Date: 20020124
Docket: IMM-6391-00
Neutral citation: 2002 FCT 83
BETWEEN:
BERNADETTE KAPINGA-MUKENAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant attacks a decision of the Refugee Division (the "Division") of November 15, 2000 that the applicant is not a Convention refugee.
[2] The applicant, who was born December 9, 1946, is a citizen of the Democratic Republic of the Congo. She alleges that she has a well-founded fear of persecution because of her perceived political opinions.
[3] The Refugee Division dismissed the applicant's refugee claim, primarily on the ground that she was not credible. At page 2 of its reasons, the Division states:
[Translation]
Having analyzed both the oral testimony and the documentary record, the panel finds that the claimant has failed to demonstrate that she had a reasonable fear of persecution because of her perceived political opinions.
The panel does not believe the claimant's story of alleged persecution. Her credibility was marred by a number of factors: omissions and contradictions, of which the examples we are going to cite are not intended to be exhaustive.
[4] The first point raised by the applicant is the insufficiency of the reasons stated by the Refugee Division. Under subsection 69.1(11) of the Immigration Act, the Division must give written reasons for its decisions in the following cases:
(a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; and
(b) if the Minister or the person making the claim requests written reasons within ten days after the day on which the Minister or the person is notified of the decision, the Division shall forthwith give written reasons.
[5] According to the applicant, the Refugee Division's reasons do not enable her to know the true reasons for which her claim was rejected. In my opinion, this argument should be rejected. In Mehterian v. MEI (June 17, 1992), docket A-717-90, the Federal Court of Appeal had the following to say about subsection 69.1(11) of the Immigration Act:
Subsection 69.1(11) of the Immigration Act, R.S.C. 1985, c. I-2, requires that the Refugee Division "give written reasons" for any decision against the claimant. If this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary.
[6] Having read the reasons of the Refugee Division, I can only conclude that these reasons are sufficient. In other words, the reasons given by the Refugee Division are "sufficiently clear, precise and intelligible" that the applicant can understand why her claim has been dismissed and decide whether it is appropriate to seek leave from this Court to file an application for judicial review.
[7] I turn now to the issue of whether the reasons stated by the Refugee Division include one or more errors that would justify intervention by this Court.
[8] The applicant criticizes the Refugee Division, first, for finding that the failure to state, in reply to question 37 of her Personal Information Form ("PIF"), the name of the military officer who allegedly threatened her as a result of the complaint she had filed following the looting and vandalizing of two of her outlets in November 1998, was an important omission that consequently undermined her credibility. The Division said it was hard to believe that the applicant, who had testified at the hearing that the major's name was Munongo, had failed to cite this name in her PIF. The applicant testified by way of explanation that she had not indicated this name in her PIF because she did not think it was necessary to disclose the name at that stage. Here is how the Refugee Division viewed this explanation:
[Translation] The panel rejected this unsatisfactory explanation since we think it involves the omission of an important and relevant fact, for it concerns the presumed principal persecuting agent whom the claimant alleged she feared if she were to return to her country. This important omission goes to the very heart of the claim, for she would have known the name of her presumed persecuting agent....
[9] In my opinion, there is nothing unreasonable about the Refugee Division conclusion. It should be noted that Major Munongo was also involved in the arrest of the applicant in October 1999, after her lands in Ngiri-Ngiri had been leased to certain members of the UDPS. Having regard to the evidence as a whole, the omission of Major Munongo's name cannot be considered a trivial thing that does not warrant the conclusion of the Refugee Division. Needless to say, this omission alone was not sufficient to justify rejecting the applicant's claim.
[10] The applicant also criticizes the Refugee Division's finding concerning another omission in her reply to question 37 on her PIF. At pages 2 and 3 of its decision, the Refugee Division states:
[Translation] The panel also found a further significant omission in her reply to question 37 on her PIF. The claimant failed to indicate, in telling about the alleged incident of April 25, 2000, when three persons in civilian clothing came to her outlet in Bandal to demand money from her, that her neighbour, a friend, was present with her at that time and that she had told her the next day that they were the same people who had come the day before to extort her, who had looted her outlet and had been looking for her on April 26, 2000. Questioned on this, the claimant replied that French was not her language. The panel did not accept this unsatisfactory explanation, since from reading her reply to question 37 of her PIF we could not suspect in any way that these were the same individuals who had demanded money from her on April 27, 2000 in the presence of a neighbour (friend) and who had allegedly looted her outlet and been looking for her the next day....
[11] Once again, in my opinion, there is nothing unreasonable about the conclusion of the Refugee Division. All I can do is reproduce, and adopt as my own, the respondent's arguments, which are at paragraphs 18 to 21 of his memorandum:
[Translation]
18. When all is said and done, the Refugee Division criticizes the applicant for not stating in her PIF that the people soliciting money on April 27, 2000 were also the looters of April 26, 2000.
19. Confronted at the hearing, the applicant states that French "was not her language". The Refugee Division concluded that this explanation was unsatisfactory, and that from reading the PIF, it was impossible to suspect that the same people were involved in the solicitation of money and in the looting of the outlet (reasons for the decision, page 3; first eight lines).
20. The Refugee Division concluded that this was an important fact that should have been recorded in question 37 of the PIF.
21. The respondent submits that in so far as the applicant left the Democratic Republic of the Congo less than one month after this incident, the circumstances surrounding the looting of the outlet constitute an important event in the context of her claim. Because of this, it was open to the panel members to note the lack of precision in the account in this regard in question 37.
[12] The third point raised by the applicant concerns exhibit P-4, a document entitled "[Translation] Registration in the New Register of Business Names". This document, dated December 27, 1979, indicates that the head office of the applicant's principal establishment was at 79 Pala-Pala Street in the locality of Bandalungwa in Kinshasa. The document also indicates that the applicant operated her business in other places, namely, the Kasaï-Oriental shopping mall in the region of Mbuji-Mayi, and the Shaba shopping mall in the region of Lubumbashi.
[13] The Refugee Division, having noted that the addresses of the businesses listed in the applicant's PIF appeared nowhere in exhibit P-4, concluded that there were incompatibilities or contradictions that undermined the applicant's credibility. At pages 3 and 4 of its decision, the Refugee Division writes:
[Translation]
The panel also noted some incompatibilities or contradictions between the reply to question 37 of the claimant's PIF and certain documents filed in evidence in support of her claim, i.e. exhibit P-4. According to her PIF, she set up on her own a business selling beverages and food products, with the head office located in the commune of Bandalugwa [sic], and she also opened three other outlets in three different communes, Mont-Ngafula, Ngiri-Ngiri and Kasa-Vubu. But exhibit P-4, the Registration in the New Register of Business Names, indicates that the head office of the principal establishment is actually on Pala-Pala Street, no. 79 in the zone of Bandalungwa in Kinshasa, and that the other branches are in the Kasaï-Oriental shopping mall in the region of Mbuji-Mayi and the Shaba shopping mall in the region of Lubumbashi. She does not mention at any point the three outlets indicated in the PFI.
Confronted on this, the claimant says that the outlets in the communes of Mont-Ngafula, Ngiri-Ngiri and Kasa-Vubu, being situated in the Kinshasa region, were considered to be included in the principal establishment in the Bandalungwa zone, which would have authorized it to operate in the Kinshasa region. In regard to the two branches referred to in the registration document, she answered that this meant it was allowed to sell in those regions.
The panel rejected these unsatisfactory explanations, since exhibit P-4, the registration, makes a very clear distinction between the head office and the address of the principal establishment, and the distinct office and address of the branches, agencies and business address of the principal establishment. Consequently, these incompatibilities or contradictions have undermined her credibility.
[14] It was certainly not unreasonable for the Refugee Division to conclude there were contradictions or incompatibilities. The Division could reasonably find that the applicant's explanation was not satisfactory.
[15] The applicant also disputes the Refugee Division's conclusion concerning her birth certificate. The applicant testified at the hearing that one of her children had sent the birth certificate to her in June 2000. However, the evidence also disclosed that the applicant's birth certificate had been seized by Immigration Canada when she arrived in the country on May 26, 2000 (exhibit P-6). When confronted with this contradiction, the applicant testified as follows at pages 83, 84 and 85 of the transcript of October 20, 2000:
[Translation]
BY COUNSEL (to the claimant)
Q. On May 26, 2000, you went to Immigration Canada. Is that correct? Did you go to Immigration Canada on May 26, 2000?
A. Yes.
Q. When you went to Immigration Canada on May 26, 2000, you went with the original of your birth certificate. Did you go with the original of your birth certificate?
A. Like all the steps I took, it is.... there is always someone accompanying me when I do, I am there just to sign, I think I took it.
Q. O.K. On... On May 26, 2000, Immigration Canada gave you this paper. Were you given this paper with a copy of your birth certificate? You were given that? Immigration Canada gave you?
A. All my documents are still in... in the same file, I think it is... that is correct.
Q. So, you... you are the one who went with this document to Immigration? You are the one who gave it to them or is... it is you who gave this document to Immigration Canada?
A. It shows that I ... I deposited it, I took it, it shows.
Q. Fine, perfect. Your... your child, he sent you what as a document in... your child, what did he send you as a document, Madam?
A. I think he sent the... the business registration and the certificate, but I didn't know that I had the certificate actually before.
Q. But the business registration and the certificate of what? To what are you trying to refer?
A. Birth.
Q. O.K. So, did your child send you three documents?
A. Uh-huh.
- But that is impossible, Madam.
A. I think, I think that...
- O.K.
A. ... I think he may have sent me that before and others after and I ... I don't have the order of the mailings of those things. I think I had asked for an identity card, and he sent me a birth certificate.
[16] The Refugee Division concluded that the applicant's explanation was unsatisfactory. At page 4 of its reasons, the Division makes the following comments:
[Translation] The panel did not accept this unsatisfactory reply, which did not clear up the contradiction that had been raised, and we are of the opinion that the claimant tried to go over her testimony again in the face of the evidence with which she was confronted.
[17] Consequently, I am unable to accept the applicant's argument that it "[Translation] is not a serious contradiction likely to mar her credibility". In my opinion, the contradiction noted by the Refugee Division was such as to be considered by the Division in its determination of the applicant's credibility.
[18] The following is the next finding of the Refugee Division disputed by the applicant:
[Translation] ... Furthermore, she testified first to the effect that she had encountered Major Munongo on three occasions. Questioned again on this, she answered this time that she had encountered him a fourth time, around October 15, 1999, when some soldiers came to arrest her because she had leased her plot in Ngiri-Ngiri to members of the UDPS.
[19] According to the applicant, the Refugee Division completely ignored her explanation that she was bona fide mistaken when she stated that she had encountered Major Munongo only three times.
[20] I agree with the submission by Mr. Latulippe, the respondent's counsel, that the difficulty is not the number of encounters between the applicant and Major Munongo but rather the fact that the applicant told about a fresh encounter with the major, at the time of her arrest on October 15, 1999. Mr. Latulippe says it is the "[Translation] failure to mention this encounter when initially examined that undermined the applicant's credibility". So the applicant has not persuaded me that the Refugee Division erred in concluding as it did.
[21] A further conclusion of the Refugee Division that is disputed by the applicant is the one pertaining to her arrest in October 1999 because she had allegedly leased a plot of land in Ngiri-Ngiri to some members of the UDPS. At page 4 of its reasons, the Refugee Division writes:
[Translation]
The panel assigns no credibility, either, to the claimant's allegations that she was arrested in October 1999 owing to the fact that she had leased her plot in Ngiri-Ngiri to members of the UDPS. Questioned on this, the claimant replied that although political activities had been prohibited at the time by the Government, she had nevertheless leased her plot to the UDPS because she needed money and she did not think she would have any problems with the Government by leasing her property since she herself was not meeting with the UDPS people.
The panel did not accept these unsatisfactory explanations because we think it is improbable that the claimant, knowing that political activities were prohibited by the Government, would nevertheless have leased her plot in Ngiri-Ngiri to members of the UDPS for them to hold meetings there, although she had had many problems with Major Munongo and his soldiers between November 1998 and March 30, 1999 owing to the fact that she had been accused of complicity with the rebels and defamation of a representative of the law and the government. We are of the opinion that these events are a pure fabrication for the purposes of the claim.
[22] The applicant's explanation is quite simple. She says she did not think she had any problems leasing a plot of land to some members of the UDPS even if they were to be taken by the authorities as holding prohibited meetings in the leased premises.
[23] In view of the evidence on the record and more particularly the fact that the applicant had had some difficulties with Major Munongo and some other soldiers, and that she had been accused of complicity with the rebels in March 1999, the Refugee Division rejected the applicant's explanation. The applicant has failed to persuade me that this conclusion was unreasonable.
[24] The final point raised by the applicant is the one concerning the Refugee Division's conclusion as to her subjective fear. Specifically, the Division took a negative view of the fact that the applicant had stayed for almost a day in the United States without claiming refugee status and that she had waited until three days after her arrival in Canada to claim refugee status. At page 5 of its reasons, the Refugee Division writes:
[Translation]
Although the claimant stayed almost a day in the United States and although her intention in coming to Canada was allegedly to claim refugee status, she did not request refugee status either upon her arrival in the United States nor upon her arrival at the Canadian border in Lacolle on May 20, 2000. Instead, she waited until May 23, 2000 to do so, pleading that she did not know how to make a refugee claim and that a young African she met on the bus taking her to Canada had [told?] her that since it was Saturday she was going "to take forever", so it was preferable that she go with him to his residence and she could make her refugee claim later.
The panel rejected these unsatisfactory explanations and we think her conduct is incompatible with that of a reasonable person alleging that she fears persecution in her country and seeking international protection.
[25] In my opinion, the failure to claim refugee status in the United States and not claiming it earlier in Canada could not, in itself, justify a negative finding as to the applicant's credibility. However, it is my opinion that the delay in claiming, and the failure to claim in the United States, when examined in light of the evidence as a whole, constituted some factors that the Refugee Division could take into account in its assessment of the applicant's credibility. I conclude, therefore, that the Refugee Division did not err in any way in considering the delays in claiming.
[26] For these reasons, the application for judicial review of the applicant will be dismissed.
[27] Ms. Doyon, for the applicant, asks that I certify the following question:
[Translation] Are sufficient reasons given for an IRB decision on credibility when it is alleged to be based on some contradictions that exist but are not disclosed to the claimant?
[28] Mr. Latulippe, for the respondent, opposes the certification of the question. In my opinion, the proposed question is not worth certifying. In Mehterian, supra, the Federal Court of Appeal held that the reasons of the Refugee Division should enable a claimant to know why his claim had failed and enable him to decide on the appropriateness of filing an application for leave to appeal to this Court.
[29] In my opinion, the reasons stated by the Refugee Division in this case fulfill this test. The reasons are, in my opinion, "sufficiently clear, precise and intelligible". In my opinion, the Refugee Division is under no obligation to cite all the omissions and contradictions it may have noted. Its obligation is to state clearly the omissions and contradictions that justify its finding of non-credibility. As I indicated, the omissions and contradictions noted by the Refugee Division in this case are such as to justify this finding of non-credibility.
[30] The proposed question will not be certified, therefore.
"Marc Nadon"
Judge
O T T A W A, Ontario
January 24, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-6391-00
STYLE: BERNADETTE KAPINGA-MUKENAI
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 3, 2001
REASONS FOR ORDER OF MR. JUSTICE NADON
DATED: JANUARY 24, 2002
APPEARANCES:
JOHANNE DOYON FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
DOYON, GUERTIN, FOR THE APPLICANT
PLAMONDON & MONTBRIAN
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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