Date: 20010219
Docket: IMM-2461-00
Neutral Citation: 2001 FCT 94
BETWEEN:
KALWALWA MALALA
SALVA MONGA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application is for the judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), dated February 17, 2000, wherein the Board found that the applicants were not Convention refugees.
1. Facts
[2] The principal applicant and her three-year-old daughter are citizens of the Democratic Republic of Congo and claim to have a well-founded fear of persecution based on imputed political opinions.
[3] The applicant was a student nurse in a hospital in Kinshasa. In April 2000, an ADFL (Alliance of Democratic Forces for the Liberation of Congo-Zaire) commander visited the hospital and instructed the staff that Mobutu soldiers should not be assisted. About two weeks later, he came back and discovered that his orders had not been obeyed. The applicant apparently told the commander that it was against the staff's ethics not to treat persons needing medical care. Her remarks were not appreciated by the commander and she was arrested and detained for ten months without being interrogated. She escaped with the assistance of a sympathetic guard.
[4] She fled with one of her two daughters to Zambia on February 16, 1998, where they hid in a church. A member of that church organized their trip to Canada and sexually abused her before departure. She left Zambia on May 16, 1998, and arrived in Canada two days later. The applicant gave birth to a girl on January 3, 1999, as a result of the rape.
2. The Board's Decision
[5] The Board found the applicant to be evasive and not plausible. It found several anomalies and contradictions in her evidence and specified some examples: when and where she was arrested; why she would confront an army commander; no documentary evidence that hospital staff was arrested in Kinshasa at that time; and, how long she stayed in Zambia after she fled there.
3. The Applicant's Submissions
[6] The applicant submits that there can be no doubt that the Kabila regime arriving on the scene in the Democratic Republic of Congo savagely repressed political opposition. The Federal Court has recognized that the human rights record of the Kabila/ADFL regime is "unenviable". Apparent errors in a claim should be subjected to the strictest scrutiny, given the lamentable human rights record of the Kabila Government1. The Board ignored the situation and concentrated solely on the alleged discrepancies and contradictions of the applicant.
[7] In most of these examples of inconsistency, the applicant was not really confronted by the Board and not afforded a meaningful opportunity to provide her own explanations.
[8] The applicant contends that, contrary to the Board's view, there was no contradiction between her oral testimony that she was arrested by soldiers as she was leaving work and her statement in her PIF that she had been "froidement récupérée par les gardes de corps et amenée en prison". She claims that this finding is the result of over-zealousness on the part of the Board.
[9] The applicant also believes that the Board should not have considered as significant the fact that the soldiers had waited several hours before arresting her. This, according to the applicant, is a finding based on pure speculation. All of the implausibilities perceived by the Board had to do with its own appreciation of the attitude and efficiency of the authorities and not with the applicant's conduct.
[10] The applicant believes that the Board should not have based its findings on the fact that she adopted a behaviour it deemed risky or dangerous. She is firmly committed to her obligations as a nurse and willing to take the risks of offending an army officer so as to carry out her duties to her patients.
[11] As to the Board's view that the documentary information does not indicate that hospital staff was being arrested during the takeover of Kinshasa, she contends that, to the extent that the Board prefers the documentary evidence over her own testimony, it has an obligation to motivate that preference.
[12] Finally, as to the time spent in Zambia, she confirmed that she arrived there on February 16, 1998 and left on May 16, 1998. She admits that she made an error in calculation when she testified that she had stayed there for a period of two months.
5. Relevant Jurisprudence
[13] In Gracielome v. Canada (Minister of Employment and Immigration) (F.C.A.)2, Hugessen JA, writing for the majority of the Federal Court of Appeal, allowed the application on a case of apparent contradictions. He said as follows, at p. 2:
| It is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority after the fact from a painstaking analysis of the transcripts of the evidence. In these circumstances, the Board is in no better position to weigh the contradictions than is this Court. |
[14] In Grewal v. Canada (Minister of Employment and Immigration) (F.C.A.)3, the Federal Court of Appeal allowed the application on a judicial review of an Immigration Board's decision based on perceived contradictions. Mahoney J. wrote as follows, at p. 3:
| The perceived contradictions had not been put to the Applicant during the hearing. Nothing else identified by the tribunal can even remotely be understood to be contradictions or exaggerations. |
[15] In Guo v. Canada (Minister of Citizenship and Immigration)4, Heald D.J. of the Federal Court, Trial Division, allowed an application for judicial review against an Immigration Board's decision based on inconsistencies. He said as follows, at p. 2:
| 2 The relevant jurisprudence established that inconsistencies in the claimant's evidence from which a board may find a refugee claimant not credible must be put to the claimant and the claimant afforded an opportunity to explain the alleged inconsistencies. [See Note 2 below]5 A review of this record indicates that this applicant was not confronted with the alleged inconsistencies in her evidence and given an opportunity to respond, as is required by the rules of natural justice. Specifically the applicant should have been given the opportunity to explain the alleged inconsistency with respect to her evidence relating to her Chinese work unit card and the PSB list of seized items. A failure to afford such an opportunity to the claimant constitutes an error in law. |
[16] In Vorobieva v. Canada (Solicitor General)6, Rouleau J. of this Court held that the Board's finding with respect to the credibility of the applicant's evidence was reasonable. He wrote as follows, at p. 3:
| 9 It is now well established that in determining that a claimant's evidence is not credible, the Board errs in law if it searches for inconsistencies in a claimant's evidence to support a negative finding of credibility and further, the rules of natural justice require the Board to confront a claimant with any inconsistencies or contradictions in their evidence and to give the claimant an opportunity to respond to these alleged inconsistencies: Owusu Ausah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.) and Gracielome v. Canada (Minister of Employment and Immigration) (1989) 9 Imm. L.R. (2d) 237 (F.C.A.). |
[17] On the other hand, in Liu v. Canada (Minister of Citizenship and Immigration)7, Gibson J. dealing with a Board's decision based on certain inconsistencies in the applicant's evidence concluded as follows, at p. 5:
| ... In such circumstances, while it would have been preferable for the CRDD to have drawn to the applicant's attention all of the inconsistencies in his testimony on which it might rely, I conclude that its failure to do so neither constituted a breach of the rules of natural justice nor an error in law. |
[18] In Mabiala v. Canada (Minister of Citizenship and Immigration)8, Rouleau J. dealt with the Board's decision based on inconsistency on the part of the applicant as follows, at p. 3:
| [22] The Board also found that the applicant's continued activities, in the face of the raid of his home by soldiers, was inconsistent with his fear of persecution. The applicant submits this finding is perverse and I concur. |
| [23] In Samani v. M.C.I. (August 18, 1998) IMM-4271-97 (F.C.T.D.) Hugessen J. held that a finding of implausibility is rarely convincing when it is based on behaviour the Board finds dangerous. Politically committed persons often take risks. |
[19] In the Samani decision, referred to by Rouleau J., Hugessen J. said as follows, at p. 2:
| ... It is never particularly persuasive to say that an action is implausible simply because it may be dangerous for a politically committed person. |
[20] In Aligolian v. Canada (Minister of Citizenship and Immigration)9, Heald D.J. dealt with a Board which preferred documentary evidence over the sworn testimony of the applicant and said as follows, at p. 3:
| 7 The central issue raised by this application is whether the panel can properly choose to believe documentary evidence over the sworn testimony of the applicant. The relevant jurisprudence suggests that such an approach is proper provided that the panel states clearly and unmistakably why it prefers the documentary evidence over the viva voce evidence of the applicant. [See Note 3 below]10 |
[21] The Supreme Court of Canada in Chan v. Canada (M.E.I.)11 referred to a liberal approach in cases where strict documentary evidence may be lacking. Major J. said as follows at p. 666:
| ... This liberal approach to establishing the facts which represents a significant relaxation of the usual rules of evidence is intended to grant the claimant the benefit of the doubt in cases where strict documentary evidence may be lacking. |
[22] Finally, in Baker v. Canada12 the Supreme Court of Canada held, inter alia, that persons affected by a decision are entitled to participate and put forward their views and evidence fully and have them considered by the decision-maker.
4. Analysis
[23] A reading of the transcript leads me to believe that the applicant should have been given a better opportunity at the hearing to comment or explain the contradictions the Board saw in her testimony. Moreover, it appears that in certain instances the Board was over-zealous in discovering contradictions where none necessarily existed.
[24] A review of the jurisprudence in the matter, as abridged above, reveals that it is not unanimous. It does however establish that, generally, contradictions must be put to the applicant at the hearing to enable him or her to provide all relevant explanations. The applicant must be afforded an opportunity to explain fully the alleged inconsistencies. Where the Board prefers the documentary evidence to the sworn testimony of an applicant, it must show clearly why it does so.
[25] In the case at bar, in light of the violent and brutal arrival of the Kabila regime on the scene at the Democratic Republic of Congo and the lamentable human rights record of the Kabila Government, the evidence advanced by the applicant is not so far-fetched as to be automatically unbelievable. It is certainly not inconceivable for a devoted nurse to inform an invading army officer that her main concern is to look after her patients.
[26] Consequently, the matter is referred back to a Board differently constituted for a fresh hearing.
[27] Counsel for the applicant has proposed a question for certification which I accept. It reads as follows:
| Did the Refugee Division err in law or breach the principles of natural justice in that it did not put alleged contradictions (on which the Refugee Division relied to find that the claimant's evidence was not credible) to the claimant or confront the claimant? |
[28] The application for judicial review is granted.
OTTAWA, Ontario
February 19, 2001
Judge
__________________
1 Bukaka v. MCI, June 18, 1999, IMM-4296-98 (FCTD); Lema v. MCI, April 20, 1998, IMM-3580-97 (FCTD), per Gibson J.; Mwenga v. MCI, July 8, 1998, IMM-5193-97 (FCTD), per Décary J. (sitting as a member of the Trial Division) and Makala v. MCI, July 1998, IMM-300-98, per Teitelbaum.
2 [1989] F.C.J. No. 463.
3 [1993] F.C.J. No. 59.
4 [1996] F.C.J. No. 1185.
5 See Gracielome v. Canada (M.E.I.) (1989), 9 Imm. L.R. (2d) 237 (F.C.A.) and also Vorobieva v. Canada (Solicitor General) (1994), 84 F.T.R. 93 (T.D.) per Rouleau J.
6 [1994] F.C.J. No. 1193.
7 IMM-3143-96, August 29, 1997 (T.D.).
8 IMM-4296-98, June 18, 1999 (T.D.).
9 [1997] F.C.J. No. 484.
10 Kwame Okyere-Akosah v. M.E.I., May 6, 1992, File No. A-92-91, [1992] F.C.J. No. 411 and also Hilo v. M.E.I., March 15, 1991, File No. A-260-90 (F.C.A.), [1991] F.C.J. No. 228, at 3-4.
11 [1995] 3 S.C.R. 593.
12 [1999] 2 S.C.R. 817.
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