[1] This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 and section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, of a decision of the Immigration and Refugee Board, Refugee Division (the "Board"), dated March 12, 2001, wherein the Board determined that the applicant was not a Convention Refugee.

[2] The applicant seeks an order setting aside the decision of the Board.

Background

[3] The applicant, Kenneth Ernesty, is a citizen of Burundi, who alleges that he has a well-founded fear of persecution in Burundi by reason of his race and imputed political opinion. The applicant arrived in Canada on February 23, 2000.

[4] The applicant arrived without any identity papers as a stowaway on board the vessel "BBC Australia", which had travelled from Cape Town, South Africa, via Texas and Philadelphia. After leaving Burundi at the age of 16, the applicant lived for six months in Kenya, six months in Tanzania, one year in Zambia, one year in Namibia, and four years in South Africa.

[5] The applicant claims to be a Hutu who left Burundi after his house was set on fire and his parents were killed. The applicant claims to have travelled with his two younger brothers to the Kigoma Refugee Camp, which is on the border between Burundi and Tanzania. According to the applicant's personal information form ("PIF"), at the Kigoma Refugee Camp, he was personally harassed and pressured on many occasions by both the Tutsi army (who accused him of being a guerilla supporter) and by the Hutu guerillas (who accused him of being a traitor). The applicant's testimony at the Board hearing did not confirm, but rather contradicted, these alleged facts. For example, in oral testimony the applicant stated that he only left the camp because he was bored, and that he was never personally approached by the Tutsi army or the Hutu guerillas in the camp. The applicant was unable to provide a sufficient level of information about the Kigoma Refugee Camp to satisfy the Board that the applicant actually stayed at the camp as he has alleged.

[6] The applicant testified that he worked in South Africa carrying baggage at a port. However, when he was told that unions often make such work difficult, he changed his story saying he did not carry baggage and that he had misunderstood the question.

[7] The Board found that the applicant did not discharge his burden of proof establishing that he has a well-founded fear of persecution in Burundi by reason of his race or any other Convention ground noted in the Immigration Act, supra. The Board further found that the applicant lacks credibility.

[8] This is the judicial review of the decision of the Board in which it was determined that the applicant was not a Convention refugee.

Applicant's Submissions

[9] The applicant submits that his hearing did not go well and that he was simply not able to explain his story to the satisfaction of the panel. The applicant submits that he contradicted himself a number of times, got confused, back-tracked and obviously did not appreciate the nature of the process or severity of the consequences.

[10] The applicant submits that the Board's finding that he lacked credibility can only be overturned by this Court if it was patently unreasonable.

[11] The applicant submits that he was not mentally or emotionally fit at the time of his hearing, and that this explains the Board's concerns about his credibility.

[12] The applicant submits that he was clearly muddled at his hearing and his answers indicate not only that he could not remember the events at the Kigoma Refugee Camp, but also, since he was so self-contradictory, that he did not understand the questions that he was being asked.

[13] The applicant submits that the Board offended the principles of natural justice by asking him general knowledge questions about Burundi. The applicant submits that the Board did not find that the applicant was not from Burundi, but only that he lacked credibility.

[14] The applicant submits that his psychological frailty was apparent at the hearing based on his demeanor and the quality of his evidence. As a result, the applicant submits that the post-decision, psychological report should be considered as it does not raise an entirely new issue that was not before the Board.

[15] The applicant submits that in finding the applicant not to be credible, the Board ignored evidence that would otherwise explain the discrepancies.

[16] The applicant submits that it was patently unreasonable for the Board to conclude that the applicant was not credible based on the fact that his oral testimony contradicted his previous written testimony. The applicant further submits that given the alleged tragedies the applicant has faced, his level of education, the scars he received (in South Africa), and the tremendous disparity between the information in his PIF and his evidence at the hearing, it was patently unreasonable for the Board to conclude that the applicant lacked credibility.

Respondent's Submissions

[17] The respondent submits that the Board must decide if the applicant has a well-founded fear of persecution on one of the five grounds enumerated in the subsection 2(1) definition of "Convention refugee", and whether the claimant is unable, or unwilling, on account of his fear, to avail himself of state protection. The respondent submits that the Board did not err in finding that the applicant did not have a well-founded fear of persecution.

[18] The respondent submits that the applicant did not satisfy the subsection 8(1) onus of establishing, on the balance of probabilities, that he within the definition of "Convention refugee".

[19] The respondent submits that the Board's findings on credibility were reasonable and that this Court should not interfere, whether or not it agrees with such inferences and conclusions.

[20] The respondent submits that the psychiatrist's letter, dated approximately 11½ weeks after the hearing, raises new issues that were not before the Board. The respondent submits that the applicant was seemingly able to understand and answer questions at the hearing. The respondent points out that the transcript reveals that no one seemed to question the applicant's mental state or ability to answer questions at the hearing. The respondent further points out that there was no request to reopen the hearing when the applicant's alleged illness apparently came to light.

[21] The respondent submits that the applicant was represented by counsel at the hearing, and that the applicant and his counsel failed to convince the Board that he met the definition of Convention refugee. The respondent submits that if there was anything amiss about the applicant's mental state at the hearing, the applicant's counsel was in the best position to assess such matters and should have brought it to the attention of the Board.

[22] The respondent submits that the applicant has not shown the existence of any error of law or fact, or a denial of natural justice, that would warrant the intervention of the Court.

[23] Issues

1. Was the applicant mentally and emotionally fit at the time of his hearing?

2. If not, did the applicant's lack of mental and emotional fitness have a negative impact on the decision of the Board?

3. If the applicant's lack of mental and emotional fitness had a negative impact on the decision of the Board, did the Board err in its finding that the applicant lacked credibility?

4. Does the evidence that the applicant lacked competence to be involved in the refugee determination process amount to new evidence, and is therefore inadmissible?

5. Did the fact that the Board found the applicant's evidence non-credible violate his right to natural justice?

6. Did the Board make a reviewable error with respect to its credibility finding concerning the applicant?

Relevant Statutory Provisions and Regulations

[24] The Immigration Act, R.S.C. 1985, c. I-2, as amended, reads in part as follows:

2(1)"Convention refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

2(1) « réfugié au sens de la Convention » Toute personne:

a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.

69.1(5) At the hearing into a person's claim to be a Convention refugee, the Refugee Division

(a) shall give

(i) the person a reasonable opportunity to present evidence, question witnesses and make representations, and

(ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations; and

(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,

(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;

b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).

Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.

8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.

69.1(5) À l'audience, la section du statut_:

a) est tenue de donner:

(i) à l'intéressé, la possibilité de produire des éléments de preuve, d'interroger des témoins et de présenter des observations,

(ii) au ministre, la possibilité de produire des éléments de preuve, d'interroger l'intéressé ou tout autre témoin et de présenter des observations, ces deux derniers droits n'étant toutefois accordés au ministre que s'il l'informe qu'à son avis, la revendication met en cause la section E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la présente loi;

(b) may, if it considers it appropriate to do so, give the Minister a reasonable opportunity to question the person making the claim and any other witnesses and to make representations concerning the claim.

b) peut, dans tous les cas, si elle l'estime indiqué, autoriser le ministre à interroger l'intéressé ou tout autre témoin et à présenter des observations.

Analysis and Decision

[25] Issue 1

Was the applicant mentally and emotionally fit at the time of his hearing?

At the commencement of the questioning of the applicant at his hearing, the presiding Board member instructed the applicant as follows:

Q. Please, sir, if you don't understand the question, tell us.

A. Yes, I will just let you know.

I have reviewed the transcript of the hearing and it appears to me that the applicant understood and was able to respond to most of the questions he was asked. As well, if he did not understand the question, he would so state. At any hearing, there will be questions that are not understood by the witness and thus, will necessitate an explanation. In any event, the applicant seems to have understood the questions which go to the core of his case. It should also be noted that no one present at the hearing made any remarks concerning the mental and emotional state of the applicant. This issue was simply not put to the Board. The only comments made at the hearing in this respect were made by the Refugee Claims Officer ("RCO") in his closing argument when he stated:

The claimant was - - even I think he talked in a straightforward manner. Of course, you have to take into account his limited education.

And, by the applicant's counsel in closing argument when he stated:

What discrepancies do exist I believe are easily attributable to translation, as has been apparent with today's difficulties. It is respectfully submitted that there are no significant discrepancies that have occurred in today's interview.

On the record before the Board, I am not persuaded that the Board made any error with respect to the applicant's mental and emotional condition.

[26] The applicant tendered the medical report of Dr. Karen Johl, dated May 24, 2001. Dr. Johl saw the applicant on March 28, 2001. The applicant's hearing had taken place on March 5, 2001 and the decision of the Board was dated March 12, 2001. Even if this report was admissible, which I need not determine, it does not assist the applicant for three reasons. First, the medical report was dated after the hearing as the doctor only saw the applicant after the hearing. Her report does not say what facts caused her to conclude " . . . he may well have been mentally incompetent with regard to the hearing at that time."

[27] Secondly, paragraph 5 of the affidavit of Eva Osorio states:

The reason for the motion was that Kenneth's psychological state was rapidly deteriorating subsequent to his refugee determination hearing.

[28] Thirdly, the applicant also sought to rely on the decision in Ngombo v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 116 (QL) (T.D.). That case, however, is distinguishable on its facts.

[29] Issue 2

If not, did the applicant's lack of mental and emotional fitness have a negative impact on the decision of the Board?

I need not discuss this issue as I have found that the Board did not make any error with respect to the mental and emotional fitness of the applicant based on the material before it.

[30] Issue 3

If the applicant's lack of mental and emotional fitness had a negative impact on the decision of the Board, did the Board err in its finding that the applicant lacked credibility?

As I have already stated in a different manner, I am not satisfied that the evidence before the Board supports the proposition that the applicant lacked mental and emotional fitness on the date of the hearing. I will deal with the Board's credibility findings under Issue 6.

[31] Issue 4

Does the evidence that the applicant lacked competence to be involved in the refugee determination process amount to new evidence, and is therefore inadmissible?

I have already found that it is not necessary to rule on whether the psychiatrist's report is admissible at this hearing as I have explained why, even if admissible, it would not affect the outcome of the application.

[32] Issue 5

Did the fact that the Board found the applicant's evidence non-credible violate his right to natural justice?

The Board is an expert tribunal that has jurisdiction to assess Convention refugee claimants and whether their applications are credible. It is within the Board's jurisdiction to find that the applicant is not credible. Such a finding does not, on its own, violate the applicant's right to natural justice.

[33] Issue 6

Did the Board make a reviewable error with respect to its credibility finding concerning the applicant?

Mr. Justice Décary for the Federal Court of Appeal stated in Aguebor v. Minister of Employment and Immigration, (1993) 160 N.R. 315 (F.C.A.) at paragraph 4:

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 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 reasonably have been drawn.

[34] The presiding member asked the applicant questions about his life in Burundi. The applicant testified that he stayed in the Kigoma Refugee Camp for six months. The presiding member then asked the applicant the following questions:

Q. So why did you flee the camp?

A. I didn't flee. I just quit the camp.

Q. So why did you just leave the camp?

A. I was going in front, not in back. I was looking in front, not looking back.

Q. Okay. You say that you left the camp. Why did you leave the camp? You were working? What did you have in your mind at that time?

A. I just quit the camp because it was boring for me to stay there doing nothing, staying there, sitting only, doing nothing. I decided to quit the camp.

Q. But was it not dangerous for you to leave the camp?

A. Yes, it was very difficult to quit the camp and go away.

Q. No, my question sir - - in the camp, I am sure that life there was not very easy, but was it dangerous for you to stay in the camp?

A. For me, it was not good to stay in the camp, but maybe for others who stayed there it was good for them to stay and do nothing.

Q. Any why was it not good for you to stay in the camp?

A. Because when the persons came who knew my parents and told me that they died, I just found that I had to take care of myself and just quit the camp and see what I can do.

The applicant's oral testimony did not suggest that fear played a role in his decision to leave the Kigoma Refugee Camp.

[35] The presiding member asked the applicant further questions about his experience at the Kigoma Refugee Camp.

Q. You are in the camp, in the Kigoma Camp, and you are Hutu; is that correct?

A. Yes.

Q. So my question is did any person, Hutu members of the Guerillas come into the camp and ask you questions?

A. No.

Q. Is there any Tutsi who came into the camp asking you questions?

A. No.

Q. So you left the camp only because you were bored of the life there and left your two brothers behind you; is that correct?

A. Yes.

Q. There is no other reason, sir?

A. I just found that it was very difficult to travel around countries with those two brothers who were very young. That's why I decided to leave them there.

Q. And do you know who took care of your brothers while you were outside?

A. Yes.

Q. Who is it?

A. One man who - - the man who knew my parents, he just kept looking on my brothers.

[36] The applicant clearly stated that he was not approached by Tutsi or Hutu members of the guerillas during his time at the Kigoma Refugee Camp and that he only left because he was bored of the life there and wanted to travel. The Board noted that this testimony was in contrast to the applicant's PIF, which stated:

5. At kigoma [sic] Refugee Camp life was very difficult. The Tutsi army and militia regularly came to the camp and accusing [sic] young men of being guerillas or guerrilla's [sic] supporters (the Tutsi army and militia often came to the camp at night and took many young men). Also the Hutu guerrillas (who are fighting the Tutsi army) came to the camp forcing young men into joining them. I was personally harassed and pressured, in [sic] many occasions, by both, the Tutsi army accusing me of being a guerrilla's [sic] supporter and the Hutu guerrillas accusing me of being a traitor and an army supporter (the guerrillas said this because they did not agree with me when I refused to join them. They did not understand why a person, whose parents have been slain by the Tutsis, did not want to [sic] revenge). I did everything, within my power to make them understand that I just wanted peace and a better life for my younger brothers and me.

6. By the middle of 1994 the harassment and pressure were getting worse and turning into threats (the Tutsi army starting coming more often into our group, in the camp, stopping and threatening us (young men), and also tasking [sic] all kinds of questions). The guerrillas also came more often threatening and forcing us (young men) to join them. Late 1994 was [sic] told by the guerrillas that my time was coming up, to make up my mind and join them or I would find out what would happen to me. At the end of 1994 I made one the [sic] most difficult decisions I have ever made, and left my younger brothers and the Kigoma Refugee Camp. This was the only way for me to keep alive (I knew that it was a matter of time before they [sic] (army) accuse me of being a guerrilla and either put me in jail or kill me. I also knew that it was a matter of time before the guerrillas kill me. I was not and I am not willing to join them). . .

[37] The witness' oral testimony is in contrast with the PIF. It appears that the applicant understood the questions and was able to respond appropriately, only in a manner that was inconsistent with the PIF. It was not unreasonable for the Board to make an adverse credibility finding against the applicant.

[38] The applicant raised additional issues in its supplementary memorandum to support his argument that he was not able to comprehend both the specific details or the general nature of the hearing. I have reviewed the transcript and the references made by the applicant and I do not agree with his arguments. The Board, in its discretion, can permit the use of leading questions. In my opinion, the cited translation problems even, if all were accepted, are not sufficient to allow me to find that a reviewable error was made by the Board. The Board had sufficient reason to make the finding it did and the finding was one that was open to the Board to make. Consequently, it is not open to this Court to substitute a different conclusion.

[39] As I have indicated earlier, I am not of the opinion that a lack of comprehension existed on the part of the applicant. My opinion is supported by the following excerpt from the transcript at page 64 when the applicant's counsel asked the applicant about his scars:

Q. Could you show me your arm?

A. Yes.

Q. Could you tell me how you got that?

A. I was going to train - - -

Q. In what country?

A. In Cape Town. I was going in the country. I just went in the train of black people. They were speaking the Kaas (phonetic) language, and I was not able to speak that language. So they knew that I was not born in South Africa. There was - - they thought that people who come form outside, they come to take their jobs. They asked me. I just answered that I don't know the language they are speaking to me. So they knew that I was not one of them, and then they took me and throw me outside, and I hurt my arm and my leg or so.

Q. And what happened right after that? What is the next thing you remember after you were thrown from the train?

A. What I remember, when I woke up, I just see that I was in the hospital.

[40] For the reasons given above, the application for judicial review is dismissed.

[41] Neither party wished to submit a serious question of general importance for consideration.

ORDER

[42] IT IS ORDERED that the application for judicial review is dismissed.

"John A. O'Keefe"

J.F.C.C.

Ottawa, Ontario

November 29, 2002

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-1916-01

STYLE OF CAUSE: KENNETH ERNESTY

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: Tuesday, August 13, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: Friday, November 29, 2002

APPEARANCES:

Mr. Joshua J. Judah

FOR APPLICANT

Ms. Lori Rasmussen

FOR RESPONDENT

SOLICITORS OF RECORD:

David J. Cook & Associates

216 - 1496 Bedford Highway

Bedford, Nova Scotia

B4A 1E5

FOR APPLICANT

Department of Justice

Halifax Regional Office

Suite 1400, Duke Tower

5251 Duke Street

Halifax, Nova Scotia

B3J 1P3

FOR RESPONDENT

FEDERAL COURT OF CANADA

TRIAL DIVISION

Date: 20021129

Docket: IMM-1916-01

BETWEEN:

KENNETH ERNESTY

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

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Ernesty v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1241

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2002 FCT 1241