Date: 20010712
Docket: IMM-4844-00
Ottawa, Ontario, the 12th day of July, 2001
Present: The Honourable Mr. Justice Pinard
Between:
CATHY TINGOMBAY
JEAN-PIERRE TINGOMBAY MAKAMBO
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision rendered on August 17, 2000 by the Refugee Division, ruling that the applicants are not Convention refugees and finding no credible basis for their claim under subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2, is dismissed.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20010712
Docket: IMM-4844-00
Neutral Citation: 2001 FCT 752
Between:
CATHY TINGOMBAY
JEAN-PIERRE TINGOMBAY MAKAMBO
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on August 17, 2000 by the Refugee Division, ruling that the applicants are not Convention refugees and further finding no credible basis for their claim under subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] The applicants are citizens of the Democratic Republic of the Congo ("DRC"). The female applicant, Cathy Tingombay, is the niece of the male applicant, Jean-Pierre Tingombay Makambo. They both allege that they have a well-founded fear of persecution for reasons of alleged political opinions and their membership in a particular social group, the family.
[3] The Refugee Division ("RD") found that the applicants' fear of persecution has no basis owing to their lack of credibility, which it assessed as follows, as it pertains to the female applicant:
- In her Personal Information Form, the claimant stated that she had been imprisoned after the military had executed an "arrest warrant" against her, while in her reply to the point of entry notes, she stated that she had not been incarcerated in her country. She explained that it was her understanding that she was being asked whether she had committed a crime in her country, hence the negative response. The RD did not find any reasonable explanation in view of the simplicity of the question and the importance of the question on the application.
- The claimant was unable to indicate the month during which the events took place, limiting herself to saying the 20th, 1998. After a few questions, she said it was in mid-year (around June 1998), but she later stated that she arrived in Belgium one year after the triggering event, on November 20, 1999, suggesting that the event had occurred in November 1998. In the RD's opinion, it is unlikely she could forget the date of such a memorable event, especially when the claimant had fled prison on the very day of its anniversary.
- The claimant stated on two occasions that Fidel Tingombay Makambo ("Fidel") had stopped working in 1996. The RD asked her whether she was certain that it was in 1996, and she confirmed this. It was therefore a resignation before Kabila came to power.
- The claimant's corrections, made after the break, concerning the date of the triggering event and the date when her uncle resigned, are not sufficient to make up for her sullied credibility.
and as follows, in relation to the male applicant:
- The RD does not believe the claimant when he says he returned to the DRC in June 1998, since he was unable to describe any event whatsoever that had occurred during that period.
- Furthermore, the claimant alleges that he returned to the DRC at the urging of Fidel. In the RD's opinion, it is unlikely that he would have let himself be so readily persuaded to return when Fidel himself had fled the country one year earlier.
- These inconsistencies, in addition to the fact that the claimant unconditionally endorsed the non-credible testimony of the female claimant, suffices to sully his credibility.
[4] Absent any clear and convincing evidence to the contrary, I must presume that the Refugee Division considered the evidence as a whole (see Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, at page 318), and I have not been persuaded, notwithstanding the clever presentation by Mr. Desmarais, that this specialized tribunal could not reasonably conclude as it did (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, at pages 316 and 317). Moreover, because the claimants' testimony was not considered credible, it was open for the panel, as I held in Hernandez et al. v. The Minister (April 30, 1999), IMM-3020-98, to find that there was no credible basis for the claims. Indeed, in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal held that when such a tribunal holds that a claimant is not credible, it may conclude that there is no credible evidence on which it could determine he was a refugee. Furthermore, in Minister of Employment and Immigration v. Mathiyabaranam (December 5, 1997), A-223-95, the Federal Court of Appeal confirmed that this rule is valid in light of subsection 69.1(9.1) of the Act concerning the credible basis issue (see also Nizeyimana et al. v. Minister of Citizenship and Immigration (March 30, 2001), IMM-1789-00, 2001 FCT 259).
[5] For all these reasons, the application for judicial review is dismissed.
J.
OTTAWA, ONTARIO
July 12, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4844-00
STYLE: CATHY TINGOMBAY et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 20, 2001
REASONS FOR ORDER OF PINARD J.
DATED: JULY 12, 2001
APPEARANCES:
LUC R. DESMARAIS FOR THE APPLICANTS
STEVE BELL FOR THE RESPONDENT
SOLICITORS OF RECORD:
LUC R. DESMARAIS
MONTRÉAL, QUEBEC FOR THE APPLICANTS
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT
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