Date: 20020118
Docket: IMM-1321-01
Neutral citation: 2002 FCT 36
Between:
ZULMIRA LIZETE DA SILVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on February 19, 2001 by the Refugee Division, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a citizen of Angola. She alleges she was persecuted in that country because of her membership in a social group.
[3] The Refugee Division refused to grant the applicant refugee status, concluding that she was not credible as to the genuineness of her objective and subjective fear. It raises the following grounds in support of its decision:
- The claimant left Angola and returned to live there on five occasions. Furthermore, she did not claim refugee status when she was in some countries that are signatories to the Refugee Convention.
- The claimant alleges that she left Angola and returned to it on two occasions: after the rape of her friend in 1998 and when her father was ill and dying. After the death of her father, she remained in Angola for ten months while awaiting his inheritance. The Refugee Division is of the opinion that she could have borrowed some money and paid her debt later through the inheritance.
- The Refugee Division does not believe that the claimant's rape contributed to her academic failure. She had failed and repeated the 8th grade three times before the 1992 rape.
- The Refugee Division agrees it is plausible that the claimant suffered the consequences of a rape in 1992, but she never resorted to the services of a physician or a therapist.
- The claimant's allegation that she did not state at the point of entry the real reason for her claim because it would have taken too long to describe it is not credible.
- The allegation that the claimant was embarrassed to describe her rape to an immigration officer is not credible.
- The allegation that the claimant intended to describe her situation later does not satisfy the Refugee Division. The claimant could have mentioned the rape in a single sentence.
- The Refugee Division is of the opinion that the claimant wanted to immigrate to Canada and that she used the unfortunate event that occurred in 1992 in order to do so.
[4] The only real issue in dispute in this case is that of the applicant's credibility, given the improbabilities and omissions in her evidence and given as well that from 1992 on she left Angola and returned to it five times. The test of restraint applicable to a credibility decision by a specialized tribunal was clearly expressed by the Federal Court of Appeal in Aguebor v. M.E.I. (1993), 160 N.R. 315, 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.
[5] Having considered the applicant's arguments and reread the transcript of the hearing before the Refugee Division, I am not persuaded that the decision of that panel is based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
[6] I find no merit in the applicant's argument that the credibility finding is based on only one omission, namely, the rape that was not declared at the point of entry. In the first place, the admissibility in evidence of such a point of entry immigration examination form has been firmly established (see Al Dalawi v. Minister of Citizenship and Immigration (August 5, 1999), IMM-6394-98 and Begum v. Minister of Citizenship and Immigration (September 29, 2000), IMM-5863-99). The failure to indicate therein the event that occurred in 1992 bears on facts that the applicant considers to be at the core of her claim. The omission must also be considered in the context of the improbabilities pertaining to her testimony.
[7] Finally, the Refugee Division criticized the applicant for her failure to claim refugee status on the four occasions that she was in countries that are signatories to the Convention. For example, the applicant stayed for a lengthy period in Portugal, where her two sisters have been living for several years. In Ilie v. Minister of Citizenship and Immigration (November 22, 1994), IMM-462-94, Mr. Justice MacKay held "that a claimant should take the first opportunity he has to claim refugee status in a country which is a signatory of the 1967 Convention or Protocol". In this regard he added:
Finally, in my opinion the tribunal was entitled to consider his failure to claim refugee status in other countries while travelling from July 1992 to January 1993 in Europe, and to consider how the applicant's evidence was to be weighed in light of that.
[8] More recently, Associate Chief Justice Lutfy stated, in Gavryushenko v. Minister of Citizenship and Immigration (July 26, 2000), IMM-5912-99:
The fact that a person does not seize the first opportunity of claiming refugee status in a signatory country may be a relevant factor in assessing his or her credibility, but it does not thereby constitute a waiver of his or her right to claim that status in another country.
[9] Ultimately, in the circumstances, it is my opinion that the applicant has not discharged her burden of showing that the inferences drawn by the Refugee Division, a specialized tribunal, were unreasonable.
[10] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
January 18, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-1321-01
STYLE: ZULMIRA LIZETE DA SILVA v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: DECEMBER 5, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: JANUARY 18, 2002
APPEARANCES:
LUC R. DESMARAIS FOR THE APPLICANT
SYLVIANE ROY FOR THE RESPONDENT
SOLICITORS OF RECORD:
LUC R. DESMARAIS FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
Date: 20020118
Docket: IMM-1321-01
Ottawa, Ontario, the 18th day of January, 2002
Present: The Honourable Mr. Justice Pinard
Between:
ZULMIRA LIZETE DA SILVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision rendered on February 19, 2001 by the Refugee Division, ruling that the applicant is not a Convention refugee, is dismissed.
"Yvon Pinard"
JUDGE
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L