Docket: IMM-2616-17
Citation: 2018 FC 129
[ENGLISH TRANSLATION]
PRESENT: The Honourable Mr. Justice Martineau
| BETWEEN:
|
| MAMADOU KONATE
|
| Applicant
|
| and
|
| THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
| Respondent
|
JUDGMENT AND REASONS
[1]
The applicant is contesting the reasonableness of a deportation order issued against him on May 29, 2017, by the Immigration Division [ID] of the Immigration and Refugee Board.
[2]
The ID found that the applicant was inadmissible pursuant to paragraphs 34(1)(b) and 34(1)(f) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA] because he was formerly a member of the Mouvement patriotique de la Côte d’Ivoire [MPCI] and the Forces Nouvelles who intended to forcefully overthrow the Ivorian government in place.
[3]
For the following reasons, the application for judicial review must fail. We will first review the relevant facts that led to the applicant’s inadmissibility.
[4]
The applicant is a citizen of Côte d’Ivoire. In 2002, the members of an armed group, the MPCI, seized control of many cities in the northern part of the country, including the village of Katiola, where the applicant lived at the time. The movement became the Forces Nouvelles in 2003 after they aligned themselves with other armed groups. It is not disputed that this movement meets the definition set out in paragraph 34(1)(b) of the IRPA, namely “engaging in or instigating the subversion by force of any government.”
The applicant was involved in this movement from September 2002 to December 2003, during which time he served as the personal assistant of leader Marco Kouadio, before leaving Côte d’Ivoire for various neighbouring countries. These facts are not in dispute. Rather, the issue lies with the circumstances surrounding the applicant’s enrolment in the MPCI, that is to say whether he enrolled willingly or was rather recruited by force. As explained below, the applicant provided many contradictory versions about this matter.
[5]
The applicant arrived in Canada on February 1, 2016. On February 3, 2016, he met with an officer. The interview was conducted in French and without an interpreter. Here are some relevant excerpts (see Exhibit C-8 of the certified record, at pp 65 et seq.):
[TRANSLATION]
Q: Then what happened, during the crisis?
A: So, when the crisis began, on September 19, 2002, we... we were recruited by the rebellion.
[…]
Q: What... What happened when they recruited you, these people?
A: Ok, well, when (inaudible) we were recruited and joined their ranks, (inaudible) which was based in Bouna, but I was only 21 years old, it was...
[…]
A: [...] What happened at that point? It was the... the rebel group that arrived in this city?
A: Yes, yes.
Q: Ok.
A: We were attacked. Yes. (Inaudible) was recruited by the rebellion.
Q: Ok.
A: Then we were taken to Bouna...
Q: Yes.
A: (inaudible) was settled in, was near the leaders, like their cleaning boy.
[…]
Q: Then, what... ultimately, how... did... I am just wondering how this went down, the recruiting, does it mean that you were... you were... they trained you? They eventually gave you a uniform? How did it work?
A: Yes. Yes, we were given uniforms.
Q: Um—hum.
A: We were given weapons. But, me, I started (inaudible), well, I was, yes, well I was (inaudible), so I was near the leader, like his cleaning boy, I was at the house...
[…]
Q: But did, did, these people, they forced you to join the group or...?
A: Yes, yes.
Q: Because, me, what I read was is that... in 2002, they did not oblige anyone to join the group. They arrived in the villages...
A: No.
Q: ...then, first of all, at the beginning they were even calm. They spoke, informed the people why they were doing that.
A: At the beginning, when the rebellion arrived in the City, we didn’t have a choice. Why didn’t we have a choice? Our tribe was not treated, in Côte d’Ivoire, like we were foreigners. Thus, when force... [...] In general, we were treated like foreigners in the country (inaudible).
Q: You, you are Muslim or...?
A: Yes. I am Muslim. Yes.
Q: OK. Then, well, what happened, there, in... so, now, you were telling me that the group, like, uhm, your tribe... were treated like foreigners and all that. So, uhm, this group in question, them, they arrived there. What happened?
A: Even at... at that time, us, our tribe, to travel to countries that were... in another city, going to another city, was highly problematic because, often, at checkpoints, when we show ID, when the Muslim name is seen...
[…]
Q: So then, you, they brought you..., the recruiting, how does that work? They entered the village. They forced you to go somewhere where you had to present yourself, that they interrogate you, fill...
A: When...
Q: Some documents?
A: (inaudible) recruit, it is asked to motivate, to. (inaudible). We were motivated, I mean.
Q: Yes.
A: (lnaudible) we were motivated with speeches...
Q: OK.
A: (inaudible) since everyone was thoughtful in (inaudible) doesn’t give (inaudible) also.
Q: Um-hum.
A: So, when... we joined them, so, now (inaudible) now in the cities.
Q: Um-hum.
A: So, me, I was brought to Bouna.
[…]
Q: Yes. Ok. But, now, I was wondering, when was this? The date... you stayed there for how many months or how many years?
A: (Inaudible) on September 10, 2002, we joined, so we were in Bouna [...]
[6]
On February 16, 2016, the applicant submitted a refugee claim. This claim was suspended pending a final decision on the determination of inadmissibility. The issue is that, in Annex A of his claim, the applicant answered “yes” to questions (g) “Have you [...] ever [...]used, planned or advocated the use of armed struggle or violence to reach political, religious or social objectives?”
and h) “Have you [...] ever [...] been associated with a group that used, uses, advocated or advocates the use of armed struggle or violence to reach political, religious or social objectives?”
The notes at the bottom of the “Annex B” form specify that [TRANSLATION] “the subject stated that in 2002, he joined the ranks of the ‘MPCI Rebel Force’ or the ‘New Age MPCI Force’ against the government of the Republic of Côte d’Ivoire”
(see Exhibit C-6 of the certified record, at p 42).
[7]
In his Base of Claim form (BOC), a copy of which can be found at page 47 et seq. of the certified record, the applicant describes his enrolment as follows:
[TRANSLATION]
When I saw the harassment that was suffered by the nationals in the North of Côte d’Ivoire under the regime of Ex-president Laurent Gbagbo, I did not hesitate for a second to become enrolled in the armed rebellion in September 2002.
[Emphasis added]
[8]
On March 21, 2016, the applicant was subject to a report under paragraph 44(1) of the IRPA, through which an officer decided that he was inadmissible under paragraph 34(1)(f) of the IRPA because he stated that he voluntarily joined the MPCI-Forces Nouvelles in 2002 and held two positions with them before leaving the organization in 2003. However, documentary evidence shows that the MPCI-Forces Nouvelles is an organization that has committed acts intended to forcefully overthrow Côte d’Ivoire’s national government. The report was referred to the ID for an investigation on the same day.
[9]
The ID conducted an admissibility investigation that included five sessions. These sessions took place on January 25, January 26, February 15, March 7, and March 21, 2017. During these sessions, the applicant was assisted by an interpreter who translated from Malinke. During his examination before the ID, the account given by the applicant concerning his enrolment was different from the two versions given earlier. Here are some relevant excerpts (see the certified record, at pp 492–497):
[TRANSLATION]
Q: And you, personally, what did you do after the requests made by the rebels at that point? What did you do?
A: So that day many people joined the ranks of the rebels, but him, at the time I did not make that decision.
Q: Why?
A: At the time, I was next to my mother, and I didn’t feel like joining the rebels. I wanted to stay with my family.
[…]
Q: And you are saying, if I understood correctly, you were arrested on the premises of that company, Tantos. Right?
A: I don’t know if the rebels had hidden themselves that night, but it’s when we left that company’s warehouses and were walking away that they arrested us.
Q: Did the—so, you and the two other people who were accompanying you were captured, the three of you.
A: Yes, exactly, all three. All three of us were arrested.
Q: And what was done with you afterward? What happened?
A: They had us lie down on the ground, then they started trampling on us and beating us up.
Q: Then what?
A: They saw the food we had. They told us at the same time that—they told us to join their ranks, but that some people seized the opportunity by going to get some food, they will now see what they are going to do. That is what the rebels said. I suffered a foot injury. There is still a scar left on my—on the back part of my foot. They came only to locate other young people in the neighbourhood to have them join their ranks. There were young people in the neighbourhood who knew them well enough and who were counted among them.
[…]
Q: So, at that point, would you have had—did you have the choice to refuse to join the rebels?
A: So, the young people who had joined the rebellion at the time, who were from their village, told them that they drew up a list of all the young people in the neighbourhood and that if someone, those who refused to join their ranks, they will kill them. Therefore, they had no alternative but to join the ranks of the rebellion […]
Q: So, following this, you mentioned that the MPCI went back to your residence to pick you up. Have I understood correctly? Is this correct?
A: The young people in the neighbourhood who had joined the rebellion plus another rebel, the two of them came to pick us up at our homes. They came by car to pick us up.
Q: So, were you told at that point when you would be picked up?
A: It was at that point that they told us that the current government does not like people from the north. If we do not join their ranks and the rebels themselves manage to overthrow this government, they will kill all the young people who refused to join their ranks.
[10]
During the hearing on January 26, 2017, the Minister’s representative confronted the applicant with the apparent contradictions stemming from his earlier statements, including the absence of any mention of the fact that he was allegedly forcibly recruited in his BOC (see certified record, at p 540). The applicant answered that he had to summarize his story because the information was collected by telephone. He answered hesitantly, asked for more time, and tried to change the subject (see certified record, at pp 540–541). He eventually explained that his account was transcribed over the phone by a cousin in Ghana, and he reportedly had little time to relate his account due to the cost of this form of communication. The Minister’s representative also asked him why he did not give this version during the interview with the officer when he was clearly asked to provide details concerning his enrollment (see certified record, at pp 545–546). He answered that he had concerns over trying to recover his passport. Finally, the Minister’s representative asked him more generally why he did not give this version at any point in the past. The applicant did not answer the question (see certified record, at p 546).
[11]
On February 15, 2017, the ID gathered testimony from three witnesses over the telephone. The ID first gathered testimony from Giweko Danso, a major in the army who worked for the UN mission in Côte d’Ivoire and whom the applicant met in 2006. In 2006, the applicant allegedly gave him an account of how he joined the rebellion: [translation] “So, [Konate] told me that people who went into their village, they took all the young people so that they would fight alongside them [...] They were not interested. He was not interested. He was forced to”
(see certified record, at pp 595–596).
[12]
The second witness is Bamba Lacine. He lived in the same village as the applicant in 2002 and he also joined the rebel’s movement. He testified that the applicant and he [translation] “had joined the rebellion together”
(see certified record, at p 620). He said he was taken by force: “you only had one choice, and you could not refuse”
(see certified record, at p 623) He explained that the rebels threatened to kill the young people if they did not enrol (see certified record, at p 624).
[13]
The third witness is Yaho Clément. He also comes from the same village as the applicant. The applicant allegedly saw him again in Burkina Faso when he was fleeing from Côte d’Ivoire to reach Nigeria. He had also joined the rebel forces. He explained that the rebels had incited the young people to join them and took them by force (see certified record, at p 641).
[14]
On May 29, 2017, the ID issued a deportation order against the applicant, deciding he was inadmissible because he is a person described in paragraphs 34(1)(b) and 34(1)(f) of the IRPA, that is to say a person engaging in or instigating the subversion by force of any government or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph b(f).
The Immigration Division’s decision
[15]
The reasons for the inadmissibility are found in the minutes of the hearing held on May 29, 2017. It is a reasoned decision that has the merits of being clear and transparent. The ID summarized the facts and reviewed the applicant’s testimony, the testimony given by the three witnesses, and the arguments of both parties. The ID summarily considered the notion of overthrowing a government by force because it was not contested that the MPCI had committed acts intended to overthrow the government in power. In short, the only matter in question was to determine whether the applicant had been a “member”
of the MPCI. Relying on Jalloh v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the ID reiterated that a person who was reportedly forced out of fear for his safety or his life to join such a movement could not be considered to be a member of it. However, the ID found that the Minister had proven that there were reasonable grounds to believe that the applicant was a member of the MPCI. The ID provided many reasons to support this finding of fact.
[16]
The ID first remarked that the applicant had provided two diametrically opposed versions of his enrolment in the MPCI. He did not mention having been forcibly recruited during his interview with the officer nor in his BOC, in which he goes so far as to say that he did not hesitate for a second to enrol. The Court favours the initial version of the applicant over the one he gave during the hearing held on January 25, 2017. The Court deems that the explanations provided during the hearing to explain the contradictions lack credibility and are insufficient because he did not write his BOC himself, he does not speak French well, he was worried about recovering his passport, he ran out of time to provide details, and he simply gave a broad overview of his account. When the time came to sign his BOC, the applicant stated that he knows how to read and understands French, which makes the Court doubt the validity of the subsequent affirmation that he does not read nor understand this language. Furthermore, he was represented by a lawyer throughout the process, so he was aware of the importance of providing an accurate and complete statement. Finally, the explanation that he ran out of time when he wrote the account and that he was counting on explaining himself during the hearing is also deemed to lack credibility. A reasonable person could not think that a fact as important as the forcible recruiting of a person into armed forces could merely be considered to be a detail given that it fundamentally changes his involvement. In addition, the ID also noticed other contradictions. In particular, the applicant affirmed during the hearing that he did not join the rebels in September 2002 to be by his mother’s side though he stated in his BOC that his mother passed away in January 2002.
[17]
As for the three testimonies mentioned above, the ID goes not give them much evidential weight because they were vague, lacked details, and pertained to irrelevant subjects.
[18]
Finally, the ID also relies on a report from Human Rights Watch, “Prise entre deux guerres : violence contre les civils dans l’ouest de la Côte d’Ivoire, August 2003” (see Exhibit C-31 in the certified record, at pp 284 et seq.) to find that in the early days of the rebellion in September 2002, the MPCI did not forcibly recruit civilians in the north of Côte d’Ivoire, where the applicant lived. It is only later on that things could have happened differently.
[19]
The ID therefore concludes that the applicant was a member of the MPCI and thus represented a person described in paragraphs 34(1)(b) and 34(1)(f) of the IRPA.
Analysis
[20]
The only matter in question today is to determine whether the ID’s decision is reasonable because the inadmissibility cannot be determined if, indeed, the applicant was forcibly recruited by the MPCI.
[21]
On this point, the applicant attacked the decision-maker’s reasoning in three separate respects. First, when the ID assessed the file, it did not consider his lack of education, the fact that he is illiterate, and the fact that he does not speak or understand French well. The statements made during the interview with the officer should not be admitted because the applicant was not assisted by an interpreter. Since the applicant is illiterate, his written statement should not be relied on either. Due to his lack of education, the applicant could not behave like a reasonable person, which explains the inconsistencies in the various versions he gave authorities. We can consider the contradiction concerning the death of his mother, which took place in January 2002, thus before the rebellion began in September 2012: He does not know the months of the year. Second, the applicant submits that the ID did not consider the documentary evidence. Credible documents indicate that forcible recruiting was carried out and contradict the ID’s finding, including the DOS report dated March 2003 (document D-4, specifically at page 425 of the certified record). Lastly, the ID erred by not giving evidential weight to Major Danso’s testimony without any valid reasons. The applicant submits that the testimony was relevant: It described a statement made by the applicant ten years ago though this person did not yet know he would come to Canada. Together, these reviewable errors make the decision unreasonable.
[22]
In turn, the respondent submits that the decision is reasonable because it is supported by detailed reasons and stems from a thorough assessment made by the ID of the evidence in the record, including the various statements made by the applicant since his arrival in Canada. He did not mention being forcibly recruited in Annex A of the refugee claim nor in the BOC though he was represented by a lawyer. The version provided during the ID’s hearing is completely different. That a person reports facts differently is an important element that the Court can use to call into question the applicant’s credibility. In the event of contradictions, the ID can choose the evidence to which it will give more evidential weight. The ID could also have relied on common sense and deemed the applicant’s explanations to lack credibility. It was entitled to prefer the version dated from the arrival in Canada rather than the testimony he gave during the hearing after having assessed the entire file. The first account given by a person is generally the most faithful (see Athie v Canada (Public Safety and Emergency Preparedness) 2016 FC 425 at para 49). Concerning the issue of the lack of education, the respondent submits that it cannot serve to bridge gaps in the evidence and cannot explain why the applicant failed to report the essential facts of his account. As for French, the applicant allegedly indicated in his visa application that French was his mother tongue. In addition, the transcripts of the interview show that his French is fairly good. All the forms were filled out without the assistance of an interpreter though the applicant was represented by a lawyer. As for the documentary evidence, the respondent submits that the decision relies on items of evidence in the record. The ID is presumed to have considered the body of evidence and did not have to mention everything. It was up to the ID to weigh the various items. Furthermore, there are no contradictions between Exhibit C-31 and DOS report D-4. Finally, the respondent argues that the ID clearly analysed the various testimonies and chose not to give them evidential weight—with good reason: Major Danso did not personally witness the applicant’s recruitment.
[23]
I entirely agree with the respondent’s argument. The ID’s decision is reasonable. It is detailed, reasoned, and intelligible. Since it is not disputed that the MPCI, which became the Forces Nouvelles, meets the definition set out in paragraph 34(1)(b) of the IRPA, namely “engaging in or instigating the subversion by force of any government,”
the ID simply had to determine whether the applicant had been one of their members. Case law has established that being a member, as defined in section 34 of the IRPA, simply means belonging to an organization and does not involve elements of complicity as it is required under section 35 of the IRPA (see Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 22; Khan v Canada (Citizenship and Immigration), 2017 FC 397 at paras 29-30, citing Chiau v Canada (Minister of Citizenship and Immigration) (2000), [2001] 2 F.C.R. 297 at paras 55–62, 193 FTR 159 (FCA) [Khan]). Unofficially participating in or supporting a group can suffice: The person must not really or officially belong to the organization in question (see Khan at para 30). Therefore, the task that was incumbent upon the ID essentially consisted of assessing the applicant’s credibility. Determining whether he was a “member”
as defined in section 34 of the IRPA amounted to determining which of the various versions of his recruitment would be favoured. In this case, his testimony was the only direct evidence of how his enrolment took place. Thus, to determine the version that will be favoured, the ID could have both considered the inconsistencies and contradictions and the way the applicant testified and taken into account the fact that the applicant adjusted his testimony (see inter alia Rahal v Canada (Citizenship and Immigration), 2012 FC 319 at paras 43 and 45). The decision clearly indicates that the ID weighed the various versions and chose the original version. This finding seems reasonable to me.
[24]
In the first version, that is to say the one dated February 3, 2016, the applicant’s answers remained vague when he was asked to explain the recruitment. At one point, he mentioned that “he didn’t have a choice but to”
enrol. However, his answers seemed to indicate that he did not have a choice because his ethnic group was subject to discrimination by the government in power, so he had to join the rebellion. At no point did he mention a forcible recruitment or violent incidents such as those described during the hearing before the ID. In addition, the version given in his BOC is unequivocal: “When I saw the harassment that was suffered by the nationals in the North of Côte d’Ivoire under the regime of Ex-president Laurent Gbagbo, I did not hesitate for a second to become enrolled in the armed rebellion in September 2002.”
Furthermore, this version seems to corroborate the explanation during the interview of the discrimination to which the inhabitants of the North were subjected. In Annex A of his refugee claim, the applicant stated that he joined the MPCI without mentioning a forcible recruitment. It is only during the hearing held on January 25, 2017, after he was made aware of the inadmissibility report due to having been a member of the MPCI that he claimed a violent forcible recruitment took place and death threats were issued.
[25]
In addition, the ID could have deemed that the explanations given by the applicant to justify the inconsistencies lacked credibility. It also provided many reasons to support this finding. Indeed, the ID could find the explanation that the applicant did not understand French to be suspicious. The applicant was represented by a lawyer. The documents concerning the refugee claim were filled out in French, and the applicant stated that he understood the contents of the form. Furthermore, the respondent rightly noted that the applicant stated in his initial visa application that his mother tongue was French (see certified record, at p 35). In this case, the applicant’s lack of an education does not justify omitting crucial facts and adjusting his testimony. In addition, the ID stated that the applicant reportedly had the opportunity to correct his account before signing his BOC, especially given the fact that he was represented by a lawyer. In short, I cannot agree with the applicant’s position that the ID omitted to consider the applicant’s lack of education. It did so, but it did not deem this explanation to be sufficient. This finding is reasonable in this case.
[26]
Furthermore, the ID did not commit a reviewable error by relying on Exhibit C-31 to find that the MPCI did not forcibly recruit individuals at the beginning of the rebellion in September and October 2002 in the northern region where the applicant lived. Exhibit D-4, which is a report from the U.S. Department of State, states forced conscriptions took place though it does so in a general way and without specifying times and areas (see Exhibit D-4 of the certified record, especially at p 425). In any case, even if the ID had acknowledged that the MPCI had been conducting forcible recruitments since 2002, this would probably not have affected its assessment of the applicant’s credibility in light of the contradictory testimonies.
[27]
Finally, I am also satisfied that the ID considered the other testimonies but chose not to give them evidential weight, as was its right. Indeed, none of the witnesses had personally borne witness to the applicant’s recruitment. Major Danso’s testimony touched on a “relevant”
statement that had been made by the applicant, but it is hearsay. Therefore, not relying on it was reasonable. The two other witnesses spoke only about their personal experience of being recruited by the MPCI-Forces Nouvelles, not the applicant’s.
Conclusion
[28]
For these reasons, the application for judicial review is dismissed. No question of general importance has been raised or is raised in this case.
Email this Content