Date: 20020104
Docket: IMM-816-01
Neutral citation: 2002 FCT 7
Ottawa, Ontario, January 4, 2002
BEFORE: EDMOND P. BLANCHARD J.
BETWEEN:
MARIAMA BAH
Plaintiff
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] The Court has before it an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("Refugee Division") on January 26, 2001 dismissing the plaintiff Mariama Bah's application for refugee status.
STATEMENT OF FACTS
[2] The plaintiff, a citizen of Sierra Leone, alleged a well-founded fear of persecution in her country on account of her sex and the state of war existing there.
[3] The plaintiff was born at Kabala in Sierra Leone on November 5, 1965. She is of the Moslem religion. The plaintiff is illiterate, as she only attended the Koranic school from 1972 to 1976. She was married for about 20 years and lived in her husband's family home in Kabala, where he had a cattle business. The couple had five children.
[4] In late December 1999 her husband was shot by rebels who wanted to steal the cattle. After her husband's murder one Oumar Diallo began coming to see her with other people. Subsequently, Oumar Diallo appeared accompanied by Momo Kourouma and told her that Mr. Kourouma would in future be the chief of the village. According to the plaintiff, this Mr. Kourouma was a rebel. She said he approached the plaintiff and told her that she and her children were at his disposal and he would do what he liked with them.
[5] According to the plaintiff, he beat and raped her before her children and also beat her children.
[6] The plaintiff alleged that her brother-in-law (her husband's young brother) disappeared after meeting with Momo Kourouma. After her brother-in-law disappeared Mr. Kourouma again threatened the plaintiff. That was when she decided to leave the town of Kabala. She and her children sought refuge with her sister in Bo.
[7] She decided to go to one of her husband's friends in Makeni to collect money owing to him. She left her children with her sister in Bo and when she returned to her sister's place a week later, she found the house empty and the whole family gone. As she knew no one in Bo who could help her find her family, she left for Makeni the same day.
[8] The plaintiff left her country on April 15, 2000 and arrived in Canada two days later, on April 17. She claimed refugee status in the Montréal offices of Immigration Canada on April 19, 2000.
REFUGEE DIVISION'S DECISION
[9] In rejecting the plaintiff's application on January 26, 2001 the Refugee Division noted:
[TRANSLATION]
After analyzing the claimant's account and her testimony at the hearing, and considering all the documentary evidence and the documents filed by the claimant in support of her claim, the tribunal has come to the conclusion that she is not credible and so is not a "Convention refugee".
The tribunal found that both the claimant's account and her testimony at the hearing were replete with contradictions, implausibilities and improbabilities. The claimant's testimony contradicted her account at several points and her explanations at the hearing were devoid of common sense.
The tribunal first sought to understand the claimant's situation before her husband's murder. In general the claimant's testimony was vague, lacking in sincerity and forced. The tribunal had to put certain questions to understand as well as it could a story that was very confused, other than the hazy period of her husband's "murder" (late December 1999 and early January 2000), and without any chronological order.
. . . . .
The tribunal considers that the claimant did not demonstrate good faith to the tribunal and that her conduct indicated that she was trying to confuse the Canadian authorities.
In view of the many contradictions and improbabilities in this completely fabricated account, the tribunal concludes that the claimant is in general not credible and did not discharge the burden of proof that she had a well-founded fear of persecution in her country on account of her sex.
STANDARD OF REVIEW
[10] The standard of review for Refugee Division decisions was considered by Pelletier J. in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, on line: QL (F.C.T.D.). At para. 5 of his reasons, he said:
The standard of review of decisions of the CRDD [Refugee Division] is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998) 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise. The view which the CRDD took of the evidence was one which could reasonably be taken, just as the opposing view could also reasonably be taken. The evidence, as is so often the case, is ambiguous and equivocal. Some elements support the applicant's position, others undermine it. The CRDD's task is to consider all the elements (which does not require that specific mention be made of every piece of evidence which is reviewed) to weigh it and to come to a conclusion. As long as its conclusion is not one which is wrong on its face, it is not patently unreasonable. Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748, (1996) 144 D.L.R. (4th) 1 In this case, the conclusion to which the CRDD arrived is not wrong on its face, even though others might come to a different conclusion. There is no reason for this Court to intervene.
I adopt the reasoning and the standard of review set forth by Pelletier J. in Conkova, supra, which I will apply in this application for judicial review.
POINTS AT ISSUE
[11] The plaintiff submitted the following questions:
(1) Did the Refugee Division commit an error in dismissing the application to re-open and not sending its decision to the plaintiff?
(2) Did the Refugee Division commit an error in not taking into account the psychological report entered in evidence at the hearing?
(3) Did the Refugee Division err in finding that the plaintiff was not credible?
(4) Did the Refugee Division commit an error in not assessing the plaintiff's objective fear?
ANALYSIS
[12] The plaintiff submitted that in dismissing her application to re-open the Refugee Division deprived her of her right to be heard and to have a fair and equitable hearing. The plaintiff further maintained that the Refugee Division made an error in not sending her its decision following her application to re-open, thus depriving her counsel of the opportunity of making submissions, since the latter was awaiting the Refugee Division's decision on the said application. On this latter point the evidence, which I accept, was that the tribunal did in fact send the plaintiff its decision following her application to re-open (affidavit of Huguette McDonald). Assuming that the decision not to re-open was sent to the plaintiff, the latter had to comply with the deadline set and submit her comments. The Refugee Division made no error in this regard.
[13] The plaintiff further submitted that she had new facts to put forward, as appeared from the application to re-open, and that in this regard the Refugee Division, by dismissing her application, deprived her of a fair and equitable hearing.
[14] On reading the plaintiff's affidavit in support of her application to re-open, I find no "new facts" to be put forward as the plaintiff maintained, but rather arguments seeking to explain the plaintiff's conduct and facts which were already before the Refugee Division. So, in my opinion, there was nothing to prevent the plaintiff making all these arguments at the hearing held on November 9, 2000. The rules of natural justice were observed and no error was made by the Refugee Division in dismissing the application to re-open (Longia v. Canada (M.E.I.), [1990] 3 F.C. 288, at 293).
[15] In its reasons the Refugee Division found that, in view of the many contradictions and improbabilities in the plaintiff's testimony and account, she was in general not credible. Further, the Refugee Division considered the evidence as a whole as [TRANSLATION] "a completely fabricated account".
[16] The Refugee Division is responsible for assessing a claimant's credibility (Aguebor v. Minister of Citizenship and Immigration (1993), 160 N.R. 315, at 316-317, para. 4). It goes without saying that a finding on credibility will not be reversed by this Court unless it is entirely without foundation. In Rajaratnam v. Canada, [1991] F.C.J. No. 1271 (F.C.A.), on line: QL, at p. 6, Stone J. stated that a finding on credibility can be based on contradictions or inconsistencies in a claimant's testimony:
If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is [sic] a well-accepted basis for a finding of lack of credibility. See Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.), where Mr. Justice Hugessen observed, at page 35:
. . . unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence.
[17] Several points in evidence were noted by the Refugee Division in concluding that the plaintiff was not credible, including:
1. as regards her husband's death her testimony was vague, lacking in sincerity and forced, devoting only two lines to this important event, giving no details and naming no one; she said she saw nothing but after a lengthy period of questioning admitted that everyone had heard the shots and she saw the people who came to get her husband; she also later said Mr. Kourouma was the murderer; this important fact was also missing from the plaintiff's written account;
2. she said she was married in a mosque and later said in an area of the concession reserved for prayer;
3. she said she left after the end of her widowhood and the tribunal noted that she left the country before: this was confirmed by the plaintiff in her affidavit in support of her application to re-open;
4. she explained that her certificate was requested by her husband eight months or a year before he died: the tribunal pointed out that the issue date of the document was 1990;
5. the Refugee Division noted that the unsatisfactory reasons for trying to explain her lack of effort to locate her family in Bo were not in her PIF.
[18] In its reasons for decision the Refugee Division did not believe the plaintiff and concluded that her story was completely fabricated and she was in general not credible. The Refugee Division accordingly found that the plaintiff had not discharged the burden of proof of showing that she had a well-founded fear of persecution in her country on account of her sex.
[19] The plaintiff maintained that the Refugee Division failed to take the psychological report into account. She argued that the tribunal should have dealt specifically with the psychological report in its reasons since it [TRANSLATION] "corroborated" her testimony (para. 44 of plaintiff's memorandum, at p. 128 of plaintiff's record).
[20] The psychological report put forward the following conclusions regarding clinical syndromes:
[TRANSLATION]
(309.81) Severe chronic post-traumatic stress condition accompanied by major depression, severe isolated episode
[21] It is worth noting that the psychologist herself did not find the facts relied on by the plaintiff. This is why her report cannot be used to corroborate the plaintiff's allegations. Further, the psychologist based her diagnosis on the same evidence filed by the plaintiff before the Refugee Division. Additionally, in her analysis Dr. Laurion acknowledged that she consulted the text filed by Ms. Bah in reply to question 37 of the Personal Information Form for People Claiming Refugee Status. I note that this is the same evidence analyzed by the Refugee Division, leading to the conclusions that the plaintiff was not credible and her story was a fabrication. In Al-Kahtani v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 335, on line: QL, at p. 6, para. 14, MacKay J. considered similar arguments relating to a psychiatrist's report:
While I do not agree with the standard suggested by the respondent, that the tribunal's decision must be found to be patently unreasonable, I am not persuaded that the tribunal's determination of the weight to be given to the report was unreasonable. But even if it were, at most the report supports the applicant's difficulties with post-traumatic stress disorder, but not the particular facts that he alleges give rise to his claimed fear of persecution. In my opinion, that is the essence of the tribunal's conclusion in relation to the report and that conclusion cannot be said to be unreasonable or in error in law.
[22] I feel that MacKay J.'s analysis in Al-Kahtani, supra, applies in the case at bar. In Heer v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1124, on line: QL, Pelletier J. essentially confirmed the same rule at p. 4, para. 8 of his decision, noting:
[8] An expert's report cannot be used to establish the factual foundation upon which it is based. If the factual foundation is rejected, as it was here, there is no basis for the expert's opinion. That is what the CRDD found. It was entitled to do so.
[23] Based on the facts in the case at bar I can only concur in the finding by the Refugee Division as to the lack of veracity in the facts, and the expert's opinion is accordingly without basis.
[24] The plaintiff maintained that the Refugee Division committed an error in not dealing specifically with the documentary evidence about the objective situation in Sierra Leone. I agree with the defendant's arguments in this regard. The objective situation in a country can never by itself justify granting a claimant refugee status. The plaintiff had a duty to establish a credible connection between her situation and the evidence dealing with that objective situation. In view of the Refugee Division's finding that the plaintiff was not in general credible, there is no reason to determine whether the documentary evidence supported the plaintiff's claim.
[25] In my opinion, the Refugee Division made no error subject to judicial review by this Court, whether as to the treatment given to the psychologist's report or the consequences which it drew from the evidence in the record, consequences which led to a conclusion that the plaintiff's account was improbable and that she was not a Convention refugee.
[26] For these reasons, the application for judicial review will be dismissed.
[27] None of the parties suggested certification of a serious question of general importance resulting from the application for judicial review. No question will be certified.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is dismissed.
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Edmond P. Blanchard
Judge |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-816-01
STYLE OF CAUSE: MARIAMA BAH
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 7, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: JANUARY 4, 2002
APPEARANCES:
MARTIN FORGET FOR THE APPLICANT
GREG MOORE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARTIN FORGET FOR THE APPLICANT
FRANÇOIS JOYAL FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada