Date: 20021119
Docket: IMM-5274-01
Neutral citation: 2002 FCT 1193
Ottawa, Ontario, Tuesday, this 19th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MARISA DO CARMO BETTENCOURT MATEUS,
HELMER LEONEL MATEUS FERNANDES JUSTINO,
ANA ARLETE BETTENCOURT MATEUS, and
HERMAN JORGE MATEUS FERNANDES JUSTINO
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), dated October 17, 2001, wherein the applicants were declared not to be a Convention refugee as defined in section 2 of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicants are citizens of Angola who came to Canada in November 2000 and claimed refugee status. Marisa Do Carmo Bettencourt Mateus is the principal applicant. Herman Jorge Mateus Fernandes Justino and Helmer Leonel Mateus Fernandes Justino are the principal applicant's infant children and Ana Arlete Bettencourt Mateus (a.k.a. Ana Arlette Mateus) is her sixteen year-old sister. The principal applicant's claim is based on an allegation of persecution by Angolan officials based on the belief that she was a member of the National Union for the Total Independence of Angola ("UNITA"). The children's claim is based on that of their mother. The sister claims that she faces persecution because she lived with the principal applicant before they left Angola.
[3] The principal applicant's claim was dismissed by the Board due to a finding of negative credibility. Her sister's claim was rejected because the panel found she did not face persecution because she resided with the principal claimant before they left Angola. The Board based its finding on contradictions and impossibilities in the stories of the principal applicant and her sister. The applicants submit the Board erred in law or fact in determining their claim was not credible.
[4] The applicants have raised several issues relating to the panel's finding that the applicant was not credible. The Court has reviewed these issues and concluded that the panel did not act in a patently unreasonable manner. Pursuant to subsection 45(4) of the Immigration Act, the burden to prove the claim is on the applicants. The contradictions and impossibilities found by the panel in the principal applicant's story are plausible. No evidence demonstrated that the findings of the panel were patently unreasonable.
[5] The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22, 000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
Before a credibility finding of the Board is set aside (and before leave is granted for an application with respect to a credibility finding), one of the following criteria must be established (or fairly arguable in the case of the leave application):
1. the Board did not provide valid reasons for finding that an applicant lacked credibility;
2. the inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. the decision was based on inferences that were not supported by the evidence; or,
4. the credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
[6] Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The Court should not substitute its opinion for that of the Board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
[7] For these reasons, the Court finds the Board acted reasonably in dismissing the applicant's claim for refugee status.
[8] Counsel posed no question for certification.
ORDER
IT IS HEREBY ORDERED THAT:
This application for judicial review is denied. No question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5274-01
STYLE OF CAUSE: MARISA DO CARMO BETTENCOURT MATEUS ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, NOVEMBER 7, 2002
REASONS FOR ORDER BY
AND ORDER: KELEN J.
DATED: TUESDAY, NOVEMBER 19, 2002
APPEARANCES BY: Ms. Geraldine MacDonald
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Ms. Geraldine MacDonald
Parkdale Community Legal Services
1266 Queen St. W.
Toronto, Ontario
M6K 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021119
Docket: IMM-5274-01
BETWEEN:
MARISA DO CARMO BETTENCOURT MATEUS ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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