsatisfactory explanations, and based its findings with respect to his credibility on all of the evidence before it. Having reviewed the transcript, the documentary record and the male applicant's PIF, I am satisfied that the Board's credibility findings are more than reasonable. Further, in all of the circumstances, I am not persuaded that there was any obligation on the presiding member to raise his concerns about the documents with the applicants at the hearing.
[20] With respect to the failure to mark the "frontispice" of the ticket as an exhibit at the hearing, while I am satisfied that this was an error on the part of the Board, I am not persuaded that this error justifies the decision of the Board being set aside as it relates to the male applicant. In this regard, the decision of the Federal Court of Appeal in Aquino is distinguishable, as the document in issue in that case was the applicant's PIF, which was required by law to be filed at a refugee hearing. In this case, it is clear that the evidence of the male applicant was rife with inconsistencies and implausibilities. As a result, I am not persuaded that this one error in the treatment of the male applicant's testimony was material to the result.
Did the Board err by failing to assess the claim of the female applicant independently from that of her husband?
[21] A review of the Board's decision makes it clear that the Board understood that the female applicant's claim was based entirely on the allegations of persecution put forward by her husband relating to his own political activities. Indeed, the Board's treatment of the female applicant's claim is confined to the following statement:
Ayant basé sa demande d'asile sur celle du demandeur principal, le tribunal arrive à la même conclusion en ce qui concerne madame Marie Okitapenge-Opunga Mawaka.
[22] The female applicant's PIF contains a lengthy and detailed narrative as to the reasons for her fear of persecution. The form makes it clear that she fears persecution in the DRC based upon the political activities of her husband. In addition, however, the female applicant also claims that she herself was a member of the PDSC. Further, she asserts that she comes from a politically active family in the DRC. As such, she claims to have a well-founded fear of persecution based upon her own political beliefs and activities, as well as those of members of her family of origin. This aspect of the female applicant's claim is not dependent to any extent upon the testimony of the male applicant.
[23] Having elected not to testify, it was reasonably open to the Board to accord the unsworn and untested information contained in the female applicant's PIF little weight. However, given that this evidence was central to this aspect of her claim, the Board could not simply ignore it: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.).
[24] A review of the country condition information relating to the DRC discloses that ordinary members of the PDSC are at risk of arbitrary arrest, detention without trial, and mistreatment while imprisoned. In these circumstances, it was incumbent on the Board to assess the merits of the female applicant's claim independently of that of her husband. Having failed to do so, the Board committed a reviewable error, and insofar as the decision relates to the female applicant, it should be set aside.
[25] In light of my conclusions with respect to the first issue raised by the female applicant, it is unnecessary to deal with the procedural fairness question arising out of her exclusion from the hearing room.
Certification
[26] The applicants propose a question for certification relating to the exclusion of the female applicant from the hearing room. In light of my reasons for allowing the application of the female applicant, the proposed question is not dispositive of this case. Accordingly, no question will be certified.
ORDER
THIS COURT ORDERS that
1. For the reasons set out above, the female applicant's application is allowed, and her claim is remitted to a different panel for reconsideration.
2. The male applicant's application is dismissed.
3. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
I HEREBY CERTIFY that the above document is a true copy of the original filed of record in the Registry of the Federal Court the __________ day of _____________ A.D. 2004
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Dated this _______ day of _______________, 2004
_______________________________
Name, Title of Officer
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1504-03
STYLE OF CAUSE: FRANCISCO MAWAKA LUSWA
and MARIE OKITAPENGE-OPUNGA MAWAKA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER
AND ORDER BY : MACTAVISH J.
DATED: FEBRUARY 26, 2004
APPEARANCES:
Mr. Michael Crane
FOR APPLICANTS
Mr. Lorne McClenaghan
FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040226
Docket: IMM-1504-03
BETWEEN:
FRANCISCO MAWAKA LUSWA
and MARIE OKITAPENGE-OPUNGA MAWAKA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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