Date: 20020328
Docket: IMM-3225-01
Ottawa, Ontario, Thursday, the 28th day of March, 2002
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
Esperanca ROCHA QUICHINDO
Clauda Tifeny QUICHINDO MOREIRA
Jacira Liria QUIXINDO MOREIRA
Applicants
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
For the reasons stated, the application for judicial review is dismissed. No question of general importance was raised.
"François Lemieux"
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20020328
Docket: IMM-3225-01
Neutral Citation: 2002 FCT 350
BETWEEN:
Esperanca ROCHA QUICHINDO
Clauda Tifeny QUICHINDO MOREIRA
Jacira Liria QUIXINDO MOREIRA
Applicants
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] The applicants, Esperanca Rocha Quichindo and her two underage daughters, are citizens of Angola. On June 11, 2000, the Refugee Division (the "panel") ruled that they are not Convention refugees. However, Esperanca's brother, Eduardo Rocha Quixindo, aged 16, who feared being recruited by force into the UNITA, was so recognized.
[2] The main applicant alleges that in November 1996, her common-law husband was arrested and jailed by the government (the "MPLA") for participating in a demonstration organized by the Catholic church. Her husband was transferred from one prison to another; she does not know where he is.
[3] On June 20, 1998, at around 3:00 a.m., some soldiers came to her home looking for her husband, who had escaped from prison. Some soldiers sexually abused her, she says. She passed out and was hospitalized for two days. Following this incident, she lodged a complaint with the police who later told her that their investigation was going nowhere.
[4] The visits to her home by individuals looking for her husband continued. She decided to leave the capital, Luanda, and fled to Malange, where her parents were living. In December 1999, they were killed in the course of a bombardment during a combat between the UNITA and MPLA forces.
[5] Two weeks later, she was in a refugee camp where she met a lady working for a humanitarian organization who offered to help her leave the country. On April 7, 2000, this lady took the applicants to the airport in Luanda and facilitated their travel to the United States.
[6] Here is how the panel described the events that the applicants subsequently went through.
En route to the United States, the claimant met another woman in the plane, who advised her not to claim in the United States, but to go to Canada, who were better at respecting human rights. This woman helped the claimant pass through Customs and Immigration in the United States and accompanied her to a bus station. While the claimant and the children were waiting for their bus, they fell asleep and woke up to find that their bag had been stolen. The bag contained all of their papers. Eventually, the claimant arrived at the Lacolle border crossing on April the 8th, 2000, and claimed refugee status at that time.
THE PANEL'S DECISION
[7] The panel determined that the main claimant had failed to demonstrate through credible and reliable evidence that she left Angola because of a well-founded fear of persecution. The claimant's evidence, the panel said, contained significant contradictions for which she was unable to provide a credible explanation.
[8] This finding of lack of credibility is based on (1) some contradictions between her testimony and her PIF and the point-of-entry form signed by her; (2) the explanations given by the main claimant concerning the presence of an interpreter for the purpose of answering the questions in the point-of-entry form; (3) the improbability that a humanitarian organization would have facilitated the applicants' flight by giving them false documents; (4) the improbability that a humanitarian organization that helps people flee their country would have no follow-up plan to ensure the security of those persons; (5) the improbability that an American resident aboard the plane carrying them to New York would recommend that she submit her claim in Canada and that the main claimant, who had never travelled outside Angola, would accept this recommendation despite the fact that the humanitarian organization which helped them flee had apparently made some preparations for their entry into the United States; and (6) the total lack of any attempt at corroboration: no letter from the humanitarian organization and no letter from the church supporting the participation of her common-law spouse in demonstrations against the government in 1996.
ANALYSIS
[9] The panel did not believe the main claimant for a number of reasons:
(1) contradiction between her testimony, her PIF and her point-of-entry form;
(2) contradiction within her testimony;
(3) a number of improbabilities; and
(4) no attempt by her to corroborate her story.
[10] The rejection of the applicants' claim because the panel did not believe the main claimant for the enumerated reasons is a decision based on findings of fact. Section 18.1(4)(d) of the Federal Court Act bars this Court's intervention unless the panel's findings of fact are erroneous, made in a perverse or capricious manner or without regard for the material before it, which amounts to a patently unreasonable conclusion.
[11] The Supreme Court of Canada expressed itself very clearly on this point in Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, at page 844, per L'Heureux-Dubé J., at paragraph 85:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one.... Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision....
[12] It is also necessary to recall Mr. Justice Décary's remarks on behalf of the Federal Court of Appeal in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, and of Mr. Justice Pratte, on behalf of the same Court, in Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415.
[13] In Aguebor, supra, Décary J.A. writes at paragraph 4:
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.
[14] In Shahamati, supra, Pratte J.A. writes:
. . . we have not been persuaded that the Board's finding on credibility was either unreasonable or perverse. Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense.
[15] Applying the above principles to the case at bar, the evidence is decisive and there is absolutely no basis for the Court's intervention in this matter.
[16] There can be no doubt that the main claimant's credibility was seriously undermined by the replies she gave at the port of entry and her attempts at rectification once confronted by the panel.
[17] The point-of-entry form asks a question about marital status and gives five choices: single, married, widowed, divorced and separated. "Single" is ticked off.
[18] The main claimant provides no reply as to the nature of the persecution suffered but, asked to explain, this is written:
[Translation] The father of her children left her [sic] three years ago, difficulty surviving, finding work, conditions of life difficult [sic].
[19] The record shows that the entry form was filled out by an immigration officer and that the main claimant signed it. The entire discussion before the panel was as to whether this form had been completed by the officer after an interpreter, on the telephone, had relayed to him the replies received from Esperanca Rocha Quichindo.
[20] Initially, the main claimant maintained that she had not had the benefit of an interpreter before signing the form and that the interpreter had come only the next day in order to complete the form. As it happens, the interpreter at the hearing was the same interpreter who was on the telephone when the form was completed. He denied having signed the form the next day as stated by the main claimant. Her account was therefore incorrect, since she did have the benefit of an interpreter before signing the entry form; her then counsel acknowledged the inaccuracy of her testimony during his submissions.
[21] Counsel for the applicants argues that the panel did not assess the evidence as a whole. In support, she draws the Court's attention to the explanations given by the main claimant when confronted as to why she had replied "single" and why her common-law spouse had left her.
[22] I cannot subscribe to these claims. I think the panel could reasonably reject the explanations of the main claimant. The availability of the interpreter was established. The claimant's testimony concerning the father's relations with his children was confused. In reality, what counsel for the applicants is asking this court to do is to re-weigh the evidence that was before the panel, which I cannot do according to the case law that was cited.
[23] Counsel for the applicants argues that the panel simply overlooked all of the main claimant's testimony concerning the rape she had suffered. She adds that her brother was a witness to it and did not testify.
[24] In my opinion, the panel committed no error that would attract the intervention of the Court. The panel did not ignore the main claimant's evidence concerning her rape. The panel took this evidence into consideration but did not believe it. The panel said so clearly:
Given the contradictory versions between the information provided at the POE and the information detailed in the claimant's PIF, on the balance of probabilities, I do not believe that the claimant's spouse was arrested by security forces in Angola. Further, I do not believe the story of rape that the claimant alleged happened as a result of these events. Although the Chairperson's Guidelines on Gender-Based Claims were considered, given the lack of credibility findings on the related core elements of this claim, I did not find the Guidelines applicable in this case. [Emphasis added]
[25] As to the second aspect on this point, the panel did not refuse to hear the testimony of the main claimant's brother. Although summonsed at the third hearing, he was absent and his absence is not explained.
[26] Counsel for the applicants argues that the panel erred in requiring that they give documentary corroboration, considering that Angola was under the yoke of a civil war, that the main claimant had lost all contact with her sisters since 1992 and that her parents had been killed.
[27] In my opinion, what concerned the panel was not the fact that she could not file documentary corroboration but that she made no effort to obtain such documentation. The panel said so clearly:
I do not find it unreasonable to expect someone who has been in Canada for ten months prior to her hearing to have made any attempt to obtain documents to corroborate her testimony. [Emphasis added]
[28] A panel's finding on the lack of credibility of a claimant may be based in part on the absence of efforts to obtain documentary corroboration. (See Muthiyansa v. M.C.I., [2001] F.C.T. 17 and Sinnathamby v. M.C.I., [2001] F.C.T. 473.
[29] Finally, I reject the argument of counsel for the applicants that the panel, having recognized the fear of persecution of the main applicant's brother, should have recognized that the children had a well-founded fear of being persecuted.
[30] The panel did not overlook or ignore the testimony of the main claimant or the documentary evidence concerning her two daughters. The main claimant feared that her two daughters would be separated. However, this fear in regard to her two children was related to the fear she expressed that if she returned to Angola she would be arrested by the authorities, questioned and killed. The panel did not believe her and accordingly the fear expressed in regard to her two children is without foundation.
[31] For all these reasons, this application for judicial review is dismissed. No question of general importance was raised.
"François Lemieux"
JUDGE
Ottawa, Ontario
March 28, 2002
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-3225-01
STYLE: Esperanca ROCHA QUICHINDO
Clauda Tifeny QUICHINDO MOREIRA
Jacira Liria QUIXINDO MOREIRA
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 6, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: MARCH 28, 2002
APPEARANCES:
EVELINE FISET THE APPLICANTS
SHERRY RAFAI-FAR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA