Date: 20041008
Docket: IMM-6906-03
Citation: 2004 FC 1388
Ottawa, Ontario, this 8th day of October, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
OUMAROUBA TOURE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, a citizen of Guinea, arrived in Canada on May 25, 2002. He claimed Convention refugee status based on a fear of persecution because of a fight motivated by a love affair and for fathering two children with the wife of a tribal chief. In addition, he fears persecution due to his political opinions.
[2] In a decision dated August 12, 2003, a panel of the Immigration and Refugee Board (Refugee Protection Division) (the "Board") found that the Applicant was not a Convention refugee or a person in need of protection. The conclusions of the Board were based on the following:
· the Applicant's testimony was confused and contradictory, thereby undermining his credibility;
· the Applicant was unable to provide a reasonable explanation for his contradictory testimony regarding the number of children he had;
· although the Applicant claimed to have suffered a great deal of torture due to his love affair, he apparently did not require any medical attention;
· the Applicant failed to claim refugee status in either France or the United States when he passed through those countries.
[3] The Applicant seeks judicial review of this decision.
ISSUES
[4] The issues raised by this application are as follows:
1. Did the Board breach the principles of natural justice or procedural fairness by failing to provide the Applicant a meaningful opportunity to address the concerns of the panel?
2. Did the Board err by making perverse or capricious findings of fact by failing to consider all the evidence before it?
ANALYSIS
Standard of Review
[5] Findings of fact made by the Board can be reviewed only if they are erroneous and made in a perverse or capricious manner or without regard for the evidence before the Refugee Division, in other words, on a standard of patent unreasonableness (Liang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1904 (QL)). However, questions of procedural fairness or natural justice which may arise, regardless of the standard of review, are subject to a correctness standard (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. No. 982 (QL)).
Issue #1: Did the Board breach the principles of natural justice or procedural fairness by failing to provide the Applicant a meaningful opportunity to address the concerns of the panel?
[6] The Applicant submits that he was never given an opportunity to explain the apparent contradictions with respect to the number of children he had and the lack of evidence of medical treatment. In the Applicant's view, "For the Board to ground a credibility finding on a perceived inconsistency it has not put to the Applicant it must be serious, obvious and must relate to matters relevant to the claim" Selvakumaran v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 842 (QL). The Applicant argues that, since these points were "significant", the Board failed to provide him with a "meaningful opportunity" to participate in all aspects of his claim (Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39 (QL)).
[7] Natural justice demands that the Applicant be given an opportunity to be heard (Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (QL)). Natural justice, itself, does not specify what form that opportunity is to take. It would have been preferable for the Board to put these two aspects of the Applicant's claim more directly to him. However, failure to do so does not automatically mean that the Board has erred. A review of the jurisprudence related to the issue of whether an inconsistency should be put to an Applicant demonstrates that the answer to this question will depend on the specific facts of the case under review. One cannot say categorically that all inconsistencies or contradictions should be put to a claimant; nor can one say that they need not be. It depends.
[8] Both parties referred me to the decision of Ngongo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627, at para. 16 (QL), where Justice Tremblay-Lamer stated as follows:
In my view, regard should be had in each case to the fact situation, the applicable legislation and the nature of the contradictions noted. The following factors may serve as guidelines:
1. Was the contradiction found after a careful analysis of the transcript or recording of the hearing, or was it obvious?
2. Was it in answer to a direct question from the panel?
3. Was it an actual contradiction or just a slip?
4. Was the applicant represented by counsel, in which case counsel could have questioned him on any contradiction?
5. Was the applicant communicating through an interpreter? Using an interpreter makes misunderstandings due to interpretation (and thus, contradictions) more likely.
6. Is the panel's decision based on a single contradiction or on a number of contradictions or implausibilities?
[9] With this helpful guidance, I turn to the general situation of the conduct of the hearing. From the initial task of completing his Personal Information Form ("PIF"), the Applicant was represented throughout the proceedings. The hearing was conducted in French and the Applicant participated without the aid of an interpreter. At the commencement of the hearing, the Applicant was given the opportunity to amend or correct his PIF and, while minor corrections were made, he did not address either of these two points.
[10] With respect to the number of children, the Applicant's answer in his PIF was that he has four living children with his legitimate wife and two deceased ones with his lover. The Applicant was questioned on two occasions by the Board on this aspect of his claim, at which time he presented contradictory evidence. This was a direct contradiction regarding a key component of the Applicant's testimony. On two separate occasions, the matter was raised by questioning from the Board. The interest of the Board in this subject was readily apparent and the nature of the contradiction clear. The Applicant's representative, having participated in all aspects of the claim, could have re-examined the Applicant on this readily obvious problem. Having regard to the factors above, I am of the view that the Board did not err by failing to put this matter directly to the Applicant.
[11] The Applicant claims to have been imprisoned and subjected to extensive and terrible torture. In spite of this claim, he failed to mention whether he had received medical care or evaluation. Question 41 of the PIF instructs claimants not only to mention "tous les évènements importants" but also whether they have received "au Canada ou ailleurs des soins ou évaluations médicales . . . reliés à cette demande". There was no mention of this omission at the time of the hearing. However, I note that the Applicant in this case was well aware that evidence of the treatment he received was a front and centre element of his claim. Given the horrific torture he claims to have suffered, it is contrary to common sense that he would not have needed medical attention and brought that evidence forward to the Board. The Board is entitled to draw an adverse inference where a claimant fails to produce evidence that could reasonably be available and was an important and relevant piece of information (Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No 444 (FCTD) (QL); Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No 1867 (FCTD) (QL)). In the particular circumstances of this case, and having regard to the factors above, I am of the view that the Board's inference taken from this omission was not a breach of the rules of natural justice.
Issue #2: Did the Board err by making perverse or capricious findings of fact by failing to consider all the evidence before it?
[12] The Applicant submits that the Board erred in determining that it was significant that the Applicant did not make a claim in France or the United States. The Applicant points out that he was in transit, passing through France and the U.S. while on his way to Canada-he was in France for three hours and in the U.S. for one day. In support, the Applicant relies on Tshibangu v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1345 (FC) (QL), to argue that a failure to apply for refugee status in another signatory country while in transit is not sufficient, in and of itself, to warrant an adverse credibility finding.
[13] In this case, as in Tshibangu, supra, the failure to claim while in transit is one of a number of credibility concerns. In the circumstances of this case, read as a whole, the failure to claim obviously weighed against the Applicant in the mind of the Board. I do not find this to be patently unreasonable.
Conclusion
[14] When the reasons are assessed in light of the totality of the evidence, I conclude that the findings of the Board were reasonably open to it and that this Court's intervention is not warranted (Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (FCTD) (QL)).
[15] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed;
2. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6906-03
STYLE OF CAUSE: OUMAROUBA TOURE v. THE M.C. & I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 23, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
APPEARANCES BY:
Mr. Micheal Crane FOR APPLICANT
Ms. Diane Dagenais FOR RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada