Date: 20010615
Docket: IMM-4255-00
Neutral Citation: 2001 FCT 662
Ottawa, Ontario, this 15th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
NEUSA MARGARIDA FERRAO BASTOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review brought pursuant to subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision of the Convention Refugee Determination Division (the "CRDD") dated July 13, 2000. In its decision, the CRDD found the applicant not to be a Convention refugee.
[2] The applicant seeks an order setting aside the above decision and referring the matter back for determination by a differently constituted panel.
Background Facts
[3] The applicant is a citizen of Angola who entered Canada on December 22, 1999 to make a refugee claim. The applicant spent all of her life in Angola and was attending a school in Benguela which lacked manuals, desks and other materials. In order to improve the situation at her school and address the state of education therein, the applicant and a number of students took the initiative of forming a group to bring their concerns to the attention of the school director. The applicant claims she was elected student president amongst the class representatives and that she acted as the spokesperson for the group. In the year-end public meeting, the applicant spoke about her concerns with the education system.
[4] On November 6, 1999 while the applicant was away visiting relatives, two people from "state security" visited and "interrogated" her father. The applicant's father got in touch with her to warn that it would be safer for her to travel to Luanda, where her mother lives, with a false name. The applicant did so and stayed with her mother for a month. During this time her father was again interrogated about the applicant's activities and detained by state security as they continued to search for her.
[5] The applicant then went to stay with her cousin, during which time the applicant's mother was visited by state security and told that her daughter was connected with the "Angolan opposition abroad". At the urging of her cousin, the applicant left Angola on December 17, 1999 with a false identity, pretending to belong to a sports team that was travelling abroad. The applicant arrived in the United States on December 20, 1999 and would enter Canada two days later at Niagara Falls, at which time she indicated her intention to make a Convention refugee claim.
The CRDD'S Decision
[6] The applicant's refugee claim was heard on June 12, 2000 before two panel members of the CRDD. By decision dated July 11, 2000, the CRDD found the applicant not to be a Convention refugee. The CRDD panel was satisfied that the applicant was a national of Angola, but it was not satisfied, on the balance of probabilities, as to the credibility of her account of the events.
[7] The panel considered that the applicant did not tender any documents that would have placed her in Benguela in 1999, aside from a national identity card which expired in 1994. The panel was also concerned that although the applicant picked up her high school diploma before the meeting, she did not bring it along with her when she went to stay with her mother. The panel was not satisfied with her explanation for not producing her high school diploma. The panel was also concerned that her narrative in the Personal Information Form ("PIF") was more detailed than her oral testimony and wrote at page 4 of its decision that:
The panel considered the claimant's demeanour during her testimony. The panel has taken into account that the claimant provided quite a bit more detail in her written narrative as opposed to her oral testimony. Upon being questioned at the hearing, the same level of detail as contained in the PIF narrative was not apparent in oral testimony.
[8] The panel was further concerned with the applicant's failure to refer to dates as contained in her PIF during her oral testimony and her confusion as to the sequence of dates. The panel was not persuaded that the applicant was the student president she claimed to be because she did not impress the panel as a passionate or articulate speaker.
[9] The panel did not find it plausible that Angolan authorities would be interested in the applicant on the account of her speech at the meeting, nor that they would have gone to such lengths to find her. Finally, the panel did not find it plausible that the authorities would connect the applicant with the Angolan opposition abroad.
Applicant's Submissions
[10] The applicant submits it is patently unreasonable to expect a refugee claimant to necessarily gather identity documents in the flight from risk. The applicant also testified that she was afraid that any further contact with her family would put them at risk. Therefore, simple contact does not imply that she could have obtained documents from her family. The applicant therefore argues the CRDD erred because its reasoning is "opaque" and in violation of its obligation to explain to her why the claim was dismissed. Mehterian v. Canada (Minister of Employment and Immigration) (June 17, 1992) Docket A-717-90 (F.C.A.) and Takhar v. Canada (Minister of Citizenship and Immigration), (February 19, 1999) Docket IMM-1961-98 (F.C.T.D.) are offered in support of the above submissions.
[11] At the hearing of the claim, counsel for the applicant submitted the reason there was more detail in the PIF narrative than in oral testimony was that counsel drafted the narrative in light of a discussion with the claimant. Although the CRDD is free to accept or reject this explanation, counsel is an officer of the Court and the applicant argues the CRDD was not free to entirely disregard it. Thus, the applicant offers Papsouev v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 99 (F.C.T.D.) for the proposition that the CRDD decision ought to be set aside for failing to provide cogent reasons for rejecting counsel's advice at the hearing.
[12] The applicant urges that counsel's explanation was in fact accepted by the panel as shown at page 152 of the applicant's record. As such, the CRDD reneged on its decision and breached natural justice.
[13] It is submitted by the applicant that she was only asked questions about specific dates concerning when her exams occurred. The applicant submits her evidence on this point was not particularly central to her claim. The CRDD must base a rejection of credibility on central elements or critical points, not on inconsistencies or incredible evidence immaterial to the claim. Case authority is offered in support of the applicant's submission that an adverse finding of credibility, which is based on contradictions, must be based on real contradictions of a significant nature. Unless there is a judicial reason for discounting testimony, sworn testimony must be accepted. There is no independent requirement for corroboration.
[14] Moreover, the CRDD erred in impugning the applicant's credibility because she did not volunteer dates, when there were no questions about when the events occurred (with the exception of when the applicant finished school).
[15] The applicant submits it was patently unreasonable for the CRDD to assess her credibility on the basis of her passion and whether she was articulate. Furthermore, the CRDD clearly took into account its Western concept of school presidents. The Court has cautioned about the pitfalls of interpreting evidence through "Western concepts", "Canadian paradigms" or "North American logic and experience" numerous times: Bains v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.), Rahnema v. Canada (Solicitor General) (1993), 22 Imm. L.R. (2d) 127 (F.C.T.D.) and Sun v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 226 (F.C.T.D.).
[16] The applicant submits the CRDD negatively assessed her credibility because she did not have a "political profile"; terminology which is not explained by the CRDD. In any event, the applicant argues she did have a political profile: a student representative who spoke to government authorities concerning student complaints of insufficient funding due to the war effort.
[17] To reject a claimant's evidence on the ground that it is not plausible, without an explanation, is an error in law. Arumugam v. Canada (Minister of Employment and Immigration), (January 20, 1994) Docket IMM-1406-93 (F.C.T.D.) is offered in support of this submission.
[18] Furthermore, the CRDD did not consider the agent of persecution and therefore erred. The CRDD ought to have indicated why the Angolan government would not view what the applicant did and said as being against the government. Rather, the applicant submits the CRDD simply painted her evidence as not plausible which, in the absence of reference to evidence, is arbitrary and capricious: Alfred v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 231 (F.C.T.D.) and Dykon v. Canada (Minister of Employment and Immigration) (1994), 87 F.T.R. 98 (F.C.T.D.).
[19] Lastly, the applicant argues that if her evidence is consistent with the documentary evidence, then she must be given the benefit of the doubt with respect to elements of evidence that she has not been able to provide: Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593. In failing to refer to any evidence at all to support its finding in relation to the behaviour of the Angolan authorities, the CRDD failed to apply the benefit of the doubt principle in Chan, supra.
Respondent's Submissions
[20] The respondent submits this Court should not interfere with the CRDD's assessment of the applicant's credibility unless it is satisfied that the CRDD based its conclusion on irrelevant considerations or that it ignored evidence. Where the CRDD's inferences and conclusions are reasonably open to it on the record, the respondent submits this Court should not interfere, whether or not it agrees with such inferences.
[21] According to the respondent, the CRDD was entitled to draw a negative inference from the fact that the applicant's oral evidence lacked the detail of the written narrative. The explanation offered by the applicant ignores the fact that whatever information makes its way into the PIF comes from the applicant, not from counsel. Thus, the respondent submits it is entirely reasonable to expect the applicant, having told one story which her counsel reduced to written form, to tell substantially the same story at the hearing.
[22] Though there is a general requirement that claimants be given the benefit of the doubt, the respondent submits the CRDD in this case, gave ample reasons for disbelieving the applicant.
Relevant Statutory Provisions
[23] The definition of "Convention refugee" under the provisions of the Immigration Act is:
| 2(1) "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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Issues
[24] 1 Did the CRDD make a reviewable error in finding a lack of
credibility because it formed the opinion that the applicant was not the student president due to the fact that she was not an articulate and passionate speaker?
2. Did the CRDD err in their findings that it was not plausible that the Angolan authorites: (a) were interested in the applicant; (b) would have gone to such lengths to seek the applicant; and (c) would have connected the applicant with the opposition abroad?
3. Did the Board err in finding a lack of credibility because there was more detail in her PIF than in oral testimony?
4. Did the Board make a reviewable error in finding a lack of credibility because of the applicant's failure to refer to specific dates in oral testimony?
5. Did the Board make a reviewable error in finding a lack of credibility because the applicant did not produce a document placing her in Angola in 1999?
Analysis and Decision
[25] Issue 1
Did the CRDD make a reviewable error in finding a lack of
credibility because it formed the opinion that the applicant was not the student president due to the fact that she was not an articulate and passionate speaker?
As the applicant did not impress the panel as a passionate or articulate speaker, the CRDD did not believe that she had been the student president. The Board therefore found that the applicant lacked credibility. I can find no basis for this conclusion. I can very well imagine that there have been student presidents who are not passionate and articulate speakers. This finding of non-credibility has no foundation. The CRDD made a reviewable error when it made this finding.
[26] Issue 2
Did the CRDD err in their findings that it was not plausible that the Angolan authorites: (a) were interested in the applicant; (b) would have gone to such lengths to seek the applicant; and (c) would have connected the applicant with the opposition abroad?
Again, I have reviewed the file material and I can find no evidence to support this conclusion. A Board cannot simply find something not plausible without giving an explanation, to do so is an error of law (see Arumugam, supra). The only explanation was that the applicant had no political profile. If the applicant was the student president and made the statements she made, she could have a political profile to certain people. The Board has made a reviewable error of law by making its finding without an explanation that has a basis in fact.
[27] Issue 3
Did the Board err in finding a lack of credibility because there was more detail in her PIF than in oral testimony?
The Board found that the applicant was not credible as to her account of the events because she had more detail in her written PIF than in her oral testimony. It is not reasonable for a person to remember all the details that were written down in this case as the writing of the PIF was done by her lawyer, who took the information from an interpreter. In any event, even though the respondent argued that it was the applicant's story, I do not accept that in this case, it was sufficient reason to hold that her version of the events was not credible.
[28] Issue 4
Did the Board make a reviewable error in finding a lack of credibility because of the applicant's failure to refer to specific dates in oral testimony?
I have read the CRDD's reasons with respect to dates and I have read the transcript of the applicant's testimony. I do not share the Board's concern. The applicant did explain the dates she was asked about. There is no requirement that she give every date in her PIF. As far as exams being held in October and her finishing high school in November, the applicant explained that she graduated after the exams were finished. There is a very little time frame between the end of October and early November. This is not a real contradiction, but only a slight inconsistency. An adverse finding of credibility cannot be based on such a finding. The Board therefore erred in finding a lack of credibility based on this factor.
[29] Issue 5
Did the Board make a reviewable error in finding a lack of credibility because the applicant did not produce a document placing her in Angola in 1999?
The Board found that the applicant's explanation for lack of a current national identity card or her high school diploma unsatisfactory. She stated she lost the new identity card at exam time and her father gave her the old expired card. She said she did not bring the diploma with her because of a lack of time. The CRDD gave absolutely no explanation for rejecting the applicant's explanations. It just said she was not credible. The Board cannot do this. In any event, it is not unusual for persons who are fleeing, not to have all of their documents (see Takhar v. Canada (Minister of Citizenship and Immigration) (February 19, 1999), Docket IMM-1961-98 (F.D.T.D.)).
[30] The 1999 Country Reports on Human Rights Practices in Angola tends to support the applicant's account of her problems.
[31] I have come to the conclusion that the decisions of the CRDD, as they relate to credibility, are patently unreasonable and must be set aside.
[32] The application for judicial review is granted, the decision of the CRDD is set aside and the matter is remitted to another panel of the CRDD for redetermination.
[33] I am not prepared to certify the serious question of general importance that was submitted to me.
ORDER
[34] IT IS ORDERED that the application for judicial review is granted, the
decision of the CRDD is set aside and the matter is to be remitted to another panel of the CRDD for redetermination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 15, 2001
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