Date: 20040910
Docket: IMM-7313-03
Citation: 2004 FC 1235
BETWEEN:
LANDU FIFI KAPINGA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated August 26, 2003, that the applicant is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Landu Fifi Kapinga (the applicant) is a citizen of the Democratic Republic of Congo (DRC) alleging that she has a well-founded fear of persecution in her country based on her political opinion. Specifically, the applicant says that she fears persecution because she is related to her father, who was suspected of being involved in the assassination of President Kabila. The applicant also alleges that she is a person in need of protection.
[3] The IRB determined that the applicant lacked credibility because of contradictions, inconsistencies and implausibilities in her story. The reasons given by the IRB included the following:
- according to her Personal Information Form (PIF), the applicant's father had been arrested and detained by the National Information Agency (ANR); however, the applicant was unable to specify the date of the day, the month, or even the time of year when her father was arrested, quite simply because she did not remember; for the IRB, that was an implausible factor undermining the applicant's credibility;
- the applicant contradicted herself regarding the length of her father's hospitalization; according to the PIF, he had been hospitalized for one month; however, the applicant testified that he had been hospitalized for three months.
[4] It is settled law with respect to credibility findings that this Court cannot substitute its opinion for that of the IRB when, as in this case, the applicant fails to establish that the decision of that specialized tribunal is based on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). In fact, after reviewing the evidence and the transcripts of the hearing before the panel, I am satisfied that the inferences drawn by the panel could reasonably be drawn (see Aguebor v. Canada (M.E.I.), 160 N.R. 315 (F.C.A.)). Further, in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal held that the tribunal's perception that an applicant is not a credible witness might lead to a finding that there is no credible basis for the claim.
[5] In this case, the IRB observed that according to the PIF, the applicant's father had been arrested and detained by the ANR. When the IRB attempted to find out when this arrest had taken place, the applicant had been unable to specify the date. When the panel asked her to specify the month or the time of year, the applicant simply replied "[TRANSLATION] I do not know". In my view, considering the pivotal role of this arrest in the applicant's story and in view of the importance of the date in putting her allegations in the context of the events surrounding the assassination of President Kabila, this all amounts to a pivotal implausibility which seriously undermines the applicant's credibility. The IRB also pointed out that the applicant contradicted herself regarding the length of her father's hospitalization. According to the PIF, the applicant's father had been hospitalized for one month. However, the applicant testified that he had been hospitalized for three months and that she did not know when he got out of the hospital. When confronted, the applicant explained that she had perhaps made a mistake. In fact, the applicant had a great deal of difficulty putting her father's hospitalization in the context of the events following the assassination of President Kabila.
[6] In this factual context established by the evidence, I am far from being persuaded that the panel's decision and determination were patently unreasonable.
[7] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 10, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7313-03
STYLE OF CAUSE: LANDU FIFI KAPINGA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 11, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 10, 2004
APPEARANCES:
Paul Fréchette FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Paul Fréchette FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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