Date: 20050304
Docket: IMM-6240-04
Citation: 2005 FC 324
Ottawa, Ontario, the 4th day of March 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
STEPHANE ADOUM DAISSALA
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) dated June 16, 2004, that Stephane Adoum Daissala (the applicant) is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicant is a citizen of the Republic of Chad. He is originally from the south of that country, hence the designation "Kirdis", a word used to designate non-Moslems. In January 2001, the applicant joined the Association for the Promotion of Fundamental Liberties in Chad (APLFT) and allegedly denounced his government, organizing propaganda in favour of his association so as to recruit as many members as possible to fight against the government in power in Chad.
[3] In May 2003, the applicant intervened in a dispute between a Kirdis and a "Zakhawa", a term used to designate Moslems in northern Chad. After this event, the Zakhawa allegedly threatened the applicant several times, criticizing him for intervening and for preventing him from killing the Kirdis.
[4] A few days later the Zakhawa, accompanied by members of the presidential guard, came to the applicant's residence to arrest him. As he was not at home, they beat the applicant's parents, telling them that if their son did not discontinue his actions with the APLFT he would be eliminated.
[5] The applicant accordingly hid for several days with friends in the suburbs, before leaving Chad on January 2, 2004, and arriving in Canada, via Paris and New York, three days later.
ISSUES
[6] 1. Did the panel make a patently unreasonable error in its analysis of the facts?
2. Did the panel err in applying the wrong standard of proof to Mr. Adoum Daissala's refugee claim?
ANALYSIS
1. Did the panel make a patently unreasonable error in its analysis of the facts?
[7] As indicated in Leung v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 774, at paragraph 14, a panel's decision must be made taking into account all the evidence and must be supported by reasons, with reference to the facts on which it relied in arriving at its conclusion:
Both divisions of this Court have consistently held that the Board's decisions must be based on the totality of the evidence contained in the Record [see for example Toro v. M.E.I., [1981] 1 F.C. 652 (F.C.A.) and Okyere-Akosah v. Canada (M.E.I.) (6 May 1992), A-91-92 (F.C.A.)]. This does not mean, however, that the Board must summarize all of the evidence, or that a decision will be quashed simply because the Board has failed to refer to some minor piece of documentary evidence in its reasons. [See Noor Hassan v. M.E.I. (9 October 1992), A-831-90 (F.C.A.).] Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence. [See for example Armson v. M.E.I. (1989), 9 Imm. L.R. (2d) 150 (F.C.A.) and Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).] [Emphasis added.]
[8] In the case at bar, although the applicant alleged that the panel made an unreasonable error in deciding in a capricious manner that he was not credible, the panel's decision gave several reasons in support of its lack of credibility finding:
[TRANSLATION]
· Although the applicant said he was an active member of the APLFT, the Association pour la promotion des libertés fondamentales au Tchad, he was unable at first to say what that acronym meant. (Page 2 of decision of June 16, 2004)
· The applicant was not able to clearly explain the part he played in that association. He said he organized games at youth centres so they would not become savages and took action on behalf of fundamental freedoms, but was not able to provide more detailed explanations. (Page 2 of decision of June 16, 2004)
· The applicant filed a membership card six days before the hearing, thereby contravening the 20 days allowed. The applicant did not keep the envelope. (Page 3 of decision of June 16, 2004)
· The address given on his membership card was not consistent with where he said he lived. (Page 3 of decision of June 16, 2004)
· The applicant was unable to indicate the various divisions making up the APLFT. (Page 4 of decision of June 16, 2004)
· When his function with children was put to him, he simply answered that there were instructors who mistreated the children and that [TRANSLATION] "they are told no, not like that". (Page 3 of decision of June 16, 2004)
[9] Further, although the applicant alleged that the panel erred in not allowing him to explain the purported improbabilities, it should first be noted that the panel was not obliged to indicate its findings on the applicant's credibility before rendering its final decision:
The finding that evidence is implausible is a conclusion based on assessment of its likely veracity in all of the circumstances. That conclusion may only be reached after the hearing is over, all the evidence has been submitted and the panel has opportunity to consider it.
In my opinion there is no obligation on the panel to signal its conclusions on implausibility or on the general credibility of evidence, in advance of a decision. Rather, the onus remains on the applicant to establish by credible evidence his claim to be considered a Convention refugee. The panel did not err, or fail to ensure procedural fairness in concluding there were implausibilities in the applicant's evidence without first bringing those to the attention of the applicant and providing opportunity for him to respond. [Sarker v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 987, at paragraphs 14 and 15]
[10] Secondly, I would indicate that even without an obligation to do so, the panel nonetheless gave the applicant an opportunity to persuade it of the truthfulness of his story:
The panel wanted to give the claimant one last chance and asked him whether there were other commissions in his association. The claimant answered, [TRANSLATION] "Yes, I think so", and then hesitated a while before answering, [TRANSLATION] "Women's rights and service to the client". Turning again to Exhibit P-7, it can be seen that there are
[TRANSLATION]
Five permanent commissions specializing in study and research, training, awareness and outreach, women's rights, children's rights, legal assistance and advice, vigilance, rights and freedoms.
.
(Page 4 of decision of June 16, 2004)
[11] The applicant also maintained that he was persecuted by the Zakhawas because he had helped a Kirdis. In view of the panel's findings on the first part of his testimony, I do not find the decision on this second part unreasonable.
[12] It was reasonable for the panel to rely on the applicant's evidence as a whole and on common sense and probability in arriving at its conclusion that it did not find the allegations of persecution by Zakhawa Moslems credible. (See Roy v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1425, at paragraph 8; Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415, at paragraph 2; Kabuyamulamba-Kabitanga v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 351, [2002] F.C.J. No. 462, at paragraphs 28 and 29.)
[13] This is especially so when we consider that the applicant had received his passport over a year before he left, he had received a U.S. visa over a month before his departure and he was able to leave Chad under his real identity without any problems, although he alleged that the presidential guard had been looking for him for over six months.
2. Did the panel err in applying the wrong standard of proof to Mr. Adoum Daissala's refugee claim?
[14] The applicant argued that the panel based its decision on too high a burden of proof, namely on a balance of probabilities. Although the applicant does not have to establish a likelihood of persecution, he must still establish his claims on a balance of probabilities. (See Ates v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1599, at paragraph 11.) I would also mention Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, at paragraph 5:
It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not.
[15] Finally, in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, the Supreme Court stated:
Both the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities. In the specific context of refugee determination, it has been established by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that the claimant need not prove that persecution would be more likely than not in order to meet the objective portion of the test. The claimant must establish, however, that there is more than a "mere possibility" of persecution.
[16] In its decision, the panel did indicate that it adopted the test of the balance of probabilities solely to establish whether it accepted the facts submitted by the applicant as true:
Since the claimant maintained that he had had no problems prior to the alleged events, which were not proved to have occurred on a balance of probabilities, the panel does not believe that he would have problems if he returned to his country because he came from the southern part of his country. (Page 5 of decision of June 16, 2004) [Emphasis added.]
[17] I would accordingly dismiss the applicant's argument that the panel applied too high a burden of proof.
[18] The application for judicial review is accordingly dismissed.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed;
- No question for certification.
|
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"Pierre Blais"
J.F.C. |
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6240-04
STYLE OF CAUSE: STEPHANE ADOUM DAISSALA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 3, 2005
REASONS FOR ORDER AND ORDER: Blais J.
DATED: March 4, 2005
APPEARANCES:
Louis Nadeau FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rondeau, Nadeau FOR THE APPLICANT
5022 Côte des Neiges
Bureau 3
Montréal, Quebec H3V 1G6
Department of Justice FOR THE RESPONDENT
Complexe Guy-Favreau
200 boul. René Lévesque ouest
Tour est, 5e étage
Montréal, Quebec H2Z 1X4