Date: 20090428
Docket: IMM-3624-08
Citation: 2009 FC 427
Montréal, Quebec, April 28, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
NATOLBAN
MIALBAYE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicant seeks under subsection 72(1) of
the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (Act), the judicial review of
the decision dated July 17, 2008, by the Refugee Protection Division
of the Immigration
and Refugee Board (panel),
refusing him the status of “refugee” and “person in need of protection” in
accordance with sections 96 and 97 of the Act, and denying his refugee claim.
II. Facts
[2]
A citizen
of Chad, the applicant left his country on September 23, 2006, on a visa and
was planning on a vacation in the United States. After stopping in Benin and
Paris, he spent a few days in the United States and entered Canada on October 2,
2006, at which time he made his refugee claim.
[3]
Essentially,
the applicant alleges being subject to persecution and threatened by the
authorities of his country after having published, in a large-circulation
newspaper, an article on human rights violations.
III. Impugned decision
[4]
The
panel called into
question the publication and the truthfulness of the article at the basis of
his refugee claim, and found that even in presuming that it were true, it did
not believe that the applicant is being sought in his country of origin.
[5]
Having also
taken note of the synchronicity between the vacation to the United States
planned by the applicant and the sequence of events at the basis of his narrative,
and multiple discrepancies and implausibilities in the evidence, the panel
doubted the testimony of the applicant on many points such as the way in
which he allegedly escaped a raid by soldiers before leaving Chad; his travel arrangements; the
collusion of the authorities of Benin with those of Chad to prevent him from
taking the flight to the United States; and also the implausible intervention of
the station head for Air France who purportedly took steps to provide him with
a new plane ticket and had his visa authenticated by the Embassy of the United
States.
[6]
Consequently,
the panel found that “the claimant’s narrative is not credible” and that he is
not a “Convention refugee” or a “person in need of protection” and,
accordingly, rejected his refugee claim.
IV. Issue
[7]
Was
it unreasonable for the panel to find that the applicant’s narrative was not
credible?
V. Analysis
Standard of review
[8]
The
panel’s findings of fact, and more specifically those dealing with the
applicant’s credibility, are subject to the standard of “reasonableness” with
the result that in order to warrant its intervention, the Court must determine
whether the impugned decision is reasonable, in light of its “justification”, and
if it “falls well inside the range of possible , acceptable outcomes in respect
of both the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9).
[9]
The Court must treat such a decision with deference and avoid
intervening to substitute its opinion for that of the panel, unless the
discrepancies and implausibilities noted by the panel are not supported by the
evidence, do not take into account the explanations given or are simply
capricious or extremely exaggerated.
Lack of credibility
[10]
Giving
very detailed reasons, the panel was careful to note in its decision the
numerous shortcomings noted in the evidence that, when considered as a whole, irreparably affect the credibility of the
applicant and his narrative.
[11]
The panel was
able to see on more than one occasion that the testimony of the applicant was
confused, evasive and contradictory. This was despite the fact that
the panel noted having a “bright, educated and articulate young man” in front of it.
[12]
The
Court, having analyzed the record and the decision under review, does not find
any criticism of the panel for its finding that the applicant’s narrative was
not credible. It was a reasonable finding supported by both the discrepancies
and implausibilities noted in the applicant’s narrative, and by his manner of
testifying (Shahamati v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No.
415
(F.C.A.). The panel’s criticisms of the applicant do not appear to be
capricious or exaggerated, and taken in their entirety, constitute a
sufficiently significant whole to irreparably tarnish the applicant’s credibility.
[13]
Contrary
to the applicant’s submissions, the panel did not have to, before delivering its
decision, confront him again on the implausibilities indicated by the panel
during its analysis of the evidence. The panel did not breach procedural
fairness by not advising the applicant before the end of the hearing of its
doubts with regard to the applicant’s narrative and its implausibility (Sarker
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
987). The applicant had the opportunity to fully explain himself during the
hearing. If he did not know to take that opportunity to persuade and provide
good explanations in a timely manner, he has only himself to blame.
[14]
In
trying to persuade the Court today that the panel erred with respect to the
negative inferences it drew from the evidence and concerning the credibility of
his narrative, the applicant is simply seeking to justify the evidence that the
panel did not accept. In fact, the applicant is merely reiterating before this
Court a large part of the explanations already submitted to the panel, to try once
again to explain and justify the numerous implausibilities, inconsistencies and
omissions for which he was criticized by the panel. The applicant is free to
not accept the panel’s decision, but he must accept that it is not up to this
Court to reassess the evidence during an application for judicial review (Zrig
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565
(F.C.A.); Islam v. Canada (Minister of Citizenship and Immigration),
2004 FC 301; Khaira v. Canada (Minister of Citizenship and Immigration),
2004 FC 62); and that it is also not up to this Court to substitute its opinion
or the opinion of the applicant for that of the panel, all the more so because the
panel retains the unique benefit of having been able to hear the applicant’s narrative
and judge his manner of testifying, which placed the panel in the best position
to properly assess his credibility.
[15]
Unfortunately
for the applicant, this Court’s work of review is limited to verifying whether
the panel’s decision is justified or not, both in fact and in law, according to
the standard of reasonableness. Credibility determinations of a party lie
within the heartland of the discretion of triers of fact. That of the panel in
this proceeding therefore merits great deference and cannot be overturned unless
it is perverse,
capricious or
delivered without regard for the important evidence, which is far from being
the case here. (Siad v. Canada (Secretary of State) (C.A.),
[1997] 1 FC 608, at paragraph 24; Dunsmuir, above).
[16]
In
short, the applicant did not succeed in proving that the impugned decision
resulted from findings of fact made
in a perverse or capricious manner without regard for the material before the
panel,
including the explanations which the applicant tried to provide it (Lin v. Canada (Minister of Citizenship and
Immigration), 2008 FC 698).
VI. Conclusion
[17]
For
all of these reasons, the Court finds that the decision under review is
justified in fact and in law, and does not contain any fundamentally important
errors to warrant the intervention of this Court. The application for judicial
review will therefore be dismissed.
[18]
Furthermore,
since no serious question of general importance was proposed or merits being
proposed, no question will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified
true translation
Janine
Anderson, Translator
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