Date: 19971205
File: IMM-4237-96
Between:
BOUBACAR BAH,
Applicant,
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
ROULEAU J.
[1] The application for judicial review is allowed.
"P. ROULEAU"
JUDGE
OTTAWA, Ontario
December 5, 1997
Certified true translation
C. Delon, LL.L.
Date: 19971205
File: IMM-4237-96
Between:
BOUBACAR BAH,
Applicant,
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of the decision of the Refugee Division dated October 25, 1996, determining that the applicant, a citizen of Guinea, is not a Convention refugee. On September 2, 1997, Teitelbaum J. granted leave to appeal.
[2] The applicant, a tailor by trade, was born on January 1, 1958, in Télémélé in the Republic of Guinea and is a member of the Peul ethnic group. He settled in Conakry, the capital, where he initially opened one tailor shop, followed by a second shop several years later, in the great market in Nadina where a large majority of the merchants were Peul.
[3] The applicant employed five workers, all of whom were Peul. His clientele was almost entirely made up of activists and supporters of Mamadou Bah, the leader of the Union de la nouvelle république ("UNR"), a political opponent of the party in power who also was a member of the Peul ethnic group.
[4] The applicant contends that he was not a member of the UNR, but on the other hand, during the 1993 election, his customers urged his workers to vote for the UNR. According to the applicant, on September 29, 1993, several days before the election, he was reported to the police as a sympathizer of Mamadou Bah. In response to that report, uniformed police surrounded the market, ransacked his and his neighbours' shops and beat him and his workers. He was then arrested and taken to the police station with some twenty other merchants.
[5] The applicant alleged that he was detained by the Central Police of Conakry until March 29, 1994. During the first three weeks of detention he was allegedly beaten with a baton and tortured. He said that he was subjected to the capghol torture, which consists of tying the hands and feet together behind the back for whole days and nights, and which left him with scars. During his detention, the applicant was allegedly interrogated by the police concerning the comings and goings of Mamadou Bah and the activities of the UNR.
[6] After six months of detention the applicant was released on parole and informed that the investigation concerning him was going to continue. He spent four months in Télémélé and then in July 1994 he returned to Conakry where he resumed his activities in the market.
[7] On December 5, 1994, according to the applicant, he was again arrested; this time, however, he was arrested by the military and detained at Security headquarters. He was accused of belonging to the UNR and was held in a cell with his hands bound at all times. During his detention he was interrogated about his activities in Mamadou Bah's party and about Mamadou Bah and what Mamadou Bah had given him in exchange for his support. However, with his cousin's help, he escaped during the night of February 29, with a false French passport and an airline ticket to Boston where a runner drove him to Montreal.
[8] The applicant made a claim to the Immigration and Refugee Board based on the fact that he was persecuted by reason of his indirect association with a political group. The hearing was held on September 24, 1996 and the decision was issued on October 25, 1996. On that date, the Refugee Division ("the Board") decided that the applicant was not a "Convention refugee" as defined in subsection 2(1) of the Act.
[9] The Board determined the applicant not to be credible in that the explanation provided with respect to the implausibilities in his statements, concerning major elements of his claim, were not satisfactory.
[10] More specifically, the Board found the applicant not to be credible because the authorities had never questioned him about his customers, who were urging his workers to vote for the UNR. In addition, the Board had difficulty with the fact that after being released by the police on March 29, 1994, on parole, the applicant reopened his shop and [TRANSLATION] "did not intervene when his workers or customers talked about politics in his shop, which was the cause of his second arrest".
[11] In addition, the Board determined that the applicant's second arrest in December 1994 was implausible because, based on the evidence submitted,1 the leader of the UNR had thrown his support behind President Conté in May 1994 and had recognized him as the country's legitimate head of state. Among other things, the evidence submitted2 did not report any political prisoners in Guinea at the end of 1994.
[12] Lastly, the Board noted that during the hearing the applicant had demonstrated impeccable and perfectly structured sequential logic; he had not appeared confused as to dates and the recounting of events and he seemed lucid. The Board commented that this was inconsistent with his psychological assessment, which was submitted in evidence, describing the applicant as having a non-verbal IQ of 68 (placing him in the high average range of slight deficiency) and having difficulties understanding abstract concepts, including those involving the concept of time, because of which he would appear unstructured in terms of his "sequential" logic.
[13] The points in issue are as follows:
| Did the Board base its decision on erroneous findings of fact that it made in a capricious manner without regard for the material before it by concluding: (a) That the applicant would have been credible if he had said he was questioned about his customers, who were urging his workers to vote for the UNR, when he was in detention? (b) That the applicant's second arrest in December 1994 was implausible because the leader of the UNR had thrown his support behind President Conté in May 1994 and the evidence did not report any political prisoners in Guinea at the end of 1994? |
[14] The determination of credibility is a question of fact.3 The panel of the IRB that hears a refugee claim is in a unique position to assess the claimant's credibility; findings of fact based on internal contradictions, inconsistencies and evasive statements are "the heartland of the discretion of triers of fact".4 Considerable restraint must therefore be exercised in judicial review proceedings in respect of findings relating to credibility, and they may not be set aside unless they were made in a perverse or capricious manner or without regard for the material before the Board.5
[15] As stated by Noël J. in Oduro v. M.E.I.:6
| However, it is not for me to substitute my discretion for that of the Board. The question I must consider is whether it was open for the Board on the evidence to conclude as it did ... the fact that I might have seen the matter differently does not allow me to intervene in the absence of an overriding error. |
Similarly, in Aguebor v. M.E.I.,7 this Court held:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Refugee Division are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[16] In the first part of the point in issue, the applicant states that the Board based its decision on findings of fact that it made in an arbitrary manner without regard for the material before it by concluding that the applicant would have been credible if he had said that he was questioned about his customers, who were urging his workers to vote for the UNR, when he was in detention. According to the Board, it would have concluded that it would have been more credible if such questions had been asked since the applicant [TRANSLATION] "was only their tailor".
[17] I am of the opinion that the Board has given no valid reason to justify its conclusion that it found the applicant not to be credible. The courts have held that when the Board rejects a claim on the basis of credibility it must clearly state why it does not believe the applicant8 and give its reasons.9
[18] In the instant case, the Board seems to have determined that if the applicant had been interrogated by the authorities concerning his customers this would have been more credible, since after all, the applicant "... was only their tailor". As indicated by the facts, the applicant remained in detention after the incident of September 29, 1993 until March 29, 1994; he was tortured during that period. The Board even asked the applicant to show the marks from those torture sessions. It therefore seems clear that the authorities were interested not in the applicant's customers, but in his association with the UNR.
[19] The Board also seems to have criticized the applicant for letting people talk politics in his shop after he was released. As pointed out, how could the applicant prevent his customers from discussing political matters, particularly when those matters affected their everyday life? Moreover, the Board seems to have indicated that the applicant himself was the cause of his second arrest as a consequence of those discussions. These comments seem to me to be unreasonable, and on this point I am of the opinion that the Board made an erroneous determination and that it failed to have regard to the material before it when it concluded that the applicant was not credible.
[20] With respect to the second part of the point in issue, the applicant states that the Board also based its decision on erroneous facts since it determined that the applicant's second arrest in December 1994 was implausible in that the leader of the UNR had thrown his support behind President Conté in May 1994; moreover, the evidence did not report any political prisoners in Guinea at the end of 1994.
[21] In the instant case, the documentary evidence in fact shows that Mamadou Bah did throw his support behind President Conté in May 1994. However, that evidence also shows that beginning in mid-September 1994, Bah and Conté parted company. That split solidified in December 1994, right at the time the applicant was arrested for the second time. Accordingly, it is entirely plausible and likely that the applicant and other supporters of opposition political parties would have been arrested during that period.
[22] Moreover, the Board also based its decision on the documentary evidence in concluding that the applicant could not have been in detention at the end of 1994 since no political prisoners were reported in Guinea on that date. On the contrary, once again, the documentary evidence shows that in September 1994, 200 to 300 political activists had been arrested, and that at the end of 1994 there were still 35 in detention.
[23] Accordingly, it is plain that if the Board based its decision on this documentary evidence it could not have reached the conclusion that the applicant's second arrest was implausible.
[24] For these reasons, I must therefore conclude that errors were made by the Board and that this would justify this Court in intervening.
[25] The application for judicial review is allowed.
"P. ROULEAU"
JUDGE
OTTAWA, Ontario
December 5, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-4237-96
STYLE OF CAUSE: BOUBACAR BAH v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: NOVEMBER 25, 1997
REASONS FOR ORDER OF ROULEAU J.
DATED: DECEMBER 5, 1997
APPEARANCES:
CLAUDETTE MENGHILE FOR THE APPLICANT
JACINTHE LANDRY FOR THE RESPONDENT
SOLICITORS OF RECORD:
CLAUDETTE MENGHILE FOR THE APPLICANT
MONTRÉAL
GEORGE THOMSON FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________1 The Europa World Year Book, 1995 at p. 1388, 3rd paragraph, column 1.
2 Country Reports on Human Rights Practices for 1994, p. 3, para. d., last 2 lines.
3 White v. R., [1947] S.C.R. 268.
4 Dan-Ash v. M.E.I. (1988), 93 N.R. 33 (F.C.A.); Giron v. Canada (M.E.I.) (1992), 143 N.R. 238.
5 Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).
6 Oduro v. M.E.I. (1993) F.C.J. No. 56 (F.C.T.D.)
7 Aguebor v. M.E.I., 160 N.R. 315 (F.C.A.).
8 Ababio v. M.E.I. (1988), 5 Imm. L.R. (2d) 174 (F.C.A.).
9 Armson v. M.E.O. (1989), 9 Imm. L.R. (2d) 150 (F.C.A.); Hilo v. M.E.I., (1991) F.C.J. No. 228 (F.C.A.).