Date: 20010515
Docket: IMM-3910-00
OTTAWA, Ontario, May 15, 2001
BEFORE: Rouleau J.
Between:
BARTHEL KPAWIRENA-BIOKEITE
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
ROULEAU J.
[1] The application for judicial review is allowed.
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P. ROULEAU JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010515
Docket: IMM-3910-00
Neutral reference: 2001 FCT 478
Between:
BARTHEL KPAWIRENA-BIOKEITE
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
[1] The case at bar concerns an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the RD") on June 22, 2000 that Barthel Kpawirena-Biokeite ("the plaintiff") is not a Convention refugee as defined in s. 2(1) of the Immigration Act ("the Act").
[2] The plaintiff is a citizen of the Central African Republic by birth and also a citizen of the Congo by marriage.
[3] The plaintiff maintained that when she reached age 17 her father wanted to marry her forcibly to an older man who already had two other wives and about 12 children.
[4] She alleged that when she refused to get married her father tied her up and beat her and rubbed her eyes, her anus and her vagina with pepper.
[5] She claimed that she fled to Cameroon and then to Moscow with the help of an aunt.
[6] She claimed that she married a Congolese named Okanza William Jean Faustin and gave birth to two sons.
[7] She claimed that her husband was very involved in the democracy support committee of the former USSR, an association of young Congolese in the former USSR which wanted to set up a real democracy in the Congo.
[8] She claimed that when she returned to Congo-Brazzaville her husband continued to be involved in politics and after the 1998 referendum her husband and her children were kidnapped.
[9] She alleged that she left the Congo because she feared for her life.
[10] The plaintiff arrived in Canada on November 21, 1999 and indicated her intention of claiming refugee status the same day.
[11] The RD dismissed the testimony of Ondako Fernand because of a lack of credibility and the fact that he was an [TRANSLATION] "interested" witness in this case. Despite the fact that he testified as to the knowledge he had of the political involvement of the plaintiff's husband, he did not know what organization the husband was involved with and what activities were organized by that organization. The witness also testified that he recalled the birth of the plaintiff's son in 1994, although he was born on June 18, 1995.
[12] The RD also concluded that the plaintiff was not credible. The RD did not believe she had lived in the poverty she described as a result of her father being a farmer, as her birth certificate indicated that her father was a barman. Consequently, there was a contradiction between her story and her birth certificate. The plaintiff's credibility was also undermined by the fact that she was completely ignorant of farming.
[13] The RD did not believe her husband and two children had been kidnapped since her attitude and behaviour were inconsistent with a person suffering from their loss. The plaintiff had taken no steps to locate her family since arriving in Canada in November 1999. When the RD asked her to explain the fact that she had done nothing, the plaintiff replied that she was unable to do so or to ensure that such steps were taken. On receiving this explanation, the RD concluded that [TRANSLATION] "the claimant, who told us that she suffered from insomnia so that she could only sleep two hours a night, nonetheless found the energy and time required to locate an apartment and not one but two jobs in two factories in Montréal".
[14] The RD also emphasized various contradictions in essential aspects of the claim. In particular, the plaintiff testified that the only people she knew in Kinshasa were Serge and Nicole, who made the arrangements and paid for her trip to Canada, whereas in her PIF she said that she left Kinshasa [TRANSLATION] "with the help of her husband's acquaintances and friends". The RD found the plaintiff's explanation, that when she referred to her husband's friends it was the people who helped her with the USA/Canada leg of the journey, not the DRC/USA portion, and that Serge and Nicole knew her husband, unsatisfactory.
[15] The RD further concluded that the testimony that the plaintiff expected someone on her arrival in New York, first somewhere or other (without being specific), and after being questioned by the RD, in the airport area, finally ending up outside the airfield, undermined her credibility.
[16] The RD concluded that the plaintiff's statement that she went to the [TRANSLATION] "USSR for adventure" is a good indication of the real reason she left the Central African Republic for Cameroon and the USSR, namely adventure.
[17] The RD concluded that the claims that the plaintiff fled the Central African Republic without identity papers and travel documents were improbable. In fact, the RD felt that the plaintiff left the Central African Republic for Cameroon and the former USSR voluntarily, with the informed consent of her relations, and that her studies, contrary to what she alleged, were paid for by her parents.
[18] The RD found it improbable that the plaintiff's husband and children had disappeared. That conclusion was based in part on the fact that she answered not that this was impossible, since her husband and two children were gone, but as follows: [TRANSLATION] "I do not think my father would accept a foreigner", when the RD asked her what her father's reaction would be if she returned to him one day with her husband and her children. When the RD repeated the same question, the reply was [TRANSLATION] "I would prefer to kill myself rather than confront my father".
[19] The RD also regarded as improbable the alleged fear that the plaintiff's father would still impose the promised marriage arranged nine years ago with someone who was allegedly now 76 years old, according to the PIF, or according to her testimony 67 years old. According to the RD, it was to say the least improbable that this person would still agree to take as a wife this girl who had become a mother and the wife of a husband with two children. The RD was more inclined to believe and to think that the father would be quite happy to see his daughter, grandchildren and son-in-law subsequently acquired, after so many years' absence.
[20] The plaintiff's Exhibits P-4 and P-5 were rejected as the RD did not believe the story of persecution as alleged.
[21] The plaintiff maintained that despite the fact it had an obligation to do so the RD did not consider the psychological report and letter from the physician confirming that the plaintiff had been upset by the disappearance of her children and husband and was suffering from anxiety, depression, memory problems and concentration problems and severe post-traumatic shock. Further, the physician's conclusions were in no way ultra vires as it was entirely within the competence of a physician to establish that a person was suffering from problems with memory and lack of concentration.
[22] The plaintiff argued that the RD erred in not taking into account the testimony of Fernand Ondako, as he was well acquainted with the plaintiff's husband. Contrary to what was found by the RD, he was a completely objective and credible witness. The fact that he had the same counsel did not suffice to make him an interested witness.
[23] The plaintiff argued that the RD erred in not considering the situation existing in Congo-Brazzaville and not explaining why it did not take that into account. The documentary evidence was that members of the armed forces acted with total impunity. Persons involved in politics were at risk.
[24] The plaintiff argued that the assessment of her credibility was based on several errors in interpreting the facts. First, with regard to her father's occupation, the plaintiff argued that there was no contradiction in her testimony. When she was born her father was working as a barman, which explains why that was entered on her birth certificate. However, as she testified, he was really a farmer by trade. Second, the conclusion that she knew nothing about farming was completely wrong. Third, the plaintiff argued that there was no contradiction in her testimony about Serge and Nicole. Serge and Nicole were two friends who knew people she was living with, with her husband, when she first fled to the DRC. She knew them personally when she fled the second time and they remembered her husband. Finally, the plaintiff argued that her testimony about the airport did not in any way justify a finding that she lacked credibility as it was secondary to her claim. The plaintiff maintained that she was in New York for the first time and was very impressed by this great city.
[25] The plaintiff argued that the conclusion she lacked credibility was based on a misunderstanding of African culture and the conclusions had nothing to do with the risk that the plaintiff would be persecuted.
[26] The plaintiff maintained that the RD took no account of the alleged persecution in Congo-Brazzaville and the fact that her husband and children had disappeared. The RD had an obligation to consider the kidnapping of members of her family and the crisis situation in Congo-Brazzaville, as this fear was based on persecution resulting from her husband's political views.
[27] The plaintiff argued that there were compelling reasons why she could not return to her country. She could not return to Congo-Brazzaville because her husband and children had been kidnapped. She could not return to the Central African Republic because of the suffering and torture she had had to endure because she did not want to marry the man her father had chosen.
[28] Despite the fact that her fear was based on sex, the RD did not mention the applicable guidelines in its decision. The RD should have considered the social, religious and cultural background.
[29] Finally, the plaintiff maintained that the current situation in Congo-Brazzaville is such that it was impossible for her to be there safely. She could not hope for any protection in the Congo. If she returned to her country, she inevitably faced persecution.
[30] In response to the plaintiff's claims that the RD erred in failing to consider her fear of persecution in Congo-Brazzaville, and to consider the compelling reasons why she could not return to Congo-Brazzaville, and in not considering the situation currently existing in Congo-Brazzaville, the defendant maintained that these allegations did not justify this Court's intervention. The arguments suggested a fear of persecution that the plaintiff entertained in respect of Congo-Brazzaville, whereas she is a citizen of the Central African Republic and so her claim was considered with reference to that country.
[31] The defendant further maintained that the RD did not err in failing to consider the compelling reasons why the plaintiff could not return to Congo-Brazzaville as, even if the claim had been made in respect of the Central African Republic, the compelling reasons mentioned s. 2(3) of the Act could only be relied on when the RD felt that the plaintiff had at some period in her life a well-founded fear of persecution, but the latter was no longer justified in view of changed circumstances in her country of nationality.
[32] The plaintiff argued that the RD did not err in failing to consider guidelines on persecution based on sex. First, the plaintiff failed to file a copy of these guidelines. Secondly, the argument was not based on the evidence.
[33] In response to the allegation that the decision did not observe human rights, the defendant argued that the Court had already concluded that such arguments were premature in an application for judicial review. Also arguments based on the Charter and various international instruments should not be considered.
[34] The defendant maintained that the evidence provided by the physician's letter and the psychological report had been considered by the RD but found not reliable.
[35] As to the RD's conclusion that Fernand Ondako was an interested person, the defendant noted that the plaintiff had shown no error and that [TRANSLATION] "these arguments were limited to putting forward the conclusion she would have preferred to see the RD adopt".
[36] The defendant maintained that the plaintiff's arguments that the RD had committed several errors in assessing credibility did not in any way establish that the RD had arrived at an unreasonable conclusion, simply that other conclusions could hypothetically have been drawn from the evidence.
[37] The plaintiff sought an order reversing the RD's decision and directing the RD to hold a re-hearing before other Board members.
[38] The RD is a specialized tribunal with expertise in assessing facts and as such is due considerable deference. Its conclusions should not be disputed unless they are so unreasonable as to require this Court's intervention (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.).
[39] Where credibility is concerned it is not this Court's function to take the place of the RD unless the plaintiff can establish that the latter's decision is based on an erroneous finding of fact arrived at in a perverse or capricious manner or without taking into account the evidence before it.
[40] The RD's conclusions in the case at bar on the question of credibility are erroneous and entirely vitiate the RD's decision. In particular, the RD drew conclusions which it said undermined the plaintiff's credibility that are not supported by the evidence, are unreasonable inferences or conjectures which do not take cultural differences into account, which are not central to the claim or which are based on alleged contradictions which in my opinion are not contradictions.
[41] In Giron v. Canada (Minister of Employment and Immigration) (1993), 143 N.R. 238 (F.C.A.), the Federal Court of Appeal said the following about conclusions on credibility and inferences:
The Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is the heartland of the discretion of triers of fact, but rather on the implausibility of the claimant's account in the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which the drawing of inferences, which triers of fact are in little, if any, better position than others to draw.
[42] Further, in Dumitru v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 62 (T.D.), the Federal Court said the following at 65:
In Satiacum v. Canada (Minister of Employment & Immigration) (A-554-87), June 16, 1989 [reported at 99 N.R. 171 (Fed. C.A.)], MacGuigan J.A. stated, at p. 15 [p. 179, N.R.]:
The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. (1930), 47 T.LR. 39, at 45, 144 L.T. 194, at 202 (H.L.):
"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference."
In R. v. Fuller (1971), 1 N.R. 112, at 114, Hall, J.A. held for the Manitoba Court of Appeal that "[t]he tribunal of fact cannot resort to speculative and conjectural conclusions". Subsequently a unanimous Supreme Court of Canada expressed itself as in complete agreement with his reasons: [1975] 2 S.C.R. 121 at 124; 1 N.R. 110, at 112.
It is well established that the tribunal must clearly state the reasons for rejecting the claimant's testimony. In the case at bar there was nothing, apart from the hypotheses developed by the tribunal, to support the conclusion tying the applicant's loss of his job to his long convalescence, nor to suggest that the applicant had voluntarily leapt into the fray. The tribunal could simply have rejected that applicant's testimony on the ground that it was implausible, but this is not what it did. On the contrary, after identifying an implausibility, the tribunal drew its conclusions from pure conjecture. This is an error that goes to the essence of the decision, since it appears unlikely, on reading the reasons, that the tribunal would have concluded as it did had it not developed these hypotheses which, I repeat, are purely conjectural.
[43] In Yada v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 264 (T.D.), at paras. 24 and 25, the Court said the following when lack of credibility is based on improbabilities:
The reasons or the bases set out for finding particular aspects of the applicant's evidence to be implausible simply do not reasonably relate to the evidence before the panel. Its conclusions might be reached by another panel, but the reasons for those conclusions must be rationally related to the evidence. Here that is not the case. The decision is patently unreasonable in the absence of reasons related to the evidence adduced.
Where the finding of a lack of credibility is based upon implausibilities identified by the panel, the Court may intervene on judicial review and set aside the finding where the reasons that are stated are not supported by the evidence before the panel, and the Court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense.
[44] As to conclusions based on irrelevant evidence Pratte J.A. concluded in Salamat v. Canada (Immigration Appeal Board), [1989] F.C.J. No. 213 (F.C.A.):
The Immigration Appeal Board found that the applicant was not credible. It based that finding on a variety of considerations, some of which were clearly irrelevant or not established by the evidence, namely:
. . . . .
These errors are sufficient to vitiate the decision under attack even if another panel of the Board could possibly reach the same conclusion on the basis of clearly relevant facts.
[45] In Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (T.D.), the Court said:
Moreover, the events as described by the applicant may have seemed implausible and therefore not credible to the Refugee Division, but as counsel for the applicant points out "Canadian paradigms do not apply in India". Torture, unhappily, is real, as is exploitation and revenge, often resulting in killings.
[46] Applying these principles to the RD's decision in the case at bar, I consider that the RD made several errors that justify this Court's intervention.
[47] First, the RD did not believe that the plaintiff lived in the poverty she described due to the fact that farming was the only source of income. As a basis for this conclusion the RD found that the plaintiff's birth certificate, indicating that her father worked as a barman, contradicted the story which indicated he was a farmer. Nevertheless, the plaintiff did explain that when she was born her father was a barman at [TRANSLATION] "small refreshment stands" but his occupation to support his family was to work in the fields. It is clear that one occupation does not exclude the other. The RD also argued that the plaintiff was completely ignorant of farming [TRANSLATION] "so much so that one might well ask whether she had in fact seen a cassava field". In my opinion, this conclusion is unsupported. The plaintiff testified about her knowledge and the farming which her family engaged in. She explained that her family did crop rotation. The fact that the plaintiff was not versed in farming, the occupation engaged in by her father, does not have any bearing on her claim. Consequently, the RD's conclusion that [TRANSLATION] "the picture of her family and her situation of material and intellectual poverty seems artificial to us and, if the plaintiff's story is not credible above, it is no more credible below" is manifestly unreasonable.
[48] Secondly, the RD disbelieved in the kidnapping of the plaintiff's husband and children simply because she took no steps to locate them. Despite the fact that the plaintiff admitted she had taken no steps to locate her family, I believe the RD should have taken its analysis of this matter further since the kidnapping of her family was at the basis of her claim. It is not enough to conclude that the kidnapping did not take place simply because her [TRANSLATION] "attitude and behaviour were inconsistent with a person suffering from their loss and eager and glad to locate them". The RD imputed certain behaviour to her and when she did not meet its expectations it rejected a principal part of the claim.
[49] Thirdly, the RD emphasized certain aspects of the plaintiff's testimony which in its opinion were significant contradictions affecting essential points in the claim. On the contrary, a careful reading of the transcript indicates that it is not clear that the examples given were contradictions. Further, if we accept that the RD correctly concluded that the plaintiff's testimony was full of contradictions, those contradictions are not, contrary to what the RD maintained, significant and in no way affected essential points in the claim.
[50] In particular, the RD came to the following conclusion at pp. 4 and 5 of its decision:
[TRANSLATION]
Accordingly, at the hearing the claimant testified that the only people she knew in Kinshasa were Serge and Nicole, the ones who made the arrangements and paid for her trip to Canada. She added that it was by chance she knew these two people. When the tribunal showed her the PIF which actually said she left Kinshasa "with the help of her husband's acquaintances and friends", she explained this by saying that when she referred to her husband's friends they were the ones who helped her for the USA/Canada leg of the journey, not the DRC/USA portion. Seeing the tribunal's amazement at this frivolous reply which had no bearing on its request for explanations, she changed her ground and mentioned to the tribunal that if she remembered rightly Serge and Nicole knew her husband. When questioned as to whether she was quite certain of her reply, she answered that she was and in fact it was when she told them the story of her life that Serge and Nicole realized that they knew her husband. The claimant's explanation was unsatisfactory.
[51] On the contrary, the transcript, beginning at p. 310, indicated that the plaintiff testified about meeting Serge and Nicole by chance in Kinshasa but subsequently learned that the couple knew her husband. Contrary to what RD maintained, it seems to the Court that there was no contradiction on this point or the fact that the couple helped her with her journey.
[52] The RD maintained there were also significant contradictions about the plaintiff's arrival in New York. It maintained that this episode undermined her credibility and that her testimony was full of [TRANSLATION] "hesitations and evasions". Nonetheless the transcript, starting at p. 73, did not indicate the existence of a contradiction: rather, it established that no specific meeting place had been given and so the plaintiff had to wait for the individual at the airport and could not leave the airport.
[53] Fourth, the RD found it implausible that the plaintiff could flee from the Central African Republic without identity papers and without travel documents. The tribunal concluded that the plaintiff had voluntarily left the Central African Republic for Cameroon and the former USSR with the free consent of her parents. The RD also concluded that her studies were paid for by her parents. The RD made an error in this regard, as the RD's conclusions are not in any way supported by the evidence. They were simply inferences devoid of all sense, and even conjectures. In order to draw such inferences, which are closely related to the plaintiff's claim, the RD should have indicated its reasoning or justified its conclusions.
[54] Fifth, the RD concluded that the plaintiff [TRANSLATION] "is not the person she claims to be: single, with no husband, in distress, defenceless, sleepless, with no place to go and persecuted" when it asked her what her father's reaction would be if one day she returned to him with her husband and children and [she] replied, first, [TRANSLATION] "I do not think my father would accept a stranger" and then [TRANSLATION] "I would prefer to kill myself rather than confront my father". The relevant passage from the transcript on this point is at pp. 82 and 83:
[TRANSLATION]
Q. Your husband expressly stated in the marriage certificate that he gave up the right to take a second wife, while the present marriage, your marriage, was in effect. You are aware of that?
A. I am his wife.
Q. Yes. Your husband could not defend you from your father while he was still alive? I am trying to imagine the situation in which you went to your husband, a young man with a good education, a physician, with two small children. Would that not be a situation that would be realistic, acceptable to the grandfather? Would that calm the feelings of your father?
A. I don't think so. My father could not accept a stranger. I don't know, but . . .
Q. And the two children, his two grandchildren?
A. That is not what would matter with him.
Q. Did you have a group of friends in the USSR? - a large group of friends in the USSR as you were there for three years?
A. I left anyway because I was there with the husband, so I was protected by the husband, and when I left, . . . that is all.
Q. But with no husband or friend in Canada, would it not have been better . . .
A. It's . . . it is . . .
Q. . . . with no husband, but with friends in the USSR, in the sense, you did not think . . .
A. Yes.
Q. . . . of returning to the USSR?
A. Going to the USSR?
Q. Yes?
A. It is . . . it is difficult because Moscow, it is a country in which you can see on TV, the conditions of life there are very difficult, and they kill strangers, from time to time, strangers are mistreated and it is a country full of racism, and a country in which in practice human rights do not exist. Really . . . it was impossible for me: I did not have that ability.
Q. I just suggested a possibility to you a moment ago. What would be your father's reaction if he was still living now, if you went to introduce your husband and two children?
A. I would prefer to kill myself before that happened.
Q. But would it not be in keeping for you to have answered me that "the assumption is impossible since I have no news of my children and husband"?
A. Perhaps I misunderstood your question.
- I have no other questions.
[55] What this passage indicates is that the RD was expecting the reply it would have preferred from the plaintiff. It was completely unreasonable for the RD to conclude that the disappearance of her husband and children never took place simply because the plaintiff did not give the answer it expected. Once again, the RD should have taken its analysis further if it was to reject her claim, and should at least have explained its reasoning.
[56] Finally, the RD indicated that it was [TRANSLATION] "rather inclined to believe and think [that the plaintiff's father] would actually be happy at the idea of seeing his daughter, grandchildren and the subsequently acquired son-in-law after so many years' absence". Once again, the RD made inferences which were completely unreasonable in view of the plaintiff's claim. It took refuge in conjectures. First, its conclusion about the father's reaction contradicted its conclusion that the plaintiff was not a wife or mother of two children (see Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.)). Further, the RD ignored cultural differences in making such an assumption.
[57] The RD's conclusion that Ondako Fernand was an "interested" witness in this case was unreasonable. The mere fact that the witness was represented before the RD by the same counsel as the plaintiff for purposes of his claim is irrelevant to his testimony and to the plaintiff's claim. Further, the RD emphasized the fact that the witness had no knowledge of the organization with which the plaintiff's husband was involved. Nonetheless, at p. 7 of the transcript Ondako Fernand correctly testified that the plaintiff's husband belonged to the democracy support committee.
[58] The RD could properly draw the conclusions at which it arrived regarding the plaintiff's claims: however, it could not do so on the basis of conclusions of implausibility, conjectures or contradictions that were not supported either wholly or partly by the evidence before it.
[59] For the foregoing reasons, I consider that this Court's intervention is not only justified but essential and accordingly the application for judicial review is allowed.
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P. ROULEAU JUDGE |
OTTAWA, Ontario
May 15, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-3910-00
STYLE OF CAUSE: Barthel Kpawirena-Biokeite v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 8, 2001
REASONS FOR ORDER BY: ROULEAU J.
DATED: May 15, 2001
APPEARANCES:
Steward Istvanffy PLAINTIFF
Guy Lamb DEFENDANT
SOLICITORS OF RECORD:
Steward Istvanffy PLAINTIFF
Montréal, Quebec
Morris Rosenberg DEFENDANT
Deputy Attorney General of Canada