Date: 19980924
Docket: IMM-4667-97
Between:
ANGE OROZOKOSSE
DJAZA ELISE DIDI
Applicants
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division dated October 24, 1997, that the applicants were not Convention refugees.
[2] The applicant, Ange Orozokosse, and his common-law wife, Djaza Elise Didi, are citizens of Côte d"Ivoire. FESCI, a student movement whose main goal is to defend student interests, was founded in April 1990. The applicant, a member of FESCI, claimed that he had been appointed as a delegate to organize meetings, conferences, general assemblies and marches, and that the government regarded him as a destabilizing element.
[3] FESCI was banned by the government in 1991 following the death of a young student activist in the PDCI, the party in power. Because he was a member of the movement, the applicant was purportedly arrested and detained four times between June 1991 and June 1995. He alleged that, with a number of his colleagues, he was detained for the investigation into this murder and released the next day for lack of evidence.
[4] On February 18, 1992, the applicant was arrested a second time when he participated in a protest march over the government"s refusal to punish those soldiers considered responsible for brutally and arbitrarily intervening in a campus gathering. He said that the soldiers handled him roughly and released him the next day.
[5] In 1993, the applicant was appointed as a delegate of the Faculty of Medicine and began his internship at the university hospital of the city of Abidjan. On May 15, 1994, he and a number of other students were arrested at a FESCI gathering during which soldiers intervened and public property was vandalized. He was accused of inciting and participating in the violence, was detained and suffered abuse for four months and was then released without being charged.
[6] On June 24, 1995, during a protest march by the various opposition parties and FESCI, he was arrested and detained in an Abidjan prison under harsh conditions. On February 27, 1996, he was ill and was rushed to the Abidjan hospital complex, where he escaped when a guard was momentarily inattentive. He then planned his escape from Côte d"Ivoire.
[7] The female applicant claimed that her fear of persecution was based on her husband"s activism. She came to Canada six months after he arrived. She said that about February 16, 1996, while her husband was in detention, she and her niece were raped by soldiers who also ransacked her home. She said that she made a complaint about the incident at the military barracks the next day but no action was taken, so she decided to flee to Burkina Faso, where she stayed for nine months before joining her husband in Canada.
[8] The applicants have six children who still live in Côte d'Ivoire with their grandparents.
[9] On October 24, 1997, the panel determined that the applicants were not Convention refugees by reason of a well-founded fear of persecution for reasons of the applicant"s political opinion. In making this determination, the panel said:
| [TRANSLATION] The panel is of the view that some of the evidence, part of which is essential to the claimants" claim, is neither credible nor trustworthy. As a result, the claimants have not discharged their burden of proof. |
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[10] In its analysis, the Refugee Division first considered whether the applicant was a student and, more specifically, whether he was an "active student" eligible for FESCI membership. On this point, the panel made the following observations:
| [TRANSLATION] In his testimony, the claimant is categorical; one of the prerequisites for FESCI membership is recognition as an "active student". Having begun his internship in September 1993, he regards himself as such in his PIF, that is, as a full-fledged student. |
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| . . . the claimant did not file any document as proof that he was registered as a student at the university . . . for academic years 1993-1994 and 1994-1995. He did produce in evidence a professional card and a pay stub . . . . These documents . . . show that he was hired and paid as a physician from September 19, 1993, and contradict his claims that he was an "active student". |
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[11] Next, the panel analysed whether the applicant had to be regarded as a student at the university from 1993 to 1995. On this point, the panel said the following:
| [TRANSLATION] This fact is important because it can only be in this capacity that his colleagues would have delegated him to FESCI to represent them, and that FESCI would have become the focus of his political activity and the reason for his arbitrary detention. |
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[12] The panel confronted the applicant with the documentary evidence showing that all the students who were arrested on May 15, 1994 (his third arrest) were released on May 31, 1994, and asked him why he was detained for four months. He said that in the government"s eyes he was regarded as a public-servant-to-be, without student status and so not a full-fledged student. He was receiving a physician"s salary. The panel found that this explanation weakened the applicant"s claim that he was an active student in his university environment. The panel added that the applicant had mentioned in his PIF that he was an intern in a university centre without saying where. When asked about this, he replied that after he was released in September 1994 it was too late to register at the Abidjan university hospital, so he continued his internship in another city. The panel found this explanation strange in that the applicant continued representing his colleagues at the Abidjan Faculty of Medicine despite his absence.
[13] The panel also noted that the applicant testified that because of his FESCI activities, he was "indispensable". However, the panel pointed out that although he submitted other identification cards, he did not file any FESCI membership card. The applicant explained that he did not have this card because he left the country secretly. The panel noted that the applicant should have made more of an effort to retrieve the best possible evidence of his active participation in FESCI, which was the basis for his four arrests, since he had a number of other cards and a certificate of identification.
[14] The panel found that the applicant"s knowledge of the participants in FESCI between 1990 and 1995 was neither commensurate with his claims nor consistent with the documentary evidence.
[15] The panel also said that the fact that the applicant was arrested four times between 1991 and 1995 did not correspond with his wife"s answer in her PIF. She had explained that before the event of late June 1995, she and her husband were living peacefully with their four children.
[16] In addition, the panel noted that there was a major contradiction regarding the applicant"s fourth arrest:
| [TRANSLATION] In his PIF, the claimant does not give the exact date of his fourth arrest. He says that on June 24, 1995, there were serious developments during a protest march . . . the demonstrations continued and prompted the security forces to arrest some people, including him. In his testimony, he was purportedly arrested on June 24, 1995, during the meeting following the march in question . . . . This contradiction is significant as far as the claimant"s credibility is concerned. |
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[17] For these reasons, the panel found that some of the applicants" evidence was neither credible nor trustworthy, and their claim was dismissed.
[18] The most important issue raised in this case is the following:
| Did the Board err in law in finding that some of the evidence submitted by the applicants was neither credible nor trustworthy and that they did not discharge their burden of proof? |
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[19] The following evidence was determined to be not credible and is in dispute:
| - the applicant"s claims that he was an active student at the Abidjan university between 1993 and 1995 |
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| - the applicant"s knowledge was neither commensurate with his claims nor consistent with the documentary evidence |
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| - the fact that he did not have a membership card was considered to be a crucial element of the applicant"s claim |
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| - the female applicant"s testimony was not considered to be evidence of indirect persecution |
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| - suggestion that only part of the evidence was credible |
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The applicant submits that since the panel questioned only certain aspects of the evidence, it is justifiable to take the view that the panel"s finding cannot support a determination that he lacked overall credibility; part of the evidence was credible (the 1990-1993 episodes) and the rest was not (1993-1995). He argues that the panel should have assessed the evidence as a whole, in view of its suggestion that some of the evidence was credible. In addition, the panel drew a perverse inference when it determined that there was a difference between an "active student" and a "full-fledged student". It should be noted that between 1993 and 1995 the applicant was both a student and an intern; his preoccupation with being an intern did not prevent him from being active in FESCI as a student since his internship was only a transitional phase between his studies and his ultimate profession.
[20] The applicant says that the panel erred in law when it determined that his political knowledge was neither commensurate with his claims nor consistent with the documentary evidence. More specifically, he submits that he showed above-average knowledge of the socio-political context in which the episodes of persecution arose and argues that the documentary evidence corroborates all these episodes.
[21] The applicant argues that the panel used the fact that he did not have a FESCI membership card"a secondary issue in his opinion"to question the bulk of his testimony. Considering the treatment inflicted on FESCI members, holding this card might have compromised his safety and increased the risk of being detained by the government.
[22] Last, the applicant submits that the panel did not look at the negative effects that his political problems would cause the female applicant. In his view, the panel did not analyse this point and merely transferred its adverse credibility finding to his wife.
[23] The respondent argues that the panel was justified in finding that the applicant"s testimony was not credible since it contradicted the documentary evidence. The panel has complete jurisdiction to assess the probative value of the evidence and may give greater weight to the documentary evidence than to the claimants" testimony.
[24] The respondent submits that the applicant could hardly claim to be a student and at the same time make a distinction in order to be consistent with the documentary evidence. The respondent also points out that the applicant did not have the knowledge of a person who claims to be "indispensable" to the party. For these reasons, the panel did not believe that the applicant was a FESCI member between 1993 and 1995.
[25] The panel did not believe that the applicant had been arrested, detained and handled roughly by the authorities, particularly between 1993 and 1995. The panel did not accept the female applicant"s testimony about her rape because the panel found it implausible that she would have complained to the organization to which the individuals to blame for the rape belonged.
[26] The respondent also submits that the panel was not required to make a finding on the credibility of each piece of evidence, provided it found that the applicant was not credible on the essential elements of his claim. In addition, the applicants did not discharge the heavy burden that was on them to show that the panel"s findings with respect to their credibility were perverse, capricious and made without regard for the evidence.
[27] The respondent also says that the applicant"s inability to produce a FESCI membership card was not a major element but rather an element that added to the numerous contradictions regarding his membership in that organization. The applicant"s argument that holding this card would increase the risk to him should not be considered by this Court since that allegation was not supported in the applicant"s affidavit or raised before the panel.
[28] Last, with reference to the female applicant, the respondent submits that insofar as the panel did not believe that the applicant had political problems, it did not have to consider the female applicant"s problems, which had no nexus to the Convention grounds.
[29] Credibility determination is a question of fact.1 The IRB panel which hears a refugee claim is uniquely situated to assess the credibility of a refugee claimant; findings of fact based on internal contradictions, inconsistencies and evasions fall within "the heartland of the discretion of triers of fact".2 Thus credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned on review unless they are perverse, capricious or made without regard to the material before the panel.3 Therefore, as stated by Mr. Justice Noël of this Court in Oduro v. M.E.I.:4
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However, it is not for me to substitute my discretion for that of the Board. The question I must consider is whether it was open for the Board on the evidence to conclude as it did...the fact that I might have seen the matter differently does not allow me to intervene in the absence of an overriding error. |
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[30] Similarly, in Aguebor v. M.E.I.,5 the Court held:
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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 unreasonable as to warrant our intervention, its findings are not open to judicial review. |
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[31] The claimant submits that in this case the issue emphasized as being the most important one raised by the panel"s decision is whether the applicant"s status was determined correctly. Was he a student and therefore could he have been active in the FESCI party? In his view, the panel erred on this point.
[32] I do not accept the applicant"s submission that the only issue or the main issue on which the panel based its decision concerns his status as an active student and FESCI member. The evidence before me clearly shows that the panel identified numerous contradictions in the applicants" testimony. As I said supra , the Refugee Division is uniquely situated to assess the credibility of a refugee claimant.
[33] In the case at bar, I am satisfied that the Refugee Division"s decision is well founded. There is no serious question to certify. The application for judicial review is accordingly dismissed.
JUDGE
OTTAWA, Ontario
September 24, 1998
Certified true translation
Peter Douglas
Date: 19980924
Docket: IMM-4667-97
PRESENT: The Honourable Mr. Justice Rouleau
OTTAWA, Ontario, the 24th day of September 1998
Between:
ANGE OROZOKOSSE
DJAZA ELISE DIDI
Applicants
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
ROULEAU J.
[1] The application for judicial review is dismissed.
P. ROULEAU
JUDGE
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4667-97
STYLE OF CAUSE: ANGE OROZOKOSSE, DJAZA ELISE DIDI V. MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 15, 1998
REASONS FOR ORDER OF ROULEAU J.
DATED SEPTEMBER 24, 1998
APPEARANCES:
LUC R. DESMARAIS FOR THE APPLICANTS
SÉBASTIEN DASYLVA FOR THE RESPONDENT
SOLICITORS OF RECORD:
LUC R. DESMARAIS FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________
1 [1947] S.C.R. 268">White v. R., [1947] S.C.R. 268.
2 Dan-Ash v. M.E.I. (1988), 93 N.R. 33 (F.C.A.); Giron v. Canada (M.E.I.) (1992), 143 N.R. 238.
3 Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).
4 Oduro v. M.E.I. (1993) F.C.J. No. 56 (F.C.T.D.)
5 Aguebor v. M.E.I., 160 N.R. 315 (F.C.A.).
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