Date: 20000321
Docket: IMM-1628-99
BETWEEN:
LUMPINA KILOLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
INTRODUCTION
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (Act) of a decision of the Refugee Division of the Immigration and Refugee Board, dated March 8, 1999, wherein the applicant was found not to be a Convention refugee.
[2] The applicant seeks an order quashing this decision and remitting the matter back for a hearing before a newly constituted panel of the Board.
FACTS
[3] The applicant, a citizen of the People"s Republic of Congo, was born on July 13, 1972 in Kinshasa.
[4] The applicant alleges that he has a well-founded fear of persecution based on his political opinions and participation in a particular social group.
[5] Between 1985 and 1993, the applicant lived in Belgium. Upon his return to the Congo, he became involved in the activities of the "Conseil révolutionnaire Lumumbiste" (CRL). In particular, he participated in a demonstration against the government held on July 29, 1995. He also helped organize persons to attend at the demonstration.
[6] The applicant"s father was a bureaucrat in the Mobutu government and secretary of the CRL. In his capacity as secretary, his father was the head of recruitment and in charge of propaganda.
[7] Through his father, the applicant was introduced to the President of the "Parti lumumbiste unifié" (PALU), Mr. Antoine Gizenga.
[8] Two days after this meeting, Mr. Gizenga contacted the members of the CRL to invite them to participate in the demonstration planned for July 29, 1995.
[9] On July 29, 1995, the applicant, having gone to the demonstration, states he heard gun shots during the demonstration and immediately fled the area, deciding not to participate any further in the demonstration that day.
[10] In the early hours of July 30, 1995, the military entered the applicant"s home and took numerous compromising documents concerning the CRL belonging to him and his father.
[11] The applicant alleges that he was then arrested and taken to the "Force d"intervention rapide" (FIRA) and questioned on the political involvement of his father in the CRL.
[12] After three weeks, the applicant was transferred to the central prison in Makala where he was held for four months.
[13] The applicant fled from prison on January 15, 1996.
[14] With the assistance of his uncle, the applicant went to Matadi where he lived for two months. He then crossed over to Angola where a group of Zaire youth were organizing trips and aided him in traveling to Canada.
STATUTORY PROVISIONS
Immigration Act, R.S.C. 1985, c. I-2
"Convention refugee" "réfugié au sens de la Convention"
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
"réfugié au sens de la Convention" "Convention refugee"
"réfugié au sens de la Convention" Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
| Exception (3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution. |
Exception (3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée. |
| Federal Court Act, R.S.C. 1985, c. F-7. Section 18.1 Grounds of review (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
| Article 18.1 Motifs (4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
THE DECISION OF THE BOARD
[15] The crucial paragraphs of the Board"s decision are found at page 2 of its reasons as follows:
| Le demandeur ne s"est pas déchargé de son fardeau d"établir qu"il a une crainte bien fondée de persécution, en raison de ses opinions politiques ou de tout autre motif de la Convention. |
| Le revendicateur a manqué de clarté lorsqu"invité à préciser certains points dont son implication et celle de son père au sein du CRL, et il n"a pas pu répondre avec satisfaction aux invraisemblances soulevées affectant ainsi grandement sa crédibilité. |
| Alors qu"à la question 23 il indique avoir étudié en Belgique en de 1991 à 1993, il indiquera que c"est une erreur car à cette époque, il attendait que son frère termine son secondaire. Invité à expliquer ses propres occupations, il dira qu"il lisait en attendant la fin des études de son petit frère. Après son retour au Zaïre en mars 1993 et jusqu"à son départ en mars 1996, le revendicateur n"aurait ni travaillé ni étudié. |
| Invité à préciser le nombre de membres qui aurait assisté aux réunions se tenant à son domicile, il répondra " cinq personnes se réunissaient au salon " en nommant deux collaborateurs de son père dont il ne connaît cependant ni le rôle ni la fonction au sein du parti. Il témoigne que ces réunions étaient des soirées entre adultes de type familial où il était question de politique. Il sera incapable de déterminer la fréquence des réunions expliquant que deux, trois personnes venaient à la maison chaque jour. Invité à préciser comment il savait qu"ils étaient des membres, il répond qu"il les entendait parler de revendications, sans être en mesure de préciser davantage. Bien qu"il aurait eu la responsabilité de contacter ses compagnons pour les inviter à participer à la marche, il ne connaît pas le nombre de ceux qui y auraient participé et aucun endroit de rencontre précédant la marche n"aurait été convenu pour se réunir. Toutes ces généralités ne permettent pas d"établir les véritables implications du revendicateur et de son père au sein du CRL. Même en admettant que son père , qui occupait un poste aux Douanes et Assises sous le gouvernement Mobutu, aurait été membre de ce parti tout comme Kabila dans les années 1970, selon le témoignage du revendicateur, aucune information faisant état de ce parti n,a pu être retracée dans toutes les sources consultées dont le Political Handbook of the World où il n"est nullement nommé. |
| Le revendicateur fut invité à énumérer les buts de la marche du 29 juillet 1995. De nouveau, il donnera des généralités tels: les gens ne voulaient plus de Mobutu; il ne mentionnera pas l"un des objectifs principaux qui était de protester contre la promulgation de la période de transition démocratique. |
| Le revendicateur témoigne que son père aurait quitté vers 10 h 00 le matin du 29 pour se rendre à la marche et qu"il n"en serait pas revenu; le revendicateur aurait déduit, des militaires venus chez lui dans la nuit, qu"il avait été arrêté quand ces derniers ont dit: " ton père déjà parti ". Selon son témoignage, les membres de sa famille n"auraient fait aucune démarche pour tenter de retracer ni auprès du parti PALU, ni auprès des autorités carcérales ni auprès de toute autre organisation. Cette passivité est un comportement qui apparaît tout à fait incompatible avec la situation d"arrestation, décrite par le revendicateur, concernant son père et amène le Tribunal à sérieusement douter de cette arrestation. |
| Le revendicateur a déposé un manifeste sur le parti, qu"il aurait obtenu a Montréal après son arrivée au Canada. Il témoigne ne l"avoir jamais vu auparavant dans son pays, ce qui est fort curieux considérant que son père aurait été secrétaire du parti depuis 1985 et un membre depuis 1966, soit depuis près de trente ans et que le revendicateur aurait été lui-même responsable de propagande et de recrutement. |
| Bien que les frères du revendicateur auraient participé aux mêmes réunions que lui, à la maison familiale, il explique qu"ils n"ont connu aucun ennui car eux n"auraient pas parlé aux rencontres: ses deux frères sont toujours au pays ainsi que sa mère. |
| Le Tribunal considère tout à fait invraisemblable que le revendicateur, emprisonné avec huit autres détenus dans une minuscule cellule, au-delà de quatre mois, n"aurait, au cours de tous ces mois, eu aucun échange verbal avec cinq d"entre eux. Invité à commenter ce fait, il répond que la paranoïa s"était installée et qu"il ne faisait confiance à personne. Cependant, il aurait fait confiance à un geôlier vu pour une première fois, le jour de Noël, pour lui demander de l"aide en vue de fuir; invraisemblance qu"il n"a pas pu expliquer a la satisfaction du Tribunal. |
| La preuve n"a pas permis d"établir que le revendicateur serait recherché pour son implication et/ou sa participation au sein du parti CRL et le Tribunal n"accorde pas foi aux propos du revendicateur, considérant qu"il a inventé une histoire au soutien de sa revendication. |
ISSUES
[16] This application for judicial review raises essentially three questions:
| (1) Did the Board make an error of law in applying the criteria set out in subsection 2(2) of the Act? |
| (2) Did the Board err in assessing the applicant"s testimony or in its finding that the applicant lacked credibility? |
| (2) Did the Board make a reviewable error of fact or law by ignoring relevant documentary evidence or misconstruing the evidence presented before it? |
SUBMISSIONS OF THE PARTIES
Applicant"s Submissions
Test to be Applied under Subsection 2(2) of the Act
[17] The applicant submits that the Board erred by misapplying the criteria set out in subsection 2(2) of the Act for assessing who is a Convention refugee. More specifically, the Board introduced two new and foreign elements into the definition of a refugee that did not exist in the Act itself.
[18] It is the applicant"s submission that the requirement that he establish that he would be a "victim of persecution" if he were to return to his country is completely foreign to the Canadian definition and jurisprudence.
[19] The applicant argues that a claimant does not have to establish that he is or would be a victim of anything, he must simply establish that he has a well-founded fear of persecution for a reason specified in the Act.
[20] It is submitted that the introduction by the Board of the element of being a victim imposes a much higher burden on the applicant than the Act requires.
[21] The applicant also argues that a second foreign element was introduced into the definition by the Board by its requirement that a claimant establish in a credible manner that he would be persecuted if he returned to his country of origin.
[22] It is the applicant"s submission that he must only show that he has reasonable grounds to fear persecution for one of the reasons specified in the Act.
Credibility
[23] The applicant also argues that the Board made a very broad statement on his credibility that amounted to a negative finding but failed to give any reasons for this finding.
[24] It is the applicant"s submission that the Board failed to give one example where the applicant lacked clarity in his testimony yet it made a general statement that he lacked credibility when requested to explain his activities and those of his father within the CRL.
[25] The applicant submits that, after making this adverse finding of credibility, the Board did not give any examples of where he had lacked clarity in his testimony and that there were no other references to lack of clarity in its reasons.
[26] Furthermore, the Board failed to support this adverse finding of credibility with any examples arising from the evidence before it and therefore acted contrary to its duty to give reasons for casting doubt upon the claimant"s credibility.
[27] Lastly, the applicant refers the court to the transcript of the hearing which reveals that he gave detailed and complete answers to the questions regarding his own and his father"s activities within the CRL.
Respondent"s Submissions
Test to be Applied Under Subsection 2(2) of the Act
[28] The respondent submits that the applicant wrongly infers from the Board"s reasons that he was required to discharge the burden of showing that he would be a victim of persecution should he return to his country.
[29] To the contrary, the respondent submits that the Board required that the applicant demonstrate a serious possibility of persecution if he were to return to his country. This is the test articulated in Adjei v. Canada (M.E.I.) [1989] 2 F.C. 680.
[30] The respondent argues that the Board did not introduce any foreign or new elements into the definition of refugee as stated in subsection 2(2) of the Act. The Board simply required that the applicant demonstrate in a credible manner that there existed a serious possibility he would be persecuted if he were to return to the Congo.
[31] Lastly, it is the position of the respondent that the Board made no error of law in applying the criteria set out in subsection 2(2) of the Act for assessing the applicant"s claim for refugee status.
Credibility
[32] The respondent submits that the Board thoroughly reviewed the evidence before them as well as the testimony given by the applicant before concluding that there existed significant inconsistencies and unanswered questions which led to the finding that the applicant lacked credibility.
[33] More specifically, the respondent argues that the applicant gave no explanation for the curious lack of effort on his part or his family to trace the whereabouts of his father after his disappearance. Secondly, that the applicant was unable to give the Board a detailed description of his involvement or his father"s in the CRL.
[34] The respondent argues that it was reasonable for the Board to conclude that a person who occupied the position of head of recruitment and propaganda for an opposition party would be able to provide a detailed explanation of how the meetings that he participated in were conducted, their objectives and the others who were in attendance.
ANALYSIS
The Applicable Test Under Subsection 2(2) of the Act
[35] The test to be applied in determining whether a claimant has established a well-founded fear of persecution was articulated by this Court in Adjei, supra as follows:
| 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. Indeed in Arduengo v. Minister of Employment and Immigration (1981), 40 N.R. 436 (F.C.A.) at page 437, Heald J.A. said: |
| Accordingly, it is my opinion that the board erred in imposing on this applicant and his wife the requirement that they would be subject to persecution since the statutory, definition supra required only that they establish "a well-founded fear of persecution". The test imposed by the board is a higher and more stringent test than that imposed by the statute. |
| 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. in Seifu v. Immigration Appeal Board (A-277-822, dated January 12,1983, not reported): |
| ... [I]n order to support a finding that an applicant isa Convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution";what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act. [Emphasis added]. |
| What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not 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. |
[36] Applying this test to the criteria applied by the Board in the present case, the Board found that the applicant had not discharged his burden of proof on the basis that he did not demonstrate, in a reasonable and credible manner, that there exists a serious possibility that he would be a victim of persecution should he return to his country.
[37] The applicant argues that the phrase "victim of persecution" imposes a higher burden on him than is required by subsection 2(2) of the Act and therefore constitutes an error of law.
[38] In Lai v. Canada (M.E.I.) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.)., the Federal Court of Appeal Court stated the following on the criteria to be applied by the Board:
| The double question put to the Board was whether the Applicant had a genuine fear to return to his country and whether that fear was reasonable, i.e. founded on good grounds. In answering that question, the Board has to assess all the evidence put before it. This is particularly important here where the Applicant has successfully made out a pattern of long-standing and persistent persecution, and the real question remaining is whether or not there is reason to believe that this pattern might not have ceased. |
[39] This issue was also addressed in Ponniah v. Canada (M.E.I.) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.). Madame Justice Desjardins J.A. stated the following:
| An applicant, according to Adjei, does not have to prove that persecution would be more likely, than not. He has to establish "good grounds" or "reasonable chance" for fearing persecution. |
| "Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50% chance (i.e. a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is "good grounds". |
[40] With all due respect to the applicant, I am unable to see how the wording used by the Board in its decision illustrates that subsection 2(2) was misapplied or that a higher burden of proof was imposed.
[41] In Lacassi v. Canada (M.E.I.), [1996] F.C.J. No. 1156, Mr. Justice Richard, as he then was, discussed the correct test to be applied under subsection 2(2) in the following terms:
| Counsel for the applicant claimed that the Board had set too high a standard of proof for the applicant to establish that she was a Convention Refugee. In its decision, the Board had stated that the applicant must present evidence that there is a serious possibility of facing persecution should she return to Uruguay. Counsel submitted that the applicant was not required to establish a serious possibility, but only a mere possibility. Counsel relied on various dictionary definitions of the word serious and of the word mere. However, in Adjei Mr. Justice MacGuigan made it clear that it must be a reasonable or even a serious possibility as opposed to a mere possibility. In the Chan case, Mr. Justice Major, speaking on behalf of a majority, of the Supreme Court also indicated that the test is that of serious possibility. Accordingly, the Board did not err in law when it adopted the test of a serious possibility. |
[42] I am satisfied that the Board correctly asked whether the applicant had proven, on a balance of probabilities, that he would face a serious possibility of persecution in his country. This was the correct test as established by the above jurisprudence.
[43] The applicant has also argued that the Board introduced two new and foreign criteria into the definition of Convention refugee under subsection 2(2) of the Act. Firstly, that the applicant be a "victim of persecution" and secondly, that he establish his claim in a credible manner.
[44] Having already found that the Board correctly applied the test under subsection 2(2) of the Act, I find it unnecessary to consider this argument any further.
Credibility
[45] Central to the decision of the Board in the case at bar is the finding that the applicant lacked credibility and that his testimony contained numerous inconsistencies and implausibilities.
[46] It is trite law that credibility is a question of fact and that the Board has the discretion to assess credibility. Having said that, the jurisprudence has also established that adverse findings of credibility must be justified by internal contradictions, inconsistencies or evasions: Giron v. Canada (M.E.I.) (1992), 143 N.R. 238 (F.C.A.).
[47] In Rezaei v. Canada (M.E.I.) (A-255-90, April 30, 1992) the Federal Court of Appeal held that an adverse finding of credibility may be set aside if the Board, in making the determination, misconstrued or ignored evidence submitted before them.
[48] I have reviewed all of the evidence presented by the parties and I am satisfied that, on the important issues of credibility, there is nothing to suggest that the Board misconstrued or ignored the evidence.
[49] In the subsequent decisions of the Federal Court of Appeal in Amoah v. Canada (M.E.I.) (F.C.A.) (A-206-92, February 9, 1995) and Luckner v. Canada (M.E.I.) (F.C.A.) (A-255-90, April 21, 1998), the Court affirmed that even in cases where the Board made errors of fact, this Court will not intervene if there remains evidence to support an adverse finding of credibility.
[50] Again, the issue of adverse findings of credibility was raised in Bennasir v. Canada (Minister of Citizenship and Immigration)(F.T.D.) (Imm-852-97, April 27, 1998) where Mr. Justice Cullen stated the following:
| Normally, the Court will not interfere with the credibility findings of the Board, which has had the opportunity to observe the applicant"s testimony first-hand. As such, the Board is in a better position than a reviewing Court to weigh the credibility of those who testified before it: Rajaratnam v. M.E.I. (1991), 135 N.R. 300 (F.C.A.); Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.); Bar v. M.E.I. (1993), 152 N.R. 157 (F.C.A.). However, in arriving at its findings, the Board must not draw adverse inferences on findings of facts which are manifestly in error: Gracielome v. M.E.I. (1989), 9 Imm.L.R. (2d) 237 (F.C.A.). Moreover, the Board must express its adverse findings concerning credibility in clear and unmistakable terms: Hilo v. M.E.I. (1991), 15 Imm.L.R. (2d) 199 (F.C.A.). |
[51] In this case, the Board refers to specific reasons why it concluded that the applicant is not credible. Firstly, he is unable to give any detailed explanation of his involvement or that of his father in the CRL party but instead replies with vague generalities.
[52] Secondly, the applicant is unable to explain why the CRL party is not mentioned in any of the documentary evidence or in the sources consulted by the Board. Here the Board erred because there was mention of the CRL party but in a very minor way.
[53] Thirdly, when asked by the Board to explain why neither he or any other members of his family attempted to find out what happened to his father, the applicant was unable to provide any sufficient explanation.
[54] This lack of serious efforts by the applicant and his family to resolve their father"s disappearance was totally incompatible with the situation surrounding his arrest and caused the Board to doubt the applicant"s testimony on this issue.
[55] Fourth, the Board found it implausible that the applicant would be imprisoned in a minuscule cell for four months and have no conversation of any kind with five of seven persons in his cell. It was even more unlikely, in the Board"s view, that the applicant would then confide in a warden whom he had just met for the first time and ask for his help in fleeing the prison.
[56] Finally, the Board found that the applicant had failed to establish that because of his political involvement in the CRL party he would face a serious possibility of persecution if he were to return to his country.
[57] I am satisfied that the Board"s decision establishes that the applicant is not credible for the numerous reasons stated as required by the jurisprudence. Thus, there is no basis for intervention by the Court.
[58] In my view, the Board did not make any reviewable error of fact or law which would justify the intervention of this Court.
[59] For the foregoing reasons, the application for judicial review is dismissed.
[60] No question was submitted for certification.
"Max M. Teitelbaum"
| J.F.C.C. |
Ottawa, Ontario
March 21, 2000