Ottawa, Ontario, the 31st day of October 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
CHRISTELLE OTTO MBONGO AND OTHERS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This application for judicial review, brought under subsection 72(1) of the Immigration and Refugee Protection Act, S. C., 2001, c. 27 (IRPA) concerns a decision rendered by the Refugee Protection Division of the Immigration and Refugee Board (Board) on January 4, 2005. The Board ruled that Christelle Otto Mbongo (applicant) and her son, Rinaldo Otto Mbongo Atalay, did not meet the definition of a "Convention refugee" within the meaning of section 96 of the IRPA.
[2] The following are the facts alleged by the applicant, who is a citizen of the Republic of the Congo, as mentioned in her Personal Information Form (PIF), her record and by the Board.
[3] The applicant was born on January 19, 1974, in Brazzaville, People's Republic of the Congo. On October 10, 1990, in Brazzaville, she married Tolga Atalay, a citizen of the Republic of Turkey. They had one child, named Ronaldo Otto Mbongo Atalay.
[4] The applicant worked as a ground hostess for a small airline called GOFAR. Under threat and coercion, GOFAR occasionally carried rebel troops, weapons and ammunition. This attracted the attention of the Congo Security Department, which paid special notice to the applicant, her husband, the co-pilot and the owner of the small airline. The Belgian owner returned to Belgium.
[5] On July 8, 2003, the applicant, her husband and the co-pilot were arrested by the Congo Military and Civil Security Department and were interrogated concerning their participation with rebel groups, which were conspiring against the government. At four o'clock in the morning, Security Department officials violently broke into the home of the applicant and her husband. The applicant, her husband and the co-pilot were taken to the presidential fortress at Mpila and were jailed in tight-quartered cells.
[6] The applicant and her husband were charged with collaborating with the enemy to destabilize and overthrow the government. The applicant was released on July 19, 2003, only to learn that her husband and the co-pilot had been killed on July 18, 2003. Following this trauma, the applicant's health deteriorated. Fearing for their lives, the applicant and her son left the Congo on August 22, 2003 and arrived in Montréal on August 25, 2003. They claimed refugee status on August 27, 2003.
[7] The Board did not acknowledge the applicant's identity after an analysis of her identity papers. The Board concluded that she was not a credible witness and cited several examples. Accordingly, the Board refused to grant refugee status to the applicant and her son.
[8] The questions in issue are the following:
Is it patently unreasonable that the Board refused to acknowledge the applicant's identity in spite of the identity card she submitted?
Is it patently unreasonable for the Board to have concluded that the applicant was not credible?
[9] It is settled law that, as far as questions of fact such as identity and credibility are concerned, an error made by the Board must be patently unreasonable before the Court will intervene and allow judicial review (see: Augebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732).
[10] The applicant invoked five arguments, which all constituted mistakes of fact:
1. The Board erred by writing that the applicants were citizens of the Democratic Republic of Congo instead of the People's Republic of Congo.
(As the respondent has pleaded, this is a clerical mistake. All research had been done for the People's Republic of Congo.)
2. The Board erred by refusing to acknowledge the identity of the applicants.
3. The Board's Research Department erred when it conducted a cursory search and came to the conclusion that the airline GOFAR did not exist. This misled the Board and negatively affected the applicant's credibility.
4. The Board erred by ruling that the applicant was not credible because she knew little about her husband's past and the circumstances surrounding his death.
5. The Board did not challenge the applicants' credibility at the hearing.
[11] The respondent relies on three submissions:
1. The Board made a clerical mistake concerning the name of the country of origin of the applicants.
(I allow this submission.)
2. The lack of evidence concerning the identity of the main applicant is sufficient to deal with the application for judicial review.
3. A possibility for the son to obtain Turkish citizenship.
(The mother is a citizen of the Republic of Congo. I do not see how obtaining Turkish citizenship for her son helps us decide the issue.)
[12] I am of the opinion that the applicant's five submissions may be classified as mistakes of fact. As far as mistakes of fact are concerned, the Court may only intervene if they are patently unreasonable.
[13] The applicant alleged that the Board erred by refusing to acknowledge the identity of the applicants. I do not agree. The applicant only submitted photocopies of the originals of the applicants' birth certificates. No passport, no airline ticket, no school records, no driver's permit, no pay stub - this lack of documentation does not facilitate the identification of the applicant and has a negative effect on her credibility. She had a few additional months to submit other identity papers but did not do so.
[14] In Kazadi v. MCI, [2005] F. C. 292, a decision rendered by this Court on February 24, 2005, de Montigny J. mentioned the following in paragraph 8:
[8] It is well established that persons claiming refugee status must first establish their identity. It is in fact essential that the applicant be able to establish that he really is the person that he claims to be before his claim can be considered. That requirement also comes from section 7 of the Refugee Protection Division Rules, which provides:
| 7. Documents establishing identity and other elements of the claim - The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who des not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. |
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7. Document d'identité et autres éléments de la demande - Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer. |
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[15] In paragraph 10 of Kazadi, supra, de Montigny J. added that:
[10] Since the question of whether the applicant has documentation establishing his identity is essentially a question of fact and credibility, of course this Court will not intervene unless the Board's decision is patently unreasonable (Najam v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 425 (F.C.) (QL); Husein v. Canada (M.C.I.), [1998] F.C.J. No. 726 (F.C.) (QL); Gasparyan v. Canada (M.C.I.), [2004] F.C.J. No. 1103 (F.C.) (QL)).
[16] By citing Elazi v. MCI, [2000] 191 FTR 205 (F. C.), the respondent noted that the shortcomings concerning the evidence of the principal applicant's identity were sufficient in themselves to decide this matter. In Elazi, supra, Nadon J. noted in paragraph 16 that:
[16] Consequently, in my opinion there can be no doubt that the Refugee Division's conclusion regarding the proof of identity submitted by the plaintiff is in no way unreasonable. In my opinion, this conclusion suffices to dispose of the application for judicial review. Not only was the evidence submitted by the plaintiff regarding his identity insufficient, several aspects of this evidence were such that the plaintiff's credibility was undermined.
[17] It seems to be appropriate to conduct a brief analysis of the applicant's credibility.
[18] As far as credibility is concerned, the Board gave many examples that undermined the applicant's credibility:
· Very few identity documents were submitted
· False documents were submitted
· No documents confirming that the applicant worked for GOFAR were submitted
· Lack of evidence of the existence of GOFAR
· The applicant had additional time to submit evidence in support of her identity but did not do so
· She was not aware of her husband's personal history
· No evidence of the death of her husband
· No travel documents, use of false documentation
[19] The determination of credibility results from a specialized analysis of the facts and opens the door to judicial review only if that determination is patently unreasonable: Valkova v. Canada (Minister of Citizenship and Immigration), [2005] FC 1162, paragraph 1.
[20] The Board dismissed the application for refugee status because of the applicant's lack of credibility. An analysis of the evidence shows that this conclusion is not patently unreasonable.
[21] In Pissareva v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2001 (T.D.), under the section entitled "Standards of Review", Blanchard J. specified that:
It is also important to note that the standard of review of an assessment of the facts remains what is patently unreasonable. A number of decisions have reaffirmed that the members are in the best position to assess testimony
[22] In Pissareva, supra, under the section entitled "Standards of Review", the seminal judgement of the Federal Court of Appeal in Augebor v. Canada, supra, was cited in discussing the matter of credibility. Décary J.A. specified that:
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 tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[23] Therefore, because the determination of the lack of credibility of the applicant is not patently unreasonable, the Court cannot allow a judicial review.
[24] As far as the matter of an identity card that was submitted in evidence by the applicant is concerned, the Board has jurisdiction to establish its probative value and validity. Then, after analyzing all the evidence, the Board must determine if the applicant proved her identity. According to the Board, she did not do so. This conclusion is not patently unreasonable and does not warrant the intervention of this Court.
[25] For these reasons, I must answer the question at issue in the negative: the Board did not make a patently unreasonable mistake by refusing to grant refugee status to the applicant owing to her lack of credibility.
[26] No question was submitted for certification.
ORDER
The application for judicial review is dismissed.
"Max M. Teitelbaum"
JUDGE
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1652-05
STYLE OF CAUSE: Christelle Otto Mbongo And Ronaldo Otto Mbongo Atalay v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 6, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice Teitelbaum
DATED: October 31, 2005
APPEARANCES:
Olivier Chi Nouako FOR THE APPLICANTS
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Olivier Chi Nouako
Montréal, Quebec FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General for Canada FOR THE RESPONDENT