Date: 19991021
Docket: IMM -761-99
BETWEEN:
CLAUDE ALAIN MEKINY WHAIDE,
Plaintiff,
- and -
THE MINISTER OF IMMIGRATION AND CITIZENSHIP,
Defendant.
REASONS FOR ORDER AND ORDER
BLAIS J.
INTRODUCTION
[1] This is an application for judicial review from a decision by the Refugee Division on January 14, 1999 that the plaintiff is not a Convention refugee.
FACTS
[2] The plaintiff Claude Alain Mekiny Whaide is a citizen of the former Zaire and of Rwanda. In 1990 he received the rank of lieutenant in the Zairian army and worked in the administrative branch of a military hospital centre.
[3] His father and brother were murdered in Rwanda in the civil war. When he returned from a trip to bring his sister back to Zaire, he left the Zairian army.
[4] In 1994 the plaintiff moved to Goma on the border, in order to contact his spouse and his twin children.
[5] In 1997 he was the victim of an attack by soldiers. He was hospitalized and his convalescence took nearly two months.
[6] During this time the government changed and many arrests were made of officers of the former regime. The plaintiff left the Democratic Republic of the Congo (DRC) on April 16, 1997.
[7] He stopped in six different countries before arriving in Canada on February 10, 1998, where he claimed refugee status the same day.
[8] The plaintiff feared persecution in the DRC because of his membership in a particular social group, namely that of a member and deserter from the former Zairian army. He feared persecution in Rwanda because of his membership in a particular social group, namely that of the Hutu ethnic group.
DECISION OF REFUGEE DIVISION
[9] The panel dismissed the application for improbability and a lack of credibility.
[10] The panel mentioned contradictions regarding the plaintiff"s departure from the army. At the hearing the panel learned that the plaintiff had deserted the army because he was denied leave to go to Rwanda to attend the funeral of his father and brother and bring his sister back to Zaire. The panel concluded that deserting the army to help a family member is not the expression of a political opinion.
[11] The panel did not believe the plaintiff when he said he had a fear of the army since his desertion, since he had had no problems with the army under the new regime.
[12] The panel had difficulty believing the plaintiff as regards his work at the border station.
[13] Further, the panel regarded it as unlikely that the Zairian authorities would have given an army deserter responsibility at the border. The panel also found it improbable that a deserter from the Zairian army would agree to work in an area where the Zairian army was in full control. To the panel, such actions made the plaintiff"s testimony regarding his fear of persecution not credible.
[14] The panel noted that the plaintiff is originally from Rwanda and could have returned to his country of origin. As to fear of persecution in Rwanda because he is a Hutu, the panel concluded that there was no basis for this. Persons targeted by the military authorities are those who have participated in genocide or who have made political opinions known. The plaintiff left Rwanda when he was quite young and on the evidence submitted did not participate in the genocide or express political opinions.
[15] Further, the panel noted that the plaintiff stopped in four countries in the European community without seeking protection. It concluded that such actions indicated that there was no basis for the fear of persecution.
PLAINTIFF"S ARGUMENTS
[16] The plaintiff submitted that the Board made several manifest errors in assessing the plaintiff"s credibility.
[17] As regards his departure from the army, the plaintiff suggested that if he mentioned desertion in the Personal Information Form, in everyday language it amounts to a voluntary departure.
[18] As regards his problems with the army and his work at the border station, the plaintiff submitted that the Board did not take the local situation into account. Not only had the plaintiff lost five members of his family, but he was personally stabbed by a bayonet blow from soldiers.
[19] The plaintiff stated that he was placed in the hygiene and health department and did his job and earned the confidence of the officials by his devotion to duty, despite the fact that he was not receiving a salary. He hoped by this means to obtain information on his family. There was no serious control and so long as no one accused the plaintiff he could get by and achieve something.
[20] The plaintiff submitted that in 1997 he was arrested for taking part in a brawl, during which he was injured by a bayonet blow, and was then taken to hospital on an emergency basis. It was only through intervention by his official friends that he was not killed.
[21] The plaintiff submitted that the exhibits in the record corroborated his explanations and testimony. He concluded that the Board had made an error of law.
[22] The plaintiff argued that he has a fear of persecution because of his race and nationality, as he was born in Rwanda and belongs to the Hutu ethnic group. He was exposed to extortion during the rebellion and the civil war that followed.
[23] The plaintiff argued that he was also persecuted in the DRC because of his political opinion (voluntary departure from the army and assistance to victims of massacres).
DEFENDANT"S ARGUMENTS
[24] The defendant noted that the plaintiff did not dispute the finding regarding his failure to claim refugee status in the four countries who have subscribed to the 1967 Protocol on Refugee Status: he argued that the application at bar should be dismissed.
[25] The defendant submitted that the instant application should be dismissed as the plaintiff had not shown that the Refugee Division"s finding on his claim in respect of Rwanda was wrong.
[26] Further, he mentioned the fact that the evidence did not establish that the plaintiff had the profile of a Hutu targeted by the Rwanda military authorities, that is, someone who has participated in the genocide which took place in Rwanda in 1994 or made his political opinions known in Rwanda.
[27] As to fear in the DRC, the defendant wished to point out that these were conclusions of fact and credibility that were not unreasonable in view of the improbabilities, contradictions and omissions found by the Refugee Division. As the latter did not believe the plaintiff"s story, it did not have to consider whether there was an objective basis for his fear.
[28] Further, the defendant noted that the plaintiff did not dispute the Refugee Division"s finding that his actions were inconsistent with a person having a valid fear of persecution.
ISSUE
[29] Did the Board err in concluding that the plaintiff was not a Convention refugee?
ANALYSIS
[30] Although the plaintiff did not challenge the Board"s finding regarding his travel, he challenged other points which the Board did not deal with and on which it based its decision to a large extent. We will review these points.
[31] The standard of judicial review in questions of credibility was laid down in Boye v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 1:
| The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal"s impugned finding relates to the credibility of a witness, the court will be reluctant to interfere with that finding, given the tribunal"s opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it. |
[32] As to improbability, Décary J.A. indicated the standard of judicial review in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732:
| 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. |
[33] It is clear from the case law that it is up to the Board to assess the credibility of the evidence submitted. The Federal Court should not intervene unless the findings of credibility and improbability are not based on any evidence.
[34] In the case at bar a review of the record indicates that the Refugee Division found several contradictions, improbabilities and omissions.
[35] The Refugee Division concluded that the plaintiff"s explanations regarding his departure from the army were not believable. It noted that the plaintiff alleged a fear of persecution on account of his desertion despite the fact that he had no problems with the army controlled by the new regime. It indicated that the plaintiff"s answers regarding his presence in Goma were vague, hesitant and inaccurate.
[36] It further noted that it was not likely that a deserter would work in conjunction with the army from which he had just deserted.
[37] The Board gave the plaintiff an opportunity to explain his contradictions. However, he was unable to satisfy the Board.
[38] In Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296, MacKay J. indicated:
| Where the determination of the panel ultimately turns on its assessment of credibility, an applicant for judicial review has a heavy burden, as the reviewing Court must be persuaded that the determination made by the panel is perverse or capricious or without regard to the evidence before it. Thus, even where the reviewing Court might itself have come to a different conclusion on the evidence it will not intervene unless the applicant establishes that the decision of the panel is essentially without foundation in the evidence. |
[39] The Board"s decision was based on the evidence submitted. The plaintiff was found to be not credible regarding the DRC. As to Rwanda, he was unable to establish his fear.
[40] The plaintiff did not succeed in showing that the decision was wrongful or arbitrary. This Court"s intervention is not justified.
[41] For these reasons, the application for judicial review is dismissed.
[42] No serious question was submitted for certification.
OTTAWA, ONTARIO
October 21, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: CLAUDE ALAIN MEKINY WHAIDE v. M.C.I. |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCT. 12, 1999 |
| REASONS FOR ORDER AND ORDER BY: BLAIS J. |
APPEARANCES:
| DENIS ROUMESTAN FOR THE APPLICANT |
| MICHÈLE JOUBERT FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| DENIS ROUMESTAN FOR THE APPLICANT |
| MICHÈLE JOUBERT FOR THE RESPONDENT |
Morris Rosenberg
Deputy Attorney General of Canada
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