Date: 20120607
Docket: IMM-7804-11
Citation: 2012 FC 715
Ottawa, Ontario, June 7,
2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ROMAIN TSHIMBA NTULA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Romain Tshimba Ntula seeks judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board which found his story of persecution in the Democratic Republic of Congo
(DRC) not to be credible.
[2]
For the
reasons that follow, Mr. Ntula has not persuaded me that the Board’s decision
was unreasonable. As a result, the application for judicial review will be
dismissed.
Background
[3]
Mr. Ntula
worked as Second Secretary to the Ministry of Foreign Affairs and International
Cooperation of the DRC. He alleges that on May 8, 2009, he participated in a “parlement
debout”, a public reading of the newspaper, which offers citizens without
any formal education access to current events. The reading led to a heated
public debate about political problems in the DRC. Mr. Ntula claims to have
participated actively in the debate and to have suggested to members of the
crowd that “citizen resistance” was needed to address the problems.
[4]
Mr. Ntula
says that he was then arrested by Special Services agents who took him to a
secret detention centre. He claims to have been held and tortured for three
days before being moved to the Central Prison of Makala in Kinshasa on May 11. On May 13, 2009,
he was transferred under guard from the Makala prison to a hospital where he
was treated for the serious injuries he says he suffered as a result of the
torture.
[5]
Mr. Ntula alleges
that later that day he was able to escape from the hospital and go into hiding.
With the help of his older brother, Mr. Ntula arranged to travel to the United States via Brussels on May 22, 2009. He says his brother
bribed an airport official who accompanied him to the airport and escorted him
through security and onto the plane.
[6]
Mr. Ntula
traveled to the United States on his diplomatic passport using a United States entry visa which was valid for
the period between April 29, 2009 and July 27, 2009. The American Embassy had
issued the visa to Mr. Ntula for the purpose of his attendance at a conference
of the United Nations Permanent Forum on Indigenous Issues, which was to take
place in New York
City between May
18 and 27, 2009.
[7]
Mr. Ntula
claims that when he failed to report for work as a result of his arrest and
subsequent flight from the DRC, he was dismissed from his job. He further
alleges that his family in Kinshasa continued to be harassed by
government agents after his flight from the DRC. His brother eventually went
into hiding and his father has been detained.
The Board’s Decision
[8]
The Board
concluded that Mr. Ntula had not left the DRC fleeing political persecution,
but had instead traveled on his diplomatic passport pursuant to a valid US entry visa, for the purpose of attending
a conference at the United Nations headquarters in New York. The Board determined that Mr. Ntula had
fabricated his entire story of detention and torture to support his refugee
claim in Canada.
[9]
The Board
found it implausible that Mr. Ntula would be able to travel on his diplomatic
passport from Njili Airport if a wanted notice was indeed outstanding against
him, , especially given that the notice had allegedly been communicated to the
airport in question. In light of this implausibility and the absence of any
evidence from Mr. Ntula’s brother explaining how he had bribed an airport
official, the Board dismissed Mr. Ntula’s version of events.
[10]
The Board
found it equally suspicious that Mr. Ntula had arranged to obtain a new birth
certificate only weeks before his departure from the DRC. The Board did not
accept his explanation that he had required the document for a census, and
concluded on a balance of probabilities that Mr. Ntula had obtained the
certificate because he was planning to leave the country. The Board noted that
Mr. Ntula had not provided any support for his claim to have been preparing for
a census in May of 2009.
[11]
The Board
also found that Mr. Ntula’s story regarding his escape from the hospital did
not add up. On the one hand, he claimed to be in such serious condition that
prison guards had taken him to the hospital for treatment. On the other hand,
he was apparently well enough to take advantage of a guard’s momentary
inattention to flee the hospital in the middle of the night. Mr. Ntula was
unable to satisfactorily explain this inconsistency at the hearing.
[12]
The Board
also accorded little weight to the documentary evidence that Mr. Ntula
submitted to support his claim.
[13]
While the
Board accepted that Mr. Ntula had been dismissed from his employment with the
DRC’s Department of Foreign Affairs, it was not persuaded that this would place
him at any risk of persecution if he were to return to the DRC. There was no
evidence suggesting that other individuals dismissed from the diplomatic corps
at the same time as Mr. Ntula had faced abuse or other persecution.
Analysis
[14]
Mr. Ntula
has not persuaded me that the Board’s decision was unreasonable.
[15]
The Board
was clearly concerned that Mr. Ntula had traveled to the United States on his diplomatic passport
pursuant to an entry visa that conveniently happened to be valid at the time
that he needed to flee the DRC.
[16]
The
Board’s concern over this coincidence was compounded by the fact that Mr. Ntula
had obtained a new birth certificate only weeks prior to his departure from the
DRC and before his alleged arrest and torture. Mr. Ntula did not seriously
challenge the implausibility of these coincidences even though they go to the
heart of his claim and are obvious from an examination of the record.
[17]
That Mr.
Ntula would happen to have a U.S. visa valid for the precise period during
which he alleges to have experienced persecution in the DRC simply falls
“outside the realm of what could reasonably be expected” in the circumstances: Isakova
v. Canada (Minister of Citizenship and Immigration),
2008 FC 149, 322 F.T.R. 276
at para. 11.
[18]
It was
also reasonable for the Board to find it implausible that Mr. Ntula would be
able to escape the DRC while traveling on his own diplomatic passport. While
Mr. Ntula claimed that his brother had made the travel arrangements, no
evidence had been provided by the brother to explain how Mr. Ntula had been
able to escape detection even though Mr. Ntula testified that he was in regular
contact with his brother.
[19]
As this
Court observed in Mejia v. Canada (Minister of Citizenship and Immigration), 2011 FC 851, [2011] F.C.J.
No. 1062 (QL) at para. 12, “[w]hen a refugee claimant's credibility is already
called into question it is justifiable for a Board to draw a negative inference
from his or her failure to corroborate material elements of their story”.
[20]
The
failure of the Board to mention the general evidence regarding widespread
corruption in the DRC was not unreasonable. Without more, this evidence does
not necessarily prove that Mr. Ntula was able to use bribery to escape the DRC
in the face of a wanted notice against him.
[21]
Mr. Ntula
has also not persuaded me that it was unreasonable for the Board to accord
little weight to the documents he provided in support of his claim.
[22]
The Board
found that a medical certificate regarding Mr. Ntula’s stay in hospital was
suspect because it was issued by a forensic specialist. The Board found that it
did not make sense that a report would issue from a forensic physician in light
of the fact that Mr. Ntula was allegedly being treated for kicks to his
stomach. Mr. Ntula provided no real explanation for this inconsistency and the
Board’s finding in this regard was reasonable.
[23]
It was
also reasonably open to the Board to assign little weight to the wanted
notice. As the Board noted, the English word “stop” is interspersed through
the French text of the document and the words “Full stop” appear at the end of
the document, raising real concerns about the authenticity of the document. The
Board also reasonably found Mr. Ntula’s explanation of how his brother acquired
the document to be implausible.
[24]
The Board
also did not accept a handwritten letter purporting to come from Mr. Ntula’s
family’s lawyer, noting that the letter was not written on letterhead, and was
drafted in an informal style containing numerous grammatical errors. The Board
was not convinced that the document emanated from a lawyer, thus according it
no weight.
[25]
Mr. Ntula
argues that it was an error for the Board to compare this document to the
documents filed in connection with his application for a birth certificate,
relying on Mpiana v. Canada (Minister of Citizenship and Immigration),
2005 FC 1675, 144 A.C.W.S. (3d) 716 at para. 11(2).
[26]
The Court
held in Mpiana that it will be an error for the Board to compare
documents prepared by different people for different purposes. In this case,
both documents purported to come from the same lawyer, and the Board’s concerns
with respect to the letter were entirely reasonable.
Conclusion
[27]
For these reasons,
the application for judicial review is dismissed. I agree with the parties that
the case does not raise a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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