Date: 20040119
Docket: IMM-5546-02
Citation: 2004 FC 36
Ottawa, Ontario, Monday, January 19, 2004
PRESENT: MR. JUSTICE BEAUDRY
BETWEEN:
PEMBE YODI EMERANCE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel), dated October 24, 2002. In this decision, the panel found that the applicant was not a Convention refugee within the meaning of section 96 of the Act, nor a "person in need of protection" within the meaning of section 97.
ISSUE
[2] Did the panel err in finding that the applicant lacked credibility?
[3] For the following reasons, I answer this question in the negative and the judicial review will therefore be dismissed.
FACTUAL BACKGROUND
[4] The applicant, a citizen of the Democratic Republic of Congo (the DRC), the mother of five children, is seeking the protection of Canada on the basis of her perceived political opinion and her membership in a particular social group.
[5] From May 1998 on, the applicant has managed a jewellery store belonging to her husband, who co-owned it with a Lebanese jeweller. In 1999, her spouse acquired sole ownership after acquiring his associate's shares.
[6] On January 16, 2001, President Kabila was assassinated and it was suspected that the Lebanese community had ordered the assassination. On April 24, 2001, three soldiers burst into the jewellery store, where the applicant was alone. The soldiers searched the premises and then left, threatening to return. The applicant went to join her husband. That night, soldiers came to their home and threatened to break down the door if they did not open it. The applicant and her husband fled by the back door of the house, leaving the applicant's brother-in-law behind. After going over their neighbour's wall, they heard a gunshot. The applicant found out later that her brother-in-law had been shot. At her husband's bidding, the couple separated and the applicant went to take refuge in Congo-Brazzaville at the home of a jeweller friend who, six months later, advised her to leave Brazzaville because of its proximity to Kinshasa and the prevailing instability during elections. The applicant obtained a false passport and the services of an individual responsible for accompanying her to Canada, where she claimed refugee status upon her arrival on October 29, 2001.
IMPUGNED DECISION
[7] The panel dismissed the applicant's application for protection because it found that her credibility was tainted by many factors, listed in its reasons, and that the applicant's testimony was arduous, laborious, hesitant, and that her story was riddled with inconsistencies.
ANALYSIS
[8] The standard of review applicable to the issue of the claimant's credibility is the standard of the patently unreasonable error (Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 (F.C.T.D.), Kabeya v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 106 (F.C.T.D.) (QL), Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1395, [2001] F.C.J. No. 1905 (F.C.T.D.) (QL)).
[9] The panel found that the applicant's behaviour contradicts the existence of a subjective fear of persecution which, in itself, is sufficient to dismiss the claim (Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695 (F.C.T.D.) (QL). In fact, it took six months for the applicant to realize that Congo-Brazzaville was not a safe country for her, while it was safe for her advisor, who was Congolese as well. She did not claim asylum at the first reasonable opportunity, because she went through three signatory countries (Ivory Coast, Belgium, United States) before arriving in Canada.
[10] The panel drew up a detailed list of the facts that it relied on to determine that the applicant lacked credibility. A review of the following non-exhaustive list shows that the panel used common sense and could, effectively, question the veracity of the events, particularly because of the large number of questionable details in the applicant's story.
[11] First, the panel finds it incredible that, if soldiers were looking for her, they would have arrested her in the jewellery store when they raided it on April 24, 2001, instead of searching the premises and leaving.
[12] The panel was amazed that the applicant's brother-in-law did not flee at the same time as she and her husband and that the soldiers had not taken the precaution of guarding the back door so that nobody could escape, which is amateurish and makes the event implausible.
[13] The panel found it odd that the couple would have separated in order to escape. The husband told his wife to go to a certain place that was considered safe, but did not avail himself of this same haven. Furthermore, the applicant decided not to take her five children with her because they would have been at risk. Again, the panel determined that, if the place was safe enough for the applicant, it would have been logical to assume that it was also safe for her children. Conversely, why leave the DRC because it is not safe for her, when it was for her husband and children, who remained there.
[14] As for the documents in the applicant's possession, when she arrived she no longer had her false passport, the American visa, the plane tickets and the boarding passes, thereby depriving the panel of useful information. Moreover, the fact that the applicant was travelling with a false passport as well as her authentic birth certificate presented a risk, according to the panel. Insofar as the wanted notice issued by the Congolese police is concerned, the panel did not give it any probative value because the issuance date had been altered. The applicant had only copy of the notice, and not the original, which had been given to her by a Congolese after her arrival in Canada. This notice, issued eight months after the soldiers raided the jewellery store, was released by the detectives and not by those who were supposedly pursuing her.
[15] The inferences drawn by the panel, determining that there is no subjective fear of persecution and a risk of torture or a threat to the applicant's life, are not patently unreasonable. This specialized tribunal was in a much better position than this Court to assess the credibility of the applicant's story and testimony. In view of the absence of patently unreasonable errors, I do not intend to intervene.
[16] The applicant submitted two questions for certification:
Do refugee claimants who travel to Canada with false documents have some obligation to preserve those documents or copies thereof, for perusal by Canadian authorities?
Is there a legal requirement to prove the refugee claimant's itinerary to Canada with such documents?
[17] The respondent disagrees. I am of the opinion that these two questions do not satisfy the tests in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.). I agree with the respondent's reply indicating that these questions were not determinative in the panel's findings. In fact, the panel did not accept the applicant's story based on, namely:
(1) the laborious, arduous, faltering testimony;
(2) the omission of important elements in the applicant's story when she arrived in Canada;
(3) several implausibilities noted by the panel;
(4) the delay in claiming refugee protection;
(5) the lack of probative value of the documents filed by the applicant.
[18] No serious question of general importance is certified.
ORDER
THE COURT ORDERS that
the application for judicial review be dismissed;
there is no serious question of general importance to be certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5546-02
STYLE OF CAUSE: PEMBE YODI EMERANCE
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: DECEMBER 10, 2003
REASONS FOR ORDER
AND ORDER BY: BEAUDRY J.
DATE OF REASONS: JANUARY 19, 2004
APPEARANCES:
William Sloan FOR THE APPLICANT
My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
William Sloan FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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