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Date: 20000929
Docket: IMM-5813-99
Ottawa, Ontario, September 29, 2000
Before: Pinard J.
Between:
Liliane KAVUNZU, domiciled and residing at
5910, 21e avenue, appt 23, city and district of
Montréal (Rosemont), province of Quebec
PLAINTIFF
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION, Complexe Guy-Favreau,
200, boul. René-Lévesque ouest, Tour Est,
5e étage, Montréal, province of Quebec
DEFENDANT
ORDER
The application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board on November 18, 1999 that the plaintiff is not a Convention refugee, and that there is no basis for her claim, is dismissed.
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YVON PINARD
JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000929
Docket: IMM-5813-99
Between:
Liliane KAVUNZU, domiciles and residing at
5910, 21e avenue, appt 23, city and district of
Montréal (Rosemont), province of Quebec
PLAINTIFF
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION, Complexe Guy-Favreau,
200, boul. René-Lévesque ouest, Tour Est,
5e étage, Montréal, province of Quebec
DEFENDANT
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division of the Immigration and Refugee Board ("the tribunal") on November 18, 1999 that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985 c. I-2 ("the Act") and that there is no basis for her claim under s. 69.1(9.1) of that same Act.
[2] The plaintiff, a citizen of the Democratic Republic of the Congo (DRC), alleged she had a well-founded fear of persecution for her political opinions.
[3] The decision at issue was based on a lack of credibility in view of the contradictions between her written statements and those made orally at the hearing and her replies at the point of entry to Canada; in particular:
- the plaintiff's precarious state of health, the presence of a soldier at the door of her hospital room, the cooperation of a physician who risked his job and arrest though he did not know her, her wearing a hospital jacket in the street and crossing the Congo River without problems to get to Brazzaville - all these points led the tribunal to conclude that the escape from the hospital on April 21, 1998 was pure fabrication, that the plaintiff was never admitted to the hospital on the aforesaid date and that she never needed medical care at the time of her flight;
- when the tribunal wanted to know what had become of her children after her alleged hospitalization, the plaintiff seemed embarrassed, taking a long time before answering: in the tribunal's opinion, this hesitation indicated a lack of sincerity and spontaneity;
- in her personal information form the plaintiff alleged that her smuggler, after he made her give him the documents she had used to travel with him, flew from Boston to Europe while she took a bus to come to Canada; the plaintiff testified that her smuggler had the travel documents in his possession at all times and she did not leave him until she was close to the Canadian border, when on his advice she took a taxi to get there;
- on her entry form the plaintiff stated that she had no medical problems, whereas she testified that she arrived ill, bleeding and suffering from diarrhea; when this was put to her, she attributed the reply to the behaviour of the immigration officer who threatened to send her back to the U.S. because of her state of health;
- in the same document she stated that she left her country on May 7, 1998, the date actually corresponding to her departure from Congo-Brazzaville;
- also on the same form, the plaintiff alleged she feared persecution because her husband was being sought as he did not want to work in prison; later, she wrote she was being sought because her husband [TRANSLATION] "had escaped from prison";
- the plaintiff stated that she travelled with nuns as a tourist; elsewhere, she indicated she travelled with her agent; when this was put to her, the plaintiff claimed the statement was suggested by an immigration officer.
[4] As the plaintiff's arguments turned on the assessment of the facts and of her credibility by the tribunal I do not feel it is appropriate, as I said at the hearing, to intervene. As we know, in this regard it is not this Court's function to take the place of the Refugee Division where, as here, the person claiming refugee status fails to establish that the decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. In my opinion, the evidence allowed this specialized tribunal to reasonably conclude as it did (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315).
[5] The argument regarding the question of bias by the tribunal and its members must be dismissed for the following reasons:
(a) the plaintiff did not raise this question at the first reasonable opportunity, namely at the hearing before the Refugee Division (see e.g. Nartey v. Minister of Employment and Immigration (January 20, 1994), A-83-93);
(b) the validity of the relevant provisions of the Act was not challenged; and
(c) I find nothing either in the evidence or in the wording of the impugned decision that could allow me to conclude that a well-informed person viewing the matter realistically and practically, and having thought the matter through, would conclude that the tribunal was biased (see Committee for Justice v. National Energy Board, [1978] 1 S.C.R. 369, at 394, per de Grandpré J.).
[6] For all these reasons, the application for judicial review is dismissed.
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YVON PINARD
JUDGE |
OTTAWA, ONTARIO
September 29, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-5813-99
STYLE OF CAUSE: LILIANE KAVUNZU
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 16, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: SEPTEMBER 29, 2000
APPEARANCES:
PIERRE LANGLOIS FOR THE APPLICANT
CLAUDE PROVENCHER FOR THE RESPONDENT
SOLICITORS OF RECORD:
PIERRE LANGLOIS FOR THE APPLICANT
Saint-Lambert, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada