Date: 20040916
Docket: IMM-8664-03
Citation: 2004 FC 1263
Montréal, Quebec, September 16, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
LARRISSAN TSONGO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act) of a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel) dated October 14, 2003. In that decision, the panel determined that the applicant was not a "Convention refugee" under section 96 of the Act, or a "person in need of protection" under subsection 97(1) of the Act.
ISSUE
[2] Did the panel err in dismissing the proof of identity filed by the applicant?
[3] Did the panel err in unfairly undermining the applicant's credibility without regard to the evidence and her testimony?
[4] For the following reasons, I answer these questions in the negative and the application for judicial review will therefore be dismissed.
THE FACTS
[5] The applicant alleges that she is a citizen of the Democratic Republic of Congo (DRC). She alleges that she has a well-founded fear of persecution in her country of citizenship because of her nationality and because of her perceived political opinion. Further, she alleges that she is a "person in need of protection" because her life is at risk and that she would be subject to cruel and unusual treatment or punishment, as well as a risk of torture, if she were to return to the DRC.
[6] The applicant alleges that she was born in Butembo, city of Nord-Kivu, in the DRC. Her mother was of Hutu origin and her father was Congolese of Nande ethnicity. She testified that her grandmother was Rwandan, also of Hutu ethnicity, and that during the genocide of 1994, her grandmother had been confined in a refugee camp of the High Commission of Refugees (HCR), located in the province of Kivu. The applicant's grandmother and maternal uncles visited her on some occasions. The applicant, who until that time thought she was Congolese, learned of her mother's origins at the same time. These visits did not go unnoticed by the neighbours and the applicant's family was denounced to the Congolese Movement for Democracy party (CMD).
[7] In 1998, the CMD drew up a list of "traitors" and on it were the names of all those suspected of having contact with the Hutus. The applicant testified that the individuals identified on the list were put to death for treason. The applicant alleges that her home had been attacked from 1998 until November 15, 2001, the day that her father decided to separate the members of the family. The applicant testified that she went to Uganda, where a friend of her father's took care of her. The friend obtained the travel documents necessary for her to leave Uganda on December 29, 2001. After travelling through England, the applicant arrived in Canada on December 30, 2001, applying for protection as a refugee a few days later.
IMPUGNED DECISION
[8] The panel dismissed the applicant's refugee claim based on her failure to establish her identity and also her lack of credibility. The panel determined that the applicant was not credible based primarily on her conduct at the hearing. In the reasons for the decision, the panel pointed out that her testimony was vague, inconsistent and contradictory, that she was unable to answer the questions asked and that her statements, even in reply to simple questions, were unclear and confused. After analyzing the evidence regarding the applicant's identity, the panel also determined that she had not filed acceptable documentation establishing identity, within the meaning of section 106 of the Act. The panel stated the following at page 2 of its decision:
Although the claimant alleged that she had been born and raised in Butembo, Nord-Kivu, with her family, the panel noted that the documents [birth certificate and extract from birth certificate] had been issued in Kinshasa by the mayor of the Ngaliema commune. The claimant testified that the distance between Butembo and Kinshasa is about 1,000 kilometres and could not explain the inconsistency between her birthplace and the place where the documents . . . had been issued, explaining that it was her father who had given her the two documents before she left her country for Uganda. The claimant related how her father, who had occasionally gone to visit friends in Kinshasa, never returned after the war started in August 1998. However, the panel noted that the documents . . . had been issued after the war began, namely, in October and December 1998. In view of the preceding, the panel attaches no probative value to the claimant's birth certificate and extract from birth certificate.
THE PARTIES' ARGUMENTS
[9] The applicant contests the decision regarding the assessment of the authenticity of the foreign personal documents because in this case the panel carried out an analysis without serious evidence to support it and acted in a capricious and unreasonable manner in making its determinations regarding her identity. Furthermore, relying on Halili v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1335 (QL) and Parizi v. Canada (Minister of Citizenship and Immigration), (1994) 90 F.T.R. 189, [1994] F.C.J. No.1977 (QL), the applicant points out that, without valid reason, the panel did not assign any weight to the sworn statement of Pastor Paluku Kivikwamo, or to her entire story about persecution. Pursuant to the decisions in R.K.L. v. Canada (Minister of Citizenship and Immigration), (2003) 228 F.T.R. 43, [2003] F.C.J. No. 162 (QL); Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (C.A.) (QL); and Owusu-Ansah v. Canada (Minister of Employment and Immigration), (1989) 98 N.R. 312, [1989] F.C.J. No. 442 (C.A.)(QL), she alleges that it was unreasonable for the panel to decide outright that her story was made up just because it did not find credible the documents submitted in support of her arguments regarding her identity.
[10] The respondent relies on Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 551 (C.A.) (Q.L.), and Tong v. Canada (Secretary of State), [1994] F.C.J. No. 479, to submit that the panel's decision was well founded in fact and in law and that this application should be dismissed. The respondent submits that this Honourable Court has held that as long as an applicant has not established that he is the person that he claims to be, the panel does not have to proceed with the analysis of his application (see the decisions in Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (QL); Yogorajah v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1809 (QL); Thamothampillai v. (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1186 (QL); and Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 911 (QL)). The respondent also relies on Matanga v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1812 (QL), in support of the panel being able to take into account the lack of acceptable identity documents and the lack of travel documents (such as the passport, plane ticket, boarding pass, bus ticket) in assessing the credibility of a refugee claimant.
[11] Moreover, the respondent, relying on the decisions in Mahendran v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 549 (C.A.) (QL); Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (C.A.) (QL); Mohimani v. Canada (Minister of Employment and Immigration),[1993] F.C.J. No. 564 (C.A.) (QL); Fwamba v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1247 (QL); and Owusu, supra, argues that it is well established in the case law that the panel must make its own determinations regarding the probative value of the documentary evidence filed by a refugee claimant and assess the explanations provided by the claimant. The respondent points out that the applicant has not presented any arguments challenging the panel's findings regarding the contradiction in her testimony about her place of birth and the place of issuance of the documents she filed, nor regarding the fact that the documents in question, dated October 25 and December 18, 1998, were given to her by her father, who she stated had not returned to Kinshasa after the war in August 1998 (page 2 of the decision). The respondent also contends that Halili, supra, on which the applicant bases her arguments, does not apply in this case because the facts were entirely different from those raised in this case.
ANALYSIS
[12] It is settled law that in matters of credibility, like in this case, the panel is in the best place to " to gauge the credibility of an account and to draw the necessary inferences". As decided in Aguebor v. Canada (Minister of Employment and Immigration ), [1993] F.C.J. No. 732 (C.A.)(QL), as long as the inferences drawn by the tribunal are not so unreasonable as to warrant the Court's intervention, the panel's findings are not open to judicial review.
[13] In my opinion, the arguments regarding the applicant's credibility is related to the assessment of the evidence and the facts. The panel's determination that the applicant's evidence is not credible was based on the applicant's conduct, including the inconsistency between her testimony and the places of issuance as well as the dates indicated on the documents filed. According to my review of the decision, the panel based its findings on the evidence in the record and interpreted it as it saw fit. In my opinion, contrary to the applicant's submissions, when I consider the importance of the hearing and the close bonds which I presume existed between her and Pastor Kivikwamo, it was not unreasonable for the panel to find the Pastor's departure surprising. I also note that the panel considered the explanations given to it by the applicant regarding her documents and her identity, but simply had not been persuaded or satisfied by them. On my knowledge of the file, I do not see any reason that would justify my intervention. It seems to me that the reasons and the finding on the applicant's credibility are reasonable.
[14] In this case, the applicant has the burden of establishing that the inferences drawn by the panel were not reasonable. Based on my assessment of the evidence, the applicant did not meet this burden. The panel substantiated its decision very well by stating, in clear and unequivocal terms, the reasons for which it doubted the truthfulness of the applicant's allegations as well as the applicant's credibility. The panel could take into account the many disparities between the applicant's testimony, her conduct and the documents filed in support of her submissions regarding her identity. I am therefore satisfied that the panel, in finding that the absence of travel documents (such as the passport and the plane ticket) deprived it of information which could have confirmed or negated the applicant's allegations about her identity and trip to Canada; the panel relied on the evidence filed and did not make a patently unreasonable error necessitating the review of the Federal Court.
[15] As for the finding on identity, I consider it reasonable. I reviewed the decision and the arguments, keeping in mind the reasons justifying this finding. I too am mystified about the distance between the place of birth and the place the birth certificate was issued, even more so when I read the hearing transcript on her knowledge of Butembo, where she allegedly lived for almost 20 years. Her brief answers, hesitation and lack of knowledge about the city of her youth shows the reader that the testimony is weak and that it lacks substance. In short, in my view the decision as a whole is reasonable.
[16] The parties were asked to submit questions for certification purposes but none were submitted.
ORDER
For all of these reasons, the application for judicial review is dismissed and no question will be certified.
"Simon Noël"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8664-03
STYLE OF CAUSE: LARRISSAN TSONGO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 15, 2004
REASONS FOR ORDER AND ORDER: NOËL J.
DATE OF REASONS: September 16, 2004
APPEARANCES:
Kathleen Gaudreau FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kathleen Gaudreau FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec