Date: 20050503
Docket: IMM-4693-04
Citation: 2005 FC 605
Ottawa, Ontario, May 3, 2005
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
BASSOLÉ BASSON BLAISE
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) on May 4, 2004, by Board member Sylvie Roy. The applicant was not recognized as a refugee or person in need of protection.
[2] The applicant is seeking to have the Court quash the Board's decision and order a stay of that decision until the Court disposes of this application.
BACKGROUND
[3] The applicant is a citizen of Burkina Faso. He arrived in Canada on July 12, 2001, to take part in the IVth Francophonie Games in Ottawa as a volleyball coach. He claimed refugee status on July 26, 2001.
[4] He based his claim for refugee protection on the fact that he had been persecuted for reasons of imputed political opinion since he was a member of a collective of associations and political parties (the collective) formed in 1998 following the murder of Norbert Zongo, a journalist and his wife's cousin. The purpose of the collective was to fight against human rights violations, summary executions and lawlessness in Burkina Faso. He was a member of the collective through his association with the national secondary and post-secondary teachers' union (SNSS) and involved as the leader of a cell of the collective and general secretary of the provincial office.
[5] He said he was arrested at marches commemorating the murder of Norbert Zongo, and he saw this as an attempt to discourage demonstrations.
[6] The hearing before the Board took place on March 23, 2004. The Board rendered its negative decision on May 4, 2004. On November 29, 2004, the application for leave to file an application for judicial review was granted.
IMPUGNED DECISION
[7] The Board determined that the applicant was neither a refugee under section 96 of the IRPA nor a person in need of protection under subsection 97(1) of the IRPA.
[8] In terms of evidence, the Board had the applicant's testimony and the following documents: the applicant's Personal Information Form (PIF), his personal, employment and education documents, and documents on conditions in Burkina Faso.
[9] The Board found that the applicant was not credible on several important aspects of his claim and in the explanations he gave when contradictions and implausibilities in his story were put to him, namely:
- inconsistencies between his testimony and PIF as to the time of his arrests;
- lack of evidence that members of the collective had been targeted by the Burkina Faso authorities;
- evidence of activities of the collective held without incident or any military presence;
- lack of evidence that members of Norbert Zongo's family were at risk;
- inconsistencies between the applicant's testimony and PIF as to his political profile.
[10] Since the Board found that the documentary evidence indicated that the security forces were targeting criminals or persons openly criticizing the government, and in view of the fact that it did not accept that the applicant was a political opponent in Burkina Faso, it considered that he did not have the profile of an individual at risk of persecution by the authorities. Moreover, there was no evidence that he had been the subject of specific threats.
[11] The Board also took into account the fact that the applicant admitted he had not come to Canada in July 2001 with the intention of remaining. The Board noted that if the authorities had identified him as a political opponent, they would not have expressly chosen him to participate in the Francophonie Games and to travel outside the country.
[12] The Board dismissed the applicant's argument that he would be persecuted because of his claim for refugee protection in Canada. First, the Board did not accept his claim that the head of the delegation had threatened him with reprisals on his return to Burkina Faso and held him responsible for the defection of three volleyball players who remained in Canada. Second, the Board concluded that any penalties he might pay would be imposed pursuant to a law of general application in his country and he had voluntarily incurred the risk: Valentin v. Canada (M.E.I.), [1991] 3 F.C. 390. He failed to establish that the laws of Burkina Faso were persecutory: Zolfagharkhani v. Canada (M.E.I.), [1993] 3 F.C. 540.
[13] In short, the Board found that the applicant had not discharged the burden of establishing that he was a refugee or person in need of protection. His claim for refugee protection was dismissed.
ISSUES
[14] In my opinion, the issues that must be resolved in the case at bar are the following:
(1) Should the application for judicial review be dismissed because of a procedural defect?
(2) Was the Board's decision to dismiss the applicant's claim for refugee protection patently unreasonable?
ANALYSIS
(1) Should the application for judicial review be dismissed because of a procedural defect?
[15] On a preliminary point, the respondent noted that the applicant's affidavit did not meet the requirements of paragraph 10(2)(d) of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22 (the Rules), in that it contained no allegation of fact. The respondent argued that this defect alone justified dismissing the application: Metodieva v. Canada (M.E.I.), [1991] F.C.J. No. 629 (QL); (1991), 132 N.R. 38.
| 10. (2) The applicant shall serve on every respondent who has filed and served a notice of appearance, a record containing the following, on consecutively numbered pages, and in the following order
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10. (2) Le demandeur signifie à chacun des défendeurs qui a déposé et signifié un avis de comparution un dossier composé des pièces suivantes, disposées dans l'ordre suivant sur des pages numérotées consécutivement :
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| (d) one or more supporting affidavits verifying the facts relied on by the applicant in support of the applicant, and . . .
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d) un ou plusieurs affidavits établissant les faits invoqués à l'appui de sa demande . . .
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[16] I note that the decision in Metodieva, supra, deals inter alia with the lack of an affidavit, which was held to be a substantive defect in an application for leave to file an application for judicial review, not an actual application for judicial review. In the case at bar, I rely rather on the judgment of Madam Justice Dawson in Turcinovica v. Canada (M.C.I.), 2002 FCT 164, affirmed in Sarmis v. Canada (M.C.I.), 2004 FC 110, to the effect that defects in affidavits do not necessarily result in automatic dismissal of an application for judicial review. Considering also the fact that the applicant was representing himself, the Court is prepared to be somewhat more tolerant and proceed with the analysis of the merits of the application for judicial review itself.
(2) Was the Board's decision to dismiss the applicant's claim for refugee protection patently unreasonable?
[17] The case at bar turns on a credibility issue. It is well-settled law that the standard of review applicable to such findings is that of the patently unreasonable decision: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL); R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116; Khaira v. Canada (M.C.I.), 2004 FC 62.
[18] The applicant repeated the arguments he had made to the Board, namely the risk he ran in returning to Burkina Faso on account of his perceived political involvement and his claim for refugee protection in Canada. He argued that he was a person in need of protection and could not move to Ivory Coast, the neighbouring country to Burkina Faso, where he was at risk. He challenged the Board's decision stated in conditional terms, which indicated some doubt regarding the risk to his life or danger of torture.
[19] The applicant further objected to the inconsistencies found in his evidence by the Board. He challenged the Board's decision when it said that he was not a political opponent before leaving Burkina Faso, but became one when he claimed refugee protection. Finally, he maintained that the Board member rejected all refugee claims from other Burkina Faso nationals although claims by Burkina Faso nationals processed by other members had been approved.
[20] The respondent argued that the applicant based his arguments on facts not supported by the evidence in this Court, made gratuitous allegations and failed to put forward substantial grounds for this Court's intervention. The respondent further indicated that the evidence the applicant sought to file in this Court through his affidavit was evidence that was not before the Board. These documents should accordingly be deleted from the record: Naredo v. Canada (M.C.I.), [1997] F.C.J. No. 742 (QL); Asafov v. Canada (M.E.I.), [1994] F.C.J. No. 713 (QL); Lemiecha (Litigation Guardian) v. Canada (M.E.I.), [1993] F.C.J. No. 1333 (QL).
[21] I accept the respondent's argument that according to precedent, the Court is bound by the record submitted to the federal officer whose decision is under judicial review. Based on the material that was before the Board in the case at bar, I cannot find any error in the decision that would make it patently unreasonable.
[22] An administrative tribunal is in a good position to weigh credibility issues, and this requires great deference from the Court. This rule running through the Court's decisions was stated as follows in R.K.L., supra, at paragraphs 7 to 9.
[7] The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant . . . [Citations omitted]
[8] Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it . . . [Citations omitted]
[9] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms" . . . [Citations omitted]
[23] After reviewing the record in the case at bar, I am unable to find that the Board made a patently unreasonable decision. It was within the Board's jurisdiction to draw inferences from the evidence and to determine the applicant's credibility. As that determination was not unreasonable and the Board's reasons were stated in a clear and explicit manner, I conclude there is no basis for intervention by this Court.
CONCLUSION
[24] For the foregoing reasons, I consider that the Board did not err in arriving at its decision so as to require this Court's intervention. Consequently, the application for judicial review is dismissed.
[25] The parties did not suggest any serious question of general importance for certification as contemplated by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. No serious question of general importance will be certified.
ORDER
THE COURT ORDERS THAT:
1. The application for judicial review is dismissed;
2. No serious question of general importance is certified.
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"Edmond P. Blanchard"
Judge
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Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4693-04
STYLE OF CAUSE: Bassolé Basson Blaise v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 16, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Edmond P. Blanchard
DATED: May 3, 2005
APPEARANCES:
Bassolé Basson Blais FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
N/A FOR THE APPLICANT
John J. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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