Date: 20040331
Docket: IMM-5147-03
Citation: 2004 FC 505
Montréal, Quebec, March 31, 2004
Present: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
BÉBÉ NSOMBO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Harrington J.
[1] The applicant has made an application for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision by the Refugee Protection Division (the panel), dated June 18, 2003, that the applicant was not a Convention refugee, or a person in need of protection.
FACTUAL BACKGROUND
[2] Since January 2002, the applicant worked as a baggage handler at the N'djili International Airport, Democratic Republic of Congo, where he carried travellers' luggage from the parking lot to passenger registration.
[3] On June 10, 2002, he carried two suitcases belonging to a woman who stopped at the security services control post, where they discovered that her two suitcases were filled with Congolese franc bank notes. She was arrested for trafficking in Congolese francs in rebel-occupied territories. This form of commerce has been strictly forbidden by Laurent Kabila since 1998 , but this trafficking was like an exclusive domain of the Shabians of the Kabila regime. The Shabians engaged in the same kind of trafficking.
[4] After this woman was taken in by the security services, the applicant talked to his colleagues, denouncing this injustice, because this system favoured the Shabians to the detriment of other citizens of the country. The applicant spoke openly and he is certain that security services heard him.
[5] Around 7:00 p.m. on the same day, the applicant's boss called him into his office and three men arrested and hit him, and drove him to the site of a warehouse that was not operational. The applicant was met by two other individuals who placed him in a room that was approximately 3 m by 3 m. The applicant states that these men belonged to the secret services of the Kabila regime and, according to them, the applicant was bashing Shabians and the ruling regime. The applicant was repeatedly insulted and put in an enclosure.
[6] On June 11, 2002, after paying $400 US to the guard who was on duty, the applicant, with the guard's help, went out a small back door at around 11:00 p.m. He stayed at his brother's house and, after a month in Brazzaville, on July 13, 2002, he came to Canada, where he immediately claimed refugee status.
IMPUGNED DECISION
[7] The panel found that the applicant is not credible. The panel writes that it found it implausible that the applicant had failed to mention, at his examination with the immigration officer, the fact that he had been arrested and detained for two days, June 10 and 11, 2002, by Kabila's secret service agents. In his personal information form (PIF), the applicant also reports that he had fled from his place of detention and was wanted by the authorities of his country, while in the notes entered by the immigration officer on the Computer Assisted Immigration Processing System (CAIPS), the applicant did not at all refer to his two-day detention or to his escape or even to his being wanted by the authorities. His credibility is the only reason for which the panel dismissed his claim.
ISSUE
[8] The only issue is whether the decision rendered by the panel is one which warrants the intervention of the Court.
APPLICANT'S SUBMISSIONS
[9] The applicant submits that it was patently unreasonable to dismiss the claim for a single reason, without assessing the risk that he ran if he were returned to his country. The panel did not take into consideration the explanations given by the applicant to the effect that he understood the words "[TRANSLATION] detention" and "[TRANSLATION] arrested" in the immigration officer's questions as an official arrest by a prison system. He explains that he had never been incarcerated or arrested with a warrant, or brought to a police station. The applicant explained that he had been the victim of an "[TRANSLATION] abduction" or of a "[TRANSLATION] forcible confinement" and that he did not regard the incident as an arrest. So, he answered "no" to the immigration officer's question as to whether the applicant had been arrested or detained in the past by the Congolese authorities. The applicant claims that the panel did not note any other contradiction or implausibility in his refugee claim and it therefore went too far in dismissing all of the claim over one problematic point.
RESPONDENT'S SUBMISSIONS
[10] The respondent submits that such statements at the port of entry are inconsistent with the written evidence, with respect to points as crucial as those in this case. They are sufficient to taint the applicant's general credibility and to dismiss his claim for refugee protection for this reason alone.
[11] Contrary to the applicant's submissions, the respondent argues that, according to the caselaw, such a discrepancy between the statement at the port of entry and the PIF is sufficient in itself to dismiss a claim for refugee protection.
ANALYSIS
Standard of Judicial review
[12] In Ismaeli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 573, Cullen J. explains the judicial deference which the Court must exercise when reviewing a purely factual determination based on credibility.
[18] In summary, it is clear that the reviewing court should refuse to interfere with decisions which assess credibility or plausibility, provided that the decisions are properly founded on evidence, do not ignore evidence, or are supported by evidence.
[19] The onus on the applicant to refute the Board's findings is a heavy one. The applicant must be in a position to show that the conclusions reached were perverse or capricious or so unreasonable that the Court is duty-bound to set the decision aside.
[13] It is important to note the nature of the information that the applicant forgot to mention to the immigration officer. These are key elements and central to his claim for refugee protection. For example, the fact that he was detained for two days, June 10 and 11, 2002, by Kabila secret services security agents and also the fact that he fled from his place of detention and was sought by the authorities of his country, are important. How can the applicant, who is claiming refugee status, have forgotten to mention this important information to the immigration officer when he entered Canada? The panel was right to question the veracity of this information.
[14] Lemieux J., in Neame v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 378, commented as follows on an applicant's failure to mention essential elements to the immigration officer:
It is true that the panel concluded that the applicant lacked credibility solely on the basis of the false statement she made to the immigration officer at the port of entry. However, like Teitelbaum J. in Jumriany v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. no. 683, in some identical circumstances, I think the panel did not err when it drew an unfavourable conclusion concerning the applicant's credibility based solely on the false statement she made to the immigration officer. Indeed, as I mentioned earlier, this false statement had to do with an essential point in her claim and her explanations of her lie were unconvincing, according to the panel.
[15] Thus, the applicant was found to be not credible on fundamental points of his claim for refugee protection, i.e. his arrest, his detention and the fact that he was targeted by the authorities of the Kabila regime. Pinard J. commented on the lack of credibility on a fundamental element of the claim:
Having regard to the evidence in the record, I am not satisfied that this assessment of the applicant's credibility was not made properly. Accordingly, the perception that the applicant was not credible on a fundamental element of his claim in fact amounts to a finding that there was no credible evidence sufficient to justify the refugee claim in question: Tsafack v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. no. 506.
[16] The applicant points out that he tried to respond to the panel on this question of omissions, saying that he understood the words "[TRANSLATION] detention" and "[TRANSLATION] arrest" in the officer's questions as an official arrest in a prison system. The applicant explained that he had been the victim of an "[TRANSLATION] abduction" or "[TRANSLATION] forcible confinement" and that he did not consider the incident as an arrest or a detention. So, he answered "no" to the officer's question as to whether the applicant had been arrested or detained by the Congolese authorities.
[17] However, after reading the transcript of the hearing, it is clear that the applicant knew that the words "arrested" and "detained" had the same meaning in this context as the words "abduction" or "forcible confinement". In answering the questions of a panel member during his hearing, the applicant replied as follows:
[TRANSLATION]
Q: And you were arrested by whom?
A: By three (3) men of the security forces of the Kabila regime.
. . .
Q: Have you been arrested or detained by the police or the military authorities of a country before?
. . .
A: It's an abduction, perhaps . . . .
A: Abduction, but okay, detention.
[No emphasis in the original.]
[18] Moreover, the applicant wrote, in exhibit "A" of his affidavit that he had been arrested by three men who belonged to secret services of the Kabila regime. He writes:
[TRANSLATION]
. . . I saw three gentlemen dressed as civilians who directly arrested me, tied me up, hit me . . . I saw about twenty men in civilian clothes. . .
. . . These men belonged to the secret service of the Kabila regime.
[19] For all of these reasons, I dismiss this application for judicial review. The applicant did not present any evidence to support a finding that the panel made a patently unreasonable decision.
[20] Despite the opportunity given to them, the parties did not ask for the certification of a serious question of general importance and the Court will not certify any question.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5147-03
STYLE OF CAUSE BÉBÉ NSOMBO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 23, 2004
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATE OF REASONS: MARCH 31, 2004
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Marie-Claude Paquette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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