Mihayo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 18

                                                                                                                                             Date: 20020109

                                                                                                                                     Docket: IMM-672-01

                                                                                                                     Neutral Citation: 2002 FCT 18

Between:

                                                    NOELLA MIHAYO

                                                                                                                        Applicant

                                                              - and -

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                    Respondent

                                                REASONS FOR ORDER

PINARD J.:

[1]         The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated January 17, 2001, in which the Board determined she was not a Convention refugee and that her story did not have a credible basis pursuant to subsections 2(1) and 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).

[2]         The applicant, Noella Mihayo, is a citizen of Rwanda. She claims to have a well-founded fear of persecution due to her membership in a particular group and her political beliefs.

[3]         The Board determined the applicant not to be a Convention refugee for the reason that she lacked credibility.

[4]         The first issue raised in this application is whether the Board erred in finding the applicant not to be credible. It has been confirmed that with respect to credibility and the assessment of evidence, this Court may not substitute its decision for that of such a tribunal, when the applicant has failed to prove that the tribunal's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).

[5]         As well, the Board is entitled to infer that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.) and that it's reasons are set out in clear and unmistakable terms (Hilo v. Canada (M.E.I.), 15 Imm.L.R. (2d) 199 (F.C.A.)).

[6]         Here, the Board clearly and unequivocally determined the applicant not be credible and offered detailed reasons for its decision, citing inconsistencies and implausibilities in the applicant's oral testimony, her Point of Entry notes, her Personal Information Form, and in the documentary evidence. After reviewing the evidence and without adopting the Board's analysis in all its details, I am not persuaded that the inferences of the Board, which is a specialized tribunal, could not reasonably have been drawn (Aguebor, supra).

[7]         With respect to the issue of bias raised by the applicant, the latter is of the opinion that the Board failed to act impartially in this case and towards black Africans in general. She bases her argument on a past decision rendered by Board member Mrs. Beaubien-Duque, however, does not provide any concrete and serious examples of incidents specific to this case.

[8]         As well, the affidavit of Mr. Tello does not convince me of the allegation of bias. First of all, he was not present at the hearing and all of his arguments are based on the applicant's perceptions and observations. As well, he is a colleague of counsel for the applicant, which does not convince me of an objective opinion. Finally, the enumeration of several decisions where there may have been an appearance of bias does not automatically render this decision at bar invalid.

[9]         On this issue, the applicant has not satisfied me that an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude that the Board might have decided the matter without objectivity ([1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394).

[10]       I consider the applicant's argument based on the Charter of Rights and Freedoms and the various International Conventions premature, as the decision at issue is not the final stage in the applicant's deportation, but was limited to the conclusion that the applicant was not a Convention refugee (Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3 (F.C.A.)). Furthermore, the Board's finding that the applicant is not credible indicates that she would not be persecuted if she was to return to Rwanda. As a result, Canada's international human rights obligations would not be breached if she was deported.

[11]       Finally, the applicant argues that the Board did not consider the Gender Guidelines or the current situation for women in Rwanda. In general, the fact that some of the documentary evidence is not mentioned in its reasons is not fatal to the Board's decision (see Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 at 318 (F.C.A.)).

[12]       In the case at bar, the Board listed in its decision the evidence in the record. After a detailed assessment of this evidence, the Board concluded that it was insufficient to establish that the applicant had a well-founded fear of persecution. In my opinion, given the particular circumstances of this case, the Board's perception that the applicant was not credible in fact amounts to a conclusion that there was no credible evidence to justify her claim to refugee status (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244 (F.C.A.)).

[13]       I am not persuaded that the Board ignored relevant evidence or that the Board's assessment of the documentary evidence was unreasonable. In my opinion, the conclusions reached by the Board were reasonable considering the fact the applicant was found not to be credible.

[14]       For the foregoing reasons, the application for judicial review is dismissed.

[15]       I generally agree with the written submissions made by counsel for the respondent (letter dated December 20, 2001, filed on the same day) opposing the certification of the "Proposed Questions for Certification" filed by the applicant. Indeed, I am of the view that the proposed questions do not meet the requirements of subsection 83(1) of the Act as explained by Décary J.A. of the Federal Court of Appeal in Liyanagamage c. M.C.I., 176 N.R. 4, at page 5:

In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2) 569 (H.C.)) but it must also be one that is determinative of the appeal. The certification process contemplated by section 83 of the Immigration Act is neither to be equated with the reference process established by section 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case. [Emphasis added by the defendant]

[16]       Consequently, the proposed questions will not be certified.

       JUDGE

OTTAWA, ONTARIO

January 9, 2002