Date: 20010830
Docket: IMM-814-01
Neutral Citation: 2001 FCT 977
BETWEEN:
OLGA MONKA ELONGA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision rendered on January 16, 2001, wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The applicant, a 22-year-old citizen of the Democratic Republic of Congo ("DRC"), claims refugee status on the basis of her membership in a particular social group, family, and on the basis of political opinion.
[3] The applicant completed her studies in July 1999 and was living with her family in Kinshasa. Her father was employed for the national electricity society but decided to resign and become a journalist for the newspaper "La tempête des tropiques". Between July 1999 and October 1999, the applicant's father allegedly wrote articles on the war that was going on in the East of the country.
[4] The last article would have been published in October 1999. The applicant submitted as evidence an article written by her father and published in February 1999 in the Weekend Africain.
[5] The applicant worked as a volunteer at her father's office from August 1999 to November 1999. She was doing general work in the office. She testified that at four different times, she distributed some prospectus containing the summary of the newspaper to be published.
[6] On November 17, 1999, her father left the family house and never came back. He allegedly was falsely convoked to a meeting and was probably arrested.
[7] On November 22, 1999, the applicant went to the Human Rights Department to try to get some help but it availed her nothing. The same day, soldiers came to the family house and the applicant's mother and brothers were bound and her mother was beaten and raped by the soldiers.
[8] The soldiers allegedly stated that their father thought himself a patriot with his articles. They also recognized the applicant as a person having worked at the same newspaper as her father. However, they did not take her.
[9] The applicant decided to hide without her family and hid at a prayer unit in Kinshasa. She stayed there until December 6, 1999 and left for Brazzaville. While in hiding she did not ask about her family.
[10] She then went to the Ivory Coast where she stayed for two months, until February 17, 2000 and then came to Canada on February 18, 2000.
ISSUES
[11] 1. Did the Board err regarding the facts of the applicant's claims?
2. Did the Board ignore the other grounds of the claim or make a perverse finding, ignore evidence or fail to evaluate the credible evidence?
3. Did the Board err in law in failing to consider the perception of the agent of persecution?
4. Did the Board ignore evidence, misconstrue evidence in determining that the applicant was not credible?
ANALYSIS
1. Did the Board err regarding the facts of the applicant's claims?
[12] The applicant submits that the Board made a clear error of fact when it concluded that the applicant had testified that she requested the two documents dated March 2000 (birth certificate and provisory certificate of success) in August 2000 and when it found that it was unlikely that she would have obtained two documents dated March 2000 upon a request made in August 2000.
[13] The applicant points out that the two documents were provided to the Board in May 2000 with her personal information form ("PIF"), which was filed on May 23, 2000. The applicant therefore submits that this error affects the Board's entire analysis with respect to the reasons why the applicant left DRC when she did.
[14] The respondent explains that the two documents dated March 2000 issued from the DRC were issued after the applicant's arrival in Canada on February 18, 2000. The respondent notes that when questioned about the fact that the documents were issued after her arrival in Canada, the applicant testified that she requested these documents from her uncle when she spoke to him on the telephone in August 2000. Earlier in her testimony, the applicant had been questioned at length about her contact with her family, at which time she indicated, that she had no news about her family until August 2000 when she spoke to her uncle.
[15] When asked to reconcile this evidence and in particular, how her uncle could have sent her documents dated March 2000 (i.e. documents that were created after her departure from DRC), in response to a request not made until August 2000, the applicant indicated that she had no explanation.
[16] The respondent further points out that regardless of when the applicant actually received the documents, this was her testimony in this regard, and the applicant had not attested to the fact that she did not make these statements in oral testimony. If the documents had been received before May 2000, then the applicant ought to have indicated this in her oral testimony. Instead, she indicated that she only had contact with family members in August 2000, at which time she requested these documents. The applicant was clearly not credible with respect to when and how she obtained her documents.
[17] Furthermore, even if these documents had been received before May 2000, and had been appended to the applicant's PIF, this still does not explain why the applicant provided contradictory evidence on this point in oral testimony.
[18] I have reviewed the transcript of the hearing as well as the Board's decision and I have to agree with the respondent that the applicant did not reconcile the evidence and how her uncle could have sent her documents dated March 2000 when she had no contact with her family between December 1999 and August 2000. Moreover, the fact that the applicant had those documents in May 2000 does not help the applicant as it only points out another contradiction in the applicant's story and does not reconcile the evidence. I cannot conclude that the Board erred on this issue and I find that it was reasonable for the Board to find that this evidence tarnished the applicant's credibility.
2. Did the Board ignore the other grounds of the claim or make a perverse finding, ignore evidence or fail to evaluate the credible evidence?
[19] The applicant submits that she gave credible evidence that suggested that she was at risk in DRC. Furthermore, the Board found that her father was a journalist and that journalists were at risk in DRC. Also, there was documentary evidence stating that when unable to locate a specific individual, authorities routinely arrested or beat the closest family member. Therefore, the applicant is at risk because of her relationship to her father. The applicant contends that the Board failed to come to grip with any of the evidence. In fact, the Board mis-understood the applicant's evidence and only stated that the soldiers were not interested in the applicant. The soldiers were interested enough to beat her, tie her, almost rape her and interrogate her as to why she was distributing tracts.
[20] The respondent submits that the Board did not ignore or misconstrue any of the evidence in this case. It reasonably drew negative inferences from the applicant's evidence which was not credible or trustworthy. Specifically, the respondent submits that the Board committed no reviewable error notwithstanding that parts of the evidence were not mentioned in the reasons.
[21] The respondent also argues that the preference of certain evidence over others is a matter of weight for the Board to give to the evidence. It is open to the Board to choose to rely on some evidence and not others if there is conflicting or inconsistent evidence.
[22] Regarding the applicant's claim that she is at risk because of her father, the respondent submits that a nexus must exist between the personal situation of the applicant and the general situation with respect to human rights in the country from which the applicant is fleeing. The respondent submits that in the absence of any credible evidence indicating a threat to the applicant, the applicant cannot be a Convention refugee. Notwithstanding the fact that the Board did not reject the applicant's evidence that her father is a journalist, it is submitted that given its finding that it did not believe the applicant's story and the reason that she fled DRC, the applicant has failed to discharge the onus of proving the nexus between her personal situation and the general situation with respect to human rights.
[23] Regarding the applicant's allegation that the Board ignored the documentary evidence, I agree with the Federal Court of Appeal in Florea v. Canada (M.E.I), [1993] F.C.J. No.598 (F.C.A.) :
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
[24] The applicant submits that the Board erred in not taking into account the credible evidence that she gave at the hearing. The applicant submits that the Board did not doubt that she considered herself an activist, that she worked on a volunteer basis of her father's newspaper, that her home was invaded by soldiers and that she was beaten along with her brothers and mother. The applicant submits that the Board should have dealt with this evidence in its decision.
[25] However, I have to point out that the Board did not find the applicant credible regarding her work at the newspaper. The Board stated at page 5 of its decision that the applicant did not established that she had worked for the newspaper.
[26] The lack of credibility of the applicant on this issue raised doubts on her claim as a whole. The Board also found many other inconsistencies and implausibilities which undermined the applicant's credibility.
[27] The Board also found that she did not have the journalist profile that she claimed she had (applicant's testimony, page 174 of the tribunal record), and also dealt with the fact that soldiers went to her home. I cannot find that the Board failed to consider the applicant's evidence and deal with the various issues.
3. Did the Board err in law in failing to consider the perception of the agent of persecution?
[28] The applicant submits that the Board erred in that it failed to take into account that, whether or not the applicant was a journalist, the relevant perspective was that of the agent of persecution, i.e. whether the applicant would be perceived to be a journalist.
[29] The applicant further submits that the Board simply cannot accept that the applicant would have been the subject of attention from the agents of persecution and that the Board's approach reveals the error that the Federal Court of Appeal pointed out in Chen v. M.E.I. (October 4, 1993), A-30-91 (F.C.A.).
[30] The applicant contends that the Board erred in substituting its own view as to the applicant's importance, instead of that of the agents of persecution. The applicant submits that one does not have to occupy a formal position to be a person who is targeted.
[31] The applicant alleges that the Board erred in failing to consider how the applicant will be perceived by the agents of persecution, as opposed to the Board's own perception that the applicant did not fit in some kind of profile.
[32] The respondent alleges that the Board did consider the perspective of the persecutor, but did not find that the applicant's claim was based on credible and trustworthy evidence.
[33] The respondent contends that the Board did not commit an error in noting that the applicant was not a journalist or in noting that she did not have the profile of a journalist. She was not and had she been a journalist, the Board would have had to undertake a different analysis. It is submitted that the applicant's fear was not that she would be perceived to be a journalist per se, but that by virtue of her activities with the newspaper, political opinions could be imputed to her. The Board specifically considered her fear on this basis.
[34] The respondent points out that while the Board did have regard to the perception of the persecutor, it found that there was no credible and trustworthy evidence that the claimed persecutor did or would attribute any political opinions to the applicant. The Board reasonably concluded that the authorities did not impute anything to the applicant and that they had no interest in the applicant. It found that the authorities, if they came, came for her father. Even after they recognized her as a person who had worked at the newspaper, they did no arrest her, or take her with them.
[35] Moreover, having regard to numerous credibility findings, including the fact that the applicant never even thought to contact the newspaper and her explanation that she did not because she did not know the phone number, the Board did not even believe that the applicant worked at the newspaper in the manner or to the extent alleged. The respondent also notes that though given notice that the Board did not believe that she worked at the newspaper and though given the opportunity to rebut this finding, the applicant did not provide any other evidence in corroboration of this fact. While corroborative evidence is not required, given the applicant's lack of credibility and the fact that she did eventually produce a letter from the newspaper that said nothing about her work at the newspaper, the respondent submits that the Board reasonably doubted the applicant's evidence on this point.
[36] In my view, the Board did take into account the perspective of the agent of persecution and whether the applicant would be persecuted because of her actions. The Board considered the fact that the applicant was doing general tasks for the newspaper and that the soldiers came to her home for her father, not her. Furthermore, the Board found that the applicant had not established that she had worked for the newspaper. All these findings pertained to the applicant's actions and how they would be perceived by the persecutor. I cannot find that the Board erred.
4. Did the Board ignore evidence, misconstrue evidence in determining that the applicant was not credible?
[37] The applicant alleges that the Board failed to consider the documentary evidence that the mail is intercepted by the Government and that telephone communications are monitored when it found that the applicant ought to have obtained evidence that she was working for the newspaper and that she ought to have received further information concerning her family.
[38] With regard to the applicant's allegation that the Board failed to consider country conditions, the respondent submits that the applicant has not demonstrated that the Board failed to consider this evidence. The respondent notes that there is no evidence that the applicant or her counsel, raised the evidence about intercepted communications before the Board at the hearing. This fact is not attested to in the affidavit of Anthony Kako, though the opportunity to do so was clearly there.
[39] The respondent contends that the applicant had the burden to establish that she could not obtain the evidence requested because of intercepted communications. Furthermore, the applicant had the burden of establishing that this problem of interception applied to her, especially having regard to the fact that she managed to produce into evidence documents that she had received from the DRC and the fact that she was able to speak to her uncle on the telephone. As there is no evidence that the applicant raised the issue with the Board, the respondent submits that the Board was entitled to assume that this was a non-issue.
[40] As was stated earlier, the fact that the Board did not mention all the evidence does not mean that it did not consider it. I cannot find that the documentary evidence regarding the mail raises doubts as to the Board's conclusion and supports a finding that the Board erred regarding its conclusions. Furthermore, there was evidence that the applicant could obtain documents establishing that her father worked for the newspaper even if there was documentary evidence to the effect that the mail is intercepted by the Government and that telephone communications are monitored.
[41] Regarding the post hearing letter, the applicant submits that the Board erred in finding that it cast doubt on her evidence and that it was a contradiction because the letter could be implying that the father works at the newspaper. The evidence could mean that the father was not, at the time of the letter, in detention.
[42] However, the Board found that the father was of the profile of persons who were at risk and the documentary evidence set out that journalists are often eventually released.
[43] The applicant submits that the Board erred in drawing a negative inference in the absence of evidence from the applicant.
[44] Regarding the post-hearing letter, the respondent submits that the letter does not cast doubt on the applicant's evidence. That doubt was present at the hearing. In fact, the Board's finding was that the letter did nothing to cure the Board's finding, at the hearing, on the applicant's credibility.
[45] The respondent submits that the Board drew no adverse inference from questions related, to the actual status of the applicant's father.
[46] On the issue of the post-hearing letter, the Board stated at page 5 of its decision:
Le tribunal n'a pas mis en doute le fait que le père de la revendicatrice est journaliste. C'est plutôt le travail de celle-ci au journal La tempête des Tropiques qui n'a pas été établi. Cette lettre d'attestation ne change pas la décision du tribunal concernant la crédibilité de la revendicatrice.
De plus, ce document semble confirmer que le père de la revendicatrice est, en date du 1er décembre 2000, correspondant particulier du journal. A-t-il été libéré, est-il de retour au travail? Le tribunal ne peut répondre à cette question et la revendicatrice n'a pas demandé de reprendre l'audience de son dossier. De toute façon, comme il a été dit précédemment, cette pièce ne change rien à l'analyse du témoignage de la revendicatrice.
[47] As appears from the Board's decision, the Board did not draw a negative inference from this letter and explained that it did not make it change its decision. I cannot conclude that the Board erred in its dealing with this evidence.
[48] The applicant further submits that the Board erred in failing to give the benefit of the doubt to the applicant. The applicant maintains that the Board is required to compare the applicant's evidence to the documentary evidence and that if the applicant's evidence is consistent with the documentary evidence, then the applicant must be given the benefit of the doubt with respect to elements of evidence that the applicant has not been able to provide.
[49] The respondent alleges that the applicant is not entitled to the benefit of the doubt having regard to the preponderance of implausible evidence presented by the applicant in her testimony.
[50] Paragraph 204 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee status provides :
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[51] In the case at bar, the Board concluded that the applicant lacked credibility because of various inconsistencies and implausibilities.
[52] Furthermore, as was stated in Aguebor v. M.E.I. (1993) 160 N.R. 315 (F.C.A) by the Federal Court of Appeal:
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.
[53] In my view the Board did not err in arriving to its decision. Therefore, this application for judicial review is dismissed.
[54] Counsel for the applicant suggested a question for certification:
If an argument is made to the Board about an aspect of the claim as to why the claimant would be at risk; does the Refugee Division have an obligation to deal with the argument?
[55] Counsel for the respondent opposed that question on the basis that it has already been answered.
[56] In my view, it is not a question of general importance, therefore, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
August 30, 2001