Date: 20040923
Docket: IMM-4118-03
Citation: 2004 FC 1301
BETWEEN:
AMADOU OURY DIALLO
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Lemieux J.
[1] This is an application for judicial review by Amadou Oury Diallo (the applicant), a citizen of Guinea, to set aside the decision by the Refugee Protection Division (the panel) dated May 7, 2003, that he is not a Convention refugee or a person in need of protection. The applicant is 36 years old and left Guinea on November 15, 2001, to come to Canada.
[2] The panel's decision was based on the applicant's lack of credibility; it did not believe his story. According to the panel:
The claimant's story contained so many contradictions, inconsistencies and implausibilities that it cannot be true. As well, the claimant's testimony was hesitant and reluctant. At times, it was clear that he did not know how to respond and was looking for answers, adjusting his answers to the simple questions put to him about the incidents he claimed to have experienced. As a result, the panel does not consider him credible.
[3] The panel rejected the applicant's claim that he had been a member of two political parties since 1995 and 1998; that he was a political leader and also an organizer on the grounds that, when he was asked how many members that party had "he proved to be totally ignorant of this fact. Not only was he unable to give an answer, but he also seemed to be simply lost, not knowing what to say. He could not even give an approximate number, merely stating: "I don't know anything about that.""
[4] The panel determined that it "therefore has difficulty believing that a person who presents himself as an accountant and who has been a member of a political party for some six or seven years, as well as an organizer and political coordinator for the same party, is unable to provide an estimate, if only an approximate one, of the size of his organization. As a result, the panel doubts that the claimant belonged to this organization as an organizer and political coordinator, even though he submitted a membership card and a letter from UPR's administrative secretary". The panel added:
To begin with, it must be noted that the membership card is undated. Next, the certificate is a document the claimant obtained when he was already in Canada.
[5] The panel identified a contradiction regarding his fear of returning - his fear of being arrested and tortured and even killed based on the fact, according to his testimony, that he had already been arrested, beaten and tortured on three occasions in the past, i.e. in August 1999, on June 17, 2000, and on July 10, 2000, when he managed to escape and lived in hiding until he fled, as stated in his Personal Information Form (PIF).
[6] The panel noted, however:
However, as he acknowledged during his testimony, he never mentioned these arrests on his arrival in Canada. He did not even state that he had come to Canada to claim refugee status, saying instead that he was a visitor. During an interview on January 4, 2002, nearly two months after the claimant's arrival in Canada, an immigration officer asked the claimant a clear question about previous arrests or detentions. His reply was that he had never been arrested or detained.
The question was raised at the hearing, and the claimant stated that he had said at the airport that he had not been arrested or detained so that he would be able to enter Canada.
However, when the panel pointed out to him that he had made this statement not at the airport but rather on January 4, 2002, there was no reply.
Given this unexplained contradiction, the panel is convinced that the claimant has never been arrested, beaten or tortured as he claimed.
[7] The panel reinforced its determination by discovering another contradiction between his first PIF and his testimony. According to the panel, when he testified the applicant said that he had lived in hiding since June 18, 2000, because he was wanted, and had to stop working on the same date. The panel observed:
However, his answer to question 18 of his first PIF, the one he signed on March 11, 2002, clearly indicated that he had stopped working in November 2001. At the hearing on November 27, 2002, he made what he called a "correction" to his PIF to state that he had stopped working in June 2000, rather than in November 2001.
[8] The panel observed that the issue regarding the date the applicant stopped working was also raised at the hearing so that the applicant could explain. The panel reported that the applicant testified that he had never written that he worked until November 2001, that he had signed his PIF unseen, when asked to do so by his then counsel, who had asked him to sign the document quickly because it had to be filed immediately with the Registry of the IRB - a document that he claimed had been filled out by his counsel in his absence.
[9] The panel continued its analysis by writing that when the panel reread to him most of the answers he had given to the questions asked of him, answers which themselves had not been corrected, he had to admit that the answers were his, but he maintained that his counsel had had the answers with him and had copied them to the PIF in the claimant's absence.
[10] The panel made the following determination:
The panel rejects these explanations, especially since, as already noted, in the question-and-answer portion of the PIF, the only correction the claimant made was to the date he had stopped working. It seems obvious to me that this change was made so that date would correspond to the narrative as a whole. Once he stated in his story that he had been in hiding since June 2000, it goes without saying that he had to make this correction to provide some consistency to his entire story.
The panel is satisfied that the claimant worked until November 2001, which means that he was never in hiding or wanted by the authorities in his country.
[11] Two other factors supported the panel's determination that he had never been arrested or tortured in Guinea: the fact that he had not claimed refugee status when he arrived in Canada but also the fact that, when he did so, he said that he feared the authorities because he was homosexual and when questioned on that point, he stated that he had initially said that he was homosexual following the advice of a fellow detainee while he was detained in Laval. The panel rejected the explanations:
Whatever the claimant's explanations, the panel is convinced, however, that, if he had really been arrested, detained and tortured in his country, and if he had a fear of returning there because of the chance that this would happen again, he would have said so, if not when he arrived in Canada, then at least when he made his claim for refugee protection.
The panel therefore attaches no credence to his story and no probative value to Exhibits P-3, P-4 and P-5 with respect to the risk of returning.
[12] The panel agreed; it found that the applicant lacked subjective fear because he had not claimed protection in France when he went through that country on the way to Canada and, to justify it, had provided "quite a paradoxical explanation, stating that he had wanted to come to Canada instead because he is French-speaking".
Analysis
[13] The panel's decision was essentially based on its determination that the applicant was not credible. The credibility of the applicant's story is a question of fact. Pursuant to subsection 18.1(4)(d) of the Federal Courts Act, this Court cannot intervene unless the panel's decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the evidence before it, amounting to a patently unreasonable decision.
[14] In the Supreme Court of Canada case Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, at page 844, L'Heureux-Dubé J. writes at paragraph 85:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: > 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: > National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[15] In Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, Décary J.A., on behalf of the Federal Court of Appeal, writes at paragraph 4:
¶ 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.
[16] In Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415, Pratte J.A. of the Federal Court of Appeal states:
. . . we have not been persuaded that the Board's finding on credibility was either unreasonable or perverse. Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense.
[17] In Mostajelin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28, the Federal Court of Appeal per Décary J.A. writes:
The Board's conclusion that the appellant's evidence was not credible or trustworthy is based upon the appellant's demeanour, the conflict between the Personal Information Form and his oral testimony and a series of inconsistencies and implausibilities in his oral testimony. Such credibility findings are beyond the review of this Court.
[18] The applicant raised the following against the panel's decision:
(1) his credibility was capriciously undermined by the panel which arbitrarily dismissed his explanations;
(2) the panel improperly assessed the evidence when it refused to accept the applicant's testimony about his genuine fear of persecution, i.e. his political opinion. The panel was unmoved on two aspects of the evidence: the fact that he did not claim refugee protection immediately at Dorval and the fact that he changed his story several times;
(3) the applicant had not been confronted with an essential element of his claim;
(4) the panel was hostile toward applicant, thereby preventing him from being heard;
(5) the panel made no mention of the applicant being summoned by the police;
(6) the case law does not support the panel's finding on the applicant's subjective fear.
[19] In my opinion, the arguments raised by the applicant have no merit.
[20] Upon reviewing the transcripts I am persuaded that the evidence, assessed reasonably, could support the panel's findings on the applicant's credibility. Essentially, the applicant wants me to reassess the evidence in order to make a determination that differs from that of the panel. The Supreme Court of Canada has repeatedly held that a court, on judicial review, need not reassess the evidence that was before the administrative tribunal.
[21] The evidence established, for example:
1) that when the applicant claimed refugee status four days after being detained at the airport, the reason that he gave was his homosexuality and it was not until November 26, 2001, in the context of a detention review, that the applicant expressed that he feared persecution as an organizing member of an opposition party;
2) while saying that he was a militant and an opposition party organizer, the applicant knew very little about the number of its members;
3) when interviewed by an immigration officer on January 4, 2002, he stated that he had never been arrested and detained except in Canada, which contradicts what he wrote in his PIF two months later. The applicant's explanation was unfounded.
4) several inconsistencies about his claim that he went into hiding on June 20, 2000; and
5) on the changes in his testimony regarding a brother in Canada or in the United States, regarding his acquaintance with Mr. Habid Diallo and one Mr. Bah, who had the applicant's personal documents in their possession.
[22] That evidence - and there was more - supported the panel's finding that the applicant was not a Convention refugee or a person in need of protection.
[23] In my opinion, the evidence before the Court does not support the applicant's claims that his credibility was unfairly undermined, that the panel improperly assessed his testimony and that it capriciously disregarded his explanations. On this last point, I point out in particular that the panel had evidence on which it could rely to dismiss the applicant's explanation regarding why at the beginning of the hearing he had amended the date he had stopped working.
[24] Moreover, the evidence establishes that the applicant had been confronted by the panel about his answer to the immigration officer on January 4, 2002, that he had never been arrested or detained in Guinea, and that the panel was entitled to disbelieve his explanation.
[25] It is not correct to say that the panel did not consider exhibit P-5, the summons to police headquarters. At page 5 of its decision, the panel wrote:
The panel therefore attaches no credence to his story and no probative value to Exhibits P-3 [UPR membership card], P-4 [Letter from the UPR's administrative secretary] and P-5 with respect to the risk of returning.
[26] According to the case law, the lapse of time before claiming protection in Canada was a factor that the panel could consider in analyzing the merits of the applicant's claim. However, the panel erred in finding that the applicant, who was in transit at Charles De Gaulle Airport, should have claimed protection in France. That error is not determinative. As respondent's counsel pointed out, what is fundamental in the panel's decision is its finding that the applicant had never been arrested or beaten or tortured as he claimed.
[27] Finally, I do not accept the applicant's claim that the panel's attitude deprived him of the opportunity to receive a full and fair hearing during which he could properly raise his fear of persecution. My review of the transcript indicates the contrary notwithstanding that the panel chairperson thoroughly examined and cross-examined the applicant. His counsel was very attentive to the questions asked by the chairperson and on occasion intervened; she could and did, in turn, examine the applicant.
[28] For all of these reasons, this application for judicial review is dismissed. No question was proposed for certification.
"François Lemieux"
Judge
Ottawa, Ontario
September 23, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4118-03
STYLE OF CAUSE:
AMADOU OURY DIALLO
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 4, 2004
REASONS FOR ORDER Lemieux J.
DATE OF REASONS: September 23, 2004
APPEARANCES:
Stewart Istvanfly FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanfly (himself) FOR THE APPLICANT
1070 de Bleury, Suite 503
Montréal, Quebec H2Z 1N3
(514) 876-9776
Morris Rosenberg, Q.C. FOR THE RESPONDENT
Department of Justice Canada
Complexe Guy Favreau
200 blvd. René Levesque West
East Tower, 9th floor
Montréal, Quebec H2Z 1X4
(514) 496-4071
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