IMM-1874-96
B E T W E E N:
SUNDA NGOMBO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined the applicant not to be a Convention refugee within the meaning of subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 14th day of May, 1996.
The applicant is a citizen of Zaïre. She bases her claim to Convention refugee status on an alleged well-founded fear of persecution if required to return to Zaïre, by reason of her real or perceived political opinion.
The evidence of the applicant is that between 1982 and 1990, she was a member of a dance group known as "Salongo." The role of the group was apparently to support the then dictator of Zaïre. The applicant testified that members of the group were unpaid and could not leave the group without incurring severe sanctions. In 1990, she did manage to leave Salongo. She testified that she became a supporter of the "Union pour la démocratie et le progrès social" (the " UDPS"). She apparently used her fame and glamour as a former Salongo dancer to support the UDPS. The applicant testified that in February of 1992, she was arrested and imprisoned until August of 1994. During her period of imprisonment she suffered beatings, rape and other forms of torture including burning with cigarettes and matches. On release from imprisonment she fled briefly to the Congo. With the aid of her father, she very briefly returned to Zaïre solely for the purpose of again leaving for a more secure destination. She arrived in Canada on the 20th of September, 1994.
The Tribunal determined the applicant not to be credible. It wrote:
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Après avoir étudié l'ensemble de la preuve, nous concluons que la revendicatrice n'est pas crédible, et ce parce que son témoignage nous est apparu comme invraisemblable en ce qui a trait à des éléments majeurs de sa revendication. |
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It continued:
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Le tribunal a jugé que la crédibilité était au centre de la présente revendication. |
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Les contradictions entre son F.R.P., ses rapports médicaux et son témoignage oral minent l'ensemble des élements centrales de sa preuve. |
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There can be no doubt by reference to the applicant's personal information form and the transcript of the hearing before the Tribunal that the evidence of the applicant was vague, inconsistent and, at times, almost incomprehensible. Three interrelated explanations appear on the face of the record that was before the Tribunal. First, the applicant had minimal education. This was acknowledged by the Tribunal. Second, a report by a clinical psychologist indicates that the applicant " ... suffers from memory and concentration problems, faculties that were functioning well prior to her incarceration." The psychologist describes the applicant as a straight-forward and candid historian whose account the psychologist believed to be entirely genuine. She commented:
| Her affective demeanour was clearly appropriate to the events she was recounting. |
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Third, a medical report prepared following examination of the applicant indicates:
| Son récit est très vague, comme si elle avait choisi d'oublier ce qui s'était passé. |
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While the existence of these reports, like the applicant's limited education, is acknowledged by the Tribunal, neither they nor of the limited education of the applicant are evaluated by the Tribunal as possible explanations for the weaknesses in the applicant's evidence giving rise to the credibility finding.
The same medical report earlier referred to commented on scars and hip damage to the applicant in the following terms:
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Elle présente à l'examen physique des cicatrices conformes à des brûlures de cigarettes et de tisons ainsi qu'une arthrose de la hanche gauche qui pourrait avoir résulté de coups répétés. |
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While the scars and hip damage might be equally consistent with experiences of the applicant in Zaïre unrelated to persecution on a Convention ground, the Tribunal simply fails to acknowledge this evidence, much less to attribute such weight to it as the Tribunal considers appropriate.
The Tribunal relies on a response to an information request based on two telephone conversations with members of the Zaïrois community in Toronto. It identified Salongo as a theatre group, rather than a dance group, and as the name of a daily newspaper based in Kinshasa. On the basis of this response, the Tribunal draws an adverse inference with respect to the applicant's evidence. The Tribunal also had before it an affidavit of the applicant in which she swore:
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Au Zaïre le nom "SALONGO" appartient à trois différents groupes: Salongo - un journal; |
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Salongo - un groupe théâtral; et |
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Salongo - un groupe de danseuses animatrices. |
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Moi, personnellement, j'appartenais au groupe Salongo de danseuses animatrices. |
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Once again, the Tribunal does not comment on this evidence which might explain the discrepancy between the information in the response to an information request and the applicant's story. It might have been open to the Tribunal to determine that, if there also existed a dance group in Zaïre known as Salongo, their informants would have been aware of its existence and would have commented on it. The Tribunal did not draw this conclusion. It appears to have simply ignored the applicant's evidence.
Finally, counsel for the respondent acknowledged that the Tribunal made a significant error in finding that the applicant made her way to the Congo in 1993 and remained there openly for a year and then drawing certain negative inferences from this. In fact, it was not questioned before me that the applicant's evidence was to the effect that she was only briefly in the Congo in August of 1994. Counsel for the respondent took the position that this error was not central to the decision of the Tribunal. I am in agreement with the respondent on this point.
In Tshimanga v. the Minister of Citizenship and Immigration2 Mr. Justice Muldoon cited extensive authority for the following proposition:
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The tribunal must have regard for the totality of the evidence before it when assessing credibility. The tribunal cannot make an adverse credibility finding while ignoring evidence of the claimant explaining apparent inconsistencies. |
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Muldoon J. went on and again cited extensive authority for the following proposition:
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If the tribunal, when making findings of fact, misconstrues or ignores the evidence before it, and relies upon these findings when making an adverse determination as to credibility, the decision will be quashed. |
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I conclude that both of those propositions apply on the facts of this matter. While the decision of the Tribunal as to the credibility of the applicant might well have been open to it, on the face of its reasons, it did not have regard to the totality of the evidence before it when assessing credibility and it ignored or misconstrued evidence before it that was relevant to the credibility finding.
In the result, this application for judicial review will be allowed.
Counsel for the applicant recommended certification of a question regarding reliance by the Tribunal on a response to an information request based solely on telephone conversations. Counsel for the respondent argued against certification of a question as proposed and referred to the broad latitude provided to the Convention Refugee Determination Division by subsection 68(3) of the Immigration Act to rely on any evidence that it considers credible or trustworthy. I agree with the position of counsel for the respondent. Further, a question of the nature proposed on behalf of the applicant would not, I am satisfied, be determinative on an appeal of this decision. In the result, no question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
January 31, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1874-96
STYLE OF CAUSE: SUNDA NGOMBO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JANUARY 29, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: JANUARY 31, 1997
APPEARANCES:
Ms. Lisa McCullough
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
2550-55 King Street West
Toronto Dominion Bnak Tower
PO Box 55
Station Toronto Dominion
Toronto, Ontario
M5K 1E7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1874-96
Between:
SUNDA NGOMBO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2
2 Court File IMM-389-95, November 9, 1995 (F.C.T.D.) (unreported)
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