Date: 19990322
Docket: IMM-1678-98
BETWEEN:
JEAN MICHEL BAHA NGUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
INTRODUCTION
[1] The applicant filed an application for judicial review of the decision of the Immigration and Refugee Board dated March 3,1998, which held that the applicant was not a Convention refugee. The applicant seeks an order quashing the decision and remitting the matter back for a new hearing.
FACTS
[2] The applicant, a citizen of Cameroon, arrived in Canada on May 28, 1997. He claimed persecution on the basis of political opinions and membership to a particular social group.
[3] The applicant has alleged that his father has been a member of l"Union des populations du Cameroun (UPC) since 1990. In 1992 the applicant became a member and engaged with his father in political activities. On February 3, 1994, the secret police came to their house and arrested his father. In trying to flee through the window, he injured himself on pieces of broken glass. He was arrested and taken to a hospital from which he escaped.
[4] He left Cameroon on February 4, 1994 for Gabon and Guinea. A few days after his departure, he learned that his father passed away due to the injuries sustained at the hands of the secret police. He went back to Cameroon for his father"s funeral. He then sojourned in Gabon and in Guinea where he engaged in commercial activities until April 1997. In April of 1997, he went to Holland for a few months and in Spain for a few days. He arrived in Canada in April 1997 and immediately claimed refugee status.
Immigration and Refugee Board"s decision
[5] The Commission dismissed the applicant"s application as follows:
| Le demandeur n"a pas démontré d"une façon crédible et digne de foi une crainte raisonnable de persécution aux motifs invoqués. |
| Tout son périple et le fait qu"il n"ait jamais cru bon de se réclamer de la protection d"un État en plus de cinq ans, nous incitent à penser que sa crainte n"est pas particulièrement fondée. Le fait qu"il ne parle pas hollandais n"est pas une raison suffisante pour expliquer l"omission. |
| Le demandeur n"a eu aucun problème lors des obsèques de son père qui, selon le demandeur, était un militaire à la retraite. Cela nous confirme que sa crainte n"est pas crédible. |
| Même en admettant que le demandeur ait été membre de l"UPC, pendant un mois ou deux en 1992, il nous est difficile de croire que les autorités s"acharneraient contre lui cinq ans plus tard. |
SUBMISSIONS
[6] The applicant submits essentially two arguments. Firstly, he argues that the Board erred in misinterpreting the definition of Convention refugee in subsection 2(1) of the Immigration Act and in applying an improper test to the facts of this case by requiring the applicant to show a fear "particulièrement fondée". It is submitted that the proper test is whether there is a reasonable chance that persecution may take place if the applicant is returned to his home country. Secondly, it is submitted that the Commission erred in commenting on the applicant"s failure to claim refugee status in the last five years and until he arrived in Canada as it imposes a standard of proof which goes beyond the standard required under subsection 2(1) of the Act. Further, it is submitted that Guinea is not a signing party to the Convention and as such the Board erred in making adverse findings of fact on the ground that the applicant failed to claim refugee status over a period of five years.
[7] In his affidavit in support of his application for judicial review, the applicant made some noteworthy submissions. It is submitted that the Board erred in stating in its reasons that the applicant had five years to claim refugee status where in fact only three years had elapsed; that his father was a military officer where in fact his father was a retired police officer; and that the Board found that he was a member of the opposition party for only a few months while in fact he became a member in 1992 and may still be a member. Also, relying on the fact the board does not mention or discuss documentary evidence in its reasons, it is argued that the Board ignored evidence such as his national identity card, his father"s death certificate, and a certificate identifying the cause of death.
[8] As a preliminary matter, the respondent, in the written submissions, submits that the applicant"s affidavit contains arguments of law which is contrary to subsection 12(1) the Federal Court Immigration Rules, which should have been strictly included in a memorandum of facts and law. This was not argued at the oral hearing.
[9] The respondent argues that the Board did not make any reviewable error. In making a credibility finding, the Board considered the facts that the applicant returned to Cameroon to attend his father"s funeral and did not experience difficulties at that time; that he waited more than three years before claiming refugee status; and that he failed to claim refugee status while sojourning in countries which were signing parties to the Convention, i.e. Holland, Spain. The respondent submits that the Board did not impose a higher burden of proof than established in Adjei , infra, which relates to the burden of proof incumbent on the applicant to show that there is an objective basis for the fear of persecution. The excerpt from the Board"s decision specifically relates to the assessment of the applicant"s credibility and not the objective basis for his fears. The assessment of one"s credibility is within the scope of the Board"s discretionary powers, and should not be intervened with unless it is patently unreasonable, based on extraneous or irrelevant factors. In this respect it was not unreasonable for the Board to make an adverse finding of fact based on the reasons given by the applicant for failing to claim refugee status in the Netherlands (Holland) in light of the fact that a brother of his resides there.
[10] With respect to the errors noted by the applicant in his affidavit, it is submitted that the Board did not err in failing to refer in its reasons to all of the documentary evidence as the Board does not have an obligation to address every factual issue or to discuss every single piece of evidence. Further, with respect to the errors where the Board stated that the applicant"s father was a military officer instead of a retired police officer; that the applicant had five years to claim refugee status as opposed to three, and where the Board stated that the applicant had spent only two months as a member of a political party as opposed to an undetermined time, the applicant submits that these are not substantial or determinant errors which would justify the intervention of this court.
ISSUE
[11] The applicant raises the following issues:
| 1) Whether the Board applied a burden of proof different than was established in Adjei v. M.E.I. [1989] 2 C.F. 680; |
| 2) Whether the Board"s adverse finding of credibility is reasonable in light of the applicant"s failure to claim refugee status in the Netherlands and during the three year period which elapsed after he left Cameroon; |
| 3) Whether the errors of facts underlined in the Board"s reasons are determinant of the outcome and justify the intervention of this court. |
DISCUSSION
[12] The Board found that there was no credible basis to support the applicant"s refugee claim and held that "sa crainte n"est pas particulièrement fondée". The applicant argues that the Board applied a higher burden of proof upon the applicant than the one established in Adjei v. M.E.I. [1989] 2 C.F. 680 which requires that the applicant show a reasonable chance of persecution if returned to his home country.
[13] As submitted by the plaintiff, the burden of proof established in Adjei, supra, relates to the objective basis of one"s fear. Only the subjective fear relates to credibility issues.
[14] In the case at bar, the Board"s reasons show that the only basis for dismissing the applicant"s claim was a lack of credibility. It is trite law that credibility determinations are questions of fact and that the Board has discretionary powers to assess credibility. However, it is also established that adverse findings of credibility must be justified, namely based on internal contradictions, inconsistencies or evasions: Giron v. Canada (M.E.I.) (1992), 143 N.R. 238 (F.C.A.).
[15] In a recent decision, Bennasir v. Canada (Minister of Citizenship and Immigration)(F.C.T.D.) (Imm-852-97, April 27, 1998) Justice Cullen summarized the law with respect to adverse findings of credibility as follows:
| 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.). |
[16] In present case, the Board states, in support of its conclusion, that the applicant did not claim refugee status for five years, that he did not experience difficulties when he returned home to attend his father"s funeral who was a military officer, and that he was only a member of a political party for two months.
[17] The evidence shows that the facts relied upon by the Board in support of its adverse finding of credibility are incorrect. For example, and as stated, the Board found that his father was a military officer instead of a police officer, the Board found that the applicant was involved for two months in political activities without evidence to this effect and that he had five years to claim refugee status instead of three. This is acknowledged by both parties. The respondent submitted that the errors were not determinant with respect to the outcome and should not warrant the intervention of this Court.
[18] After reading all the material and after hearing oral arguments, in my view, the issue is whether the adverse finding of credibility can be upheld in light of the numerous errors of facts made by the Board or, in other words, whether there remains evidence to support the adverse finding of credibility once the errors of facts have been severed from the rest of the evidence referred to in its reasons.
[19] 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. In the present case, the Board"s misapprehension of the evidence is not contested.
[20] In both 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 Federal Court of Appeal stated that even where the Board made errors of fact, the Court will not intervene if there remains evidence to support the adverse finding of credibility.
[21] The Board"s decision is essentially set out in three paragraphs as set out above. There is an error in each paragraph which relates to each issue upon which the Board based its conclusion. While certain errors do not go to the core of the facts per se - for example he had five years instead of three to claim refugee status - and could be said not to be determinant of the outcome, in my view, the overall effect of the numerous errors of fact renders the credibility assessment unreasonable.
[22] It is most unfortunate that the Board members did not take the time to examine the evidence before they wrote their decision. It is also most unfortunate that the Board members could not be bothered to give their opinion on any of the documentary evidence.
[23] The decision is so brief that it fails to discuss what they mean when using the term "particulièrement fondée" in discussing the claimant"s fear of persecution.
[24] After reviewing the facts in this case, I am satisfied that the matter should be returned for a new hearing before a differently constituted Board.
[25] The application for judicial review is allowed.
[26] Neither party had a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
March 22, 1999