Date: 20070924
Docket: IMM-631-07
Citation: 2007 FC 936
Ottawa,
Ontario, September 24, 2007
Present: The Honourable
Mr. Justice Beaudry
BETWEEN:
KALTOUMA AHMAT KARAMBAL
ALI IBRAHIM MAHAMAT
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review filed under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), following a
decision by the Immigration and Refugee Board (the panel), dated January 23,
2007.
ISSUES
[2]
There are
two issues in this matter:
1. Did the
panel err in basing its decision on an erroneous finding of fact, made in a
perverse or capricious manner or without regard for the material before it?
2. Did the
panel err in not assessing the documents submitted in support of the claim?
[3]
For the
reasons that follow, I respond to both of these questions in the negative and
the application will therefore be dismissed.
FACTUAL BACKGROUND
[4]
The
applicants are citizens of the Republic of Chad. On June 24, 2005, men in
military garb arrested the female applicant’s father. Afterwards, the female
applicant and her family were visited daily by officers from the National
Security Agency (ANS) who questioned, intimidated and harassed family members
and arrested some cousins and uncles.
[5]
At the
time of the incident on June 24, the female applicant was living with her
parents because she was pregnant and was having problems with her pregnancy.
She stated that during the interrogations by the ANS, the officers screamed at
her, pushed her and threatened her with a rifle.
[6]
On June
27, 2005, Colonel Ousmane Teguene, a family friend and an influential man in
the military hierarchy of Chad, came to get the applicants to ensure their
protection. They stayed with him until September 20, 2005, and left Chad to
join the female applicant’s uncle in Canada. They stopped in the United States
until October 29, 2005, because of the health problems caused by the female
applicant’s pregnancy. They went to the Canadian border and claimed refugee
status.
IMPUGNED DECISION
[7]
The panel
determined that the applicants had not discharged their burden of establishing
that there was a ‘serious possibility’ that they would be persecuted, or
subjected to a danger of torture or to a risk to their life or to a risk of
cruel and unusual treatment or punishment. The panel listed the grounds
substantiating this finding:
(a) There was an omission by the
female applicant at the interview with the immigration officer at the border;
the officer asked her whether her father was a political figure and she
responded: [translation] ‘He’s an
administrator, he works in … I don’t know.’ The documentary evidence filed by
the immigration officer indicated that her father was a former minister of the
Chad government, yet at the hearing the female applicant testified that her
father had left Chad for a period of more than a year for political reasons.
(b) She alleged that she was not
spoken to when her father was arrested, yet her testimony indicated that ANS
officers returned later the same day to interrogate her.
(c) The panel found it
inconsistent that the applicant did not hide at her husband’s home given that
her husband testified that the authorities did not know where he lived. The
female applicant testified that by going to her husband’s home, she would have
subjected her mother to reprisals from the ANS. The panel found it more
inconsistent that Colonel Ousmane Teguene, a childhood friend of the female
applicant’s father, would not have also brought her mother to hide at his home
on June 27, 2007, when he brought the female applicant. She could not explain
why her mother had not fled with her.
(d) The panel observed that the
male applicant had not been taken in for questioning even though, according to
the applicants, the ANS thought that he was an accomplice of the female
applicant’s father, his employment was known by the authorities and his house
was located on the same street as her parents. Further, the ANS officers did
not arrest the applicant despite the repeated visits.
(e) The panel drew negative
inferences from the lack of documentary evidence regarding the arrest and
disappearance of Mr. Karambal, while the documentary evidence filed by the
female applicant referred to a decision by the Tribunal du Travail between her
father and Air Afrique and stated that he resigned when he was a minister and a
member of the executive of the party in power. The panel determined that an
incident such as a political arrest ought reasonably to be supported by
documentary evidence.
(f) The panel determined as a
result that the letter from the female applicant’s uncle, her mother’s attested
testimony and the letter from a friend of the male applicant, were self-serving
documents.
[8]
Based on
the applicants’ lack of credibility, the panel did not believe that they were
targeted in Chad.
ANALYSIS
Standard of review
[9]
When
dealing with an issue bearing on the credibility of a refugee claimant, the
appropriate standard of review is that of patent unreasonableness: Aguebor
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 732 (C.A.)(QL), paragraphs 2 to 4:
In his memorandum,
counsel for the appellant relied on the decision of this Court in Giron v.
Minister of Employment and Immigration [(1992), 143 N.R. 238 (F.C.A.).] in
support of his argument that a court which hears an application for judicial
review may more easily intervene where there is a finding of implausibility.
Because counsel are using Giron with increasing frequency, it appeared
to us to be useful to put it in its proper perspective.
It is correct, as the
Court said in Giron, that it may be easier to have a finding of
implausibility reviewed where it results from inferences than to have a finding
of non-credibility reviewed where it results from the conduct of the witness
and from inconsistencies in the testimony. The Court did not, in saying this,
exclude the issue of the plausibility of an account from the Board's field of
expertise, nor did it lay down a different test for intervention depending on
whether the issue is ‘plausibility’ or ‘credibility’.
There is no longer any
doubt that the Refugee Division, which is a specialized panel, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As long as the inferences drawn by the panel
are not so unreasonable as to warrant our intervention, its findings are not
open to judicial review. In Giron, the Court merely observed that in the
area of plausibility, the unreasonableness of a decision may be more palpable,
and so more easily identifiable, since the account appears on the face of the
record. In our opinion, Giron in no way reduces the burden that rests on
an appellant, of showing that the inferences drawn by the Refugee Division
could not reasonably have been drawn. In this case, the appellant has not
discharged this burden.
Applicants’ submissions
[10]
The
applicants submitted four arguments in support of their application. I will
examine them in turn.
[11]
First,
they alleged that the panel erred regarding the female applicant’s credibility
when she omitted to disclose her father’s political career. Given that the
immigration officer had asked the question in the present tense, it was normal
for her to state that her father was currently an administrator.
[12]
The Court
cannot agree with this argument because the panel is definitely in a better
position to decide on questions of fact and to make a negative finding when
faced with such an omission: Gonzalez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1108, [2005] F.C.J. No. 1374 (QL) at
paragraphs 23 and 24:
Overall, it must not be
forgotten that an evaluation of credibility based on evidentiary
inconsistencies, omissions, evasions and lack of detail is at the heartland of
the Board's discretion as the trier of fact.
. . .
It is up to the Board to
evaluate the evidence provided to it as a whole and to determine what weight to
attribute to the credibility of the applicants' testimony. In a case such as
this, the standard of review is that of patent unreasonableness, as the
arguments presented rely solely on contradicting the findings of fact made by
the Board. . .
[13]
Second,
the applicants contend that the panel erred again in making negative findings
based on the absence of documentary evidence regarding the arrest or
disappearance of Mr. Karambal (the female applicant’s father). They refer
to the document Country Report on Human Rights Practices 2005,
which states that the situation in Chad is such that there is no free press and
there is little chance that such an incident would be reported.
[14]
However,
the panel is at liberty to make negative findings based on a lack of
documentary evidence. The Court stated this principle recently in Morka v.
Canada (Minister of Citizenship and Immigration), 2007 FC 315, at paragraph
18:
Lack of supporting
documentary evidence is sufficient to rebut the presumption that the claimant's
sworn testimony is true (Adu v. Canada (Minister of Employment and
Immigration), [1995] F.C.J. No. 114 (F.C.A.); Diadama v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 1518, 2006 FC
1206; Kahiga v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1538, 2005 FC 1240 at para. 10; Oppong v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1187 at para. 5).
Consequently, in these particular circumstances, it was not patently
unreasonable for the Board to draw an adverse inference from a lack of
information in documentary evidence that might reasonably be expected to be
mentioned in the circumstances.
[15]
Third, the
applicants submitted that the panel erred in refusing to believe their story.
They contend that the documentary evidence on Chad corroborates their version.
The Court does not believe that the panel made a patently unreasonable error.
For example, the only evidence of the ANS officers’ actions toward the
applicants comes from their own story. It was entirely reasonable for the panel
to make determinations regarding their lack of credibility. In Neame v.
Canada (Minister of Citizenship and Immigration), (March 23, 2000)
IMM-847-99, (F.C.T.D.), Lemieux J. stated the following at paragraph 21:
Furthermore,
I think the remarks by Mr. Justice MacGuigan in Sheikh v. Minister of
Employment and Immigration, [1990] 3 F.C. 238, at page 244, are applicable
to the case at bar:
The concept
of ‘credible evidence’ is not, of course, the same as that of the credibility
of the applicant, but it is obvious that where the only evidence before a
panel linking the applicant to his claim is that of the applicant himself (in
addition, perhaps, to ‘country reports’ from which nothing about the
applicant's claim can be directly deduced), a panel's perception that he is not
a credible witness effectively amounts to a finding that there is no credible
evidence on which the second-level panel could allow his claim. [Emphasis
added]
[16]
Finally,
the applicants alleged that the panel made a reviewable error in analyzing
their story without taking into account circumstances unique to Chad.
Specifically, they disputed the negative inferences made by the panel on the
basis that the female applicant’s mother did not hide with Mr. Teguene.
According to the Court, the panel rather observed contradictions,
implausibilities and inconsistencies in the female applicant’s testimony. The
panel’s reasons are properly explained and supported by the evidence.
[17]
This
Court’s intervention is not justified.
[18]
The
parties did not propose questions for certification and there are none in this
matter.
JUDGMENT
THE COURT ORDERS that:
1.
The
application for judicial review be dismissed.
2.
No
question is certified.
“Michel
Beaudry”
Certified true
translation
Kelley A.
Harvey, BCL, LLB
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