Date: 20041101
Docket: IMM-309-04
Citation: 2004 FC 1513
Ottawa, Ontario, the 1st day of November 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
CHANTAL MODRI BONKENDO SITOO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present application for judicial review is of a decision by the Refugee Protection Division of the Immigration and Refugee Board on December 22, 2003 in which the panel concluded that the applicant was not a Convention refugee nor a person in need of protection.
[2] The applicant, Chantal Modri Bonkendo Sitoo, is a citizen of the Democratic Republic of the Congo. She feared being persecuted in her country because of her connection with Mubengay Medard, a militant in the U.D.P.S. (the Union for Democracy and Social Progress), her former lover and the father of her son. Mubengay Medard and his son were both granted refugee status in Canada some years ago.
FACTUAL BACKGROUND
[3] In June 2001 the applicant participated in a press conference for the U.D.P.S. party at which soldiers interrupted the conference and proceeded to arrest certain individuals. She fled with some others but was later arrested and questioned. She was detained, beaten and subjected to sexual violence by security officers in Kinshasa. On October 4, 2001, after being placed under house arrest, she was interrogated and charged with damaging state security and holding clandestine U.D.P.S. meetings at her home. The military judge who questioned her made sexual advances to her, which caused her even greater fear than being questioned. She was asked to return on October 10, 2001, which she did, and she was once again interrogated by the police about her former de facto spouse, Mubengay Medard, who was now a refugee in Canada with their son. On five different occasions Ms. Bonkendo Sitoo received requests to go to the police station to be interrogated. She only responded to three of the summonses and hid each time the police came to her door. An arrest warrant was later issued, dated October 12, 2001.
[4] Ms. Bonkendo Sitoo finally crossed the river between the Democratic Republic of the Congo and the Congo, and went to Brazzaville, where she stayed for a year. Brazzaville is a town very close to Kinshasa. She said the authorities in Brazzaville and Kinshasa were known for helping each other when they had to return persons being sought by the authorities. When she knew that she was still being sought, she fled with a genuine Belgian passport in someone else's name. She stopped in Cameroon and France and then arrived in Montréal.
[5] On her arrival in Canada, she destroyed the passport she had used for travelling and her air ticket, as she had been told to do.
IMPUGNED DECISION
[6] Analysis of the evidence submitted and the testimony given by the applicant led the panel to conclude that Ms. Bonkendo Sitoo was not credible. The panel questioned several documents dated more than ten years earlier, with a photo that was difficult to identify and containing identifications contrary to the documentation consulted or exhibiting inconsistencies.
[7] With respect to the travel documents used, the applicant said she destroyed them once she arrived in Canada. Consequently, it was difficult for the panel to determine the itinerary taken by the applicant in coming to Canada. The panel also objected to the fact that the applicant had spent three days in France without taking any steps to obtain refugee status.
POINTS AT ISSUE
[8] Despite the many identity documents submitted, did the panel commit unreasonable errors in concluding that the applicant's identity had not been established and that the applicant still suffered from a general lack of credibility?
APPLICANT'S ARGUMENTS
[9] Ms. Bonkendo Sitoo submitted her national identity paper, a driver's licence, a state diploma, three summonses to the police station, an arrest warrant and two certificates indicating she had successfully taken English courses. The panel erred when it did not attach any evidentiary value to the documents submitted. Counsel for Ms. Bonkendo Sitoo submitted that the panel should regard the applicant's documents as authentic, unless there is evidence to the contrary. He relied on Osipenkov v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 59 (QL).
RESPONDENT'S ARGUMENTS
[10] The respondent submitted that the panel's conclusion that Ms. Bonkendo Sitoo was not credible and had not even established her identity was justified. In view of the many contradictions and improbabilities noted by the panel in its reasons, including several dealing with the substance of the applicant's story, the panel was justified when it concluded that Ms. Bonkendo Sitoo was not a refugee.
ANALYSIS
Identity
[11] The panel discussed in particular one of the exhibits filed by Ms. Bonkendo Sitoo to establish her identity. On the birth certificate, there is a 2 FF stamp. The panel relied on two documents available at the Board's research centre in concluding that the birth certificate filed by the applicant was nothing but a forged document. The documentation consulted indicated that the administrative or legal fees required to obtain official documents are paid in Congolese francs. Consequently, they should have a stamp indicating FC.
[12] The documents consulted by the panel indicated simply that there was no information to support stamps being affixed with the designation "FF". They do not in any way indicate that the letters "FF" are a sign of a forged document. The presumption that a document from a foreign state is valid continues to apply in the case at bar, since it has not been refuted.
[13] The applicant also filed three documents titled [TRANSLATION] "invitation". The first invitation was dated October 24, 2001, the second November 1, 2001 and the third October 3, 2001. When confronted with discrepancies between the dates and listings, the applicant said she did not understand and could not explain the error by the police. It is not reasonable to expect the applicant to be able to explain errors in a document which she did not produce.
[14] The applicant's identity was confirmed by a letter from her brother, who is a refugee in France, and by Mubengay Medard, who testified at the hearing as to her identity.
[15] In view of the foregoing errors, it is patently unreasonable to conclude that Ms. Bonkendo Sitoo's identity is unclear.
[16] Further, the panel dealt with discrepancies which it created itself, through its adherence to Western ideas. The applicant gave a detailed explanation of an important aspect of her claim, a press conference in which she took part. The panel felt Ms. Bonkendo Sitoo was actually speaking of a public meeting rather than a press conference, and that this undermined her credibility. The panel considered minor points which had no importance, which involved cultural inferences (Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (T.D.) (QL); Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584 (F.C.A.) (QL)).
[17] The panel also rebuked Ms. Bonkendo Sitoo for having destroyed her air ticket and the passport she used to travel to Canada. Under ordinary circumstances, this would make it very difficult to check the applicant's itinerary. However, the applicant gave the name she used for travelling and details of the flights she had taken.
[18] It is reasonable to expect that the panel would check information which is important to the refugee status claim if it is able to do so (Florez v. Canada (Minister of Citizenship and Immigration), 2004 FC 1230, [2004] F.C.J. No. 1478 (QL)). This analysis is consistent with the principles set out in paragraph 196 of the Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees, the "OUNHCR Handbook", which reads:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
ORDER
The Court orders that the application for judicial review be allowed. The Board's decision is dismissed and the matter referred back to a panel of different members for rehearing and reconsideration of the case. No serious question of general importance is certified.
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"Sean Harrington"
Judge |
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-309-04
STYLE OF CAUSE: CHANTAL MODRI BONKENDO SITOO
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 7, 2004
REASONS FOR ORDER AND ORDER BY: HARRINGTON J.
DATED: NOVEMBER 1, 2004
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Lucie St-Pierre FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada