Date: 20011011
Docket: IMM-3883-00
OTTAWA, Ontario, the 11th day of October, 2001
PRESENT: The Honourable Madam Justice Dolores M. Hansen
BETWEEN:
QUEEN TAIRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
IN VIEW OF an application for judicial review under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 of a decision of the Refugee Division of the Immigration and Refugee Board rendered May 30, 2000, that the applicant is not a Convention refugee;
AFTER reading the documents filed and hearing the representations by the parties;
AND for the reasons for order set out today;
THE COURT ORDERS THAT the decision rendered on May 30, 2000 by the Refugee Division is set aside, the application for judicial review is allowed and the matter is sent back for redetermination before a differently constituted panel.
No question will be certified.
"Dolores M. Hansen"
J.F.C.C.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20011011
Docket: IMM-3883-00
Neutral Citation: 2001 FCT 1109
BETWEEN:
QUEEN TAIRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
A. INTRODUCTION
[1] This is an application for judicial review under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (hereinafter the "Act") of a decision of the Refugee Division of the Immigration and Refugee Board (hereinafter the "panel") rendered May 30, 2000, that Ms. Queen Taire (hereinafter the "applicant") is not a Convention refugee, solely on the basis that her testimony was not credible.
B. THE CLAIM
[2] The applicant, a native of Nigeria, claimed refugee status alleging that she had a well-founded fear of persecution should she return to her country. Central to her claim is her membership in a particular social group, as a woman who is a victim of spousal violence.
[3] When she was 16 years of age, and notwithstanding her refusal, her parents promised her in marriage to a man close to three times her age in exchange for some land. She maintained her objections and never formally married this man, but lived with him and his three other wives for 15 years during which she suffered spousal violence.
[4] In 1990, she gave birth to a daughter. When her daughter reached the age of 7, the applicant's spouse demanded that the child undergo a clitoridectomy. Despite the applicant's objections, the operation took place. As a result, she left her spouse with the hope of taking refuge with her parents. They sent her back to her husband, who continued to abuse her and caused her two miscarriages.
[5] She again left the matrimonial home in 1998, and lived in Lagos with her new friend Emmanuel until her husband located her, had Emmanuel murdered and took her back by force to the matrimonial home.
[6] Following her forced return, she procured a passport and left Nigeria with the help of a friend of the deceased Emmanuel. She filed her refugee claim on December 2, 1999 and the hearing was held in Montréal on April 18, 2000. This claim was rejected on the ground that she was not credible.
C. PANEL'S DECISION
[7] The panel concluded that the applicant was not a Convention refugee as defined in subsection 2(1) of the Act, having determined that some important aspects of her testimony were not credible and that they had tarnished the credibility of her testimony as a whole. This is the decision that the applicant is seeking to have reviewed.
[8] The panel cited as examples of contradictions and improbabilities the fact that the applicant contradicted herself concerning her stay in Lagos, the fact that she could have stood up to her parents and her common-law spouse concerning the marriage to him, the murder of Emmanuel and the circumstances surrounding the obtaining of the passport and the birth certificate.
D. SUBMISSIONS OF THE PARTIES
(a) Errors cited by applicant
[9] The applicant argues that the panel erred in concluding that her past problems and her current fear are unrelated to one of the grounds of the Convention.
[10] The applicant also alleges that the panel confused two separate things when it concluded that it was improbable that she had procured her passport after the death of Emmanuel and that it was the latter who had suggested it to her, since he was already deceased. According to the applicant, there is nothing improbable in this since it was after her forced return to her village that she took the necessary steps to obtain the passport.
[11] The applicant further argues that the panel erred in law in noting a contradiction in the fact that the passport had been issued on July 17, 1999 and the birth certificate on July 20, 1999. She argues that she could not be held liable for her ignorance as to how the passport had been obtained before the birth certificate, notwithstanding the fact that she had testified that the birth certificate was needed in order to obtain her passport, her brother having been the one who had taken the steps to obtain the passport.
[12] The panel drew a conclusion contrary to the evidence, she says, in stating that it did not believe that her father would have agreed to sign the application for a birth certificate, given the oppressive role he had played in her life, despite the fact that the authenticity of the affidavit produced to that effect was not raised.
[13] She adds as well that the finding of non-credibility in relation to the episode of Emmanuel's murder is unfounded and is based on a misunderstanding of the evidence since it is contrary to the evidence that was produced.
[14] Lastly, the applicant argues that one of the panel members no longer had the necessary jurisdiction to hear the case. She relies on subsection 61(1) of the Act and the orders in council of the Privy Council, which are, she says, matters of judicial notice.
(b) Respondent's submissions
[15] The respondent argues that because the claim was rejected on account of the applicant's non-credible testimony, the Court cannot intervene unless the decision was based on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before the panel.
[16] The respondent submits that the panel relied on a number of contradictions and improbabilities in reaching the conclusion that the applicant was not credible: for example, the fact that the applicant could have opposed the marriage to her common-law spouse, notwithstanding the fact that the she said she was under his domination; the contradictory testimony of the applicant as to the circumstances of the murder of her fiancé Emmanuel; the applicant's contradictory evidence as to the duration of her stay in Lagos; and the applicant's account of the circumstances concerning the obtaining of her passport and her birth certificate.
[17] The respondent alleges that since the panel held that the applicant's testimony was not credible, it was not obliged to accord any probative value to the medical report that was produced, which describes certain scars on her body, and the respondent cites what Wetston J. says in Boateng v. Canada (Minister of Citizenship and Immigration, [1995] F.C.J. no. 517.
[18] The respondent submits that the argument about the lack of jurisdiction of Mr. Lasalle cannot be accepted by the Court since it is not supported in any way by the evidence. Furthermore, contrary to what the applicant argues, the orders in council are not matters of judicial notice since they are not published. And the applicant's interpretation that a panel member cannot be appointed for a cumulative period of over seven years is erroneous. Subsection 61(1) of the Act provides that a term of office may not exceed seven years, but a member may serve more than one term for a total of more than seven years.
E. ISSUES
[19] The issues raised in this case are the following: (1) Did the panel err in law or did it base its decision on erroneous findings of fact made in a perverse or capricious manner and without regard for the material before it when it concluded that the applicant was not a Convention refugee on the ground that she was not credible? (2) More specifically, had panel member Lasalle lost the necessary jurisdiction to hear the case?
F. ANALYSIS
(a) Standard of review
[20] It is trite law that in matters involving credibility, the panel's findings should not be upset unless they are unreasonable. In Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), Mr. Justice Décary states this principle in the following way, at page 316:
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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
(b) Credibility of the applicant
[21] It is apparent from the panel's decision in the case at bar that the claim was rejected because the panel thought the applicant's testimony was riddled with contradictions and improbabilities, and thus she was not credible. From a careful reading of the transcript and the evidence on file, I have found that the contradictions and improbabilities noted by the panel are not so. It is my opinion, therefore, that some of the panel's findings were unreasonable and that the intervention of this Court is warranted, for the following reasons.
(i) Stay in Lagos
[22] The panel thought the applicant had contradicted herself concerning her stay in Lagos because in her PIF she said she sought refuge with Emmanuel in the fall of 1998 and remained there until May 1999. However, in her testimony, she is reported to have said that she lived in Lagos for a year, ending in May 1999. In my opinion, this is not a contradiction but rather a play on words. In any event, irrespective of whether or not it is a contradiction, it is not central to the claim.
[23] It is trite law that the contradictions cited by the panel must be central to the claim. (See Mahathmasseelan v. Canada (Minister of Employment and Immigration), 15 Imm. L.R. (2d) 29 (F.C.A.). In my opinion, the applicant in this case did not contradict herself and her stay in Lagos is not central to her claim.
(ii) refusal to marry her husband
[24] The panel thought it was improbable that the applicant could have resisted her parents and her common-law husband over an official marriage ceremony. The documentary evidence, toward which the panel was dismissive, shows that it is common for girls to be sold in marriage. These marriages are performed through a payment in property, money or services, conducted in public, by the husband's family to the wife's family (exhibits A-11, A-12, A-13, Panel Record). In this case the applicant testified that there was a celebration and a blessing following which she was sent to live with her husband. So, notwithstanding her refusal to participate in a formal marriage ceremony, she nevertheless did become her husband's wife.
(iii) age of husband
[25] The panel held that the applicant had contradicted herself about the age of her husband. In my opinion, however, this was another circumstance in which the panel was trying to find a contradiction. In fact the applicant testified that she did not know the age of her husband. Although she explained that under Nigerian custom elders do not disclose their age to younger people, the panel insisted that she provide an answer. Pressured by the panel, she gave an estimate of her husband's age. That is in no way a contradiction.
(iv) Emmanuel's murder
[26] The panel found that the applicant contradicted herself about Emmanuel's murder because she first testified that she did not know what had happened since she was not in the house at the time of the murder and then she testified to the contrary. Concerning Emmanuel's murder, the applicant's account does not contain contradictions. Rather, it is situated on a continuum. She in fact said that she did not know the details about how Emmanuel was murdered since she was not in the house, and later in her testimony she explained that following her forced return to her husband's village she heard rumours that he had been stabbed. Her testimony on this point is clear and includes no contradictions, and consequently the panel's finding on this point is not reasonable.
(v) obtaining of passport
[27] The panel found it hard to believe that Emmanuel would be the one who suggested to the applicant that she obtain her passport, since she obtained the passport after Emmanuel's death. However, there is no contradiction there, since the two situations are compatible, neither excluding the other. Indeed, it is quite possible that Emmanuel did suggest to the applicant that she obtain her passport and that it was his death that precipitated the obtaining of the passport.
[28] The panel concluded that it was implausible that the applicant's father would have signed the application for a birth certificate that she needed in order to obtain her passport, given the oppressive role he had played in her life. However, the panel does not cast any doubt on the authenticity of the document. Moreover, the applicant testified that she did not know the circumstances in which her father signed the form, since it was her brother who had handled the procedures.
[29] The panel noted a contradiction in the applicant's testimony about obtaining the passport and the birth certificate, since she testified that she needed the certificate in order to obtain the passport but the passport had been issued prior to the birth certificate. In my opinion, that was the only real contradiction cited by the panel.
[30] In its zeal to find contradictions, the panel overlooked the central element in the applicant's claim. The duty of the panel was to assess the substance of the claim and not to put all the emphasis on what it perceived to be contradictions, as Mr. Justice Marceau held in Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. no. 531:
In our opinion, the members of the panel clearly exaggerated the import of a few apparent contradictions, hesitations or vague statements which they succeeded in detecting in the comments of the claimant, and they could not on that basis alone treat his testimony as a whole as being the testimony of a liar. It seems to us that their fixation on the details of what he stated to be his history caused them to forget the substance of the facts on which he based his claim.
[31] In the case at bar, it is my opinion that the panel, in its haste to find some contradictions, failed to assess the substance of the applicant's claim.
(c) Jurisdiction of panel member
[32] Since I have already cited a number of errors warranting the intervention of the Court, I think it is unnecessary to discuss this matter.
[33] For all of these reasons, the decision of the Refugee Division is set aside, the application for judicial review is allowed and the matter is sent back for redetermination before a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
Ottawa, Ontario
October 11, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-3883-00
STYLE: QUEEN TAIRE
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 10, 2001
REASONS FOR ORDER OF MADAM JUSTICE HANSEN
DATED: APRIL 10, 2001
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
GUY LAMB FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA