Date: 20040505
Docket: IMM-1251-03
Citation: 2004 FC 661
Montréal, Quebec, May 5, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
PAUL KOJO OWOUSSOU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Did Mr. Owoussou see bodies washed up on shore, the aftermath of a mass murder in Togo? If he did, he may well be a refugee or a person otherwise in need of protection in virtue of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27. However, the panel of the Refugee Protection Division of the Immigration and Refugee Board which heard his case did not believe him. He seeks a judicial review of that decision and asks that his claim be referred back to a newly constituted panel for reconsideration.
[2] On July 29, 2001, Mr. Owoussou claimed to be a Convention refugee. He was in Montreal at the time. He said that he had arrived by ship two days earlier, as a stowaway. The basis of his refugee claim is that he is a citizen of Togo. However, he had lived in Ghana since the age of four, without the benefit of Ghanaian citizenship.
[3] During a school break in 2001, he visited his parents in Togo and while there took the opportunity to visit an aunt on the Benin side of the border. While on the road, he heard talk of dead bodies. He joined a group, went to the beach and saw human bodies strewn about. Soldiers from Benin arrived and said that the bodies were from the Togo side of the border, and that this happened all the time. His father had also told him of bodies being retrieved from the waters following the 1998 Togo elections.
[4] On return to Togo, seeing that he was a student in Ghana, he was accused of being a terrorist, a missionary or being in some way connected with Amnesty International. He was transferred to the Gendarmerie Nationale, and some time later to barracks in Adidogome. He managed to escape and made it to Lome. An uncle there helped him cross the river into Ghana and arrangements were made for him to stow away. He left Togo some time in July 2001 and made it directly to Montreal.
[5] The panel did not find him creditworthy. Aware that there must be good reason to doubt the veracity of a claimant, the panel dealt with his birth certificate which had a discrepancy as to the birth dates of his parents. There was some confusion about his education and inconsistencies in his Personal Information Form and his testimony. There was also inconsistency relating to his treatment after being arrested in Togo at the Gendarmerie Nationale and at the Adidogome barracks, and indeed the dates at which he was there. His answer was that he was not too strong on dates.
[6] Although there was documentary evidence of bodies washing ashore after the elections in Togo in 1998, there was no documentary evidence as to the situation in 2001. It may be of course that the regime was able to repress information.
[7] Mr. Owoussou was also very vague and inconsistent about how he managed to get to Canada. When he left the ship in Montreal, he noticed the name Maersk painted on its side. The immigration officer checked with Customs Canada who confirmed that there was a ship Maersk Balawan in port on July 27, 2001. However, that ship had not called at Togo at any relevant time. In his PIF, he said that he had slept for three days, and then about two days later, the ship arrived at destination, indicating a voyage of about five days. No ship can get from West Africa to Montreal in five days, or anywhere near it. By the time he testified at his hearing, he said the voyage lasted some two to three weeks. Under one version, he was kept in a cabin by a friendly sailor, and in another, he was between containers in a hold of the ship.
[8] Taking all this into account, he was not believed.
[9] It is well established that credibility issues are for the most part findings of fact, and that the decision of the Refugee Protection Division, a specialized body, should stand unless the findings were patently unreasonable (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (CA)).
[10] It is also true that there is an initial presumption that a claimant is telling the truth, a presumption which is rebuttable (Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (CA)).
[11] The Refugee Protection Division is sometimes criticized for blowing inconsistencies in a claimant's story completely out of proportion, or for zeroing in on inconsistencies which are collateral to the application itself, such as travel information (see Attakora v. Canada (Minister of Employment and Immigration (1989), 99 N.R. 168 (CA)). Section 3 of the Act sets forth Canada's objectives with respect to refugees, humanitarian ideals, and the need to offer safe haven to those who have well-founded fear of persecution. These objectives are meshed with the need to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings."
[12] It would be grossly unfair to allow safe haven as a refugee simply on that person's say-so. Often, the core of the claim cannot be verified, but other elements can, which is why the rules call upon the claimant to provide acceptable documentation. All information is given under oath, solemn affirmation or after notice that the declaration has the same force and effect as if given under oath.
[13] In this case, there was only one element of the applicant's story which could be verified in Canada, and that was his direct voyage from Togo to Montreal on a ship with two names, the first being "Maersk". The immigration officer checked with customs and found that there was indeed a ship in port at the relevant time bearing the name Maersk Balawan, but it had not come from Togo. The notes of the immigration officer are receivable in evidence and the applicant, who had the burden of proof, had ample opportunity to pursue this line of inquiry. Having concluded that the applicant's story had to be false, the remaining inconsistencies and contradictions had to be considered in a different light. Where the only evidence linking the applicant to his claim is his own, a finding that he is not credible effectively amounts to a finding that there is no credible evidence on which to allow his claim (Sheik v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) and Rahaman v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 3 F.C. 537).
[14] The panel found a number of inconsistencies which detracted from the claimant's credibility. I do not consider the findings manifestly unreasonable, or that the panel was searching for any excuse to disbelieve.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. There is no question of general importance for certification.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1251-03
STYLE OF CAUSE: PAUL KOJO OWOUSSOU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 4, 2004
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE HARRINGTON
DATED: May 5, 2004
APPEARANCES:
Stewart Istvanffy FOR APPLICANT
Marie-Claude Demers FOR RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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