IMM-58-97
B E T W E E N:
NICOLE MADELEINE MBUYI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on November 5, 1997, as edited.)
REED, J.:
As I mentioned, I have read the transcript of the hearing before the Board. While the Board in its reasons did not set out in detail the contradictions, vagueness and evasions that exist, there are many. I am dealing with counsel for the applicant's third argument first. The applicant's story simply does not "hang together".
With respect to the Board's failure to specifically refer to any of the documentary evidence concerning the human rights situation in Zaire, counsel for the respondent argued that when a Board finds that it is unable to conclude that there is a nexus between the claimant's evidence and persecution for a convention refugee reason, there is no need for the Board to go on to consider with specificity the documentary evidence. I accept that argument. In this case, the Board noted, at the beginning of its reasons, the documentary evidence that had been filed. It seems clear to me that the Board's decision was rendered within the context of its general knowledge of the situation in Zaire. In my view, it would be a mistake for a reviewing Court to set aside this decision because no specific references to the documentary evidence are found in the reasons.
That leaves for consideration the psychiatrist's report. Dr. Payne states that he has assessed more than 1,000 refugee claimants. He states in his report that the claimant has difficulty talking about her history:
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She had difficulty presenting it in a clear developed fashion and had difficulty remembering dates. Her manner of reporting her history and her emotional reactions while reporting were consistent with the history which she provided. There is no evidence of lack of any major (psychotic) psychiatric disturbance indicating a lack of contact with reality. |
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While the Board must take into consideration such expert evidence, a Board does not have to accept it as determinative of the issue the Board must decide. The Board must assess the evidence presented to it by a claimant taking into account the expert evidence. That is what the Board did in this case. In essence, the Board's reasons can be paraphrased as: Dr. Payne's opinion cannot be used to excuse the fact that there are significant lacunae in the content of the applicant's evidence.
Her claim for refugee status was based on two grounds: she was perceived as holding anti-government views and was being persecuted by the government because: (1) she had composed three songs that could be interpreted as expressing anti-government sentiments (songs that had never been published because the recording company she approached to do this refused); (2) she was a member of a family class that was perceived to be actively involved in anti-government activities (the triggering event being the activities of her brother Willy).
The Board found that persecution as a result of the three songs was not plausible because, despite the fact that her attempt to have them published by a record company had occurred in September of 1994, and the ransacking of the house in which she lived had occurred immediately thereafter, the authorities had made no attempt to interfere with her or prevent her continued singing in the choir in which she participated. She continued to sing in the choir until she left Zaire in September of 1995. The Board also found that there was insufficient evidence to conclude that the ransacking of her house had been carried out by the military.
With respect to her claim as a member of a family class, the Board again found there was a crucial omission in the evidence. She could give no explanation as to what is was that her brother had done, other than the fact that he worked in the archives of a printing company, that would lead him to be sought by the government. She gave evidence that the editor of the printing company, for which he worked, had been killed in November, 1994, but could not explain what her brother did.
While initially giving evidence that she had helped her brother in January of 1995 to bury some anti-government literature in the garden and that her brother had disappeared in August of 1995, she, then, gave evidence that she did not know when her brother had disappeared (her evidence seemed to be that it was after the death of the journalist-editor in November, 1994). In any event, she could give no evidence as to what her brother did, what his activities were that could lead to her being persecuted as a member of the same family class. This was so even though they lived together in the same house and he allegedly, at an earlier time, had had her assist him in burying books that were critical of the government.
It was the omissions in the contents of the applicant's evidence that led to the Board to reject her claim.
I cannot conclude that there are grounds that would justify setting aside the Board's decision. Accordingly, the application will be dismissed.
"B. Reed"
Judge
Toronto, Ontario
November 5, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-58-97
STYLE OF CAUSE: NICOLE MADELEINE MBUYI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: NOVEMBER 5, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: NOVEMBER 5, 1997
APPEARANCES:
Mr. Peter J. Reiner
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD:
Mr. Peter J. Reiner
Barrister and Solicitor
55 Eglinton Avenue East
Suite 307
Toronto, Ontario
M4P 1G8
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-58-97
Between:
NICOLE MADELEINE MBUYI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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