Date: 19980107
Docket: IMM-813-97
BETWEEN:
TSHIMANKINDA MICHEL KABEYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MULDOON, J.:
[1] This is an application to review and quash a decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board, dated February 4, 1997, in which it was determined that the applicant was not a Convention refugee.
[2] Facts
The applicant, a citizen of Zaïre, claims refugee status based on an alleged fear of persecution due to his political opinion, ethnicity (Luba tribe) and membership in a particular social group. He claims that because of his implication and membership in the opposition party, Union pour la Démocratie et le progrès social ("UDPS"), his wife was raped and his nephew killed. He also alleges that he was kidnapped, subject to forced labour, imprisoned, interrogated and tortured by the agents of President Mobutu.
[3] CRDD's Decision
The CRDD found that the central elements of the applicant's story were neither plausible, nor credible. The board provided two sets of concurring reasons. In the first set of reasons, the board member found, with respect to the applicant's fear of returning because of his ethnicity, that, although the documentary evidence showed that the Lubas had been victims of harassment in their workplace in the years 1992-93, the situation had improved since, and therefore, the mere fact of the applicant being Luba did not establish a well-founded fear of persecution. Likewise, the CRDD found with respect to the applicant's political opinion that he had not been the victim of persecution as he was an ordinary member of the UDPS. For reasons of clarity, the Board's findings on this ground can be summarized as follows:
| (1) The evidence did not show that the authorities were interested in the applicant given that he was able to travel by airplane despite the presence of agents of the Special Presidential Division at the airport. [This merits further consideration.] |
| (2) The applicant was still employed by his company in 1993, after his wife had allegedly been raped and his nephew killed by the authorities. This indicated to the CRDD that the authorities were not persecuting the applicant. |
| (3) The documentary evidence does not indicate that ordinary members of the UDPS are harassed or arrested by authorities. |
| (4) The applicant's claim at the hearing that he was responsible for the organization of a planned demonstration by the UDPS is not credible given that it was not mentioned in his PIF nor in the port of entry notes, and was therefore added during testimony to inflate his political profile. |
| (5) With respect to the applicant's in-laws, who he claimed were very involved in the UDPS, there was no evidence that they were being targeted or persecuted by the authorities by virtue of their involvement with the UDPS. |
[4] In the second set of reasons, the second CRDD member elaborated on the implausible aspects of the applicant's testimony. The member stated that the applicant's actions were inconsistent with someone who claims to fear authorities in a country were the brutality of such authorities is well known. The board member found that the alleged repetitive risks taken by the applicant throughout a number of years are inconsistent with the applicant's alleged fear of persecution. The second member provided the following examples of implausible reasons in the applicant's allegations:
| (6) It is implausible that the applicant would resume life in Kinshasa in March of 1993, without regard to his own security, if the authorities had, as he claimed, recently been looking for him and had raped his wife and killed his nephew. |
| (7) The letter from the doctor of his employer demonstrates that the applicant was still working for his employer, a state company, a t a time when he was allegedly having difficulties with state authorities. |
| (8) It is implausible that this medical letter would have remained in the applicant's possession during his alleged imprisonment on two occasions and his alleged escapes. |
| (9) Given the applicant's claim that the authorities threatened him by death if he escaped from his forced labour, it is implausible that he would have resumed a relatively normal life in Kinshasa after his evasion in 1993. |
| (10) The applicant's explanation that he did not contact the UDPS in Canada because he does not have the address and wants to stay away from political matters did not appear plausible given his claim that the had actually risked his life on a number of occasions in because his dedication to the same party which had allegedly assisted him in leaving Zaïre for Canada. |
[5] Therefore, for all the aforementioned reasons of varying degrees of cogency, the CRDD concluded that the applicant did not possess a well-founded fear of persecution.
[6] The CRDD's Failings - Not Determinative
The CRDD could have done better and been more accurate:
| (1) They did not, but might well have considered the plight of one who is both a Luba and a member of the UDPS; |
| (2) They were wrong about any significant presence of the Special Presidential Division at the airport, because the applicant himself told them that his employer, Gecamines had a private departure facility at the airport not controlled or watched-over by the Special Presidential Division; |
| (3) Their negative finding about the applicant's not contacting the UDPS in Canada is quite weak and not a necessarily reasonable conclusion at all: he might more plausibly have been happy to be out of the strife and the old-country politics, having arrived in a new land, Canada. |
| (4) They concluded the applicant's documents from the party were to be judged to be not authentic because his testimony was not plausible. Logically, that means the documents must have been forged, but the CRDD did not see the originals. The CRDD could not draw such a conclusion unless the documents were not merely "not authentic" could relate to contents or signature, but a non-forged document would not be deficient in veracity, unless the signatory conspired with the applicant to relate a lie. Two words the CRDD dared not to utter: "forgery" and "conspiracy". |
[7] The applicant's counsel produced an elaborate book of authorities and invoked them with professional competence. But the case turns not on the jurisprudence but on the overall performance of the CRDD, with all its above-noted failings. It is not without difficulty.
[8] Issues
Counsel for the applicant raises the following issues:
| (a) Did the board err in law in misinterpreting and misapplying the law concerning credibility? |
| (b) Did the board err in law by engaging in speculation and conjecture in concluding that the applicant did not qualify as a convention refugee? |
| (c) Did the board err in law by failing to consider the totality of the evidence properly before it in concluding that the applicant did not qualify as a Convention refugee? |
[9] Analysis
| (a) Interpretation of the law concerning credibility |
Counsel for the applicant submits that the CRDD erred by basing its negative credibility findings, not on criteria pertaining to the assessment of testimonial evidence, but rather on extrinsic criteria, as in Giron v. M.E.I. (1992), 143 N.R. 238 (F.C.A.). Counsel particularly referred to the following in Giron:
| [the CRDD]...chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies , and evasions, which is the heartland of the discretion of tiers of fact, but rather on the implausibility of the claimant's account in the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which tiers of fact are in little, if any, better position than others to draw. |
[10] In the instant case, counsel argues that the CRDD appears to have based its entire assessment of the applicant's credibility on purely extrinsic criteria, namely on rationality and common sense.
[11] In response to the applicant's contention, the respondent rightly submits that the CRDD did not misinterpret the law regarding implausibility findings and that it was entitled to base such findings on criteria such as rationality and common sense. Indeed the Federal Court of Appeal in Aguebor v. M.E.I. (1993), 160 N.R. 315, in explaining its decision in Giron made it clear that the test for intervention does not vary depending on whether the issue is "plausibility" or "credibility". The Court stated the following:
| It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where ti results from inferences than to have a finding on non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility". |
| 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 the appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. (Emphasis not in original text.) |
[12] Therefore,in light of the aforementioned, the applicant must, indeed, establish in the context of credibility findings based on plausibility, that the board's decision was unreasonable. The reasonableness of this decision is discussed as follows.
| [13] (b) Speculation and conjecture |
In order to establish his membership in the UDPS, the applicant present two documents baring the letterhead of this party.1 In regard to this letter, the second member of the CRDD concluded that "....le document de l' UDPS y inclus la lettre en date du 18 septembre 1995 ne sont pas jugés être authentiques et donc ne sont pas accordés de poids." The applicant submits that the board's decision not to assign any weight to these documents was not based on any evidence before it and, as result, the board erred in rejecting the authenticity of the documents on the basis of pure speculation. (Karkikari v. M.E.I. (1994), 169 N.R. 131 (F.C.A.). One can agree, with the latter submission, however, in the instant case, this error is not material as the CRDD found that mere members of the UDPS were not targeted by the authorities according to the documentary evidence. Therefore, even if the CRDD accepted that the applicant had been active as a member of the UDPS, such membership did not impart a well-founded fear of persecution.
| [14] (c) Failure to consider relevant evidence |
| (i) Documentary evidence |
Counsel for the applicant also argues that the CRDD failed to consider any of the extensive documentary evidence before it which corroborated the applicant's claim with respect to his fear of persecution as a member of the UDPS or as a member of the Luba ethnic group. Counsel gives five (5) examples of documents suggesting the ill treatment inflicted on members of the said group.2
[15] In response, the respondent successfully refutes these examples by the following observations:
| The Respondent submits that the two first passages cited at paragraph 22 of the Applicant's Memorandum pertain to a document dated September 1993, and therefore, in no way assist the Applicant given that the (Board) acknowledged that in the years 1992-1993 Lubas were victims of harassment, but found that the situation had since improved. With respect to the third and fifth passages cited at paragraph 22 of the Applicant's Memorandum, the Respondent submits that they attest to "harassment" and "intimidation", the (Board) found that the Applicant had not established that he had a well-founded fear of persecution, as opposed to harassment. Lastly, with respect to the fourth passage cited at paragraph 22, the Respondent submits that there is nothing in said passage relating to UDPS members.3 |
| [16] (ii) Testimony of the Applicant |
Finally, the applicant argues that the Board erred in arriving at the following conclusion:
| En Janvier, le demandeur a décidé de visiter son épouse qui habitait Kinshasa. Il a voyagé avec son ami Obert, dans l'avion de la Gécamines; il a témoigné que, lors de son épart, des agents de la Division Spéciale Présidentielle étaient présents à l'aéroport. La preuve du demandeur établit, en effet, que les autorités de la région n'étaient pas intéressées au demandeur.4 |
[17] However, the applicant's testimony indicated that the company for whom he worked had a private section of the airport where no special security measures were established. The CRDD failed to refute this information in it decision and, consequently committed an error. Nevertheless, this error is a minor one, especially when measured against the whole of the board's findings. Indeed, the CRDD's negative credibility assessment is not based solely on the airport finding, but on an abundance of other observations (From 2-a of the "CRDD's decision" above). In other words, even if the CRDD erred with respect to this issue, such an error would not be central to its decision as the CRDD provided many other reasons in support or its adverse credibility finding.
[18] Conclusion
It should be remembered that the Refugee Division is in the best position to evaluate the credibility of the applicant and that the intervention of this Court should be limited to cases in which there has been a manifest or determinate error committed. Accordingly, Noël, J. stated in Oduro v. M.E.I. ( ) 66 F.T.R. 106 at pp. 107-08, that:
| [12] However, it is not for me to substitute my discretion for that of the board. The question I must answer is whether it was open to the board on the evidence to conclude as it did. Recognizing that if confronted with the same evidence, I would have been inclined to hold otherwise, I cannot say that the board ignored the evidence before it or acted capriciously. |
[19] To the like effect is Madame Justice Tremblay-Lamer's decision in Hague v. M.C.I., Imm-4796-96 (December 16, 1997). In light of the foregoing, the CRDD's decision is not so unreasonable to warrant intervention by this Court. Indeed it is reasonable.
[20] Therefore, this application to quash that decision will be dismissed.
Judge
Toronto, Ontario
January 7, 1998
FEDERAL COURT OF CANADA
Date: 19980107
Docket: IMM-813-97
BETWEEN:
TSHIMANKINDA MICHEL KABEYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-813-97
STYLE OF CAUSE: TSHIMANKINDA MICHEL KABEYA
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
DATE OF HEARING: JANUARY 6, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MULDOON, J.
DATED: JANUARY 7, 1998
APPEARANCES: Mr. Peter J. Reiner
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Mr. Peter J. Reiner
Barrister and Solicitor
2200 Yonge Street
Suite 601
Toronto, Ontario
M4S 2C6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
__________________
1 Applicant's affidavit, exhibit "H", application record, p. 145 and 153
2 P. 164 of applicant's record