Date: 20021210
Docket: IMM-5369-01
Neutral Citation: 2002 FCT 1286
Ottawa, Ontario, December 10, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
ESMAT-DIDACE SIETE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board (the panel) that the applicant is not a Convention refugee and that there is no credible basis for his claim.
[2] The applicant, a citizen of Gabon, alleges that he has a well-founded fear of persecution because of his political opinions and his membership in a social group, the family.
[3] He says he is a teacher, was a leader of a union, and created an association named Crédit (Cercle de Réalisation et d'investissement).
[4] He alleges he has been arrested several times since 1994: once for sending the President of the Republic a letter concerning the murder of his father, and later for denouncing the Gabonese regime on several occasions. The last time he was arrested, he says, he was held under house arrest, but was able to escape.
[5] The applicant left Gabon on September 28, 1999. Travelling via Ivory Coast and Morocco, he arrived in the United States on September 29, 1999. He remained there until July 28, 2000, the date on which he arrived in Canada and claimed refugee status.
[6] The board rejected the applicant's claim after finding that his testimony lacked credibility. It also found that there was no credible basis for his claim under subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[7] The panel found, first, that during the hearing the applicant testified in an extremely impatient, rather aggressive manner and that on several occasions it had to ask him to calm down.
[8] It noted that the applicant had in his luggage what was needed to reproduce an identification card. According to the applicant, a friend had packed his bags in Africa when he left and, being under house arrest, he had not looked at the content of his luggage. Nor had he done so during the nine months he was in the United States. The panel considered this reply improbable and implausible.
[9] The panel also noted that the applicant's testimony at the hearing contradicted his written statement in his Personal Information Form (P.I.F.) concerning the date on which he had allegedly gone on strike.
[10] The panel also found it unlikely that the applicant had created a union of 3,000 teachers, with him as its main leader, barely six months after he was hired, and that he could have mobilized so many people in his union in so little time. The panel also viewed as unlikely the applicant's explanation that these 3,000 teachers were members of his graduating class. It further noted that the applicant had obtained a passport, which is incompatible with his allegation that he was under house arrest.
[11] The panel also found that the applicant's conduct following his departure from Gabon was not compatible with that of a person with a subjective fear of persecution. After a stopover in Ivory Coast, the applicant stayed in the United States for nine months without claiming refugee status there. The Refugee Division held that his explanation that he was awaiting a reply from Radio-Canada International was not credible, given the number of years of education he had.
[12] Finally, the panel noted that a number of the applicant's documents (driver's licence, birth certificate, medical certificate, etc.) were of doubtful authenticity, based on expert evidence. It therefore assigned no probative value to them.
[13] The applicant's counsel argues, first, that the applicant was entitled to request the presence of a lawyer upon his arrival at the point of entry when he was being asked for information about the reasons for which he was claiming refugee status, and that a breach of this requirement violated the rules of fundamental justice.
[14] This question was decided by the Supreme Court of Canada in Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, in which the Court held that the assistance of counsel was not required at this stage, although it is guaranteed as a right at the stage of the hearing before the IRB. In my opinion, contrary to the submissions by the applicant's counsel, this decision is fully applicable in this case.
[15] The applicant also submits that the sole observation that he was aggressive and impatient in the way he testified is not, in itself, a reason for a finding of non-credibility. But a reading of the reasons for the panel's decision shows that the panel concluded that the applicant lacked credibility having regard to all of the contradictions and improbabilities revealed in his testimony and not on the basis of his aggressiveness in testifying.
[16] As I stated earlier, one of the panel's concerns was that the applicant had in his luggage the necessary ingredients to reproduce an identification card. In my opinion, it was reasonable for the panel to conclude that this negatively affected his credibility and that it was improbable that he had not noticed, during the nine months he was visiting the United States, that these materials were in his luggage.
[17] Likewise, the fact that the applicant did not remember the dates of some important events at the basis of his refugee claim is a factor that the panel could reasonably consider in assessing his credibility.
[18] Furthermore, the panel could clearly rely on logic and common sense in finding it improbable that the applicant had managed to create a union with 3,000 teachers only six months after being hired, and considering as not credible his claim that there were 3,000 teachers in his graduating class.
[19] The applicant's counsel also argues that he was deprived of sufficiently clear reasons to enable him to understand in what sense his testimony was not credible because he was adjusting his replies. A reading of the transcript indicates that in fact the applicant was adjusting his replies to fit the questions that were put to him. The panel had every right to note this fact, which was indicated from his testimony as a whole and negatively affected his credibility. However, it was unnecessary for the panel to indicate in its reasons at what specific point in the hearing this had happened.
[20] I am also of the opinion that the panel could reasonably conclude that the applicant's ability to obtain a passport while under house arrest and to leave the country with his passport was a factor that indicated his lack of subjective fear.
[21] Similarly, the panel could reasonably find that the applicant's failure to claim refugee status while spending nine months in the United States denoted conduct incompatible with that of a person with a genuine subjective fear of persecution.
[22] Finally, the applicant submits that the panel erred in assigning no value to the relevant documentary evidence. But, on the basis of expert evidence, the panel found that a number of documents had been considered of doubtful authenticity. In such a case, the Refugee Division could choose not to assign any probative value to them and did not need to provide any further explanation, in contrast to Siba v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1890, in which the authenticity of the medical report was not at issue.
[23] The panel mentioned in its reasons only an expert report, the medical report, which was the only one that might have corroborated the applicant's allegations of persecution. As for the other documents, they did not constitute disputed evidence and the panel had no need to comment on them since they threw no light on his fear of persecution. On this point, Mr. Justice Evans, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, stated at para. 17:
... the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts.
[24] In regard to the panel's finding of no credible basis, although some of the documents supplied by the applicant may have been authentic, the Federal Court of Appeal, in Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537, held, at para. 30:
... the existence of some credible or trustworthy evidence will not preclude a "no credible basis" finding if that evidence is insufficient in law to sustain a positive determination of the claim.
[25] Thus, even if the applicant's passport was authentic and his identity was established, his testimony was nevertheless not considered credible, and his passport and some other non-conclusive documents were not in themselves considered sufficiently credible for the panel to conclude that there was a credible basis for his claim in accordance with subsection 69.1(9.1) of the Act.
[26] In conclusion, notwithstanding the able submissions by Ms. Doyon, I am of the opinion that the applicant has not successfully demonstrated that the panel's conclusions were perverse, capricious or made in disregard of the evidence.
[27] Consequently, the application for judicial review is dismissed.
[28] Counsel for the applicant asked that the following question be certified:
[translation] Do the principles of fundamental justice include the right to the assistance of counsel when a claimant's written statutory declaration is being taken for the purpose of determining the reasons why he is seeking refugee status in Canada, in connection with the point of entry form?
[29] In the Dehghani case, supra, the Supreme Court of Canada clearly established the law on this issue. There is no need to certify this question.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
Judge
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-5369-01
STYLE: ESMAT DIDACE SIETE
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal
DATE OF HEARING: December 3, 2002
REASONS FOR ORDER
AND ORDER OF: The Honourable Madam Justice Tremblay-Lamer
DATED: December 10, 2002
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Sébastien DaSylva FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon & Montbriand FOR THE APPLICANT
6337 Saint-Denis Street
Montréal, Quebec
H2S 2R8
Federal Department of Justice FOR THE RESPONDENT
Guy-Favreau Complex
200 René-Lévesque Blvd. West
East Tower, 5th Floor
Montréal, Quebec
H2Z 1X4