Date : 20050919
Docket : IMM-235-05
Citation : 2005 FC 1274
OTTAWA, Ontario, this 19th day of September, 2005
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN :
MAHAMAT SANDA SANDA
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TEITELBAUM, J.
[1] This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Immigration and Refugee Board, Refugee Protection Division ("the Board"), dated December 21, 2004, wherein the Board determined that Mahamat Sanda Sanda ("the Applicant") is not a Convention refugee or a person in need of protection.
[2] The Applicant is a 22-year old citizen of the Republic of Chad. He claims that his father has been imprisoned in Chad for his alleged political associations, and that the family has been in danger from security forces since then. He says his older brother Garba Mahamat Sanda has already been recognized in Canada as being a refugee on this basis, as has one of his uncles. (The brother's PIF is attached at pp. 44-56 of the Applicant's submissions.)
[3] The father was an employee of the Ministry of Foreign Affairs in Chad until he was arrested in 1998 on the basis of accusations that he met with members of the Mouvement pour la démocratie et le développement ("MDD"), an opposition group, while on a trip to France. He remains in jail.
[4] The Applicant's brother was apparently sought for arrest as well, and arrangements were made to smuggle him to Cameroon, from whence he travelled to Canada and claimed refugee status. I am told he received refugee status.
[5] The Applicant states that when he went to order a passport on June 20, 2002, he was interrogated by representatives of l'Agence nationale de sécurité (ANS) about whether he intended to leave the country, and to have contact with MDD figures, like his father had been accused of doing in France. Although the Applicant denied any such intentions, he says he was beaten for three hours, and told he would be killed if he tried to leave the country. Then he was released.
[6] An uncle of the Applicant helped him get a passport and visa to join his brother and other uncle in Canada, and he left on July 17, 2003, travelling via France and the United States. (This passport was authentic) He arrived in Canada on July 20, 2003 and claimed refugee status.
[7] The Board found that the Applicant was not a refugee or a person in need of protection for the following reasons:
- The Applicant was not credible owing to incoherent ("incohérent") and contradictory testimony, particularly the major contradictions between his testimony and his Port of Entry ("POE") notes.
- In particular, the Applicant had stated in answer to questions from an immigration agent that he did not fear anyone in his country, was not afraid of anything there and had no problems. The Applicant explained this by saying that he did not have an interpreter, did not understand the Québecois accent of the agent who posed the questions, and therefore did not know how to answer them properly. He also states that the agent, the Immigration Officer, after repeating the questions for him once, told him she would send him back and close his file if he asked for them to be repeated again.
- When the Board asked him why he had not taken advantage of the standing offer of an interpreter in these situations, he said he was afraid and just started saying whatever came into his head ("Il a prétendu avoir dit tout ce qui lui passait par la tête."). The Board found this contradictory in that on the one hand he testified he did not understand the agent's questions, and on the other, he testified that he said whatever came into his head because he was afraid.
- The Board further found that the Applicant's avowed study of French from 1988-2002 would have given him a basic comprehension level, that his explanation concerning the agent was not believable, and that he was inventing the agent's threat. The Board also noted that the Applicant appeared well able to accurately answer other questions posed to him by the agent.
- The Board also found contradictions between the testimony and the POE Notes concerning the date the intention to come to Canada was formed, with various dates being given at different times.
- The immigration agent asked him why his uncle advised him to come to Canada, and he answered because he was alone at home; he did not even mention the alleged security forces incident of June 20, 2002 that supposedly triggered his flight. This statement also contradicted other testimony that he has a younger brother still at home. The Board found that the incident of June 20, 2002 never took place.
- The Board also found the Applicant's testimony about what occurred the night of his father's arrest to be inconsistent with the account in his brother's PIF, particularly with regard to when and how various family members woke up and whether or not they stayed in the house during the arrest. The Board also found an inconsistency in that the Applicant was claiming a threat from the ANS, whereas his brother stated that it was Presidential Guard soldiers who arrested the father.
- The Applicant had testified that the ANS discovered his plans to leave Chad because the police station was located in the same building where he tried to obtain a passport. However, he then testified that he went back to the same building to obtain the passport on which he later travelled out of Chad, and he disguised himself with a hat and glasses so the police would not see him. The Board noted that he would have to have been fingerprinted to obtain a passport, so such a disguise would have been futile if the police were really monitoring his comings and goings from the passport office. (The Board also critiqued how the Applicant appeared to equate the ANS with the police, when they are separate bodies.)
- The Board noted that the Applicant's departure from Chad took place over a year after the alleged security forces incident, and over five years after his father's arrest, and this was not consistent with a well-founded fear of persecution. When asked why he could not flee to a neighbouring country like his brother did, the Applicant made a vague reference to a fear of being extradited, but could not provide specifics on this point.
[8] The Applicant argues that the Board acted arbitrarily in not finding his testimony to be credible and not accepting his explanations for the perceived contradictions.
[9] The factum cites a decision called Xu Zhe Ru c. Ministre de l'Emploi et l'Immigration on this point, referenced to a Federal Court of Appeal docket number, A-666-90. The decision with this docket number should be cited as Xu c. Canada (Ministre de l'Emploi et l'Immigration), [1992] F.C.J. No. 810 online: QL. The quotation at paragraph 8 of the Applicant's submissions, supposedly taken from this case, does not actually appear in the decision.
[10] The Applicant also argues that the fact that he and his brother's accounts of the same event were not identical should not be held to undermine his credibility, since he was only 16 years old at the time of his father's arrest and his brother is likely to have a more precise recollection of what transpired, and no two persons recount the same event exactly alike. The Applicant adds that the Board cannot ignore reasonable explanations for discrepancies and cannot consider the evidence as if the explanations had never been offered. (Veres c. Canada (Ministre de la Citoyenneté et de l'Immigration), [2001] 2 C.F. 124)
[11] The Applicant argues that the immigration agent who interviewed the Applicant did not ask if he understood French, nor did she offer him the option of an interpreter, and he reiterates that she threatened him when he asked her to repeat the questions too many times. The Applicant states that s. 14 of the Charter guarantees him service in the language of his choice, and that this was interpreted in R. c. Tran, [1994] 2 S.C.R. 951, to mean the right to an interpreter before a tribunal. The Applicant submits that the absence of an interpreter at his Port of Entry interview was a breach of the principles of natural justice.
[12] The Applicant argues that his fear of being deported back to Chad from a neighbouring African country was reasonable. The Applicant also argues that his failure to declare refugee status in the first available country cannot be held to mean he has no fear of persecution (Gavryushenko c. Ministre de la Citoyenneté et l'Immigration, [2000] F.C.J. No. 1209 online: QL), that up to 12 months is a reasonable delay in departure while trying to assemble travel documents under difficult circumstances (Dcruze c. Ministre de la Citoyenneté et l'Immigration, [1999] F.C.J. No. 987 online: QL), and that delay in claiming refugee status cannot be a determinative reason for rejecting a claim (Soueidan c. Ministre de la Citoyenneté et de l'Immigration, 2001 CFPI 956).
[13] The Respondent argues that the credibility findings made by the Board were within its expertise, and properly based on the contradictions and omissions of the Applicant, such as the difference between his lack of fear in his POE interview and his claims of persecution. (Zaloshnja c. Ministre de la Citoyenneté et de l'Immigration, 2003 CFPI 206, Neame c. Ministre de la Citoyenneté et de l'Immigration, [2000] F.C.J. No. 378 online: QL, Karikari c. Ministre de l'Emploi et l'Immigration, [1994] F.C.J. No. 586 online: QL, Jumriany c. Ministre de la Citoyenneté et de l'Immigration, [1997] A.C.F. no. 683)
[14] The Respondent submits that the Board made a proper finding in not accepting the Applicant's allegations about the immigration officer as well. The Respondent notes that the Applicant changed some of his answers when confronted with inconsistencies, did not raise the issue of lack of comprehension in the POE Notes, precisely answered some questions there despite his supposed lack of comprehension, and had extensively studied French. The Respondent submits that the Board is entitled to test the Applicant's explanations for contradictions as it would any other element of proof offered. (Mxumalo c. Ministre de la Citoyenneté et l'Immigration, 2003 CFPI 413, Hosseini c. Ministre de la Citoyenneté et l'Immigration, 2002 FCT 402, Muthuthevar c. Ministre de la Citoyenneté et l'Immigration, [1996] A.C.F. No. 207, Kabir c. Ministre de la Citoyenneté et l'Immigration, [2002] FCT 907) The Respondent also argues this point with regard to the explanations for the Applicant's behaviour as well. (Tofan c. Ministre de la Citoyenneté et l'Immigration, 2001 FCT 1011, Mxumalo, supra, Hosseini, supra, Kabir, supra, Muthuthevar, supra).
[15] The Respondent adds that the Applicant actually did indicate that he did not need an interpreter at the time of his arrival, on the form titled "Renseignements au sujet des revendicateurs du statut de réfugié" (attached to the affidavit of Francine Lauzé).
[16] The Respondent also submits that lack of credibility on a major element of the claimant's case, such as in this case the lack of accord between his account of his father's arrest and his brother's account, can be the basis for the rejection of a claim. (Obeng c. Ministre de la Citoyenneté et l'Immigration, 2004 CF 636, Rahaman c. Ministre de la Citoyenneté et l'Immigration, 2002 CAF 89 (C.A.F.) - demande d'autorisation d'en appeler à la Cour Suprême rejetée le 21 novembre 2002, Ayub c. Ministre de la Citoyenneté et l'Immigration, 2004 FC 1411, Nizeyimana c. Ministre de la Citoyenneté et l'Immigration, 2001 CFPI 259.
[17] The Respondent submits that the Board was right in finding the behaviour of the Applicant to be inconsistent with someone suffering from a subjective fear of persecution. (Rahman c. Ministre de l'Emploi et l'Immigration, [1994] F.C.J. No. 562, Parmar c. Ministre de la Citoyenneté et l'Immigration, [1998] F.C.J. No. 50 , Pan c. Ministre de l'Emploi et l'Immigration, [1994] F.C.J. No. 1116, Huerta c. Ministre de l'Emploi et l'Immigration, (1993), 157 N.R. 225 (C.A.F.), Ministre de la Citoyenneté et l'Immigration c. Bueno, 2004 FC 509, Espinosa c. Ministre de la Citoyenneté et l'Immigration, 2003 FC 1324, Ayub, supra).
[18] The Respondent also submits that failure to find a subjective fear of persecution prevents a claim from succeeding. (Rivera c. Ministre de la Citoyenneté et l'Immigration, 2003 CF 1292, Kamana c. Ministre de la Citoyenneté et l'Immigration, [1999] A.C.F. no. 1695, Hazara c. Ministre de la Citoyenneté et l'Immigration, 2002 FCT 1256, Tabet-Zatla c. Ministre de la Citoyenneté et l'Immigration, [1999] F.C.J. No. 1778 online: QL, Anandasivam c. Ministre de la Citoyenneté et l'Immigration, 2001 FCT 1106 , Gamassi c. Ministre de la Citoyenneté et l'Immigration, [2000] F.C.J. No. 1841 online: QL, Cheema c. Ministre de la Citoyenneté et l'Immigration, 2002 FCT 2006, Ayub, supra.)
ANALYSIS
[19] The Applicant's claim has been rejected on the basis of credibility issues and absence of subjective fear, rather than on any delay in claiming refugee status. While the case cited by the Applicant, Gavryushenko, supra, is still good law with regard to the Applicant's case, it is not applicable because the delay in claiming was not the determinative issue in the Board's decision.
[20] The Respondent has correctly argued that while the Board must consider explanations offered for inconsistencies, it is entitled to test them and reject them, as is done with other evidence. The Board did not ignore the Applicant's attempts at explaining the inconsistencies - it explicitly found them to be not credible or believable.
[21] The Respondent has also noted that the Applicant stated in his own forms that he did not need an interpreter, and filled the forms out in French without apparent problems, as shown by the attachments to Ms. Lauzé's affidavit. The Board not only had explicit testimony that the Applicant did not have a well-founded fear, but also had explicit proof that the Applicant had not requested an interpreter right from the beginning as he had said he did. There is no evidence of patent unreasonableness in the Board's findings.
CONCLUSION AND ORDER
The application for judicial review is dismissed. No question for certification was submitted by either party.
« Max M. Teitelbaum »
JUDGE
OTTAWA, Ontario
September 19, 2005
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET : IMM-235-05
STYLE OF CAUSE : Mahamat Sanda Sanda v. The Minister of Citizenship and Immigration
PLACE OF HEARING : Montreal, Quebec
DATE OF HEARING : Septembre 8, 2005
REASONS: The Honourable Mr. Justice Teitelbaum
DATE OF REASONS : September 19 , 2005
APPEARANCES:
Me Lia Cristinariu FOR THE APPLICANT
Me Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Lia Cristinariu
Montreal, Quebec FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada
OTTAWA, Ontario FOR THE RESPONDENT