Bidima v. Canada (Minister of Citizenship and Immigration), 2005 FC 556

Date: 20050425

Docket: IMM-4007-04

Citation: 2005 FC 556

Ottawa, Ontario, April 25, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

URSULA KOMBE BIDIMA

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]       Ursula Kombe Bidima is a citizen of Angola who seeks refugee protection based upon her alleged fear of her husband's former business associates. She also alleges that she would be mistreated by Angolan authorities because of her husband's business problems, and because she is a member of the Bakongo tribe.

[2]       The Refugee Protection Division of the Immigration and Refugee Board rejected Ms. Bidima's claim, finding that she had failed to provide credible evidence to support her claim. Ms. Bidima now seeks to have the Board's decision set aside, asserting that it erred in making mutually inconsistent findings on a key point. Ms. Bidima further argues that a number of the Board's other findings were patently unreasonable.

Standard of Review

[3]       The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. As a trier of fact, the Board is entitled to make reasonable findings regarding the credibility of a claimant's story, based on implausibilities, common sense, and rationality. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that such finding is patently unreasonable. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 40, and Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).

The Statements Given to American Authorities

[4]       The focus of much of the argument in this matter was on the Board's findings with respect to the probative value of certain statements that Ms. Bidima gave to American immigration authorities and the alleged inconsistencies in the Board's findings in this regard. Indeed, counsel for Ms. Bidima characterized this as his strongest argument.

[5]       The Board found that Ms. Bidima was not credible based, in part, on the fact that the story that she told in her Personal Information Form (or 'PIF') and at her refugee hearing was fundamentally different, in a number of respects, from the story that she had previously told to American immigration authorities.

[6]       By way of example, Ms. Bidima told the Americans that she studied in Congo-Brazzaville, whereas she testified at her refugee hearing that she studied in Angola. She also told the Americans that she had travelled on a false passport, that she went to the United States in January of 2003, and that her mother was dead. Each of these statements was contradicted by her testimony before the Board.

[7]       The alleged inconsistency in the Board's reasons relates to the following two statements:

Son explication pour toutes ces inconstances était qu'elle était confuse lors de son entrevue et a été maltraitée. Je n'accepte pas l'explication comme raisonnable. La demandresse avait eu le temps de s'adjuster un peu _ l'Amérique du Nord, ayant déj_ passé deux semaines aux États Unis en plus de ses vacances en janvier 2003.

Elsewhere in its reasons, the Board noted that Ms. Bidima's testimony appeared at times to have been memorized, and that at other times she appeared to be making it up as she went along. The Board then stated:

De fait, le seul moment o_ elle a démontré une émotion crédible, était lorsqu'elle parlait de son traitment par les autorités américaines _ Buffalo. Cette partie de son histoire est digne de foi.

[8]       According to Ms. Bidima, it was patently unreasonable for the Board to accept that she had been mistreated by the American immigration authorities, while at the same time rejecting her claim that the information that she provided was provided under duress and was not true. It is incomprehensible, Ms. Bidima says, that a tribunal charged with the protection of human rights, such as the Immigration and Refugee Board, would give any credence to information extracted through mistreatment.

[9]       I do not accept this submission. Although Ms. Bidima described the treatment that she says that she encountered while in American immigration detention variously as "vraiement une torture" and "presque une torture", a review of the transcript discloses that far from being tortured, what happened was that Ms. Bidima was frisked, strip-searched and put in a cell.

[10]     The Board clearly accepted that this occurred, and that Ms. Bidima found this to be upsetting.

[11]     While accepting that Ms. Bidima was upset by the treatment that she encountered in the United States, the Board nevertheless did not accept that this explained the numerous differences in the story that she told the Americans and her testimony before the Board. I am not persuaded that this finding was patently unreasonable.

[12]     Many, if not most, people would find the process of being strip-searched and put in a jail cell to be upsetting. That said, there is, in my view, a substantial distinction between reliance on information obtained from someone who is upset, and reliance on information obtained through torture. In this case, having accepted that Ms. Bidima may have been upset, it was not, in my view, inconsistent for the Board to have found that this did not properly account for the fundamental differences in the stories that she told to Canadian and American immigration authorities.

Other Alleged Errors

[13]     Counsel for Ms. Bidima has identified several other alleged errors on the part of the Board, which, he says, render it unsafe to rely on the Board's reasons, when taken in combination with the allegedly inconsistent findings discussed in the preceding section of this decision.

[14]     As already noted, I am not persuaded that the Board's reasons were inconsistent. Nevertheless, I have reviewed the record, including the transcript of the hearing, in relation to the other allegedly flawed findings, and I am satisfied that virtually all of the Board's findings were reasonably open to it on the evidence before it.

[15]     To the extent that the Board may have erred with respect to the geographic proximity of the town of Mbanza-Congo to Congo-Brazzaville, I note firstly that the Board's finding that Mbanza-Congo was near the border of Congo-Brazzaville was based upon Ms. Bidima's own testimony. Further, given the numerous reasons cited by the Board for rejecting Ms. Bidima's story, I am not persuaded that any error that the Board may have made in this regard, by itself, justifies setting aside the Board's decision.      

Conclusion

[16]     For these reasons, the application is dismissed.

Certification

[17]     Neither party has suggested a question for certification, and none arises here.

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is dismissed.

2.          No serious question of general importance is certified.

"Anne Mactavish"