Date: 20040831
Docket: IMM-8362-03
Citation: 2004 FC 1200
Montréal, Quebec, the 31st day of August 2004
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
SERGE NSILU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The instant application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), concerns a decision by the Refugee Division of the Immigration and Refugee Board (the panel) on September 29, 2003. In that decision the panel concluded that the applicant had not met the definition of a "Convention refugee" in section 96 of the Act and also was not a person needing protection within the meaning of section 97 of the Act.
POINT AT ISSUE
[2] Did the panel make a patently unreasonable error in assessing the applicant's credibility?
[3] For the following reasons, my answer is in the negative and I accordingly dismiss the application for judicial review.
FACTS
[4] The applicant, a citizen of the Democratic Republic of the Congo, alleged he had a well-founded fear of persecution for his alleged political opinions.
[5] These are the facts, as described by the panel. The applicant is self-employed and a Cessna copilot messenger. The applicant is the nephew of Jacques Kiagundi, who was an officer in the Mobutu army. Following the collapse of the Mobutu regime, the applicant's uncle was sent to the Kitana military base for training. The uncle later secretly joined the MLC, a rebel movement led by Jean Pierre Bemba.
[6] On August 15, 2002, the police came to the applicant's residence. He was charged with spying, working against the government and providing information to the MLC rebels. He was arrested and held for a time. Certain soldiers helped the applicant to escape. He fled to Brazzaville. On September 26, 2002, he left Brazzaville and went through France to the U.S., arriving there on September 27, 2002. He stayed there until October 3, 2002, the date on which he arrived in Canada and applied for refugee status the following day.
IMPUGNED DECISION
[7] The panel found the applicant was not credible in important aspects of his claim for asylum. It gave the following explanations:
[TRANSLATION]
The applicant indicated in question 41 of his PIF that he was arrested and detained by the police because of his association with the MLC rebels. At the hearing the applicant testified that he had never been a member of the MLC and had never mixed with the MLC rebels, while in Exhibit A-4 [Immigration officer's notes] the applicant indicated he had been a member of the MLC for three years, which was contrary to his testimony.
In his testimony the applicant also indicated that he had been detained by the authorities for a month, while in question 41 of his PIF it was stated that he was detained for a period of a week and a half, which is contrary to his testimony.
The panel concludes that the applicant was never detained by the authorities in his country and that his story was a complete fabrication.
Further, the panel must draw attention to the route taken by the applicant to come to Canada and seek asylum. He left his country and travelled by way of France and the U.S., where he stayed from September 26 to October 3, 2002, without seeking asylum. The panel finds the applicant's actions after leaving his country inconsistent with his alleged fear of persecution. If the applicant had really had a fear of persecution, he would at the very least have made an application for asylum in France or the U.S.
ANALYSIS
[8] The patently unreasonable nature of the decision is the standard of review in such a case.
[9] In the applicant's submission, the panel did not take his explanations into account before concluding that he lacked credibility. Additionally, the applicant found the mention of the seven-day period spent in the U.S. without seeking protection to be unreasonable. He alleged the panel did not take into account his reasons for not claiming refugee status.
[10] In the Court's view, the panel was justified in concluding that the applicant lacked credibility regarding his participation in the MLC. He gave three different versions.
[11] As to his period of detention, the panel made no patently unreasonable error in view of the existence of these contradictions. In his testimony, the applicant stated he had been detained by the authorities for a month. No period of time was indicated in his Personal Information Form (page 50, panel's record): at the interview, he stated he had been tortured for a week and a half [TRANSLATION] "and then there was an order to transfer us to Lubumbashi". In his affidavit, however, the applicant said the following at paragraph 16:
[TRANSLATION]
Despite the fact that after three days of my arrest we were told we would be transferred to the Lubumbashi prison, this took place later, after about a month and a half. [Emphasis added.]
At another place, he indicated [TRANSLATION] "for two days they hit us".
[12] Regarding the time limit for claiming protection, the applicant relied on Liblizadeh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 979 (T.D.) (QL) and Gavryushenko v. Canada (Minister of Citizenship and Immigration) (2000), 194 F.T.R. 161 (F.C.T.D.), as a basis for arguing that he was not required to claim refugee status at the first opportunity, whether in France or in the U.S. Despite the fact that the delays along the way were not that long, the Court does not intend to intervene in this regard. This is one of the points which was considered by the panel: it is not the only one. The significant contradictions mentioned regarding critical aspects of the applicant's claim allowed the decision-making body to conclude as it did.
[13] Consequently, the instant application for judicial review is dismissed.
[14] The parties declined to submit questions for certification. This case contains no question for certification.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8362-03
STYLE OF CAUSE: SERGE NSILU
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 30, 2004
REASONS FOR ORDER AND ORDER BY: BEAUDRY J.
DATE OF REASONS AND ORDER: August 31, 2004
APPEARANCES:
Lia Cristinariu FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lia Cristinariu FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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