Date: 20050512
Docket: IMM-7931-04
Citation: 2005 FC 686
Ottawa, Ontario, the 12th day of May 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
ABD DAYEM OULD LIMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (the panel) of the Immigration and Refugee Board (the IRB), dated July 29, 2004, refusing to recognize the applicant as a Convention refugee or as a person in need of protection. The applicant asks that this Court set aside the panel's decision and refer the matter to a differently constituted panel.
ISSUE
[2] Did the panel unjustly undermine the applicant's credibility, or did the panel err in law or in fact in finding that the applicant was not credible or in dismissing outright a portion of the documentary evidence adduced by the applicant?
CONCLUSION
[3] For the reasons set out below, I find that the panel did not err unreasonably in its analysis of the evidence, since its determination is based on an appropriate understanding of the facts. However, the Court is concerned by the outright dismissal of more than nine documents without explanation other than to mention that the applicant was not credible. That said, this concern is not so significant as to warrant setting aside the decision. So the application for judicial review is dismissed for the following reasons.
THE FACTS
[4] The applicant, Abd Dayem Ould Liman (Mr. Liman, or the applicant), is a citizen of Mauritania and claimed asylum in Canada because of his political opinion. As an active member of the Union of Democratic Forces (the UDF), a political party in Mauritania, he was arrested and detained twice in 1993 and 1996. While detained, he was tortured.
[5] After his release from prison, but while he was still under house arrest, the applicant fled to the United States on July 13, 1997, where he claimed refugee status without success. He appealed this decision and filed a humanitarian record without obtaining any positive result. Mr. Liman then came to Canada in February 2004 to claim asylum.
IMPUGNED DECISION
[6] After deliberating for about 15 minutes, the panel delivered an oral decision that the applicant was not credible concerning his story and did not assign any weight to most of the evidence filed by the applicant:
When a claimant swears that facts are true, they are presumed to be so unless there are valid reasons for doubt. An important indicator of a witness's credibility is the consistency of his story. The panel wishes to state right away that we did not find the claimant credible. Some examples are given below of the reasons why we reached that conclusion.
In his PIF narrative, the claimant wrote that he had been arrested twice, whereas, in answer to Question 31 in "Schedule 1," he said he had been arrested once.
When the panel asked him a number of times why he fears to return to his country, he said he fears the government and all its branches. It was only when the panel reminded him that there has been a judicial decision since he left Mauritania that he added to his previous answers the fact that he has been sentenced to 15 years in prison, despite the fact that, in answer to Question 13 of the "Protected A" Form, he had declared that he was not wanted by the authorities in his country. In addition, in answer to Question 4A in "Schedule One," he had stated that there were no charges or sentences pending against him in any country.
When asked if he had a copy of the said sentence, he said no, and his justifications for that omission were not credible.
When asked how a medical certificate filed as Exhibit P-7 could lead to the conclusion that he had suffered torture, he said it was because of his head injuries. But the document in question found that he had suffered injuries to his feet. Nowhere does it mention any head injuries.
Finally, why did he not present before this panel the reasons for his refugee claim in the United States and the decisions reached there in his connection, when in our view it would have been easy to obtain and file them? The answer is obvious.
In view of the preceding, inter alia, the panel gives no credence to the claimant and consequently no probative value to Exhibits P-5, P-7, P-8, P-9, P-10, P-11, P 13, P-14 or P-15. We know it is easy to obtain that kind of document and they are certainly not sufficient to reverse our conclusion about the claimant's credibility.
As a result of the above analysis, the refugee claim is denied.
PARTIES' SUBMISSIONS
The applicant
[7] The applicant submits the panel has unjustly undermined all of his credibility. To conclude that all the documents filed in evidence had no probative value was an error of fact and of law. It was therefore patently unreasonable for the panel to conclude that it was possible for the applicant to obtain such documents when the documents would not be considered. He responds to the panel's concerns as follows:
< That the officer who was filling out his PIF did not give him an opportunity to say that he had been arrested a second time (i.e. in 1996 as well as in 1993), and that is why it is stated that he was arrested only once;
< That he did not understand question 13; furthermore, in his PIF in question 41, he says he has been sentenced to 15 years of imprisonment and forced labour;
< That he could not obtain a copy of that judgment without endangering the person who would go to get it;
< That he filed all of the documents he had in connection with his claim in the United States;
< That his actions in the United States and Canada demonstrate his bona fides and the validity of his subjective fear of persecution.
[8] Concerning the outright dismissal of the nine documents on the basis of Mr. Liman's lack of credibility, he argues that the panel cannot properly reject them in this way without indicating the basis for this decision.
The respondent
[9] The respondent contends that the applicant is simply interpreting the evidence in a different way and has not established that the panel committed any determinative error. Since this is a decision involving the credibility of a claimant, the decision must be reviewed according to the standard of the patently unreasonable decision, and the applicant has not discharged his burden of demonstrating such error. The panel's findings are inferred reasonably from the evidence. The panel is in the best position to assess the facts and determine the credibility of the applicant, and unless its findings are unreasonable or capricious or not based on the evidence, the Court cannot intervene.
ANALYSIS
Standard of review
[10] Questions bearing on the credibility of a claimant in a judicial review proceeding are subject to the standard of patent unreasonableness:
Credibility findings based on internal contradictions, inconsistencies and evasions are at the heartland of the discretion of triers of fact (Giron v. Canada (Minister of Employment and Immigration), (1992), 143 N.R. 238 (F.C.A.)) and the tribunal, a specialized one, has complete jurisdiction to determine the plausibility of testimony (Aguebor v. Ministre de l'emploi et de l'Immigration, (1993), 160 N.R. 315 (F.C.A.)).
This Court must not revisit the facts and weigh the evidence (Montreal (City) v. Canadian Union of Public Employees, Local 301, 1997 CanLII 386 (S.C.C.), [1997] 1 S.C.R. 793 at 844).
[See Dhindsa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2011 (T.D.), per Lemieux J., at paras. 41-42.]
Panel's decision
[11] I accept the respondent's argument that, generally speaking, the applicant seems to want to simply reinterpret the evidence. However, the determination dismissing nine documents outright without explanation, other than to cite the applicant's lack of credibility, concerns me but not to the point of setting aside the decision. Let me explain.
[12] The Court has carefully examined the findings on which the determination that the applicant lacks credibility is based. In the Court's view, it was not patently unreasonable for the panel to:
- cite the contradiction as to the number of arrests in Mauritania;
- draw a negative inference from the fact that the Mauritanian judgment sentencing him to 15 years of fixed-term imprisonment was mentioned by the applicant only in response to suggestive questions from the panel;
- note that the medical certificate refers to injuries to the leg when the applicant's testimony refers to head injuries;
- be dissatisfied with the applicant's answer that he could not obtain the Mauritanian judgment sentencing him to 15 years for the reasons given; and
- comment negatively on the lack of documents concerning the reasons for asylum in the United States and the related decisions concerning it including the decision of December 16, 2002.
[13] These determinations have a factual basis demonstrating their reasonableness. It was open to the panel to believe that the Mauritanian and American judgments were available and that they could have been filed, given the onus that a claimant must assume. It was logical that a negative finding would be made concerning the absence of these documents.
[14] It was also acceptable to perceive some confusion resulting from the number of arrests in Mauritania and to draw from this a negative conclusion in light of the applicant's explanations. There is an apparent difference between one or two arrests on its very face. The explanations given did not satisfy the panel.
[15] However, the outright dismissal of nine documents without any comment other than to say that they had no probative value since the panel did not find the applicant credible and that it is easy to procure these documents is a matter of concern. The documents (P-8, P-9, P-13, P-14) support the applicant's political affiliation with the UDF party, which the panel recognized since it accepted that the applicant was a member of the party (see exhibit P-6: applicant's UDF membership card). The other documents (P-5, P-10) can be linked to the applicant's testimony but their dismissal is not explained other than to say that the panel did not accept the applicant's credibility. Is it sufficient not to give more ample reasons for dismissing these documents in the circumstances?
[16] Considering the decision as a whole, is this conclusion of the panel so patently unreasonable as to cause the decision to be set aside in its entirety?
[17] According to the case law, a panel need not comment on each of the documents filed if, in light of the evidence, the logic of the decision is expressed through the reasons presented (see Songue v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1020 (T.D.), per Rouleau J., at paragraph 13). However, an outright dismissal on the ground of non-credibility warrants additional explanation. The documents rejected outright which involved the applicant's political affiliation, his arrest, some letters and documents concerning his application for asylum in the United States, warranted some comment if only in order to understand more clearly the reasons for their rejection. Indeed, it is hard to understand how the finding of the applicant's lack of credibility justifies an outright dismissal absent additional information.
[18] However, bearing in mind the other findings commented on earlier, we find that the outright dismissal of the evidence does not affect these findings. They exist integrally in themselves and in my opinion they are sufficient to undermine the applicant's credibility.
[19] As stated previously, these findings are reasonable. The outright dismissal creates some concern but not to the point of resulting in the decision being set aside. To be sure, it would have been appropriate to explain the outright dismissal of the nine documents, but this is not fatal and there is no reason for the Court to intervene for the reasons previously mentioned. Overall, the decision and the determinations contained within it are reasonable.
[20] The parties were invited to submit questions for certification but they declined.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review is dismissed and no question will be certified.
"Simon Noël"
Judge
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7931-04
STYLE: ABD DAYEM OULD LIMAN
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: MAY 3, 2005
REASONS: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: MAY 12, 2005
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
of Canada