Date: 20041105
Docket: IMM-9384-03
Citation: 2004 FC 1556
Ottawa, Ontario, the 5th day of November 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
ERNEST FOKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (the panel) on November 6, 2003 which denied Ernest Foka (the applicant) the status of a Convention refugee or person in need of protection pursuant to sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicant is originally from Cameroon. He is a businessman, working primarily in the importation of second-hand materials. Since March 2000, he alleges he was the victim of false charges by the police and the Cameroon constabulary .
[3] The applicant submitted that the President of Cameroon's father-in-law wanted to drive him out of his house, so he could build his new residence there. In order to persuade the applicant to leave his house, the father-in-law's bodyguards verbally threatened him several times between March 2000 and November 2000.
[4] In December, he said he received his first summons and was detained for several days, charged with having a connection to Cardinal Christian Tchoumi and his protest group. The applicant was again arrested in April 2000 and in March, April and May 2002.
[5] On January 3, 2003 the applicant received death threats if he did not denounce his connection to the Cardinal. He then filed an application for a tourist visa with the Canadian High Commission in Cameroon, and it was issued on January 29, 2003. However, the applicant still did not leave Cameroon. On March 15, 2003, he said he was detained and hit several times. On March 17, 2003 he was able to arrange his escape, for the sum of 2 million CFA.
[6] On March 18, 2003 the applicant said he took the first flight leaving Cameroon, an Air France flight to Paris. On April 29, 2003 the applicant finally arrived in Montréal, after a detour for a week in France, 27 days in Brazil and a few hours in New York. The applicant did not submit his refugee status claim until June 13, 2003.
POINTS AT ISSUE
[7] 1. Did the panel err in its analysis of the applicant's credibility?
2. Did the panel make an error of law by not taking conditions in Cameroon into account in analyzing the applicant's credibility?
ANALYSIS
1. Did the panel err in its analysis of the applicant's credibility?
[8] The panel concluded that the applicant was not credible. This is a conclusion which is unquestionably within its area of expertise. The panel based itself on several points in coming to this conclusion: inter alia (1) the applicant's testimony, which was adjusted at the hearing; (2) the applicant's actions, which were not consistent with a person who really feared for his life; (3) the applicant's omission of an important fact, namely his arrest and detention on February 5, 2002, from his Personal Information Form; (4) the applicant's intentions in leaving his country for Canada; and (5) the fundamental discrepancies in his story.
[9] The panel concluded that the applicant had adjusted his testimony throughout the hearing. It is the panel's function to make conclusions on the plausibility of the testimony, as the panel is the only body which sees and hears the applicant. Unless there is an obvious error, the Court cannot intervene.
[10] The applicant stayed in France, Brazil and the U.S. before coming to Canada, but made no refugee status claim in those countries. Further, once he arrived in Canada, he waited two months before making his application.
[11] Before finally leaving his country, the applicant travelled to various countries even after he had been summoned several times; however, he always voluntarily returned to Cameroon. This Court has several occasions recognized that failure to claim protection in a signatory country of the Convention can be taken into account (Ilie v. Canada (M.C.I.), [1994] F.C.J. No. 1758; Ali v. Canada (M.C.I.), [1996] F.C.J. No. 558; Skretyuk v. Canada (M.C.I.), [1998] F.C.J. No. 783; Handzo v. Canada (M.C.I.), [2004] F.C.J. No. 1125).
[12] Further, even the applicant indicated at paragraph 4 of his reply that:
[TRANSLATION]
The delay in making a claim is only one factor among others to be considered in reaching the conclusion that a claimant is not credible. It cannot by itself be a sufficient basis for dismissing a claim. In Huerta v. Canada (M.E.I.) (1993), 157 N.R. 225 (F.C.A.), the Federal Court said the following:
The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.
[13] This clearly is the analysis which the panel made, since the delay in making a claim is only one of several grounds for dismissing his claim.
[14] It was entirely legitimate for the panel to note the respondent's failure to mention his arrest and detention on February 5, 2002.
[15] The panel was entirely right to note the discrepancies between the applicant's intentions given at the interview to obtain his visa and the fear alleged once he had come to Canada.
[16] The inconsistencies relating to the fears expressed by the applicant of threats by the President's father-in-law and Cardinal Tchoumi's refusal to meet him could obviously have been taken into account by the panel.
[17] A painstaking analysis of the facts led the panel to conclude that the applicant was not credible. The applicant did not persuade the Court that its intervention was warranted on this particular ground.
2. Did the panel make an error of law by not taking conditions in Cameroon into account in analyzing the applicant's credibility?
[18] The applicant submitted that the panel did not take into account the personal documents he filed in support of his claim. On the contrary, there is a presumption that the panel is deemed to have considered all the evidence submitted to it.
I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board's reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it. Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102, paragraph 8. [Emphasis added.]
[19] See also Canada (Minister of Employment and Immigration) v. Hundal, [1994] F.C.J. No. 356, at paragraph 6, and Sinnathamby v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 742, at paragraph 23:
In Cepeda-Gutierrez v. Canada (M.C.I) (1998), 157 F.T.R. 35, Evans J., as he then was, stated that reasons given by administrative agencies are not to be read hypercritically by a Court, nor are agencies required to refer to every piece of evidence that they received that is contrary to their findings, and explain how they dealt with it. I am satisfied that the CRDD, in the case at bar, did consider the totality of the evidence before it.
[20] With regard to the documentary evidence on the situation in Cameroon, in addition to the reasons mentioned above I would add that it is not possible to associate documentary evidence on a given country with an individual's claim, especially if the latter has not been found credible.
. . . in fact the claimant's oral testimony will often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim. Because they are not claimant-specific, country reports alone are normally not a sufficient basis on which the Board can uphold a claim. (Rahaman v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 3 F.C. 537, at paragraph 29.)
CONCLUSION
[21] For these reasons, the application for judicial review should be dismissed.
ORDER
THE COURT ORDERS that:
- the application for judicial review be dismissed;
- no question for certification.
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"Pierre Blais"
J.F.C. |
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9384-03
STYLE OF CAUSE: ERNEST FOKA
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: OCTOBER 26, 2004
REASONS AND ORDER BY: BLAIS J.
DATED: November 5, 2004
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
1070 Bleury, Suite 503
Montréal, Quebec H2Z 1N3
Telephone: (514) 876-9776
Fax: (514) 876-9789
DEPARTMENT OF JUSTICE OF CANADA FOR THE RESPONDENT
Complexe Guy-Favreau
200 Boul. René-Lévesque Ouest
Tour Est, 5e étage
Montréal, Quebec H2Z 1X4
Telephone: (514) 283-6379
Fax: (514) 283-3856