Federal Court Decisions

     IMM-1771-96

BETWEEN:

     SALIHOU BELLO,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND

     IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

PINARD J:

     This is an application for judicial review of the decision of the Convention Refugee Determination Division ("the Board"), dated April 15, 1996, wherein the Board determined that the applicant, who claimed a well-founded fear of persecution in Cameroon, was not a Convention refugee.

     The applicant is a citizen of Cameroon, born on September 30, 1968. He is a member of the Peuhl tribe and is from the city of Garoua, Cameroon. The applicant's father had been president of the Cameroon airline and was arrested in 1984 following an unsuccessful coup attempt carried out by members of the applicant's tribe. His father was released from prison in 1990 and kept under house arrest from that point forward.

     The applicant left Cameroon in 1987 and travelled to France on a student visa. He studied in France with the assistance of a scholarship from the Cameroon government which he alleges was arranged through corruption by his uncle. He further claims that he left Cameroon in 1987 because of his relationship with his father, an enemy of the government.

     While in Paris, the applicant participated in the Cameroonian student opposition movement. This organization organized meetings opposing the government in Cameroon. The applicant fears that these meetings were monitored by security agencies of the Cameroonian government. He returned to Cameroon on two occasions, once in 1989 for three months and once in 1990 for three months.

     In 1991, the Cameroonian government stopped funding the applicant's studies but he was able to continue his studies with the assistance of his family. In 1994, the applicant participated in an exchange program to the United States and travelled there in June 1994 on a student visa. He stayed with relatives for the first month in New York and later in the Amherst Street Mosque in Buffalo, New York. In November of 1994, he applied to have his visa in the United States extended but was denied. When he contacted his family in Cameroon about returning to the country he was advised not to return as his father continued to be under house arrest. On January 16, 1995, he came to the Canadian border and made a claim for refugee status in Canada. At no time prior to that had the applicant applied for refugee status in any other country.

     The Board heard the applicant's case on November 21, 1995, and found that the applicant's actions since leaving Cameroon were not consistent with a person holding a well-founded fear of persecution and, therefore, that the applicant did not have a subjective fear of persecution as required by the Immigration Act¹. In particular, the Board found the fact that the applicant had returned to Cameroon on two occasions and that he had failed to claim refugee status at any time, in any other country, in the seven and a half years preceding the claim in Canada, to be inconsistent with a subjective fear of persecution. The Board stated:

We therefore find that the claimant's actions in not making a refugee claim in France or another European country during the six and one-half years he was in Paris, France or during his eight month stay in the United States, the last two of which he was illegal and without status and at risk of being returned to Cameroon, the country wherein he fears persecution, are not consistent with those of a reasonable person with a well-founded fear of persecution. The claimant's own actions, or lack thereof to be more precise, go to the root of his credibility in respect of a well-founded fear of persecution. In our opinion, the claimant's credibility is also undermined by his two return trips to Cameroon in July 1989 and 1990 after having allegedly been forced to flee in 1987.

The panel accordingly determines that the claimant's evidence in regard to his experiences in Cameroon and his fear of return to Cameroon is not credible. The claimant's evidence in regard to France and the United States is consistent with someone seeking a better life and place to live, but not with someone who fears returning to Cameroon.

     The Board concluded that the applicant had not provided sufficient credible or trustworthy evidence to establish on a balance of probabilities that there is a reasonable chance that he would be persecuted by reason of any of the grounds set out in the definition of a Convention refugee.

     At the hearing before me, counsel for the applicant raised only one issue: did the Board err in law in finding the applicant's evidence of his history and his fear of persecution is not credible solely by reason of his delay in claiming refugee status?

ANALYSIS

     In Huerta v. Canada (M.E.I.) (1993), 157 N.R. 225 (F.C.A.) the Federal Court of Appeal held that delay in making a refugee claim is not a decisive factor in itself, however it is a relevant factor to take into account in assessing both the statements and the actions of the claimant. In Ilie v. Canada (M.C.I.) (1994), 88 F.T.R. 220 (F.C.T.D.), Justice Mackay considered the case of a refugee claimant who had failed to apply for refugee status in any of the countries he travelled through in the six months prior to arriving in Canada. Justice Mackay came to the following conclusion:

Finally, in my opinion the tribunal was entitled to consider his failure to claim refugee status in other countries while travelling from July 1992 to January 1993 in Europe, and to consider how the applicant's evidence was to be weighed in light of that. In so doing, it here concluded that his travelling for six months or so without seeking refugee status negated his evidence of a fear of persecution if he were returned to Romania. That finding goes to the root of the applicant' s claim. It was not necessary to set out other or more detailed reasons for not accepting that the applicant had established a well-founded fear of persecution.

     In Lameen v Canada (Secretary of State), A-1626-92, June 7, 1994 (F.C.T.D.), Justice Cullen also found delay to be an important factor to consider, but noted that each case must be determined on its own merits to decide how much delay is too much. In that case, Justice Cullen upheld the Board's finding that failure to apply for refugee status for four months while in Italy and for three and a half years while in Canada showed that there was no subjective basis for the applicant's fear of persecution.

     In the case at bar, the applicant delayed more than seven years in claiming refugee status while outside of the country, however he did make a refugee claim immediately upon entering Canada. The Board noted that France, where the applicant lived for seven years, and the adjoining countries of Belgium, Italy and Switzerland, are all signatories to the 1951 Convention and that the United States, where the applicant lived for six months, is a signatory to the 1967 Protocol Regarding the Status of Refugees. The Board reported that when questioned about his failure to apply sooner the applicant responded that he did not apply for refugee status in Paris because the Government of France was a supporter of the Cameroonian government, and that he did not apply in neighbouring countries because he did not know about claiming refugee status.

     It is within the purview of the Board to make findings of credibility. It would appear from the case law that it is open to the Board to disbelieve an applicant's subjective fear of persecution where there has been sufficient delay in claiming refugee status. It should also be noted that in this case the applicant's subjective fear of persecution was also disbelieved on the ground that he had twice returned to the country wherein he allegedly feared persecution.

     Given the evidence, I am of the view that it was not unreasonable for the Board to find that the applicant's actions were not consistent with those of a person with a subjective fear of persecution, and to make the further finding that the applicant's evidence was not credible.

     Consequently, the application will be dismissed.

     Counsel for the applicant proposed the following question for certification:

Does the Board err in law where it holds that a delay in making a refugee claim is a decisive factor in itself to reject the credibility of the claimant's evidence regarding his history and sufficient for a determination that he is not to be a Convention refugee?

     In my view, given the clear decision of the Federal Court of Appeal on this subject in Huerta, supra, the question should not be certified.

O T T A W A

April 11, 1997

    

     Judge

__________________

¹      R.S.C. 1985, c. I-2.