Date: 20070615
Docket: IMM-3815-06
Citation: 2007 FC 643
Ottawa, Ontario, June 15, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
SHAKO DJEDI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant
is a citizen of the Democratic Republic of Congo (DRC). He bases his claim for
protection on an alleged fear of persecution by reason of his political and
financial support to the “Rwandophones du Sud Kiwi”. In a decision dated June
12, 2006, a panel of the Refugee Protection Division of the Immigration and
Refugee Board (the Board) rejected the claim. The Applicant seeks judicial
review of that decision.
[2] The Board did
not believe the allegations of the Applicant, principally for the following
reasons:
- The
Board noted that the alleged acts of persecution had taken place in Bukavu
during a time when the Applicant stated, in the Inland Processing
Interview (IPI) Form, that he was a student in another city;
- The
Board further noted that the addresses given by the Applicant on his
Personal Information Form (PIF) and the IPI Form were inconsistent; and
- The
Board found that discrepancies in the number and timing of his alleged
detention (or detentions) undermined his credibility.
Issues
[3] The
Applicant alleges that the Board erred in each of the reasons provided. Thus,
the issues in this application are the following:
- Did the Board err
by failing to comprehend the whole explanation provided for the
discrepancies regarding the dates when the Applicant was studying and by
expecting the Applicant to correct not only his PIF, but the IPI Form?
- With respect to the
confusion surrounding his address, did the Board err by failing to have
regard to the fact that two different addresses were provided on the IPI
form?
- Did the Board err
by failing to put the inconsistency on the number of detentions to the
Applicant?
Analysis
[4] As noted
above, the foundation of the Board’s decision was an overall finding that the
Applicant’s story of persecution was not credible. With respect to the first
two issues, the Applicant is, in essence, questioning findings of fact. As
such, the standard of review is that of patent unreasonableness, meaning that
the decision will only be overturned where the Board has made a finding (i)
in a perverse or capricious manner, or (ii) without regard for the material
before the Board. Further, any error of fact must be material to the decision.
[5] The third issue relates
to an alleged breach of procedural fairness, which is not reviewable on any
particular standard. Rather, if a breach of procedural fairness is found, the
Court must set aside the decision.
[6] Also, we must not lose sight of the main issue before
the Board – specifically, the Applicant’s location during the alleged
persecution. Moreover, the onus is on the Applicant to make the case that he
was in Bukavu during the alleged persecution as refugee claimants carry the
onus of establishing all of the components of their claims (Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 at
para. 6).
[7] With this in mind, I now
turn to the specific alleged errors in the Board’s decision.
Issue #1: Did the Board err by failing to
comprehend the whole explanation provided for the discrepancies regarding the
dates when the Applicant was studying, and by expecting the Applicant to
correct not only his PIF, but the IPI Form?
[8] At the outset
of the Board hearing, the Applicant’s counsel corrected two errors in the
documents before the Board and then stated that the remainder was “juste et
exacte”. He did not make any correction to the IPI Form. The Board noted an
important discrepancy between the PIF and the IPI Form, namely that the
persecution described by the Applicant was alleged to have taken place in
Bukavu, while it was written on the IPI Form that he was a student in Kinshasa at that
time. The Board then used this discrepancy to support its conclusion that the
Applicant was not credible.
[9] The Applicant
asserts that the Board failed to comprehend his explanation that someone else
had written the statements in the IPI Form and that the Board erred by
expecting the Applicant to correct the IPI Notes at the hearing.
[10] First, it must
be noted that there were obvious contradictions between the information on the
IPI Form and the PIF. Given the fact that the Applicant failed to avail himself
of the opportunity to correct the errors on the IPI Form, both at the time the
Form was filled out and at the beginning of the hearing, the Board rejected the
Applicant’s explanation that these contradictions just showed that there was an
error on the Form.
[11] The Applicant
attempts to discredit this finding by stating that it was patently unreasonable
for the Board to find that the Applicant would have been able to correct the
IPI Form at the hearing or at the time it was filled out. On this, I do not
agree. Not only was the Applicant’s counsel able to correct other errors at the
beginning of the hearing, but the Applicant signed the declaration at the end
of the IPI Form to the effect that all the information provided in this
document was accurate and complete. Regardless of whose handwriting was on the
Form, there is no question that the Applicant indicated that all of the information
was “juste et exacte”. Since the Applicant, through his counsel, interjected to
make corrections to the PIF, it was not unreasonable for the Board to assume
that other errors, whether in the PIF or other filed documents, would have been
corrected.
[12] There was no
reviewable error.
Issue #2: With respect to the confusion surrounding
his address, did the Board err by failing to have regard to the fact that two
different addresses were provided on the IPI form?
[13] The second
aspect of the Applicant’s story which raised doubts as to his credibility, had
to do with the multiple addresses which he provided on his PIF and IPI Form, as
well as in the course of the hearing. The Applicant acknowledges that there was
confusing information in the filed evidence with respect to his address. The
evidence and the explanations of the Applicant can be summarized as follows:
- In his
IPI Form, he gives his address between 1995 and 2005 as being 23 avenue
Kasavubu in Bukaru and 5 avenue Marine in Kinshasa. While
he explained that the Kinshasa address was his
parents’ address which he also used, there were other discrepancies.
- In his
PIF, it is written that he resided instead at 40 avenue Kasavubu between
1995 and 2004. He explained this discrepancy at the hearing by saying
that, during this time period, he lived at both of these addresses. He
then said that he lived at 23 first, then 40, and subsequently reversed
that order in his explanation to the Board, as shown at page 15 of the
transcript of the Board hearing.
- As for
his UDPS membership card, the address listed is 639 avenue Yumbu in Kinshasa. He
explained this discrepancy by saying that his parents owned two parcels of
land; the first on Marine avenue is where the house
is, but he could still use both addresses.
[14] The Board’s
conclusion on this was to the effect that such confusion did not allow it to
determine where the Applicant truly lived during the period when he was
allegedly persecuted and that this supports a finding of lack of credibility.
[15] The Applicant’s
argument in challenging this finding of the Board is that the Board erred when
it ignored evidence explaining apparent inconsistencies and then made an
adverse credibility finding (Owusu-Ansah v. Canada (Minister of Employment
and Immigration) (1989), 8 Imm. L.R. (2d) 106 (FCA)). Or, in the same vein,
the Applicant argues that the Board cannot ignore a claimant’s logical
explanation for a minor inconsistency that is irrelevant to the substance of
the argument (Wei v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 285).
[16] The problem
with this argument is that the Board did not ignore evidence as much as
disbelieve the explanation provided by the Applicant, an explanation which the Board
clearly did not find compelling regarding an inconsistency which, far from
minor, actually went to the heart of the claim. There is thus no reviewable
error.
Issue #3: Did the Board err by failing to put
the inconsistency on the number of detentions to the Applicant?
[17] The Applicant’s claim that he would be at risk
should he be forced to return to the DRC is premised on the fact that he has
already been arrested and tortured for his actions (or opinions). When asked to
provide the specifics of the arrest, he gave two different dates and two different
durations for what should have been the same event. In the IPI Form, at
question 4, the Applicant clearly wrote that in 2004, he was arrested and
detained for 30 days, during which time he was beaten and tortured. This is the
same information that was written down by the immigration officer in his
interview notes. In his PIF, however, the Applicant wrote that he was arrested
in 2003 and detained for 15 days, following an attack by Mai Mai soldiers, and
that he was beaten and tortured. He then wrote that he was subsequently
arrested eight or nine times and detained each time for approximately 15 days.
The Board concluded that this conflicting evidence also undermined the
Applicant’s credibility. However, this was not raised by the Board during the
hearing.
[18] The Applicant now
alleges that the Board erred by failing to put these inconsistencies to the
Applicant and thus allowing him an opportunity to clarify the evidence.
[19] There is no
question that there are major discrepancies in the number and timing of the
detention (or detentions). These are conspicuous discrepancies that go to the
heart of the claim of persecution, and it was reasonable for the Board to make
an adverse finding of credibility on that basis. The question raised by the
Applicant is whether the Board had an obligation to put these inconsistencies
to the Applicant before relying on them.
[20] I agree with
the Applicant that this is the sort of inconsistency that “cries out for
explanation”. However, it is also true that not every contradiction must be put
to a claimant (Ngongo v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1627 (F.C.T.D.) (QL)). In this case, the
discrepancy is obvious and comes from the Applicant’s own signed statements.
Further, the Applicant was represented by counsel at the hearing and, therefore,
the matter could have been raised during examination by counsel.
[21] The Applicant
bolsters his arguments on this point by referring to a brief notation in the
declaration annexed to the notes taken by the immigration officer during the
interview at the Etobicoke office (part of the IPI Form). In that declaration,
there is a mention that the Applicant suffered, on a number of occasions (“à
mainte reprise”), from abuse at the hands of the authorities. This, according
to the Applicant, corroborates rather than contradicts his allegation that he
was detained on numerous occasions (8 or 9 times as per the PIF) after the
initial arrest, and should have been considered by the Board.
[22] While the Applicant
is correct in stating that the Board failed to mention this, it is also true
that having suffered at the hand of the authorities is not necessarily the same
thing as having been arrested and detained for weeks on eight or nine
occasions. It was not unreasonable for the Board to focus on the references to
detention and not to refer to these alleged abuses.
[23] In
sum, the evidence on the Applicant’s detention (or detentions) showed discrepancies
that were glaring and that did not require interpretation or conjectures on the
part of the Board. As such, the failure of the Board to put this contradiction
to the Applicant at the hearing does not amount to a reviewable error.
Conclusion
[24] In conclusion, when read
as a whole, I find that the decision of the Board is not patently unreasonable,
nor does it disclose a breach of procedural fairness. I am not persuaded that
the decision of the Board should be overturned and, therefore, the application
for judicial review will be dismissed.
[25] Neither party proposed a
question for certification. I agree that the issues in this case do not raise a
question of general importance and will not certify a question.
ORDER
This Court orders that:
- The
application for judicial review is dismissed; and
- No question
of general importance is certified.
Judith A.
Snider
__________________________
Judge
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