Date: 20000124
Docket: IMM-102-99
Between:
Ayonda SIMBA,
Stéphanie SIMBA AWUKU,
Plaintiff,
and:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
LEMIEUX J.
[1] The applicants, two sisters, citizens of the Democratic Republic of the Congo ("DRC"), are claiming refugee status. On November 26, 1998 the Immigration and Refugee Board ("the panel") delivered a decision that the claimants are not Convention refugees and that their claims lacked a credible basis.
[2] The applicants, with leave of this Court, asked that the panel"s decision be reversed on grounds of an error of law and a finding of fact made in a perverse or capricious manner or without regard for the material before it.
[3] Ayonda Simba"s claim is based essentially on that of her sister Stépanie Simba Awuku. Ms. Simba left her country in February 1985 to pursue her studies in Germany and Belgium. In February 1995 she left Belgium for Canada and decided to pursue her studies at Laval University in the province of Quebec. On December 5, 1995 she claimed refugee status.
[4] The claimant Stéphanie Simba Awuku decided to flee her country on November 22, 1996, arrived in Canada the following day and claimed refugee status that same day.
PANEL"S DECISION
[5] The panel set out the facts underlying Ms. Awuku"s claim. Accordingly, the key event was a demonstration organized in Kinshasa on July 29, 1995 by the Parti Lumumbiste Unifié ("PALU"), a party in opposition to the DRC government. It said the claimant"s father was an advisor to the Mobutu government before defecting to join the PALU.
[6] Ms. Simba Awuku allegedly participated in this demonstration and was a witness to her father"s arrest and that of the founding president of the PALU, Antoine Gizenga, when soldiers fired on the demonstrators. However, Ms. Simba Awuku managed to get away. The same evening she, her mother, her brother and her sister were arrested by the soldiers.
[7] Ms. Simba Awuku testified that for about a month she and the members of her family were held in the same cell. Then, she was separated from her family and interrogated for a month and a half as to the reasons leading her father to leave the Mobutu presidential movement and joint the PALU, the source of his money, the nature of his activities and his duties in the PALU as well as the identity of people working with him. Additionally, Ms. Simba Awuku said she nearly suffered two sexual assaults in December 1995 when she was in prison.
[8] Around February 1996 Ms. Simba Awuku allegedly bribed her guard, who helped her escape from the prison. She testified that she remained at her guard"s house until she left the country the following November 22; her air ticket was allegedly paid for by her father"s friends. In addition to her air ticket she held two forged passports, one French and one Canadian.
[9] On the presence of Ms. Simba Awuku at the demonstration of July 29, 1995, the panel said the following:
| . . . we regard as improbable her testimony that she was present at the demonstration of July 29, 1995 and witnessed her father"s arrest at that time. |
[10] In support of its finding the panel gave three reasons:
| (1) Simba Awuku testified that the soldiers had fired at random on the hundred or so demonstrators on July 29, 1995: the documentary evidence was that some 2,000 demonstrators assembled in Kinshasa on July 29, 1995, [TRANSLATION] "which is considerably more than the number estimated by the claimant"; |
| (2) Ms. Simba Awuku testified that she remained at the site of the demonstration for ten to fifteen minutes while the soldiers were firing on the demonstrators; |
| (3) according to her testimony, Ms. Simba Awuku was in the last row of the demonstrators (2,000 according to the documentary evidence) and had time to see the soldiers arrest her father and the PALU leader, who were in the first row of the demonstrators. |
[11] The panel subsequently analysed the testimony of Ms. Simba Awuku regarding her stay in prison and the sexual assaults mentioned in her Personal Information Form ("PIF"), which she nearly suffered. At p. 4 of its decision the panel wrote:
| In the circumstances, we cannot accept the claimant"s testimony that she was the victim of sexual assaults, or even attempted assaults. |
[12] This finding was justified by the panel as follows:
[TRANSLATION]
| In her PIF the claimant stated that she "nearly suffered two sexual assaults" when she was in prison in December 1995. In her testimony, in response to very leading questions by her counsel, the claimant first stated that this involved touching and then attempted rape, and finally touching and rape. When asked what she meant by the sentence "I never knew why he started and did not finish", the plaintiff answered that she was speaking of touching. When asked why she had written in her PIF that she had "nearly suffered two sexual assaults" the plaintiff made no reply. |
[13] In conclusion, the panel found that the plaintiffs had not presented evidence of a valid fear of persecution if they were to return to the DRC. Further, the panel stated that they were not Convention refugees and that their claims did not have a credible basis under s. 69.1(9.1) of that Act.
ANALYSIS
[14] The panel"s decision was based on the improbability of the testimony by Ms. Simba Awuku, and in particular two aspects of the latter; her presence at the demonstration of July 29, 1995 and her testimony about a sexual attack in prison.
(1) Demonstration of July 29, 1995
(a) Number of demonstrators
[15] The transcript of the hearing clearly indicates that Ms. Simba Awuku testified three times that there were over a hundred and less than two hundred people in the crowd. In its decision the panel referred to the documentary evidence of the Europa World Year Book 1996 as showing that some 2,000 demonstrators assembled in Kinshasa on July 29, 1995.
[16] Counsel for the plaintiffs argued that the Europa World Year Book 1996 was not in the panel"s record and that Ms. Simba Awuku had never been shown this documentary evidence. She was never asked to explain why she thought there were between a hundred and two hundred people at the demonstration.
(b) Her father"s arrest
[17] Simba Awuku explained in her PIF that when she arrived at the site of the demonstration she saw her father in the front rows and went to tell him she was there. She wrote that her father ordered her to stay near the friend who was with her and to keep at the very back. In her testimony she confirmed that she was at the back of the demonstrators when the soldiers fired at random. Ms. Simba Awuku stated that when the shots were fired by the soldiers people were running in all directions.
[18] The following is a passage from the transcript, at pp. 443 and 444, of the questions and answers that followed:
[TRANSLATION]
| Q. And you said just now that people were running in all directions? |
| A. Uh-huh. Yes, that is what I said. |
| Q. How did you see it? Could you see your . . . your father and the . . . the president of the . . . the PALU being arrested at that time if you had run towards the . . . your friend's car? |
| A. Yes, I ran away to the car, but it is true that I . . . I was looking to see what happend to my father because of the fact he was at the front. |
| A. And I saw he was being . . . he was arrested and then taken to one of the trucks. |
| Q. How much time did all that take, between the shots and the arrest of your father and his being taken to a truck, and your also seeing the PALU president arrested and also being taken to a truck? How much time did all that take? |
| A. It took ten or fifteen minutes. |
| A. Perhaps ten or fifteen minutes. |
| Q. Ten or fifteen minutes? And you stayed . . . throughout all that time you stayed where you were? |
| A. No, I did not stay where I was, I . . . I went to the car, but at the same time also I . . . I pretended to watch what was happening. |
| Q. If I understand correctly, this was a demonstration. If there were shots fired at the demonstrators, a hundred to two hundred people, that would create a complete . . . a complete panic? I understand that at that time you were preparing to leave the area immediately. In fact, you say you stayed in the area for ten to fifteen minutes. Is that correct? " long enough to see your father and the . . . the PALU president arrested and taken to a truck? |
[19] Counsel for the plaintiffs maintained that the panel"s finding on this point was unreasonable.
| (2) Was the plaintiff sexually attacked? |
[20] On the second discrepancy mentioned by the panel, I conclude after a careful reading of the transcript that the testimony of Ms. Simba Awuku should be read and understood in the following way: at p. 383, to an initial question [TRANSLATION] "And outside or away from the interrogations, were you beaten?" Ms. Simba Awuku replied [TRANSLATION] "No, just once I had . . . sexual touching". At p. 384, after replying that the soldier was alone with her, she was asked the question [TRANSLATION] "And what did he want to do?". Ms. Simba Awuku replied [TRANSLATION] "He . . . he wanted to rape me".
[21] On the next page, she was asked [TRANSLATION] "Did this happen . . . only once?" and Ms. Simba Awuku replied [TRANSLATION] "Twice". On the same page, she was asked [TRANSLATION] "Did he only engage in sexual touching or were you raped?" She replied [TRANSLATION] "The second time".
[22] At p. 386 the presiding member addressed the claimant and asked her this question: [TRANSLATION] "I understood at the outset, madam, that you suffered two sexual touchings, then two attempted rapes, and now I understand that you were raped once. Is that right?" Ms. Simba Awuku replied [TRANSLATION] "There were sexual touchings the first time and then I was raped the second time".
[23] At p. 387, the following exchange occurred:
[TRANSLATION]
| Q. On that point " because I " from the way I read your form, it states "I nearly suffered two sexual assaults" " I do not see in . . . in your form where you say that you were raped as such. Do you have an explanation for this? |
| A. I would say that it is . . . it is a period of my life I am trying to forget, that"s true. |
| Q. But why do you say "I nearly suffered" if you in fact suffered a rape? Do you have no answer for that? |
BY THE PRESIDING MEMBER (addressing claimant)
| Q. In the same paragraph, you say "I never knew why he started and did not finish". What do you mean by that? Do you . . . |
" Oh.
[24] The last exchange between the Board member and the claimant on this point is at p. 391:
[TRANSLATION]
BY THE BOARD MEMBER (addressing claimant)
| Q. You indicated in the second paragraph on p. 4: "As of that moment, I began living in fear that the next time would be the real thing". What do you mean by that? " what you said before: "I nearly suffered two sexual assaults, I never knew why he started and did not finish. As of that moment, I began living in fear that the next time would be the real thing". What do you mean? |
| A. That he would rape me next time. |
[25] However, I note that the plaintiffs submitted no argument on this discrepancy at the hearing.
[26] Further, the plaintiffs argued that the panel"s finding was patently unreasonable since there are several aspects of the evidence which were credible, including the documentary evidence entered in the record regarding the Mobutu regime and the new Kabila regime; the PALU membership card in their father"s name; and their father"s photo showing his political activism.
[27] Further, the plaintiffs noted that Ms. Simba had entered in evidence three letters she received from an aunt, an uncle and a friend of the father who were still in the DRC, relating events that had occurred at the demonstration of July 29, 1995, the disappearance of her father who was actively participating in the demonstration and the fact that his entire immediate family was in prison on account of her father"s political activities in the PALU, quite apart from the lost video cassette showing that their residence in Kinshasa was abandoned and looted.
ANALYSIS OF TOTALITY OF EVIDENCE IN RECORD
[28] In Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.), the Federal Court of Appeal noted the panel"s duty to take into account the totality of the evidence in the record, though it did not have to mention each point of evidence in its analysis.
[29] However, in a recent judgment, Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, my colleague Evans J. noted the panel"s duty to mention important points of evidence in its reasons:
| [15] The court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency"s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency"s interpretation of its constituent statute if it provides reasons for its conclusions, so a court will be reluctant to defer to an agency"s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. |
| [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Minister of Employment and Immigration) (1990), 120 N.R. 385; 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. |
| [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency"s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence"; Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312 (T.D.). In other words, the agency"s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency"s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. |
Thus, a presumption exists that the panel weighed each point of evidence, but there is still a duty, namely that of mentioning important evidence supporting the panel"s decision.
[30] I have to note that no mention whatever is made of the PALU membership card identifying the plaintiff"s father as a member of that organization, the latter"s photo at political activities, the letters from the plaintiff"s uncle, aunt and the friend of their father reporting the disappearance of members of their family and the existence of a video cassette showing their home in Kinshasa abandoned and looted.
[31] Thus, in view of the impact of this evidence on the conclusions draw by the panel regarding the plaintiffs" claim, I conclude that this error by the panel in itself justifies referring the case at bar back to the panel for a re-hearing, but this time with a panel of different members. However, I feel I must also deal with the tribunal"s findings regarding the credibility of the testimony by the plaintiff Ms. Simba Awuku.
CREDIBILITY AND PLAUSIBILITY
[32] With regard to the standard of review applicable in cases where the tribunal"s decision is based on a lack of credibility because a claimant"s testimony is implausible or improbable, the Federal Court of Appeal has dealt with the point on several occasions.
[33] In Aguebor v. Minister of Employoment and Immigration, [1993] F.C.J. No. 732 (F.C.A.), Décary J.A. explained:
| [3] It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board"s field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility". |
| 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 have reasonably have been drawn. In this case, the appellant has not discharged this burden. |
[My emphasis.]
[34] Accordingly, the plaintiffs" burden is to show that the inferences drawn by the tribunal from the testimony were unreasonable. After analysing the record, I find for the following reasons that the said inferences drawn by the tribunal from the evidence in the record were unreasonable.
[35] I conclude from the evidence that it was unreasonable for the tribunal to conclude that the plaintiff Stéphanie Simba Awuku was not present at the demonstration of July 29, 1995 for three reasons, namely the estimate of the number of persons present at the demonstration, the fact that she was at the site of the demonstration for between ten and fifteen minutes while the soldiers were firing on the demonstrators and the fact that she allegedly saw her father being arrested when she was at the back of the demonstrators and he was at the front.
[36] With respect to these inferences drawn by the tribunal, I am satisfied that the plaintiff Ms. Simba Awuku provided an entirely plausible explanation which did not allow the tribunal to arrive at such a conclusion.
[37] With regard to the sexual attacks, after a careful reading of the transcript I feel it is important to bear in mind that in 1995 Ms. Simba Awuku was a young woman of 19 and also single. Accordingly, Ms. Simba Awuku"s testimony on this point should be weighed with caution and an open mind. Ms. Simba Awuku herself said at p. 385 of the transcript [TRANSLATION] "It is a period of my life I am trying to forget".
[38] Accordingly, I conclude that the tribunal did not take into account the circumstances the plaintiff was in when she suffered these assaults while in prison.
[39] Thus, having regard to these circumstances and the nature of the attacks suffered by the plaintiff, it was unreasonable for the tribunal to find the plaintiff"s story implausible on the basis that she indicated in her PIF she had [TRANSLATION] "nearly suffered two sexual assaults", while in her testimony she finally stated she was first the subject of touching and finally, on a second occasion, of rape. The fact remains that in both forms of testimony, the written and oral testimony, she was always describing the existence of sexual assaults.
[40] In any event, I find that the question of whether there were sexual attacks is not an essential aspect of the facts reported by the plaintiff, but an incidental point. The central aspect was clearly that the plaintiff was in prison because her father was a member of the PALU. At no time did the tribunal seem to question this part of the plaintiff"s story, nor did it question the fact that her family was in prison and their residence looted.
[41] This conclusion is especially necessary as the Federal Court of Appeal said the following in Mahathmasseelan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29:
| The inconsistencies, although not insignificant, are not central to the appellant"s claim. The board ignored important parts of her case. It neglected the appellant"s testimony with regard to her being suspected by the I.P.K.F. as being a Freedom Bird, and her fear of persecution at the hands of the Indian army for not having reported to the camp. It attached no consideration to the fact that the claimant feared persecution at the hands of the Tigers because she felt she was suspected of being an informer. |
CONCLUSION
[42] For these reasons, the application for judicial review is allowed. The matter is referred back for re-hearing before a panel of different members. Additionally, no party recommended a question be certified.
Ottawa, Ontario
January 24, 2000
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: AYONDA SIMBA, STÉPHANIE SIMBA AWUKU v. MCI |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: September 29, 1999 |
| REASONS FOR ORDER BY: LEMIEUX J. |
APPEARANCES:
| Éveline Fiset FOR THE PLAINTIFF |
| Simon Ruel FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Éveline Fiset FOR THE PLAINTIFF |
Montréal, Quebec
| Morris Rosenberg FOR THE DEFENDANT |
Deputy Attorney General of Canada
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