Date: 20040206
Docket: IMM-6279-02
Citation: 2004 FC 200
Ottawa, Ontario, this 6th day of February, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
THIERNO MAMADOU TIDI DIALLO,
(a.k.a. THERON MAMADOU TIDIANE DIALLO),
(a.k.a. OUSMANE FOFANA),
(a.k.a. JOHN DOE)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PHELAN J.
[1] This is an application for judicial review of an Immigration and Refugee Board ("IRB") Protection Division decision under s. 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 21 ("IRPA"), which determined that the Applicant was not a Convention refugee, nor a "person in need of protection" as defined in s. 96 and s. 97 respectively, of IRPA.
Background
[2] The Applicant is a 29 year old citizen of Guinea. He claims that he has a well-founded fear of persecution at the hands of the government and the military of Guinea by reason of his political opinions. He also claims to be in need of protection because he would be subjected to a danger of torture or to risk to his life or to cruel and unusual treatment or punishment in Guinea.
[3] The Applicant alleged that he is wanted by Guinean military authorities because he is thought to have collaborated with a group of armed rebels who took over the town of Guekedou in September 2000.
[4] In summary, the Applicant claimed that he was forced to assist the rebels, that he escaped from them, moved between his home in Guekedou to another town until he arrived in the capital, Conakry. Learning that the army had taken control of Guekedou and were looking for collaborators, he left Guinea.
[5] The Applicant, having worked his way to Mali, then Paris, arrived in Toronto on February 19, 2001. He was detained because his documents looked irregular and four days later he filed a claim to be a Convention refugee.
[6] There is little doubt that the Applicant entered Canada using a false name and misrepresented his purpose for being here.
[7] The Applicant made his refugee claim on March 2, 2001 where his name was listed as Theron Mamadou Tidiane Diallo and his date of birth was December 11, 1973 (emphasis added).
[8] On April 20, 2001, the Applicant signed his Personal Information Form ("PIF") indicating that his name was Thierno Mamadou Tidiane Diallo and his date of birth was April 3, 1973 (emphasis added).
[9] It is important to bear in mind that the Applicant is practically illiterate and all information listed was taken down by an official, not filled in by the Applicant.
[10] The Applicant's explanation for the four day delay in making his refugee claim is that he did not find anyone after his detention with whom he could converse in French until February 23, 2001.
[11] When "confronted" (as described by the IRB) with the fact that he had been interviewed by an immigration officer in French upon his arrival, he explained that he meant that he did not find a French speaking person for four days during his detention. The IRB clearly did not accept this explanation, for reasons which are unclear.
[12] The IRB held the Applicant not to be credible and therefore dismissed his application. Prior to the IRB analyzing the central issue of the events surrounding Guekedou and his place of residence, the IRB made negative findings of the Applicant's general credibility on four points:
i) his name; the difference between Theron and Thierno;
ii) his date of birth; December 11, 1973 versus April 3, 1973;
iii) his place of residence; one document listed his residence as Conakry while he claimed his home was in Guekedou; and
iv) his reasons for coming to Canada; upon entry he said he was here for business, later he claimed refugee status.
[13] In analyzing the issue of his refugee claim and his need for protection, the negative findings of general credibility was an apparent influence on the conclusions drawn.
Decision
[14] It is well established that on findings of credibility by the IRB, the Board's decision is entitled to a high level of deference and that the standard of review is patent unreasonableness. The Court should not and cannot substitute its views for that of the IRB and should approach any challenge to credibility findings with extreme caution.
[15] However, the Court is not without a role to play nor is it to rubber stamp IRB credibility findings. It can and must consider the way in which the IRB approached its task, how it carried out its functions, whether proper legal principles of relevance were applied and whether the manner of analysis was basically sound.
[16] This Court has held that the IRB should not become fixated on the minutiae or embark upon a microscopic examination of an applicant's responses that was not warranted (see Ratheeskumar v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1697).
[17] In addition to the legal principle enunciated by Justice Layden-Stevenson in Ratheeskumar, supra, the facts in the two cases are also similar in that they both deal with explanations for missing documents, events surrounding an area of conflict and findings of credibility.
[18] The IRB apparently ignored the fact that the Applicant was illiterate and that the forms were filled in by an immigration official. The misspelling of the Applicant's first name is logically explained as an error by the official. No reason or motive for the Applicant to misspell his name was given by the IRB. It is difficult to see any relevance to this factor in these circumstances. The IRB's conclusion on this issue is patently unreasonable.
[19] As to the different dates of birth, the Applicant explained that Muslims in his country do not celebrate birthdays and therefore he had to estimate his birth date. There was corroborative evidence that birthdays in certain Muslim countries are not celebrated.
[20] While the IRB rejected the explanation and drew negative inferences, there is no explanation of how such a misstatement had any relevance or why the Applicant would lie. Again, the conclusion on this issue is patently unreasonable.
[21] With respect to his place of residence, there was some confusion in the documents. The type of weighing and analysis performed by the IRB is of the type which it is best suited to perform.
[22] Regarding the Applicant's reasons for coming to Canada, the IRB found that he misrepresented his reasons at the time of entry and delayed making a refugee claim without credible explanation. The UNHCR Handbook indicates that refugees often lie about the reasons for fleeing out of fear of the unknown processes in a new country. In addition, the Applicant explained the reason for his four day delay that there was no French speaking person available in his detention area. The IRB is free to draw its own conclusions, however, the risk is that the Board was so influenced by its other findings of credibility that it could not give this issue the type of balanced analysis it required.
[23] In the end, the IRB concluded that the Applicant had not established his identity in accordance with s. 106 of IRPA and that he had not established his presence in Guekedou in September 2000. As a result of the negative credibility findings, the IRB concluded that there was no possibility of persecution nor is the Applicant a protected person.
[24] Since at least two of the components of the negative credibility finding were patently unreasonable, this application should be granted. It may well be that these two matters did not play a significant role in the ultimate determination, but it is impossible to draw that conclusion from the reasons in the IRB decision.
[25] Both parties agreed that there was no serious question of general importance and therefore, no question is certified.
ORDER
[26] IT IS ORDERED that this application for judicial review is therefore allowed and the decision of the IRB is quashed. The application for refugee status and protection is remitted back to the IRB for a determination by a differently constituted panel.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
February 6, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6279-02
STYLE OF CAUSE: THIERNO MAMADOU TIDI DIALLO,
(a.k.a. THERON MAMADOU TIDIANE DIALLO),
(a.k.a. OUSMANE FOFANA), (a.k.a. JOHN DOE)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, January 6, 2004
REASONS FOR ORDER AND ORDER OF PHELAN J.
DATED: Friday, February 6, 2004
APPEARANCES:
Daniel Kingwell
FOR APPLICANT
Robert Bafaro
FOR RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT