Date: 20080501
Docket: IMM-3367-07
Citation: 2008 FC 562
Montréal, Quebec, the 1st day of May 2008
Present: THE HONOURABLE MR. JUSTICE MAURICE E. LAGACÉ
BETWEEN:
JIMMY
NKONGOLO MUBIAYI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision of the Immigration and Refugee
Board’s Refugee Protection Division (the panel), in which the applicant was
found not to be a “Convention refugee” or a “person in need of protection”
under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) on the grounds that it found his
narrative concerning a fear of persecution implausible to the point of being
impossible to believe.
[2]
After
examining the case and considering the parties’ oral and written submissions,
the Court finds in favour of upholding the decision because it is not
unreasonable given the factual background and the panel’s analysis.
Facts
[3]
Citizen of
the Democratic Republic of the Congo (DRC), the applicant claimed protection in
Canada on the grounds that he feared
persecution in his country of origin because of his political opinions. He
claims that he is a “person in need of protection” pursuant to subsection 97(1)
of the Act.
[4]
When he
worked as an assistant professor, the applicant allegedly spoke out against the
government of the day to students. He also allegedly took part in meetings and
demonstrations organized by the Union for Democracy and Social Progress
(UDPS).
[5]
Because of
his activities and a stronger stand on some other issues, the applicant
allegedly feared for his life when he left the DRC on August 26, 2006.
Although he already held a DRC passport, he arrived in Canada to claim refugee protection with a false
passport obtained from a smuggler.
Impugned decision
[6]
The
refugee claim was rejected mainly because the applicant’s allegations were
implausible, he lacked credibility, and he improvised answers to get himself
out of embarrassing situations and to avoid questions. As well, there were
contradictions in his narrative concerning the events on which he based his
claim for refugee protection and for the status of a person in need of
protection. More specifically, the panel relied on the following points (among
others) against the applicant in its decision:
(a) He was
unable to give sufficient details on his role as an instigator even though he
was invited to do so;
(b) He was
unable to explain to the panel’s satisfaction the political role that he is
claiming to have played in raising public awareness in opposition to the
government and finally admitted that his messages were non-political but
targeted only the country’s economy;
(c) He was
unable to state the approximate year that he was threatened but was able to
state the approximate month, and confronted with the fact that, according to
his narrative, his fear started in September 2004 after he had received
threats, he admitted that he had not been paying attention to the questions before
answering them;
(d) He was
unable to state specifically when he had received the telephone calls that he
claimed to have received between 2004 and 2006;
(e) He did
not think it a good idea to file as evidence the four summonses that he had
apparently received before leaving the DRC, and he was unable to explain why he
did not think it a good idea to obtain them from the friend who is still
keeping them for him, in order to provide them as evidence, instead of
providing only the two that he received after he had left the DRC when he no
longer had anything to fear;
(f) He did
not cite a single personal event that could have justified his decision to
leave the DRC, providing only a general description of the situation in his
country. Then, in response to leading questions from his representative, he
ended up specifying that, when he had participated in a peaceful demonstration
in July 2006, the police had questioned him in a [translation] “strange tone of voice”. However, while he
talked about a police questioning done in a [translation]
“strange tone of voice” in his testimony, he did not mention, despite his
counsel’s leading questions, his earlier statement that he had felt threatened
by the police’s firing their guns in the air.
[7]
The gaps
and contradictions in the evidence and the inferences drawn from them by the
panel led it to be unable to believe the applicant’s testimony and to find that
his story had been invented to support his refugee claim.
[8]
In
conclusion, the panel stated that it had tried to apply to the applicant’s
situation subsection 97(1) of the Act, which defines a “person in need of
protection”, but was unable to find a single element of credibility that would
justify a favourable decision under that subsection.
The parties’ submissions
[9]
The
applicant is mainly challenging the conduct of the presiding panel member. More
specifically, he is challenging the way she conducted the proceedings, her
interventions, and the irritation and impatience that she allegedly
demonstrated at the hearing. According to the applicant, the member decided to
find him not credible even before the start of the hearing. He also claims that
she did not accept his explanations, made findings of fact that were contrary
to the evidence, and did not accept corroborating evidence that supported his
claim.
[10]
The
respondent, in turn, is emphasizing a little too much the irregularities of the
affidavit of a law student, who, after listening to the recording, merely
summarized the various stages of evidence and exchanges before the panel. That
affidavit adds nothing to the proceedings or to the hearing transcript, which
the Court has read and reread to better assess the allegations against the
presiding panel member. Since the Court attaches no weight to the content of the
affidavit, it sees no use in settling the preliminary issue concerning the
irregularities in the date of signature and of swearing in. It prefers to
concentrate instead on the hearing transcript, which it has to assess.
[11]
Challenging
the applicant’s allegations against the panel and its decision, the respondent
maintains that the applicant failed to discharge his burden of demonstrating
the panel’s bias and also that, far from being unreasonable, the decision is
justified in fact and in law. For these reasons, the respondent is seeking the
dismissal of the application for judicial review.
Issues
[12]
There are
essentially only two issues for this Court to decide:
1. Is the presiding panel
member’s conduct of a nature to give rise to a reasonable apprehension of bias?
2. Did the panel commit a
reviewable error in its weighing of the evidence?
Standard of review
[13]
The
standard of review applicable to a panel’s decision based on the refugee
claimant’s lack of credibility is reasonableness as defined in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir):
[47] . . . In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
Obviously, in cases where a presiding panel member’s bias
can be demonstrated, the entire judicial process is rendered invalid, and
procedural fairness requires a new hearing. Let us see whether the applicant’s
allegations that the presiding panel member was biased and committed errors in
her decision are viable.
Analysis
Is the presiding panel member’s conduct
of a nature to give rise to a reasonable apprehension of bias?
[14]
Concerning the claim that the panel was biased, the Court
would recall the test in Committee
for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 found at page 394 and cited in other
judgments, including Pasion v. Canada (Citizenship and Immigration), 2008 FC 91:
[11] The test applicable to
determine whether there was a breach of procedural fairness due to bias is
whether a reasonable and well-informed member of the community would perceive
bias (see Mohamed v. Minister of Citizenship and Immigration, 2006 FC
696, [2006] F.C.J. No. 881 (T.D.) (QL)).
[15]
After reading, rereading with the parties, rereading again
in chambers, and then analyzing the transcript, the evidence on the record and
the impugned decision, the Court cannot accept the applicant’s claims that the
presiding panel member was biased. Although she intervened as often as she
judged useful or necessary to clarify the applicant’s testimony, it was far
from the case where an informed person, viewing the matter
realistically and practically – and having thought the matter through – could
conclude that the presiding panel member was biased.
[16]
On the
contrary, in the Court’s opinion, the interventions that the panel is
criticized for making were clearly aimed only at helping the applicant be more
specific with his testimony instead of stating generalities, or to clarify for
the panel the main thread of the events related. The Court fails to see how
questioning the applicant to allow him to give more details on his story could
later become an indication of bias, unless a person wanted to ascribe motives
unjustified by the evidence. Yes, the decision is obviously not what the
applicant expected. Yes, the panel sided against his claim by disbelieving his
story. However, does the panel not have to pick a side in every decision?
[17]
One thing
for certain, the applicant had the opportunity to be heard. The presiding panel
member was clearly interested in his story, but wanted to obtain more details
on the facts that could justify the fear in question. This was her task. If the
applicant was unable to meet the panel’s expectations and to satisfy it that
his narrative was true, he alone must pay the price, because the burden of
proof was on him. An objective reading of the transcript demonstrates that, far
from being biased, the presiding panel member, through her interventions, was
trying to clarify the narrative so that she could be satisfied.
Did the panel commit a
reviewable error in its weighing of the evidence?
[18]
Despite a
strict standard of review, the applicant maintains that this Court should allow
his application for judicial review based on two allegations against the panel:
(1) making negative findings without considering the facts and evidence
available; (2) erring in failing to consider the corroborating evidence.
[19]
Let us
recall, in regard to the first allegation, the gaps indicated by the panel in
the applicant’s evidence, which forced it to find that he had failed to
discharge his burden of proof, mainly because he lacked credibility.
[20]
The second
allegation is closely related to the first. According to the applicant, instead
of weighing the evidence submitted, the panel did not mention the corroborating
evidence in its decision. However, it was not because it did not mention it
that it did not consider it, since, once a panel does not believe a claimant’s
story, it does not have to discuss in its decision all the pieces of evidence
filed, or all those that it does not need to make its finding.
[21]
In fact,
dissatisfied with the panel’s decision, the applicant is requesting that this
Court reassess the evidence and substitute its opinion for that of the panel in
the hope that his application would have a different outcome. The Court must
resist such an invitation because its role must be limited to analyzing the
panel’s decision and verifying whether, in light of the factual background in
evidence and of the evidence accepted to support it, the decision can be
labelled “unreasonable”. A lack of credibility finding, as in this case, can be
established on implausibilities, contradictions, irrationality and common sense
(Shahamati v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 415 (C.A.) (QL)). In addition, contrary to the applicant’s claims,
the panel does not have to mention in its reasons all the pieces of evidence
considered or all those that were submitted (Florea c. Canada (Minister of Employment
Immigration),
[1993] F.C.J. No. 598 (C.A.) (QL)). Such a criticism becomes even more
excusable in this case, because the panel attributed no credibility to the
applicant’s story.
[22]
It is also
important to note the expertise and complete jurisdiction of the panel to judge
the plausibility, credibility and explanations of the applicant in support of
his reasons to claim refugee protection (Aguebor v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.)
(QL)).
[23]
Armed with
its knowledge and expertise, the panel can ask questions to obtain more details
on the evidence provided. It can also make inferences from the evidence and
assess it at its true value without being accused of bias and of not
considering all the evidence as the applicant is claiming. Presiding panel
members have the right to use their experience as well as common sense to judge
whether a narrative is viable and true or simply implausible and not credible.
[24]
When a
claimant presents evidence to a decision maker, he or she can expect that it
will be accepted entirely, accepted in part only or rejected entirely. It is
for the panel to choose and accept the evidence considered the most probative
and credible in order to come to a correct finding. If, following the decision,
the facts accepted or rejected are not what the refugee claimant would like
because they do not help his cause, this does not mean that there is a valid
reason for a judicial review of the decision, as the applicant is implying in
this case.
[25]
In
this case, nothing indicates that the panel selectively analyzed the evidence
that it heard. It was its responsibility to assess the evidence and to accept
the pieces that were the most valid, and no one else was in a better position
to judge and evaluate the applicant’s credibility, since the panel had heard
him out and was able to observe his conduct and his manner of testifying. The
mere fact that there was evidence contrary to that accepted by the panel does
not warrant this Court’s intervention, especially when the evidence that was
accepted supports the decision, as in this case (Chowdhury v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 363, [2002] F.C.J. No.
477 (T.D.) (QL)).
[26]
For
these reasons, the Court must find the decision at issue to be reasonable and
justified in both fact and law. The applicant’s application will thus be
dismissed.
[27]
The Court
concurs with the parties that this matter raises no question of general
importance to be certified.
JUDGMENT
FOR THESE REASONS, THE COURT dismisses the
application for judicial review.
“Maurice
E. Lagacé”
Certified
true translation
Susan
Deichert,
Reviser
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