Date: 20011109
Docket: IMM-6514-00
Neutral citation: 2001 FCT 1211
BETWEEN:
JOÂO KEMBO NDOMBELE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning given to that expression in subsection 2(1) of the Immigration Act[1]. The decision of the CRDD is dated the 28th of November, 2000.
BACKGROUND
[2] The applicant is a 31 year old citizen of Angola who bases his claim to a fear of persecution if he is required to return to Angola on his ethnicity and his perceived political opinion. The CRDD accepted that the applicant is a citizen of Angola.
[3] The applicant claims to be a member of the Mucongo sub-tribe of the Bakongo tribe. He further claims that the language spoken by members of his family is Lingala rather than Kikongo, the principal language of the Bakongo tribe.
[4] From sometime during the strife surrounding the struggle for independence of Angola from Portugal to as late as 1992, the applicant lived with his family in the Democratic Republic of Congo. Following the massacre of his parents, he, and apparently other members of his family, returned to Angola and took up residence in Luanda.
[5] The applicant alleges that he became a member of a political party known as "Kimvuka Kia Lukuku Luakongo". He further alleges that, during the course of a meeting of party members on the 8th of September, 1999, the meeting was raided by the military and that he and some of the other members in attendance were arrested, detained, beaten and tortured. The applicant alleges that the Minister of Defence in Angola, the father of a friend of his, secured his release, hid him and provided him with a passport and a visa which made possible the applicant's flight from Angola on the 16th of September, 1999. The applicant arrived in Canada on the 22nd of September, 1999 and claimed Convention refugee status on the same day.
THE DECISION OF THE CRDD
[6] Under the heading "Détermination", the CRDD wrote:
Le tribunal détermine que le demandeur n'était pas crédible, que son témoignage n'était pas digne de foi, donc il est d'avis qu'il n'existe pas de possibilité raisonnable que si le demandeur retourne en Angola, il soit persécuté pour l'un des motifs énoncés dans la définition de « réfugié au sens de la convention » . En plus, le tribunal n'était pas persuadé que le demandeur était en effet en Angola pendant la période en question. Et même s'il avait été en Angola, le tribunal n'est pas convaincu que les autorités angolaises sont toujours intéressés au demandeur.
[7] Later in its reasons, under the heading "Conclusion", the CRDD wrote:
Le tribunal est d'avis que le manque de crédibilité et de plausibilité des éléments centraux du témoignage du demandeur mine l'ensemble de la preuve. Le tribunal ne croit pas que les autorités angolaises s'intéressent au demandeur tel qu'il l'allègue. Eu égard à ce qui précède, le tribunal ne croit pas que le demandeur était une personne recherchée par les autorités, ni qu'il existe une possibilité raisonnable que le demandeur soit persécuté pour un des motifs énoncés, s'il retourne en Angola. Le tribunal n'est pas persuadé que le demandeur a établi une base objective pour déterminer une crainte bien fondée du fait de son ethnie ou de ses opinions politiques.
THE ISSUES
[8] Counsel for the applicant urged that the CRDD erred in a reviewable manner: first, in a number of respects in its treatment of the evidence before it, testimonial, documentary and in the form of affidavits; second, in imposing on the applicant an inappropriately high burden of proof in respect of his claim, notwithstanding the fact that it recited the appropriate burden of proof; third, in requiring corroboration of the applicant's testimony in circumstances where it was unreasonable to expect the applicant to be able to provide corroboration; and fourth, in arriving at at least one finding that simply was not based on any evidence before it.
[9] The respondent urged that, against the appropriate standard of review of decisions of the CRDD, it made no reviewable error if its reasons were properly interpreted "... as a whole".
ANALYSIS
[10] The standard of review of a decision of the CRDD was reviewed by Mr. Justice Pelletier in Conkova v. Canada (Minister of Citizenship and Immigration)[2] where he wrote at paragraph 5:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. ... The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise. The view which the CRDD took of the evidence was one which could reasonably be taken, just as the opposing view could also reasonably be taken. The evidence, as is so often the case, is ambiguous and equivocal. Some elements support the applicants' position, others undermine it. The CRDD's task is to consider all the elements (which does not require that specific mention be made of every piece of evidence which is reviewed) to weigh it and to come to a conclusion. As long as its conclusion is not one which is wrong on its face, it is not patently unreasonable. ... In this case, the conclusion to which the CRDD arrived is not wrong on its face, even though others might come to a different conclusion. There is no reason for this Court to intervene. [citations omitted]
With one addition, I adopt the foregoing as a reasonable statement of the standard of review of the decision here under review. That addition is with respect to breaches of fairness or natural justice. Where such a breach is found, the decision should be set aside without reference to the spectrum or range of standards of review.[3]
[11] Before the CRDD, the burden of proof lies on an applicant for Convention refugee status. In Adjei v. Canada (Minister of Employment and Immigration)[4], Mr. Justice MacGuigan, for the Court, wrote at page 682:
It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not. ...
Mr. Justice MacGuigan continued at page 683:
The parties were agreed that one accurate way of describing the requisite test is in terms of "reasonable chance": is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?
We would adopt that phrasing, which appears to us to be equivalent to that employed by Pratte J.A. ...
...
What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not to be more than a 50% chance (i.e. a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility. [citations and a quotation omitted]
To the same effect is the decision of the Federal Court of Appeal in Orelien v. Canada(Minister of Employment and Immigration)[5].
[12] Both Adjei and Orelien were cited by the CRDD in its reasons, and in respect of the latter, the CRDD wrote that Orelien "...indique qu'un demandeur doit établir, selon la prépondérance des probabilités, que sa preuve est crédible et digne de foi."
[13] Despite these citations, the CRDD, throughout its reasons, uses expressions such as "...n'était pas persuadé...", twice, and "...n'est pas convaincu...", in one form or another three times. In other places in its reasons, by contrast, for example in the "conclusion" quoted above, the CRDD writes "...le tribunal ne croit pas que le demandeur était une personne recherchée par les autorités, ni qu'il existe une possibilité raisonnable que le demandeur soit persecuté...".
[14] Counsel for the applicant urged that the CRDD, though it recited the proper authorities regarding the burden resting on the applicant, simply did not understand the implications of that burden and, particularly in the use of expressions such as "not persuaded" and "not convinced", placed an inappropriately high burden on the applicant.
[15] The same issue was addressed by my colleague Mr. Justice MacKay in Hidri v. Canada (Minister of Citizenship and Immigration)[6] where he wrote at paragraph 28:
It cannot be assumed that using the word "convince" automatically connotes a higher burden of proof without a careful examination of the contextual basis of the decision.
On the facts before him, and having regard to the particular decision under review, Mr. Justice MacKay concluded that he could not find that the CRDD rendered an unreasonable decision by applying an incorrect burden of proof.
[16] I reach the same conclusion here. On the face of the decision before me, the CRDD acknowledges the correct burden of proof. It nonetheless goes on to use language, at least superficially inconsistent with that burden, but concluded, in summary, by reciting a test that is not inconsistent with an understanding and application of a proper burden of proof.
[17] Here, as with respect to other aspects of the issues and submissions before me in this matter, I adopt the thoughtful guidance provided by Mr. Justice Joyal in Miranda v. Canada(Minister of Employment and Immigration)[7] where he wrote:
For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analysed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
On the reasons of the CRDD in this matter, read as a whole, I am satisfied that the CRDD understood the burden of proof on the applicant before it and applied that burden regardless of language it used throughout its reasons that might be read as indicating it applied a higher burden, or was at least confused as to the burden.
[18] The CRDD had before it two affidavits in support of the applicant's claim. The first, from the brother of the applicant, confirmed their relationship, confirmed that the applicant lived in Angola before he came to Canada, although whether that was immediately before the applicant came to Canada was not made clear, and affirmed that the affiant is a Bakongo and that he had a telephone call with the applicant, which he believed took place about two years before he swore his affidavit, in which the applicant advised that he was involved with the Kimvuka political party. The affiant was available to testify. Counsel for the applicant offered to call the affiant to make him available for cross-examination. The CRDD, after consulting with the Hearing Officer, declined the offer. Nonetheless, the CRDD wrote, in respect of that affidavit:
Le tribunal n'accorde pas beaucoup de poids à cette preuve parce que ce document établit seulement que le frère a fait des efforts pour communiquer avec le demandeur quelques jours avant son arrivée au Canada, mais n'établit pas que le demandeur était en effet en Angola pendant 1999.
The second affidavit was provided by a naturalized Canadian citizen, born in Angola and of Bakongo ethnicity. He attested that he interviewed the applicant and that based on the interview he was satisfied the applicant is a Bakongo from Angola. He further attested that he had followed political events concerning the Bakongo in Angola for his "...entire adult life" and that he could advise that the Kimvuka political party exists on a clandestine level in Angola. Finally, he attested that the events described by the applicant in his Personal Information Form "...are plausible".
[19] Once again, the CRDD essentially rejected this affidavit. It wrote:
Le tribunal n'accorde pas beaucoup de poids à ce document pour les raisons suivantes. Monsieur Zenguele n'a fourni aucune preuve sur la source de ses connaissances alléguées concernant le parti Kimvuka Kia Lukuku Luagonko et il n'était pas disponible pour témoigner à l'audience.
[20] Counsel for the applicant urged that the essential rejection of these affidavits involved a breach of fairness and demonstrated a fundamental conflict and error of law in the reasoning of the CRDD. On the one hand, when an affiant was available for cross-examination, the CRDD declined an offer to present the affiant for cross-examination but nonetheless determined to give little weight to the affidavit without notifying the applicant and his counsel of its concerns. On the other hand, when an affiant was not available for cross-examination, the CRDD relied on that fact to once again give little weight to the affidavit.
[21] As to the alleged error of law, counsel for the applicant referred me to Fajardo v. Canada (Minister of Employment and Immigration)[8] where Mr. Justice Mahoney, at page 115, wrote:
If the tribunal here is suggesting that the affidavit evidence of patently respectable deponents as to facts within their knowledge may be discounted because, in the very nature of the process, the deponents are not available to be cross-examined, the tribunal is wrong. It is not for the Refugee Division to impose on itself or claimants evidentiary fetters of which Parliament has freed them.
[22] I find no breach of fairness in the actions of the CRDD in this regard. Further, I find no conflict in the reasoning of the CRDD and no error of law. The burden of proof was on the applicant. Where an affiant was available to strengthen the evidence contained in his affidavit, it was open to the applicant and his counsel to call the affiant as a witness. They chose not to do so. I cannot find that, as a matter of fairness, the CRDD was under an obligation to advise the applicant and his counsel that it found the affidavit wanting. With respect to the second affidavit, that the affiant was not available for cross-examination was a consideration reasonably open to the CRDD to take into account, whether or not it would have insisted on the opportunity to cross-examine if the affiant had been available. I am satisfied that the Fajardo decision is distinguishable. As is apparent from the brief extract from the reasons of the CRDD with regard to the Zenguele affidavit that appears above, it was not merely and, I am satisfied, not primarily, the absence of Mr. Zenguele that led the CRDD to give little weight to his affidavit. Rather, it was a weakness on the face of the affidavit itself and, only secondarily, the unavailability of Mr. Zenguele to explain away that weakness, if he could, that led to the assignment of little weight.
[23] More generally, the CRDD had a good deal of difficulty with the evidence provided by the applicant through his Personal Information Form and his testimony and with the absence of corroborating evidence. It noted implausibilities in the applicant's evidence. It noted a conflict in the evidence before it that went unexplained regarding the time at which the applicant and some of his family members moved back to Angola from the Democratic Republic of Congo. It found the evidence in this area confusing and therefore not credible. It found the applicant's efforts to strengthen his case with corroborating evidence to be less than adequate, notwithstanding the difficulties that the applicant might have faced in acquiring corroborating evidence out of Angola or from persons involved with the political party to which he alleged allegiance. It found the applicant's lack of fluency in Kikongo and Portuguese to be problematic in light of the languages principally in use among the Bakongos and in Angola at the time the applicant alleged he was there. It found no satisfactory evidence before it to the effect that, during the time immediately before the applicant arrived in Canada and during which he alleged he was arrested, beaten and tortured, he was in fact in Angola. It found the applicant's testimony regarding his involvement in the Kimvuka political party to be problematic.
[24] Counsel for the applicant took issue with each of these findings on various grounds. I turn once again to the guidance provided by Mr. Justice Joyal in the Miranda decision[9]. I find that counsel for the applicant invited me to approach the reasons of the CRDD in this matter "...with a pathologist scalpel", or to subject the decision to "...a microscopic examination or [to] perform a kind of semantic autopsy on particular statements found in the decision." I decline the invitation. I am satisfied that the findings of the CRDD to which I have referred in this segment of my reasons, interpreted as a whole, were reasonably open to it.
CONCLUSION
[25] Based upon the foregoing analysis, I conclude that this application for judicial review must be dismissed.
CERTIFICATION OF A QUESTION
[26] Counsel for the applicant urged certification of the following question:
Is the Refugee Division permitted to make any finding of fact on the standard of being "convinced"?
Counsel for the applicant urged certification of the same question in Hidri v. Canada (Minsiter of Citizenship and Immigration)[10]. Mr. Justice MacKay decline to certify the question. He wrote at paragraph 34 of his reasons:
As for the second question [the question at issue here] and the application of "convinced" as a burden of proof, the word alone does not establish a standard, nor is it indicative of a standard more stringent than the balance of probabilities. It is possible for one to be convinced on either the civil or criminal standards of proof. In my opinion, this question would not dispose of an appeal of this matter, nor is it a question of general application.
[27] Counsel for the respondent urged against certification of the question proposed or any question. Relying on Canada (Minister of Citizenship and Immigration) v. Liyanagamage[11], she urged that the proposed question was not one of general importance and therefore should not be certified.
[28] While I have some doubt regarding the submission of counsel for the respondent as to the general importance of the question, and in this Mr. Justice MacKay, was in agreement with counsel for the respondent, like Mr. Justice MacKay, I am satisfied on the facts of this matter that the question proposed for certification would not be dispositive of an appeal. On that ground alone, and relying on Liyanagamage, the question proposed for certification is not a proper one. The question proposed will not be certified. Indeed, no question will be certified.
_______________________________
J.F.C.C.
Ottawa, Ontario
November 9, 2001
[1] R.S.C. 1985, c. I-2.
[2] [2000] F.C.J. No. 300 (Q.L.), (F.C.T.D.).
[3] As to procedural fairness, and in this I include denial of natural justice, see Cardinal v. Kent Institution [1985] 2 S.C.R. 643 at 661.
[4] [1989] 2 F.C. 680 (C.A.).
[5] [1992] 1 F.C. 592.
[6] [2001] F.C.J. No. 1362 (Q.L.), (F.C.T.D.).
[7] (1993), 63 F.T.R. 81, (F.C.T.D.). Counsel for the applicant urged that the quotation from Miranda that I have used is qualified by the decision of the Federal Court of Appeal in Tagari v. The Minister of Employment and Immigration [1994] F.C.J. No. 982. On the facts of this matter, I reject that submission.
[8] (1993), 21 Imm. L.R. (2d) 113 (F.C.T.D.).
[9] Supra, note 7.
[10] Supra, note 6.
[11] (1994), 176 N.R. 4 (F.C.A.).