Ssemakula v. Canada (Minister of Citizenship and Immigration), 2002 FCT 366

Date: 20020402

Docket: IMM-1466-01

Neutral citation: 2002 FCT 366

BETWEEN:

                                                             ROBERT SSEMAKULA

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

MacKAY J.

[1]                 This is an application for judicial review of the decision of the Convention and Refugee Determination Division ("CRDD"), dated March 1, 2001, refusing the applicant's claim for status as a Convention refugee.

Background

[2]                 The applicant is a citizen of Uganda. He claims a well-founded fear of persecution in that country as an alleged deserter from the Uganda People's Defence Force ("UPDF").

[3]                 After his arrival in Canada in late 1999 the applicant was detained. While in detention, the applicant completed, by hand, a Personal Information Form ("PIF"), which he signed, but did not date, and which was received by the Immigration and Refugee Board on December 8, 1999 ("the applicant's first PIF"). Subsequently, the applicant submitted a typed, and revised, version of his PIF to the IRB, dated October 30, 2000 ("the applicant's second PIF"). In his second PIF, the applicant alleges the following facts:

·                      He is a professional soccer player and joined the UPDF for the sole purpose of playing soccer.

·                      In January 1998, he signed a three-year contract with the Military Police Football Club, and was issued an identity card. (During his hearing, the applicant presented the CRDD with a staff card with his name on it, and the words "Military Police F.C.".)

·                      In February 1998, he was sent for military training, and, beginning in May 1998, he was forced to participate in active combat. The killing of people was very difficult for him to cope with, and is against his conscience.

·                      He was told that if he refused to participate in active combat he would be considered a deserter and would be shot. Others who resisted were killed immediately without court martial.

·                      In December 1998, he made arrangements to leave Uganda, by paying an agent $1,800. U.S. to obtain a Canadian visa. He received the visa in June 1999.

·                      He requested, and was granted, leave from August 6 to 8, 1999, claiming that he wanted to visit his family. He purchased a ticket for a plane leaving Uganda on August 11, 1999, but he arrived late, and missed the flight. Afterwards, having overstayed his leave, he feared returning to the barracks, so he stayed with his aunt in Entebbe.

·                      On August 25, 1999, he was arranging another flight at a travel office in Kampala when he and two friends were arrested by personnel from the Director Military Intelligence. Their homes were searched. He was returned to barracks where he was tied up and beaten, before being released on August 27. His friends paid a fine and were released.

On September 17, 1999, he deserted the UPDF and left Uganda for Canada.    

·                      After his departure, his friends were re-arrested, and his brother was arrested for assisting with his escape. Currently his friends and his brother are in prison in Uganda.

[4]                 The CRDD held that there were serious reasons for considering that the applicant had been complicit in the commission of war crimes and crimes against humanity, and therefore he was excluded from making a refugee claim under Article 1F(a) of the Convention relating to the Status of Refugees. The CRDD further held that:

...(E)ven had we not had serious reasons for considering that the claimant had been complicit in the commission of war crimes and crimes against humanity, we would find that his claim is grounded on a fabrication, and therefore must necessarily fail.

Issues

[5]                 The applicant submits that the CRDD erred in assessing his credibility. The applicant further submits that the CRDD erred in concluding that Article 1(F)(a) of the Convention was applicable in this case.

Did the CRDD err in assessing the applicant's credibility?

[6]                 In finding that the applicant had "a general lack of credibility", the CRDD noted inconsistencies between the applicant's first PIF and his second PIF, and between his testimony and the stamps in his passport. Furthermore, the CRDD found some aspects of the applicant's testimony, which it identified, to be implausible. Finally, the CRDD noted that applicant displayed a willingness to fabricate and alter testimony when confronted with inconsistencies and contradictions.

[7]                 The CRDD noted the following inconsistencies between the applicant's first PIF and his second PIF, for example:

1)          in his first PIF, the applicant stated that he was fighting in Kasese from June 21, 1999 until August 30, 1999, but in his second PIF he claimed was fighting from June 1999 until July 21, 1999, though his first handwritten claim indicated he was in Kampala before August 4, 1999;

2)          in his first PIF, the applicant claimed that he and his friends were arrested at the office of his best friend, Tony Kasibante, but in his second PIF he claimed they were arrested at a travel agency; and

3)          in his first PIF, the applicant claimed that he received leave to visit his family from August 4 to 6, 1999, but in his second PIF he claimed that he was granted leave from August 6 to 8.

[8]                 The applicant submits that the CRDD erred by basing its credibility finding on these inconsistencies. Yet these were not the only inconsistencies found by the CRDD which, in its decision, acknowledged his explanation that when he completed his first PIF he was under stress, and when he wrote his second PIF, he was recalling, without the help of any written records, events which occurred approximately two years previously and he wished to correct certain dates originally specified.

[9]                 The CRDD also noted inconsistencies between the applicant's testimony and the stamps in his passport. Although the applicant testified that he was in Uganda between August 11 and 25, 1999, the stamps in his passport indicated that the bearer entered Kenya on August 10 and returned to Uganda on August 25, 1999. The CRDD stated that the applicant testified that the stamps were forged stamps which were put in his passport by the agent who provided it to him but his testimony concerning the possession of his passport at relevant times, conflicted on two occasions, and with his description of his initial plans to leave Uganda for Canada on August 11, 1999.

[10]            The CRDD found some of the applicant's testimony implausible, for example, in its decision the CRDD commented, in relation to his decision not to leave Uganda as early as he might have, but to apply then for a visa to visit Canada some six months later:

...In December 1998, according to his [the applicant's] testimony, he had the opportunity (he was home on leave) and the means (a valid passport and a considerable sum of money) to leave Uganda for another country, from where he could make further arrangements. We find his explanation that he thought he would not be asked to fight again not plausible, given his alleged previous experiences.

[11]            The applicant submits that the CRDD erred by ignoring his testimony to the effect that he did not leave Uganda at that time because he did not have a "concrete plan", and he feared that, in the absence of such a plan, if he attempted to leave Uganda he might be apprehended by the military.

[12]            Finally, the CRDD noted that when the applicant was confronted with these and several other inconsistencies and contradictions, he "...displayed a willingness to fabricate and alter testimony...". For example:

1)          the applicant first stated that he looked at his visa in his passport, then, upon re-direct, stated that he did not look inside his passport;

2)          the applicant first stated that his flight departed at 7:30am, then, on re-direct, stated that he had changed his ticket; he said that a sticker for a later flight had been placed on the ticket, which had somehow disappeared; and

3)          the applicant first stated that his passport was obtained for him by the manager of the Military Police football club, but later changed his testimony to indicate that the passport was obtained by his friend Tony, and that it was in the possession of variously, his agent, or of Tony, or of himself, or of his brother in the period from the spring to August, 1999.

[13]            On an application for judicial review, this Court must show significant deference to the CRDD's assessment of the applicant's credibility. Unlike the CRDD, this Court does not have the benefit of hearing the viva voce testimony of the applicant. To set aside a decision of the CRDD based upon its assessment that the applicant's evidence is not credible, the Court must be persuaded that finding is patently unreasonable on the evidence before the panel.

[14]            In light of the numerous inconsistencies, set out in the CRDD's decision, in the applicant's evidence, the implausibility of significant portions of that evidence, and the applicant's apparent willingness to alter his testimony when confronted with inconsistencies, I am not persuaded that the CRDD's assessment of the applicant's credibility can be said to be patently unreasonable. As a consequence, the CRDD cannot be considered to have erred in its determination that the applicant was not credible and that he did not establish that he had a well-founded fear of persecution in his own country.

[15]            In view of my conclusion in review of the CRDD's finding of a lack of credibility of the evidence before it, it is not necessary for me to determine the second issue raised by the applicant, i.e. whether the CRDD erred in concluding that Article 1(F)(a) of the Convention was applicable in this case. Even if the panel erred on that latter issue there was not credible evidence that would sustain the applicant's claim to be a Convention refugee.

Conclusion

[16]            For the reasons here set out the application for judicial review is dismissed.

                                                                            ORDER

The applicant's application for judicial review of the decision of the CRDD, dated March 1, 2001, that he is not a Convention refugee, is dismissed.

                                                                                                                              (signed) W. Andrew MacKay

                                                                                                   ________________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

April 2, 2002.