Date:
20070208
Docket: IMM-3269-06
Citation:
2007 FC 138
Ottawa, Ontario, the 8th
day of February 2007
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
AJEMA MOLEBE
LESLIE KAKRA
NAOMI
MOTEMONA AMBA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the
tribunal), delivered on May 16, 2006, that the applicants, a mother and her two
minor daughters, were neither “Convention refugees” nor “person[s] in need of
protection”.
[2]
In a
related file (IMM-3034-06), the Minister applied for judicial review of the
exclusion of the principal applicant (the applicant) pursuant to paragraphs
1(F)(a) and 1F(c) of the United Nations Convention Relating to
the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (the Convention).
Although the facts are the same, the issues are different. Consequently, the
reasons for judgment will be delivered separately.
ISSUE
[3]
Were the
tribunal’s findings concerning the applicant’s credibility made in a perverse
or capricious manner or without regard for the material before it?
[4]
For the
following reasons, the answer to this question is negative. The application for
judicial review will therefore be dismissed.
FACTS
[5]
The
applicant is a citizen of the Democratic Republic of Congo (DRC). She arrived
in Canada on December 15, 2002, with her child Leslie Kakra, who was then one
year old and of American nationality. In August 2005, her daughter, Naomi
Motemona, who was 12 years old at the time and had been living in Belgium with
her father for three years, came to join the applicant. All three claimed
refugee protection in Canada as refugees from the DRC, under section 96 and
subsection 97(1) of the Act.
[6]
The
applicant alleged that she is wanted for murder for having killed a member of
the military in a car accident. She claimed that she was arrested and
imprisoned but was released after Colonel Kapend intervened.
[7]
The
applicant also stated that she is afraid of what will be happen to her when she
returns to the DRC because Colonel Eddy Kapend was accused and sentenced to
death in January 2003 for the assassination of President Laurent‑Désiré
Kabila on January 13, 2001.
[8]
The
applicant also submitted that she is suspected of having helped Rwandans to
leave Kinshasa. Finally, as a member of the Movement for the Liberation of
Congo (MLC), the applicant would be associated with those who fought against
the regime of President Laurent-Désiré Kabila in 1999. Furthermore, she claimed
to have transported sealed envelopes on behalf of the MLC to different countries
in Africa while working as a flight attendant for Air Zaïre.
[9]
However,
the tribunal dismissed their claim. They are challenging that decision by means
of the present application for judicial review.
IMPUGNED DECISION
[10]
The claims
of the minor children were dismissed because of the children’s nationalities
(Leslie – American, Naomi – Congolese-Belgian). Neither of them has a fear of
persecution in their respective countries, namely, the United States and
Belgium. As for the applicant, she was unable to show that she had a well‑founded
fear of persecution or that her life would be in danger in the DRC. In fact,
the tribunal dismissed the applicant’s claim on the basis of her lack of
credibility.
[11]
The
tribunal made seven negative findings regarding the applicant’s credibility.
(a) Although the applicant claimed
to fear persecution for having killed a member of the military in a car
accident, the applicant denied this version of her story during the hearing,
stating that the immigration officer had misunderstood her. The tribunal found
that she had nothing to fear if she had not killed the serviceman in question.
(b) The applicant
contradicted herself by testifying that she was afraid DRC authorities would
reopen her file, but she did not specify what was in the file. Questioned more
closely on the subject, the applicant claimed that the immigration officer had
misunderstood her. The tribunal was not satisfied by this explanation.
(c) Despite her claims of having
worked as a messenger for the MLC, the applicant was not able to give a clear
and consistent answer regarding the number of times she carried out this task.
Her answer varied from every week to six or seven times to three times. The
tribunal was troubled by the fact that she could not give a straight answer on this
subject.
(d) The applicant alleged that she
feared being arrested and convicted for complicity in the assassination of
President Laurent Kabila, by reason of her romantic involvement with Colonel
Kapend. The documentary evidence showed that all those accused of the
assassination had already been tried at Kinshasa. The evidence before the
tribunal revealed that the applicant’s name did not appear anywhere on the
lists of accused or wanted persons.
(e) Although claiming that she has
been wanted for murder since 1998, the applicant did not leave the DRC until
2001. The explanation for this delay did not convince the tribunal.
(f) The documentary evidence
showed that the applicant went to Brazzaville at least twice during the period
that she was allegedly wanted by authorities without being apprehended. She
said she was able to return freely and voluntarily to her country because her
children remained there at her home. The tribunal drew a negative inference
from this.
(g) As for the applicant’s fear
for her safety relating to the assistance she allegedly gave Rwandans in
Kinshasa, the tribunal found it unlikely that she would continue to be afraid
in 2006, two years and nine months after transitional institutions were set up
in June 2003, when the belligerents united. This change in circumstances does
not in any way support the applicant’s claim. The tribunal noted that the
current party in power in the DRC is the Congolese Rally for Democracy (RCD),
the majority of members of which are Congolese of Rwandan origin.
[12]
As for the
psychological report filed by the applicant, the tribunal found that this
document could not support a testimony deemed not credible.
[13]
The
tribunal also considered whether the applicant would be danger if she were
removed to her country pursuant to subsection 97(1) of the Act but found that
there was no element of credibility that would make a positive finding
possible.
AnalysIS
Standard of review
[14]
When the
issue is the refugee protection claimant’s credibility, the appropriate
standard of review is patent unreasonableness. In Aguebor v. (Canada)
Minister of Employment and Immigration, [1993] F.C.J. No. 732 (QL), the
Federal Court of Appeal stated the following at paragraphs 2 to 4:
In his memorandum, counsel for the
appellant relied on the decision of this Court in Giron v. Minister of
Employment and Immigration in support of his argument that a court which
hears an application for judicial review may more easily intervene where there
is a finding of implausibility. Because counsel are using Giron with
increasing frequency, it appeared to us to be useful to put it in its proper
perspective.
It is correct, as the Court said in Giron,
that it may be easier to have a finding of implausibility reviewed where it
results from inferences than to have a finding of non‑credibility
reviewed where it results from the conduct of the witness and from
inconsistencies in the testimony. The Court did not, in saying this, exclude
the issue of the plausibility of an account from the Board’s field of
expertise, nor did it lay down a different test for intervention depending on
whether the issue is “plausibility” or “credibility”.
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. In Giron, the Court merely observed that in the area of
plausibility, the unreasonableness of a decision may be more palpable, and so
more easily identifiable, since the account appears on the face of the record.
In our opinion, Giron in no way reduces the burden that rests on an
appellant, [sic] of showing that the inferences drawn by the Refugee Division
could not reasonably have been drawn. In this case, the appellant has not
discharged this burden.
Lack of credibility
[15]
The
tribunal raised a number of doubts concerning the applicant’s credibility and
gave her the opportunity to explain herself. Responses were often contradictory
or even implausible.
Lack of reasons concerning important
evidence
[16]
Counsel
for the applicant submits that, in its reasons, the tribunal failed to refer to
certain pieces of important and relevant evidence that could justify the claim
for refugee protection. He cites Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C. Trial
Division) (QL).
[17]
A thorough
review of the file does not support this contention.
[18]
The Court
finds that there is nothing to warrant intervention in this case.
[19]
The
parties did not submit a question to be certified, and there is none in the
case.
JUDGMENT
THE COURT
ORDERS that:
1. The
application for judicial review of file IMM-3269-06 be dismissed. There is no
question to be certified.
Judge
Gwendolyn
May, LLB
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