Date: 20040811
Docket: IMM-7971-03
Citation: 2004 FC 1114
Toronto, Ontario, August 11th, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
WILLY TSHIBANGU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated September 9th, 2003, wherein the Board found that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
FACTS
[2] Willy Tshibangu (the "applicant") is a citizen of the Democratic Republic of Congo ("DRC") who alleges a well-founded fear of persecution on the basis of political opinions which are imputed to him. In addition, the applicant claims to be a person in need of protection because his life is threatened and he faces a risk of cruel and unusual treatment and punishment in the DRC.
[3] In January 1994, the applicant moved from the city of Goma to Kinshasa in order to pursue his studies. While in Kinshasa the applicant lived with the family of M. Kalinda Mutwajogire, his godfather and a family friend from Rwanda. After one year the applicant ceased his studies and began working in M. Kalinda's clothing store.
[4] In July 1998, president Laurent-Désiré Kabila ordered the expulsion of all Rwandans from the DRC. The Kalinda family, who were vacationing in South Africa at that time, called the applicant on October 10th, 1998 to ask him whether they could return to Kinshasa. The applicant advised them against returning and informed them that since August 21st many Rwandans had been captured and even killed. The applicant also gave the names of two Rwandans they knew who had been arrested. When two soldiers overheard the applicant saying these names, he was arrested on the suspicion that he was Rwandan. The applicant spent two weeks in an underground cell where he was tortured by electric shock. Subsequently, the applicant was transferred to the central prison in Makala. In February 2000, he was freed by bribing the guards.
[5] On January 25th, 2003, the guard who had helped free the applicant informed him that they had arrested a person who had in his possession some letters addressed to the applicant. This friend informed the applicant that soldiers had been sent to the applicant's home in order to arrest him on the basis of the information in those letters. The applicant immediately went into hiding at his friend Papy's house.
[6] The applicant left DRC on February 17th, 2003 and arrived in Canada on February 22nd, 2003 passing through Zambia, South Africa and the United States of America ("USA").
ISSUE
[7] Did the Board err in finding that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 of the Act?
ANALYSIS
[8] The Board concluded that the applicant is not a Convention refugee or a "person in need of protection" because it found that he had provided inadequate identity documents and that his claim was not credible.
[9] This Court may not substitute its opinion for that of the Board with respect to credibility findings unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it: see Federal Court Act, R.S.C. 1985, c. F-7, s-s. 18.1(4). The Board's decision will only be disturbed if it is sufficiently unreasonable to attract this Court's intervention: see Aguebor v. Canada (M.E.I.) (1994), 160 N.R. 315 (F.C.A.). It is important to remember that the Board is a specialised tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable and its reasons are expressed clearly and comprehensibly: see Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.).
[10] The Board concluded that the applicant was not credible because both identity documents presented, namely the birth certificate and the certificate attesting to the loss of documents, contained information that was inconsistent with the applicant's statements in his PIF and his testimony. The Board found that the applicant's documentation was not acceptable and that he had failed to explain the lack acceptable documents. Section 106 of the Act provides that:
| 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.
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106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer.
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[11] The Board noted that according to the birth certificate, dated March 18th, 1992, the applicant's place of residence is Kinshasa: see page 35 of the Tribunal Record. However, the applicant testified that he only came to reside in Kinshasa in January 1994: see the hearing transcripts at page 241 of the Tribunal Record. Confronted, the applicant explained that he was in Kinshasa at that time in order to undergo a surgical procedure and that Mrs. Kalinda who accompanied him to the municipal office as his guardian told the authorities that he resided in Kinshasa: see the hearing transcripts at pages 223 to 225 of the Tribunal Record. In addition, the Board noted that the applicant's certificate attesting to the loss of his identity papers, issued in 2000, indicates that he is a student: see page 37 of the Tribunal Record. However, according to the information in his PIF and in the Citizenship and Immigration Canada (CIC) notes, the applicant was a business operator at that time: see the CIC notes at page 68 and the PIF at page 20 of the Tribunal Record. Confronted with this inconsistency, the applicant explained that he indicated he was a student because he was taking some computer courses part-time and he felt that as a student, he would not be subject to harassment by the authorities: see the hearing transcripts at pages 240, 252 to 254 of the Tribunal Record. The Board rejected the applicant's explanations because according to the documentary evidence, students are a popular target of the authorities: see the hearing transcripts at page 242 of the Tribunal Record. In light of these inconsistencies, the Board concluded that the applicant was not credible and that he had failed to establish his identity pursuant to section 106 of the Act.
[12] The Board also found that the applicant's allegations were not credible because he provided several different versions of events surrounding his arrest. According to his PIF, he had been arrested by two soldiers on October 10th, 1998: see the PIF at page 31 of the Tribunal Record. However, according to his statements in a CIC document dated March 25th, 2003, the applicant was arrested in November 1998 by four soldiers in Kinshasa: see the document at the bottom of page 63 of the Tribunal Record. Furthermore, in the front-end CIC notes, the applicant indicates that he was arrested in October 1998: see the CIC notes at page 69 of the Tribunal Record. Confronted, the applicant explained that in fact he had been arrested in October 1998 by two soldiers and he had made an error during the interview with CIC: see the hearing transcripts at pages 193, 194 and 236 to 238 of the Tribunal Record. With respect to the number of soldiers who arrested him, the applicant explained that the week prior to his arrest four soldiers had come to interrogate him at the store where he worked on two separate occasions. Since he recognized the two men who arrested him as part of the group of four, he indicated to CIC that there were four soldiers who had arrested him: see the hearing transcripts at pages 232 to 234 and 237 of the Tribunal Record. The Board rejected the applicant's explanations with respect to these inconsistencies and found that he was making them up in order to satisfy the Board.
[13] As the Federal Court of Appeal stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244 (F.C.A.) a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status may amount to a finding that there is no credible evidence for that claim. In addition, the Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence: see Monteiro v. Canada (M.C.I.), [2002] F.C.J. No. 1720 (F.C.T.D.) Martineau J. at paragraph 15; Akinlolu v. Canada (M.E.I.), [1997] F.C.J. No. 296 (F.C.T.D.) MacKay, J. at paragraph 13. The Board is entitled to make reasonable findings based on implausibilities, common sense and rationality: see Monteiro, ibid. at paragraph. 15; Aguebor, supra. In this case, I find that the Board reasonably retained the inconsistencies between the applicant's statements in order to conclude that he is not credible.
[14] A review of the Board's decision and of the Tribunal Record reveals that the inconsistencies retained by the Board concerned the applicant's arrest and called into question the information contained in the applicant's identity documents. The inconsistencies noted by the Board were central to the applicant's claim because they put into question the applicant's version of events underlying his fear of persecution. Although it is true that the applicant's sworn testimony is presumed to be true unless there is reason to doubt its truthfulness, this presumption may be rebutted by the presence of inconsistencies in the applicant's claim: see Maldonado v. Canada (M.C.I.),[1980] 2 F.C. 302 (F.C.A.). In light of the inconsistencies in the applicant's
claim and the lack of evidence to corroborate his allegations, there was reason to doubt the applicant's truthfulness and the Board was entitled to find that the applicant was not credible.
[15] In Singh v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1451, 2003 FC 1146, Justice Snider held at paragraph 11:
Disagreement with the manner in which the Board weighed the evidence is not a ground for judicial review. Further, the Board is not obligated to accept every explanation offered to it by the Applicant and is entitled to reject explanations that it finds to be not credible based on inconsistencies, contradictions or implausibilities (Aguebor, supra; Rathore v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 42 (T.D.) (QL)).
[16] A review of the Board's decision in this case reveals that the Board provided precise and intelligible reasons in support of its findings such that the applicant was adequately informed of the reasons for which his refugee claim failed: see Mehterian v. Canada (M.E.I.), [1992] F.C.J. 545 (F.C.A.); Tekin v. Canada (M.E.I.), [2003] F.C.J. No. 506 (F.C.T.D.) Snider, J. Consequently, the applicant's submission on this point is unfounded.
[17] Although the Board must consider that the applicant failed to claimed refugee status in the USA in its assessment of his credibility, the applicant is correct to state that this factor in and of itself is not sufficient to warrant an adverse credibility finding and the Board has a duty to consider the applicant's explanation and must give a good reason for rejecting it: see Gavrushenko v. Canada (M.C.I.), [2000] F.C.J. No. 1209 (T.D.) Lutfy, J. In this case, the applicant transited through the USA without stopping and pursued his journey towards Canada. When asked why he hadn't claimed refugee status in that country, the applicant stated that his planned final destination was Canada: see the hearing transcripts at page 263 of the Tribunal Record. In its reasons, the Board indicated that it did not accept the applicant's explanation. Although I find that the Board should not rely on such a short passage through a third country in and of itself to discredit the applicant's credibility, the presence of other inconsistencies in the applicant's claim contributed to the Board's conclusion. Consequently, I find that the Board did not err in retaining the applicant's passage through the USA as a factor in its assessment of his credibility.
[18] For the reasons outlined above, I am of the opinion that the Board committed no patently unreasonable error in its disposition of this case. Specifically, the applicant has not demonstrated that the Board's decision was based on an erroneous finding of fact that was made in a capricious manner or without regard for the material before it. Consequently, the application for judicial review should be dismissed.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed;
2. No question for certification.
"Pierre Blais"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7971-03
STYLE OF CAUSE: WILLY TSHIBANGU
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 28, 2004
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: AUGUST 11, 2004
APPEARANCES BY:
Michael Kako For the Applicant
Neeta Logsetty For the Respondent
SOLICITORS OF RECORD:
Michael Kako
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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