Date: 20021223
Docket: IMM-3790-01
Neutral citation: 2002 FCT 1307
OTTAWA, Ontario, this 23rd day of December, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
FERNANDO ZOLA KUANZAMBI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review filed under s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2. The applicant seeks judicial review of a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board ("IRB") that he is not a Convention refugee.
ISSUES
[2] The issues as framed by the applicant are the following:
a) Did the panel err in law by misapprehending the evidence before it in concluding that the applicant did not qualify as a Convention refugee?
b) Did the panel err in law by misinterpreting or misapplying the law concerning credibility in finding that the applicant was not credible?
c) Did the panel err in law by failing to consider the totality of the evidence properly before it in concluding that the applicant did not qualify as a Convention refugee?
[3] For the following reasons, this application for judicial review shall be dismissed.
BACKGROUND
[4] The facts presented here are those stated by the applicant, based on his Personal Information Form ("PIF"), on the transcript of his CRDD hearing and, in part, on the summarization of the evidence in the reasons of the panel.
[5] The applicant is a citizen of Angola. He lived in Zaire (now known as the Democratic Republic of Congo) between 1975 and 1990. His PIF indicates that he studied religion in Zaire and in Angola but did not complete his studies in Angola. Nonetheless, he became a preacher; according to the applicant, it is not necessary to have a certificate in order to serve as a preacher in Angola.
[6] From 1994 until his arrest in 1999, the applicant served as a minister in a Pentecostal church in Luanda, Angola. He married his spouse in a religious ceremony in 1996, but did not enter into a civil marriage at that time. Religion and the civil processes of the state are separate, according to the applicant.
[7] The applicant belongs to the Bakongo ethnic group. In addition to Bakongo, he speaks Lingala, the language which was spoken in the family home. He also has some degree of fluency in French and in Portuguese. The applicant delivered his sermons in Lingala, with a Portuguese interpreter. His testimony at his CRDD hearing was given in Portuguese, as he had requested interpretation in that language.
[8] The applicant states that while preaching in front of three hundred followers in the Lunda Nord province, army vehicles surrounded the crowd. Officers of the armed forces singled out the applicant and the interpreter and assaulted them. The applicant and the interpreter were then taken to an unknown destination, and have not seen each other since then.
[9] The applicant was detained in a dark cell that he occupied alone. Occasionally, a soldier would come to his cell and call him names that suggested that he was affiliated with groups considered subversive by the government of Angola. He was beaten and sodomized on some of these occasions.
[10] On one occasion, the applicant was approached by a soldier known only to him as "the chief". "The chief" told the applicant that he had a disease known traditionally as Mankulo, which causes hemorrhoids and is sexually incapacitating. "The chief" offered to help the applicant if the applicant could, through prayer, assist this officer in curing his ailment.
[11] Following their prayer sessions together, some time had passed until "the chief" came back to see him in his cell. On January 12, 2000, "the chief" took the applicant to a local airport, from where they flew from Lunda to Luanda, Angola. After a brief stay at a private home in Luanda, the applicant was taken by another person to the Luanda airport, from where they flew to Lisbon, Portugal.
[12] In Portugal, the applicant was met at the airport by a man named Tito, who harboured the applicant for a week and gave the applicant a fake passport. The applicant was then taken to the airport in Lisbon for a flight to Toronto.
[13] The applicant effectively asserts that if he returns to Angola he will be killed. He fears persecution because of the religious beliefs that he holds and which he spreads to others. He also expressed a fear that he may be killed for having escaped custody.
CONTESTED DECISION
[14] The hearing was held before a panel consisting of one member. The applicant and his counsel consented to this. The panel found that the testimony of the applicant lacked credibility.
[15] Among the faults found in the testimony of the applicant was his failure to recall the day or month of his marriage. He could not remember all of the names of his sisters and brothers, or correctly state how many he had. The panel indicated that members of his family are in the Democratic Republic of Congo, not in Angola, but that the applicant failed to amend his PIF accordingly.
[16] The identity card of the applicant, issued in 1997, stated that he was unmarried. However, he had married in 1996. The panel expressed the view that someone who is religious would consider his marriage important enough to have it mentioned on his identity card.
[17] The panel also did not accept as credible the explanation of the applicant that he delivered sermons in Lingala with Portuguese interpretation, notwithstanding his own command of Portuguese, out of concern for his followers. Nor did it receive an adequate explanation as to why 300 people attended his sermon on the day of his arrest, when he normally draws an average of 80 people to his sessions.
[18] The panel considered the testimony of the applicant regarding his detention vague. It also did not believe that a member of the military would act the way the applicant says "the chief" did, noting that this conflicts with the documentary evidence on the conduct of military officials. The member was also not satisfied with the reasons given by the applicant for failing to make a refugee claim in Portugal, or for not contacting his wife until his arrival in Canada.
[19] The conclusion of the panel was that the applicant fabricated his narrative in order to support a claim for refugee status. Accordingly, the panel does not accept that the depressive state of the applicant as described in the report issued by an Ottawa hospital was caused by the events of which the applicant spoke, since it does not believe that these events occurred. The claim was thus dismissed.
SUBMISSIONS
Applicant
Misapprehension of the evidence
[20] The panel erred in that it misconstrued the evidence before it. Although the PIF confirmed that the applicant had lived in Angola between 1990 and 2000, the panel referred to the applicant as having "lived in Portugal for the last nine years" [Applicant's Record, page 9]. The applicant said that members of his family had fled to the Angolan province of Zaire. The panel believed that the references of the applicant to Zaire were references to the country now known as the Democratic Republic of Congo.
[21] The heavy reliance of the panel of these findings had a serious effect on the assessment of the credibility of the applicant. It cannot be said that the panel would have arrived at the same conclusion had it properly understood the evidence before it. The panel has erred in law by misapprehending the evidence before it.
Finding of credibility
[22] Sworn testimony is presumed to be true; to the extent that it is not contradicted and not inherently unbelievable, it is an error simply to ignore it or reject it out of hand.
[23] Minor inconsistencies in the evidence are not sufficient to justify the total rejection of all evidence. Even inconsistencies that are not minor are not adequate on their own, particularly of they touch upon matters of only marginal relevance.
[24] The extent to which a refugee claimant applicant is a credible witness does not prevent him from being a refugee. Doubts as to credibility of some or all testimony of a claimant do not remove the responsibility of the Board to determine, based on all the evidence, whether a claimant is a Convention refugee.
[25] The panel found that the evidence of the applicant lacked credibility based on minor aspects of his testimony. Such minor elements included the lack of a mention on his identity card that he was married, the date of his marriage, and the name of one of his sisters.
[26] The panel should have assessed the claim on the basis of all credible elements before it, even if there were certain elements found not to be credible. The documentary evidence, combined with the portions of the evidence of the applicant that the panel did find credible, were sufficient to show an objective basis for the fear of persecution that the applicant has.
Failure of the panel to consider all evidence properly before it
[27] The panel erred in dismissing in its entirety the psychiatric report of Dr. Dion of the Montfort Hospital in Ottawa. The panel entirely disregarded that diagnosis that the applicant suffers from depression and Post-Traumatic Stress Disorder in reaching the conclusion that the applicant was not credible. The essence of the submission of the applicant is that he was entitled to have this evidence given proper consideration. As this was not done, the panel has committed an error.
[28] The panel failed to give adequate consideration to the documentary evidence before it. Despite this evidence, the panel concluded that there was no serious possibility that the applicant would be a victim of persecution if he were to return to Angola. This evidence from reliable organizations confirms, among other things that several priests and religious workers have been killed. The killings have taken place in the context of a civil war between the government and the opposition party.
[29] The documentary evidence clearly establishes an objective basis for the fear of persecution experienced by the applicant. The panel failed to deal with this evidence, which corroborated the fear of the applicant. By failing even to comment on this evidence, the panel has erred.
Respondent
Misapprehension of the evidence
[30] Even if the panel did incorrectly state that the applicant had lived in Portugal for nine years or that his family members were in the Democratic Republic of Congo, neither of these constitutes a material error which would justify the intervention of the Court.
Finding of credibility
[31] It was reasonably open to the panel to reach the conclusion at which it arrived with respect to the credibility of the applicant. Several factors hampered his credibility. His failure to remember the month and day of his marriage, forgetting the name of a sibling, or the number of siblings he had, and the omission of key facts from his PIF, such as the firing of shots into the air during his arrest, are among the nine examples given in the submissions of the respondent.
[32] The vague and implausible nature of the testimony of the applicant, which lacked credibility overall, gave the panel ample justification for its finding.
Failure of the panel to consider all evidence properly before it
[33] The panel did not fail to consider the totality of the evidence. It was reasonable to expect that the applicant would know such basic information about his family and his marriage - the trauma which he had experienced was rightly determined not to be a valid basis for excusing such a lapse.
[34] It was reasonable for the panel to note that material facts such as the firing of shots were omitted from the PIF of the applicant. This Court has found that such omissions can have a negative impact on credibility.
[35] The panel was entitled to give limited weight to the psychological report and documentary evidence to the extent that the testimony of the applicant was not credible. To the extent that this evidence was meant to support testimony that was not credible, the panel was not required to give more weight to that evidence than it did. Moreover, the presumption of truth on which the applicant relies depends upon the absence of a reason to doubt the truthfulness of the testimony of the applicant. This panel has stated in clear and unmistakable terms its reasons for doubting the testimony of this applicant.
ANALYSIS
Misapprehension of the evidence
[36] A misunderstanding of portions of the evidence will not normally mandate judicial intervention in a decision of the CRDD. This Court held in Hidri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 949, [2001] F.C.J. No. 1362 (F.C.T.D.) (QL), that although the panel in that case had misstated certain facts, the ultimate determination did not depend on those facts. The applicants did not convince the Court that the panel failed to consider the totality of the evidence, and the Court agreed with the panel that the applicants had not presented credible evidence. Accordingly, the decision of that panel was upheld.
[37] It is unfortunate that, in the present case, the panel believed that certain members of the family of the applicant were living in the Democratic Republic of Congo when the applicant did indicate that they were living in Angola, in the province of Zaire. At page 80 of the transcript of the hearing, the applicant explained in response to the questions of the Refugee Claim Officer about the province of Zaire:
Q. So where was your father born?
A. My father was born in Angola in Mbanza Congo.
Q. In where?
A. Mbanza Congo.
Q. And where is that?
A. It's one of the provinces of Angola.
Q. Which province.
A. The province of Zaire.
[38] The misunderstanding by the panel of this explanation is shown in page 2 of its reasons, where it stated:
[...] Although he had the opportunity to review his PIF on the morning of the hearing, with an interpreter, and to make changes to the PIF, he said in his testimony that the members of his family are no longer in Angola, but are rather in the Democratic Republic of Congo. This change had not been indicated after reviewing the PIF on the morning of the hearing.
[39] As can be seen in the testimony above, the applicant stated that his father was born in the Angolan province of Zaire. In later testimony, his references to Zaire were references to this province, rather than the Democratic Republic of Congo. The extent to which this misunderstanding affects the validity of the decision will be discussed further in this section.
[40] For the moment, it is also suitable to point out another misunderstanding. At page 3 of the reasons, the panel stated:
The claimant was asked to explain why he needed to have a Lingala-Portuguese interpreter when he was preaching, although he was living in Portugal for the last nine years. He replied that he had to be concerned for his parishioners. This explanation does not satisfy the panel, since the claimant's Portuguese is good and the hearing was held in Portuguese, at his request.
[41] The claimant testified that he speaks Lingala, Kikongo and Portuguese [Tribunal Record, page 419]. Lingala and Kikongo are the two languages spoken by those who are native to the region from which he comes. On the same page of the transcript, the panel, in its discussion of the languages spoken by the applicant, noted that he spent ten years in Zaire. Neither in the PIF of the applicant nor in his testimony does he indicate that he spent a substantial amount of time in Portugal, much less nine years.
[42] In spite of these misunderstandings, the decision of the panel may still be upheld. As stated in Hidri, supra, if an overall consideration of the evidence leads to a conclusion that the applicant has not presented a credible claim for refugee status, that claim will be denied. A mistaken apprehension of evidence that has little bearing on the merits will not justify the setting aside of the decision.
[43] Furthermore, in Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm L.R. (2d) 199 (F.C.A.), the Court indicated that reasons expressed in vague and general terms could not be upheld. The reasons in the instant case were clear and specific, with several examples. These examples included the civil recognition by the applicant of his marriage and the plausibility of his evidence with respect to the assistance of "the chief" described above. It must therefore be concluded that, notwithstanding these two regrettable errors, the panel has not erred in its grasp of the evidence to such a degree as to warrant the quashing of its decision.
Finding of credibility
[44] In addition to Hidri, there are other cases decided by this Court where findings of credibility were at issue. In Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.), the Court held that where the only evidence before a tribunal is that of the applicant, the perception of the tribunal that he is not a credible witness amounts in effect to a finding that there is no credible evidence on which the claim can be allowed.
[45] The evidence before the panel in the present case was largely, though not exclusively, evidence of the applicant. The panel appropriately decided that there were contradictions between the testimony of the applicant at the hearing and the information he entered on his PIF. At his hearing, he failed to mention one of the sisters he named on his PIF, and he omitted from his PIF the fact, stated in his testimony, that shots were fired during his arrest.
[46] Neither of these factors in isolation may be sufficient on its own to warrant judicial intervention. However, the importance of full and frank disclosure on one's PIF was underscored in Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (F.C.T.D.) (QL). In that case, Nadon J. (as he then was) made the following remarks at paragraphs 8 and 9:
There is no question that applicants for refugee status must relate all of the important facts in support of their claim. Question 37(a) of the PIF states:
Set out in chronological order, all the significant incidents which caused you to seek protection outside of your country of nationality or former habitual residence. Please also make reference to any measures taken against you, your family members taken against you, your family members, or any other individuals in a similar situation.
Thus, in my opinion, it was completely reasonable for the Refugee Division to take a dim view of the fact that the applicant had omitted several significant facts. [...]
[47] Nadon J. (as he then was) followed the decision of Teitelbaum J. in Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (F.C.T.D.) (QL). Teitelbaum J. emphasized that it is important to mention all material facts in one's PIF, and that the oral testimony is meant to explain what is on the PIF.
[48] The reasons of the panel indicate that it carefully considered each of the key elements of the narrative of the applicant, as offered in his PIF and in his testimony. The credibility findings of the panel were very reasonable and can be supported by the record as a whole. This Court will therefore not interfere with the findings of credibility of the panel.
Alleged failure of the panel to consider all evidence properly before it
[49] The reasons of the panel show that it adequately considered the evidence before it. To the extent that some elements of the evidence were given relatively little weight, that decision of the panel can be explained by its finding that the evidence given by the applicant himself was found not to be credible. As discussed in the previous section, that finding was reasonable.
[50] Inasmuch as the panel found the applicant to be lacking in credibility, it was not required to look further at evidence that might support a claim which had already been found untenable. For example, the panel stated in its reasons that it discounted the psychological report of the depressive state of the applicant because it did not believe that the alleged facts occurred. This was a reasonable analysis. Even if the panel does believe that the applicant has a depressive condition, it has decided that there is no sufficient link between that condition and events which would give rise to a valid refugee claim. This principle was noted by Blais, J. in Syed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 597 (F.C.T.D.) (QL).
[51] For the above reasons, this application for judicial review is dismissed.
[52] The parties have had the opportunity to raise a serious question of general importance and have not done so. Therefore, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question will be certified.
___________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3790-01
STYLE OF CAUSE : FERNANDO ZOLA KUANZAMBI and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : December 12, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE BEAUDRY
DATED : December 23, 2002
APPEARANCES :
Mr. Peter J. Reiner FOR THE APPLICANT
Ms. Angela Marinos FOR THE RESPONDENT
SOLICITORS OF RECORD :
Mr. Peter J. Reiner FOR THE APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
Email this Content