Date: 20080402
Docket: IMM-3649-07
Citation: 2008 FC 421
Montréal, Quebec, the 2nd day of April 2008
Present:
the Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
ERIC
GOULONGANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review results from a decision by the Immigration and
Refugee Board, Refugee Protection Division (the panel), which had the effect of
denying the applicant the status of a “Convention refugee” and a “person in
need of protection” within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act (the Act) on the ground that it considered the
fear of persecution alleged by the applicant so unlikely as to be unrealistic.
[2]
After
reviewing the record and considering the written and oral submissions of the
parties, the Court concludes that it must uphold the decision which is the
subject of the application for judicial review because in the context
considered by the panel it must be regarded as reasonable.
Facts
[3]
The
applicant, who is 29 years old and a citizen of Gabon, arrived in Canada in January 2002 for a period of study.
Before coming to Canada he had studied in Britain (1997-2001), Belgium (1996-1997) and Italy (1992-1996). He returned to Gabon for the last time in August 2004.
[4]
The
applicant alleged his problems began in September 2005 during the Gabon presidential elections, when President
Omar Bongo sent a delegation to Canada
to seek the votes of students residing in Canada. The instructions of this delegation
were allegedly to encourage students residing in Canada to vote for President Bongo and to
prepare a list of those who refused to be placed on the electoral list and to
support President Bongo.
[5]
The
applicant said he refused to be placed on the electoral list on principle and
he alleged he received a number of anonymous threatening calls to force him to
vote for this president.
[6]
The
applicant said he had already experienced a similar situation when he was
studying in England, during the Gabon presidential elections of 1999.
[7]
The
applicant claimed that his refusal to be entered on the electoral list was seen
as an affront to the Gabon government and that is why he
feared reprisals, imprisonment and even death if he were to return to Gabon.
[8]
At the
same time, the applicant admitted that his parents were still residing in Gabon and had experienced no problems as a
result of his refusal to be entered on the electoral list prepared in Canada by the Gabon consular services.
Impugned decision
[9]
The
panel’s rejection of the applicant’s refugee status application was primarily
based on the improbability of the applicant’s allegations and his lack of
credibility. In particular, the panel in a brief decision noted four points
against the applicant:
(a) as the applicant
had never taken part in political activities or worked for any political party,
the panel could not believe his statement that his merely refusing to enter his
name on the electoral list in 2005 marked him as an opponent of the Gabon government
subject to persecution if he returned to his country of origin, in view of the
fact that though not a perfect democracy Gabon did tolerate a multi-party
system;
(b) the panel refused
to attach any weight to the anonymous threats which the applicant claimed to
have received from the Congolese consular services on the ground that the
applicant, the son of a Gabon diplomat, held a diplomatic passport;
(c) the panel concluded
on the basis of its specialized experience that when the Gabon government objected to an individual his
family was harassed, which as the applicant himself admitted was not the case
here;
(d) the improbability
of the chronology of events allowed the panel to infer that loss of his
scholarship from Gabon had upset the applicant and
he was now inclined to impute to the Gabon
government an intent to persecute him.
[10]
Finally,
the panel mentioned that it applied to the applicant’s situation subsection
97(1) of the Act, which defines a “person in need of protection”, but could not
find any point of credibility that could justify a favourable decision under
this provision.
Parties’ arguments
[11]
The
applicant first admitted that the standard of review applicable to panel
decisions based on a lack of credibility in the refugee status applicant is
that of unreasonableness as defined in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir).
[12]
Despite
this high standard of review, the applicant argued that this Court should allow
his application for review for three reasons: (1) the panel’s failure to
consider all the evidence; (2) the decision was based on suppositions rather
than on the evidence; (3) the decision contravened the rules of natural justice
because sufficient reasons were not given for it.
[13]
The
applicant’s first objection was based on the panel’s failure to indicate on what
evidence it relied in stating that Gabon
was a multi-party state and consequently suggesting that an opposition to the
government existed, rather than considering all the applicant’s evidence which allegedly
showed the contrary.
[14]
The second
reason is closely allied to the first. In the applicant’s submission, rather
than assessing the evidence submitted the panel simply concluded on the basis
of supposition that a person holding a diplomatic passport is not usually
threatened and that the applicant’s family would ordinarily also be the subject
of harassment if the Gabon authorities had really intended to cause him
problems.
[15]
The third
reason also concerned a failure to consider all the evidence submitted, but
placed greater emphasis on the panel’s failure to adequately justify the
reasons for its decision: in particular, the panel’s failure to refer to the
evidence on which its conclusions were based and to properly explain the
reasons leading it to dismiss the applicant’s evidence.
[16]
The
Minister properly noted that a conclusion that there is an absence of
credibility may be based on improbabilities, irrationality and common sense (Shahamati
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.)
(QL).
[17]
Further,
the Minister noted that the panel did not have to mention all the evidence
considered in its reasons. The applicant’s allegation that the decision did not
take the evidence presented into account will not suffice to rebut the
presumption that all the evidence was considered by the panel. The panel
certainly did not have a duty to comment on all the documentary evidence
submitted to it, especially if as in the case at bar it concluded that the
applicant lacked credibility.
Issue
[18]
Was the
panel’s negative decision on the applicant’s protection application
unreasonable?
Analysis
[19]
The
parties properly acknowledged that the standard of review applicable to
decisions based on a lack of credibility in the refugee status claimant, as was
the case here, is that of unreasonableness (Dunsmuir, supra).
[20]
Contrary
to what the applicant argued, the panel is not required to mention in its
reasons all the evidence presented to it (Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL)). That
objection is all the more pertinent where as in the case at bar the panel
concluded that the applicant lacked credibility on the principal facts on which
the claim was based (Sheikh v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 238 (C.A.)).
[21]
The Court
must bear in mind the specialization and full powers of the panel to rule on
the plausibility of testimony and credibility of an applicant in his
explanations given to claim refugee status (Aguebor v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No.732 (C.A.) (QL)).
[22]
Based on
its knowledge and its expertise, a specialized tribunal may draw inferences
from the evidence without this necessarily meaning that such inferences result
from bias, as the applicant suggested. The persons who preside over tribunals
are not containers to be filled with any sort of story. They have a right to
use their common sense in determining whether a story stands up, is true or is
simply improbable.
[23]
If an applicant
submits documentary evidence to the decision-maker, he or she may expect that
the latter will accept it in its entirety or only in part, or reject it outright.
It is up to the panel to select and use the parts of the evidence which it
considers to be most persuasive as a basis for its conclusions. If
subsequently, as in the case at bar, the panel’s choice does not suit the
refugee status applicant because it harms his case, that is not a valid ground
for judicial review of the decision.
[24]
There
is nothing to indicate here that the panel made a selective analysis of the
very brief evidence heard. It was the panel’s function to assess that evidence
and no one but the panel could be in a better position to determine the
applicant’s credibility after hearing him. The mere fact that there was
evidence contrary to the decision arrived at by the panel does not by itself
justify this Court’s intervention, especially when there was evidence to
support the decision as is the case here (Chowdhury v. Canada (Minister of
Citizenship and Immigration), 2002 FCTD 363).
[25]
For these
reasons, the applicant’s application must be dismissed. No question was
submitted for certification and the Court considers that this case raises no
question of general importance.
JUDGMENT
FOR THESE REASONS, THE COURT:
DISMISSES the application for judicial
review.
“Maurice
E. Lagacé”
Certified
true translation
Brian
McCordick, Translator
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