Bessem v. Canada (Minister of Citizenship and Immigration), 2005 FC 695

Date: 20050516

Docket: IMM-4945-04

Citation: 2005 FC 695

Ottawa, Ontario, this 16^th day of May, 2005

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                         

BETWEEN:

                                                               MARIE BESSEM

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                Ms. Marie Bessem fled her native Cameroon out of fear of political persecution. She sought refugee protection in Canada. A panel of the Immigration and Refugee Board accepted that Ms. Bessem was a member of the Southern Cameroon National Council (SCNC), a separatist organization, and that members of that group were sometimes arrested and harassed by national authorities. However, the Board disbelieved Ms. Bessem's allegation that she had been arrested in October 2002 and subsequently sought by authorities. Ms. Bessem argues that the Board made a number of factual errors in its judgment and asks me to order a new hearing.

[2]                I agree with Ms. Bessem that the Board's decision was out of keeping with the evidence before it and I must, therefore, allow this application for judicial review.

I. Issue

[3]                Did the Board make serious errors when it found that Ms. Bessem had not been arrested or pursued by authorities in Cameroon in October 2002?

II. Analysis

[4]                The Board gave the following reasons for disbelieving Ms. Bessem:

1.          Ms. Bessem's testimony about a demonstration on October 1, 2002 lacked detail.

2.          Ms. Bessem's claim that she was arrested when she went with her colleagues for something to eat after the demonstration was unlikely.

3.          On October 4, 2002, Agence France Presse published an article referring to the arrests of several SCNC leaders in late September 2002 but the article did not refer to any arrests on October 1, 2002.

4.          The Agence France Presse article was confirmed by an Amnesty International report, which likewise made no mention of other arrests.

5.          There was no reason why authorities would be looking for Ms. Bessem in particular given that she was merely one of a million ordinary members of the SCNC, not an official or executive of the party.

6.          Ms. Bessem did not describe the conditions of her detention until specifically asked about them at the hearing.

7.          While Ms. Bessem produced a letter from the SCNC corroborating her story, the letter lacked probative value because the Board disbelieved her.

[5]                It is certainly not for me to re-weigh the evidence before the Board. I can only overturn the Board's decision if I find that it was at odds with the evidence. I have reviewed the record that was before the Board, including the transcript of Ms. Bessem's testimony, and have concluded that the Board's finding that Ms. Bessem had not been arrested or pursued is not supported by the evidence referred to by the Board. I will deal with each of the above findings in turn. I emphasize that none of them is so significant on its own to justify overturning the Board's decision; it is their cumulative effect that requires the Court's intervention.

1.          Ms. Bessem's testimony about a demonstration on October 1, 2002 lacked detail

[6]                It is certainly open to the Board to draw an adverse inference from a person's failure to give a reasonably detailed account of her experiences. Here, Ms. Bessem was questioned by a refugee protection officer, as well as the presiding member of the Board, about all of her experiences and circumstances. There is no indication in the transcript that either of them was dissatisfied with any of the answers she gave. Further, there was nothing that would have indicated to her counsel, who examined her after the others, that he should have given her an opportunity to elaborate on her testimony.

2.          Ms. Bessem's claim that she was arrested when she went with her colleagues for something to eat after the demonstration was unlikely

[7]                The Board said that it was strange that Ms. Bessem was arrested when she was "doing nothing out of the ordinary or wrong". She said that she went with her colleagues for refreshments after the demonstration and that it was there that police caught up with them.

[8]                The Board is entitled to find that a claimant's story is implausible. However, the Court is often in an equally good position to assess the plausibility of the version of events put before the Board: Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 875 (T.D.) (QL), Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (T.D.) (QL).

[9]                The Board did not explain why it was implausible that Ms. Bessem was arrested after the demonstration. I fail to see how Ms. Bessem's account of her arrest was so unlikely as to be inherently suspect.

3.          On October 4, 2002, Agence France Presse published an article referring to the arrests of several SCNC leaders in late September 2002 but the article did not refer to any arrests on October 1, 2002

[10]            The Board may take account of the fact that the media failed to report on something that probably would have attracted their attention. Here, however, the Agence France Presse article spoke only of the arrest of SCNC leaders as a means of preventing demonstrations on the first of October. Ms. Bessem never claimed to be a leader (although she was an executive member). It is possible that the arrests of party leaders attracted more media attention that the arrests of others. Further, the article confirms Ms. Bessem's testimony that demonstrations were anticipated on October 1, 2002. It also supports her general allegation that authorities would have reacted very negatively to those demonstrations and probably would have arrested participants. The Board did not consider the article in this light.

4.          The Agence France Presse article was confirmed by an Amnesty International report, which likewise made no mention of other arrests

[11]            An Amnesty International Report of October 24, 2002 referred to the arrests of SCNC leaders in late September 2002. It then said that "[o]ther members of SCNC might have also been arrested for the same reasons in other parts of Cameroon over the past weeks".

[12]            While it is true that the Amnesty International report does not refer specifically to Ms. Bessem's arrest, it alludes to the possibility that many members of the SCNC might well have been arrested during the relevant time frame. Accordingly, rather than contradicting Ms. Bessem's evidence, the report largely confirmed it.

5.          There was no reason why authorities would be looking for Ms. Bessem in particular given that she was merely one of a million ordinary members of the SCNC, not an official or executive of the party

[13]            Ms. Bessem stated that she was the SCNC publicity secretary in her region. The Board acknowledged this, but then stated repeatedly in its decision that Ms. Bessem was not a party official or executive member. In addition, Ms. Bessem testified that she had been released from detention after signing an undertaking not to involve herself further in party activities. However, she did attend a meeting on October 22, 2002 in violation of her undertaking. The Board did not consider the possibility that she was known to be an SCNC official or sought for having violated her undertaking.

6.          Ms. Bessem did not describe the conditions of her detention until specifically asked about them at the hearing

[14]            Ms. Bessem mentioned her arrest in her written narrative, but she did not describe the conditions in prison. She did, however, put documentary evidence before the Board that described conditions in Cameroonian prisons as "harsh and life threatening". She elaborated on her personal experience when asked at the hearing.

[15]            The conditions endured by Ms. Bessem while she was in detention were not central to her claim of political persecution. In the circumstances, her failure to mention them specifically before the hearing was not a valid basis for discrediting her account of the main elements of her claim.

7.          While Ms. Bessem produced a letter from the SCNC corroborating her story, the letter lacked probative value because the Board disbelieved her

[16]            At one point, the Board stated that Ms. Bessem had produced "no evidence" of her arrest. In fact, in addition to her written narrative, her documentary evidence and her oral testimony, she had also supplied the Board with a letter from the President of the SCNC stating that she had been "held in custody on October 1, 2002 for participating in SCNC commemoration activities and was released on October 9, 2002 where she was made to sign an undertaking".

[17]            Later in its reasons, the Board discounted the value of the letter because it had already determined that Ms. Bessem had not been arrested and was not wanted by police. It was open to the Board to find that the letter was not worthy of any weight. But it had an obligation to give some reason for doing so. The letter clearly corroborated Ms. Bessem's testimony. The Board might have believed it was forged or fake, or simply unreliable. If it did, it had an obligation to say so.

[18]            In light of all of the foregoing, I conclude that the Board's decision was out of keeping with the evidence before it and must, therefore, allow this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.

                                                                   JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is allowed and a new hearing is ordered.

2.          No question of general importance is stated.

                                                                                                                             "James W. O'Reilly"             

                                                                                                                                                  Judge                        

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-4945-04

STYLE OF CAUSE:               MARIE BESSEM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     TORONTO, ON

DATE OF HEARING:                       May 11, 2005

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                              May 16, 2005

APPEARANCES BY:

Mr. Chris Opoka-Okumu                                  FOR THE APPLICANT

Ms. A. Leena Jaakkimainen                               FOR THE RESPONDENT

SOLICITORS OF RECORD:

CHRIS OPOKA-OKUMU

Barrister & Solicitor

Toronto, On.                                                    FOR THE APPLICANT

JOHN H. SIMS, Q.C.

Deputy Attorney General of Canada                 

Toronto, ON                                                     FOR THE RESPONDENT