Docket: IMM-1722-11
Citation: 2011 FC 1105
[UNREVISED
ENGLISH CERTIFIED TRANSLATION ]
Ottawa, Ontario, September 28, 2011
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
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MORGAN MUBIALA
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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 to review the lawfulness of a decision
dated December 13, 2010, by the Refugee Protection Division of the Immigration
and Refugee Board (panel) rejecting the applicant’s refugee claim. For the
following reasons, intervention is not warranted, since the impugned decision
was reasonable in every respect and the rules of procedural fairness were
followed in this case by the panel.
BASIS OF THE REFUGEE
CLAIM
[2]
We
will see later that at the time of the applicant’s oral testimony before the
panel on December 13, 2010, he contradicted himself on several fundamental
aspects of his refugee claim, as noted by the panel, which found his account
not to be credible. That being said, according to the Personal Information Form
(PIF) signed on December 9, 2008, the applicant, who is a citizen of the
Democratic Republic of the Congo (DPR), fears persecution because of his membership
in the Bunda Dia Kongo (BDK) church. This is a Congolese political and
religious movement that is very active in the province of Bas-Congo and that has
an anti-government political agenda.
[3]
As
a member of the BDK, the applicant claimed that he espouses the movement’s views
but also stated that he did not get involved on a daily basis in the claims of
the Church, of which he is apparently a deacon. The fact remains that on April
27, 2006, the home of his spiritual leader was searched by the Congolese
national police, who even vandalized the Church’s places of worship. Two months
later, the members used the annual march for the Independence Day celebration of
June 30, 2006, to protest against these aggressive actions on the part of the
national police, but the demonstration ended in violent clashes: ten BDK
members were beaten and several others were injured or imprisoned. Fortunately,
the applicant emerged unscathed.
[4]
A
resident of Kinshasa, the
applicant claimed that he travelled twice a year to Bas-Congo, both for family
reasons and for his business, because he owned a garage in Luozi. However, the
Congolese government, acting through the governor of Bas-Congo, still wanted to
exterminate members of the BKD and, in fact, several BKD members were killed in
February 2008. Concerned for the safety of his grandparents who were also members
of the Church, and considering that he had to see to the operation of his
garage in Luozi, the applicant said that he went to Luozi in early March 2008.
Unfortunately, he was never able to get to his grandparents’ home because he
was arrested immediately in the street by soldiers (government police) who had been
alerted to his presence.
[5]
The
applicant continued his account by explaining that he was imprisoned in a cell
in Luozi, where he was held for two weeks. There, he was subjected to the worst
kinds of torture and humiliation, which left permanent effects. He finally
escaped on March 30, 2008, with the help of a soldier named Jacques, who was an
old acquaintance and who took pity on him. Jacques drove him to the forest to kill
him but instead fired some shots in the air and asked him to leave. He then
managed to get to the village of Kinete at the
Congo-Brazzaville border, where he was given indigenous treatment for his
injuries. He also managed to contact his family and, finally, after being moved
from village to village while he was in Congo-Brazzaville, he met a smuggler in
early October 2008. The applicant explained that he arrived at the Trudeau airport
in Montréal on October 17, 2008, and after spending the first night at the
airport, he submitted his refugee claim at an immigration office the next day.
NON-CREDIBILITY FINDING
[6]
It is
settled law that the assessment of the evidence and testimony, and the assessment
of their probative value, is within the exclusive expertise of the panel (Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (FCA), [1993] F.C.J. 732;
Aguirre v. Canada (Minister of Citizenship and Immigration), 2008 FC 571 at para. 14, [2008] F.C.J. 732).
Since the standard of review is reasonableness, a high degree of deference is
owed to the decision of the specialized tribunal, and the reviewing court must
limit its review to “the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v. New
Brunswick,
2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190 and Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59, [2009] 1 S.C.R. 339.
[7]
In
this case, the refugee claim was rejected simply because the panel did not
believe the applicant’s account, given the many contradictions identified in
the decision under review. Among other things, the applicant testified at the
hearing, contrary to his written statement:
·
that
his arrest took place on March 30, 2008 (and not at the beginning of that month);
·
that
he did not take part in the march on June 30, 2006, but was instead passing
through on his way to Luozi;
·
that
he waited about 5 months after the February 2008 massacres before going to
Luozi to his grandparents’ home (on this point the applicant contradicted himself
one other time at the hearing, when he explained that he had been present
during the massacres which took place in Boma);
·
that
he was arrested at the hotel (and not in the street) by police officers who
came and knocked at his door while he was trying to rest;
·
that
he was arrested for the first time in 2008 (while he had told the immigration
officer that his first arrest dated back to 2006);
·
that
he held the position of “moderator” in the BDK, stating that there was no
deacon or subdeacon in the church (when he had stated in his PIF that he was a
deacon);
·
that
he had had no contact with his family members from the time he was arrested in
March 2008 to his departure from Congo in October 2008 (when
they had signed or provided him with several documents during this period);
·
that
after leaving Congo-Brazzaville on October 6, 2008, to come to Canada through Morocco, he arrived
at the Trudeau airport in Montréal on October 7, 2008, and not on October 17,
2008, as mentioned in his PIF;
·
that
he left Congo-Brazzaville without having any identity documents in his name and
that he had no idea how the service passport in his name and containing his
photo was issued in Kinshasa on September 28, 2008 (date on which he claimed he
was hiding in the forest with no contact with his family);
·
that
his date of birth his in fact July 8, 1961, and not February 8, 1961, which
appears in the substitute birth certificate obtained on August 7, 2008 (date on
which he claimed he was hiding in the forest with no contact with his family);
·
that
his garage in Kinshasa is in the
commune of Ngiri-Ngiri and is called GARAGE MUBIALA when the service card from GARAGE
MAKWANA filed in the record is a false document made by members of the
BDK;
·
finally,
that his BDK membership card was taken by his country’s authorities and that
members of the BDK had issued him a new one, when according to the panel’s
specialized knowledge the BDK has not issued membership cards since 2002.
[8]
The
panel also found that the above-mentioned contradictions were of a nature to irreparably
undermine the probative value of many of the pieces of documentary evidence
filed by the applicant, such as the substitute birth certificate, the
certificate of acknowledgement, the letter of appointment and the BDK
membership card issued to “KINSHSA, KIA 01/05/2004” [sic] on which the
notation 2004 has prima facie been altered, according to the panel.
Similarly, the panel decided not to attach any weight to the letter of support
from the applicant’s spouse, which it characterized as being a document of
convenience. Also, the panel found that the psychological report, the letter
from the applicant’s attending physician and the letter from the social worker
had no probative value because the facts on which the opinions of the experts
in question were based had been found not to be credible.
COMPLIANCE
WITH THE GUIDELINES ON VULNERABLE PERSONS
[9]
A
previous order of the panel, dated December 7, 2010, recognized the applicant
as being a “vulnerable person” within the meaning of the Guideline on
Procedures with respect to Vulnerable Persons Appearing Before the IRB, December
2006 (the Guidelines) and set out various procedural measures to protect the
applicant at the hearing. It follows that regardless of whether what the
applicant says is true or not, the post-traumatic stress he suffers from
required the panel to be sensitive and attentive to his current condition.
Moreover, breaks were recommended by the specialist who examined the applicant
when the memory of painful events [TRANSLATION] “exceeds his emotional and
cognitive capacities”.
[10]
Today,
the applicant is principally challenging the fact that, in assessing his
credibility, the panel did not attach sufficient weight to the fact that he is
a “vulnerable person”. The applicant’s learned counsel admits that the
procedural accommodations mentioned in the Guidelines and the panel’s previous
order had indeed been made at the hearing by the panel member who heard his
testimony (reversing the order of questioning, breaks, etc.). However, she
argues that the substantive effect of the Guidelines must also be considered:
form cannot operate to the detriment of substance when the panel analyzes the
testimony of a “vulnerable person”. However, the psychological reports in the
record clearly show that the applicant is unable to discuss the events that
took place in the Congo without experiencing significant trauma in the
form of flashbacks or confusion. In assessing the applicant’s credibility, the
panel therefore had to take into account his inability to recollect traumatic events:
Lozano
Pulido v. Canada
(Minister of Citizenship and Immigration), 2007 FC 209 at para.
39, [2007] F.C.J. 281, and Hassan v. Canada (Minister of Citizenship and Immigration), 174 F.T.R. 288 at para. 22, [1999] F.C.J. 1359.
[11]
The
respondent submits that all of the accommodation measures were taken by the
panel to facilitate the applicant’s testimony at the hearing in accordance with
the Guidelines and the order dated December 2, 2010. Nevertheless, the panel
was not in any way obliged to give credence to the applicant’s account of
persecution, given that he contradicted himself many times during his oral
testimony on major points in his claim.
[12]
In fact,
the applicant’s claims cannot be accepted by the Court. It should be recalled
once again that the purpose of the Guidelines is to make sure that persons
recognized as vulnerable are heard with sensitivity by the panel and not to remedy
the defects of testimony that is full of major contradictions and
implausibilities. Here, these many contradictions or implausibilities pertain
to essential aspects of the refugee claim and clearly go beyond simple memory
lapses, inconsistences or an inability to relate relevant events because the
applicant is suffering from post-traumatic stress. Other contradictions or
implausibilities identified by the panel simply concern the documentary
evidence. Contrary to the situation noted by the Court in the decisions raised
by the applicant, the rejection of this refugee claim is not the result of any
insensitivity on the part of the panel concerning the applicant’s state of
psychological vulnerability.
[13]
Moreover,
I am equally satisfied that the panel took his psychological condition into
account in assessing the answers he was able to give at the hearing. Based on a
careful reading of the transcripts, the applicant’s medical condition does not
seem to have affected the coherence of his remarks. The pace of his testimony
at the hearing was excellent overall. The applicant’s responses were not
confused. The applicant was even talkative and his memory lapses seemed rather strategic
and occurred just when he was embarrassed or confronted with major
contradictions from his previous testimony. In short, this is not a case where
a refugee claimant claims not to be able to remember past facts, but a case
where, when confronted with a contradiction, he visibly adjusted his testimony
in relation to what he stated in the past in great detail and with great conviction.
ASSESSMENT OF THE
MEDICAL EVIDENCE
[14]
The
applicant is also challenging the fact that the panel did not attach any
probative value to his psychological report, the letter from his attending
physician or the letter from his social worker, even though this evidence
supported his account. In this case, this second ground of attack, which is a variation
of the theme developed above, cannot be accepted either. We have already seen
that the panel took into account the diagnosis of post-traumatic stress in
terms of the applicant’s ability to recollect certain facts; there therefore
remains the credibility to be given to the allegations of persecution and
torture that form the basis of the refugee claim.
[15]
In Kabedi v. Canada (Minister of Citizenship and Immigration), 2005 FC 154 at
paras. 19-20, [2005] F.C.J. 224, Justice Beaudry noted the applicable
case law:
Case law in similar
matters has established that it is the responsibility of the panel to judge
upon the value to be given to expert testimony. In R v. Abbey, [1982] 2
S.C.R. 24, at paras. 41 and 48, the Supreme Court of Canada stated as follows:
An expert witness, like any other
witness, may testify as to the veracity of facts of which he has first-hand
experience, but this is not the main purpose of his or her testimony. An expert
is there to give an opinion. And the opinion more often than not will be based
on second-hand evidence. This is especially true of the opinions of
psychiatrists.
. . .Before any weight can be given to
an expert's opinion, the facts upon which the opinion is based must be found to
exist. [Emphasis added.]
In Danailov v. Canada (Minister of Citizenship and
Immigration), [1993]
F.C.J. No. 1019 (F.C.T.D.) (QL), at para. 2, Reed J. explained that:
With respect to the assessment of the
doctor's evidence, to find that that opinion evidence is only as valid as
the truth of the facts on which it is based, is always a valid way of
evaluating opinion evidence. If the panel does not believe the underlying facts
it is entirely open to it to assess the opinion evidence as it did.
[Emphasis added.]
[16]
In
conclusion, the Court’s intervention is warranted only where the panel has
disregarded evidence that is essential to the refugee claim. This is obviously
not the case here and it is not necessary for this Court to intervene in this
regard.
[17]
For these reasons, the application for judicial review must fail.
Counsel agreed at the hearing that no serious question of general importance arises
in this case.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that this application for judicial review is dismissed.
No question is certified.
“Luc
Martineau”
Certified
true translation
Susan
Deichert, LLB
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