Date: 20110517
Docket: IMM-1865-10
Citation: 2011
FC 563
Ottawa, Ontario, May 17, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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MPODE MASANGO
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated March 16, 2010, wherein the applicant was determined
not to be a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a differently constituted panel
of the Board.
Background
[3]
Mpode
Masango (the applicant) was born on February 27, 1982 and is a citizen of Cameroon.
[4]
The
applicant states that her father was an active member of the Southern Cameroon
National Council (SCNC) and she believes that he was killed because of his
political involvement.
[5]
The
applicant became an administrative assistant for the SCNC after her father’s
death in 2005. She would distribute flyers and organize demonstrations.
[6]
The
applicant alleges that she was arrested and detained four times in Cameroon between 2006 and 2007
due to her political activities. She states that she was physically beaten
during each detention. During the fourth arrest, the applicant was raped by
her interrogators. The applicant was taken to the hospital from where she
escaped.
[7]
The
applicant arrived in Canada on October 9, 2007 and
made a claim for refugee protection on the basis of her political opinion.
Board’s Decision
[8]
The
Board found that there was insufficient credible and trustworthy evidence with
respect to the applicant’s testimony and documents to establish that she was a
member of the SCNC.
[9]
The
applicant’s oral testimony of the date she joined the SCNC was inconsistent
with what she wrote in her Personal Information Form (PIF) and in the
information given to Citizenship and Immigration Canada (CIC). Her membership
card and her PIF differently described her position in the SCNC and the
applicant herself inconsistently explained her position.
[10]
The
Board drew negative inferences from the applicant’s inability to spell
democracy and from the fact that democracy was incorrectly spelled in two
locations on the SCNC membership card that the applicant presented as proof of
her membership. The word sign was also misspelled on the card.
[11]
Based
on the contradictory written and oral evidence, the Board gave no weight to the
SCNC card.
[12]
The
applicant provided correspondence indicating that she was a member of the
SCNC. The Board drew a negative inference from the letter’s lack of detail and
lack of personal information about the applicant. The Board found it was unable
to conclude that the letter was authentic.
[13]
The
Board also found that a letter from the Human Rights Defence Group lacked
credibility because it lacked personal information about the applicant.
[14]
The
Board had concerns about a letter from a lawyer, Mr. Samuel. The letter was not
dated, witnessed or notarized and misspelled writ of habeas corpus. The
applicant could not provide an explanation for these concerns.
[15]
The
Board found a letter from the former SCNC chairman not to be credible as it did
not mention the applicant’s father who she states was a senior advisor of the
SCNC Leadership Council. It also did not contain specific details about the
applicant.
[16]
The
Board found that the applicant had failed to establish that she was affiliated
with, or a member of, the SCNC.
[17]
The
applicant did not provide medical evidence of the assaults she experienced in
detention. The Board did not accept her explanation that she did not want to
send her mother to obtain the medical reports. The applicant also had medical
attention and counselling in Canada but did not provide reports from these sessions.
[18]
The
Board concluded that the applicant did not meet her onus to provide relevant
documentation for her claim pursuant to Rule 7 of the Refugee Protection
Division Rules, SOR/2002-228.
[19]
The
Board further found that the applicant’s testimony on her detentions contained
discrepancies. The applicant’s oral evidence was inconsistent with her PIF
regarding how many students were killed in one strike leading to her arrest and
whether a police officer was also killed. Her testimony was further inconsistent
regarding how many men had raped her during her fourth detention.
[20]
The
Board concluded that the applicant had failed to establish that she was
detained.
[21]
Based
on the above, the Board found that she had failed to prove a well founded fear
of persecution by reason of her actual or perceived political opinion. The
Board further concluded that it was more likely than not that she would not
face serious harm should she return to Cameroon.
Issues
[22]
The
applicant submitted the following issue for consideration:
Did the Board err in concluding
that based on the evidence provided by the applicant, there was no sufficient
evidence to establish the applicant’s political identity and subjective fear of
persecution for reasons of her membership in the SCNC and that she lacked
credibility in key areas of her claim?
[23]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Was the Board’s
decision reasonable?
Applicant’s Written Submissions
[24]
The
applicant submits that the Board erred by basing its credibility findings on
irrelevant considerations.
[25]
Even
if the Board considered some aspects of the applicant’s claim not to be
credible, there was evidence that she would face persecution if she returned to
Cameroon. This evidence
was her membership in the SCNC and her past persecution based on this
membership.
[26]
The
applicant argues that the Board did not support its findings of forgery of the
applicant’s documents. Further, the Board erred in requiring corroborating
evidence to support the applicant’s testimony of her arrests, detention and
consequent physical and sexual assault.
[27]
The
applicant further submits that the Board did not provide clear reasons for its
finding that there was no credible or trustworthy evidence to reach a positive
determination and ultimately, committed a reviewable error by anchoring its
credibility findings to the applicant’s political identity.
Respondent’s Written Submissions
[28]
The
respondent submits that negative decisions on a person’s credibility are
properly made as long as the tribunal gives reason for doing so in clear and
unmistakable terms. Confusion, inconsistencies and contractions in the
applicant’s evidence can create a perception of a lack of credibility. The
applicant in this case, did not provide credible and trustworthy evidence that
she was a member of the SCNC. Her Port of Entry (POE) interview notes, PIF and
oral testimony were inconsistent on several occasions. The applicant was unable
to explain the discrepancies in a satisfactory manner and it was reasonable for
the Board to conclude that the applicant failed to establish her affiliation as
a member of the SCNC. This was central to her refugee claim which was based on
persecution due to her political opinion.
[29]
The
Board provided a thorough analysis of each document of correspondence submitted
by the applicant. The Board found that they contained errors, were general, and
omitted important personal information about the applicant. Based on these
factors and the applicant’s lack of adequate explanation for the
inconsistencies, it was open to the Board to give little weight to these
documents.
[30]
The
applicant bore the burden of providing credible evidence in support of her
claim. The applicant provided no documentary evidence in support of the
allegation that she was detained. The Board based its finding that there was no
serious possibility that the applicant would be persecuted in Cameroon on several
findings:
- The
applicant alleged that she received medical treatment in Cameroon and Canada as a
result of her detentions but failed to provide any documents supporting
this.
- The
applicant stated that her second detention was reported in the media but
she did not provide any news articles reporting the detention.
- None of
the correspondences that the applicant submitted in support of her claim
mentioned her detentions.
[31]
The
applicant was unable to provide a reasonable explanation for not presenting
credible documents for her claim.
[32]
Finally,
the applicant’s testimony regarding her detention and assaults was inconsistent
with her PIF and it was open to the Board to draw a negative inference from the
contradictions.
Analysis and Decision
[33]
Issue
1
What is the appropriate
standard of review?
It is well established that in
reviewing assessments of credibility, the applicable standard of review is that
of reasonableness. Assessments of credibility are essentially pure findings of
fact and it was Parliament’s express intention that administrative fact finding
would command this high degree of deference (see Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 46). This Court must not substitute its assessments for those of the
Board unless the applicant can demonstrate that the findings of fact were made
in a perverse or capricious manner without regard to the material before it
(see Siad v Canada (Secretary of State), [1997] 1 FC
608 at paragraph 24).
[34]
Issue
2
Was the Board’s decision
reasonable?
The Board’s finding that the
applicant did not establish that she was affiliated with, or a member of, the
SCNC was based on inconsistencies and contradictions between her oral and
documentary evidence.
[35]
The Board found that the applicant
was inconsistent in the POE interview, her PIF and her oral testimony on
numerous occasions in describing when she joined the SCNC, what her position
was, the details of the strike she was involved in and how many people were
killed and the details of her attackers while in detention, among other facts. As
Mr. Justice James Russell held in Higbogun v Canada Minister of
Citizenship and Immigration),
2010 FC 445 at paragraph 39, “inconsistencies and contradictions
create a perception of a lack of credibility”. Inconsistencies
in a refugee claim may be held against an applicant (see Sun v Canada (Minister
of Citizenship and Immigration), 2008
FC 1255).
[36]
The Board also considered the
applicant’s supporting documentation of her membership in the SCNC. The
applicant herself noted that the Board “described all the documents which the Applicant
submitted to corroborate her testimony”.
[37]
Based on Rule 7 of the
Refugee Protection Division Rules, the onus was on the applicant to
provide acceptable documents to establish
the elements of her claim.
[38]
The Board provided clear and
unmistakeable reasons for rejecting the SCNC membership card and the letters
stating that the applicant was a member of the SCNC. The Board
found spelling errors and inconsistencies in the document that the applicant
submitted as her membership card. Regarding the correspondence about her
membership, the Board found that they contained errors, were general and
omitted important personal information about the applicant.
[39]
It
was open to the Board to give little probative weight to the letters based on
the errors it perceived. In Singh v
Canada (Minister of Citizenship & Immigration),
2008 FC 669, in considering
affidavits submitted by the applicant’s father, Mr. Justice Edmond Blanchard
held at paragraph 28:
. . . in
her reasons the Officer noted the general and vague nature of the allegations
in the affidavits and that they contained little detail as to the time and
frequency of the alleged incidents. The Officer also observed that the
affidavits were not originals and that notary's stamp was not legible. An
omission in the father's affidavit was also noted by the Officer: Mr. Kirpal
Singh attested that he had personally intervened to take the Applicant's father
out of police interrogation. The father's affidavit makes no mention of this
event. Considering these factors on the whole, it was open to the Officer to
afford little probative value to the two affidavits.
[Emphasis added]
[40]
The Board further indicated that it
drew negative inferences from the applicant’s inability to explain the errors
in her documentary evidence or the inconsistencies in her oral testimony from
her PIF.
[41]
The Board’s conclusions concerning
all of the applicant’s supporting documentation were transparent and carefully
explained. There was no error in assigning these documents low probative
weight.
[42]
In
addition to finding that the applicant had not established that she was a
member of the SCNC, the Board rejected that the applicant had been detained and
assaulted, in part because of her inconsistent testimony but also based on a
lack of corroborating documentary evidence.
[43]
Mr.
Justice Russell held in Higbogun above, that:
43 While there is no legal
requirement to provide corroborating evidence, in some factual circumstances it
is not unreasonable for the RPD to consider a lack of corroborating evidence in
determining the well-foundedness of an applicant's fear.
[44]
I
find that this is one of those cases. There were clear instances where
corroborating documentary evidence of the applicant’s claim of detention and
assault existed. These included media, medical and psychological reports. In
addition, there was the potential for the correspondence she received regarding
her membership to corroborate the fact that she had been detained.
[45]
Pursuant to Rule 7 of the Refugee
Protection Division Rules, an applicant who does not provide acceptable
documents must explain why they were not provided and what steps were taken to obtain them. The Board was
reasonable in finding that the applicant had not met her burden under Rule 7 to
explain why the corroborating documents were not before the Board. Responding
to the Board member’s questioning as to why she did not produce corroborating
documentation of her second arrest which she claimed was reported in the media,
the applicant responded:
Claimant: I thought that
maybe with information that I gave in if you had to, if there was any kind of
research that had to be done on your part maybe, maybe you would be able to…
Presiding Member: We do not
do the research. It is up to you to establish your case.
(certified tribunal record,
page 108)
[46]
It was reasonable for the Board to
conclude that the applicant did not establish her membership in the SCNC nor
that she had been detained or assaulted. Given this, the Board’s decision that
the applicant was not a Convention refugee based on her political opinion and
would not face a serious possibility of persecution if she returned to Cameroon
was within the range of possible,
acceptable outcomes defensible on the facts and law (see Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47).
[47]
As
a result, the application for judicial review must be dismissed.
[48]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[49]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
. . .
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance,
question ou affaire — prise dans le cadre de la présente loi est subordonné
au dépôt d’une demande d’autorisation.
. . .
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne 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 :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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Refugee
Protection Division Rules,
SOR/2002-228
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7. The claimant must provide acceptable
documents establishing identity and other elements of the claim. A claimant
who does not provide acceptable documents must explain why they were not
provided and what steps were taken to obtain them.
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7. Le
demandeur d’asile transmet à la Section des documents acceptables pour
établir son identité et les autres éléments de sa demande. S’il ne peut le faire, il en donne la
raison et indique quelles mesures il a prises pour s’en procurer.
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