Date: 20050513
Docket: IMM-6056-04
Citation: 2005 FC 689
Ottawa, Ontario, the 13th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MARIAM KABAK
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, dated June 7, 2004, by the Refugee Protection Division (the panel) of the Immigration and Refugee Board (the IRB) that the applicant is not a Convention refugee or a person in need of protection under sections 96 or 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). The application seeks to have the decision set aside and the matter referred for redetermination by a differently constituted panel.
ISSUE
[2] Are the arguments raised by the applicant of such significance that they warrant a finding by the Court that the panel's decision is patently unreasonable?
CONCLUSION
[3] Although some of the applicant's arguments have merit, the panel's decision as a whole must stand and the Court will not intervene, considering the standard of patent unreasonableness - which imposes a very high degree of deference - as well as the reasons stated below.
FACTS
[4] The applicant, Miriam Kabak (Ms. Kabak, or the applicant) is a citizen of Chad. She alleges that she has feared persecution in her country since the events of June 5, 2003. On that date, during a marriage ceremony for one of her friends, she refused the advances of a Mr. Saleh Déby (Mr. Déby), a brother of the president of Chad. He threatened to avenge himself, she says, because of the humiliation he claimed to have suffered.
[5] Two weeks later, on June 19, 2003, Mr. Déby, accompanied by a delegation, requested the applicant's hand in marriage. Her mother refused, given the threats against her daughter and the fact that Mr. Déby was polygamous. This enraged him. The applicant alleges that on September 30, 2003, she was taken by force by some soldiers to Mr. Déby's home. He confined her in his house for several weeks, during which time she was raped and threatened with death.
[6] Ms. Kabak befriended Mr. Déby's chauffeur, who drove her from time to time to visit an uncle of Mr. Déby. She bribed the chauffeur to stop at her mother's occasionally. Together with her mother and her uncle (her father had died several years earlier), Ms. Kabak was able to obtain a passport, a visa for the United States and a plane ticket. On December 11, 2003, she managed to escape from Mr. Déby's house and she went to the airport.
[7] She took a flight to New York and from there she went to Montréal by bus on December 14, 2003, where she then claimed refugee status.
IMPUGNED DECISION
[8] The panel found that the applicant had not discharged her burden of proof, because she lacked credibility. She had failed to provide valid explanations about the numerous contradictions and inconsistencies with which she was confronted.
[9] First, although she had indicated on her personal information form (PIF) that she was not married, she said that Mr. Déby, responsible for her kidnapping on September 30, 2003, was her husband. Furthermore, in Schedule 1 of the background information, the applicant stated that she feared for her life at the hands of her husband, a friend of the president and not the brother of the president. These references to Mr. Déby, as her husband and a friend of the president, led the panel to doubt the applicant's version, the reality being that he was not her husband and that he was the brother of the president.
[10] Second, the panel doubted her explanations concerning the inclusion of the two photos of children in her passport, which the applicant said were to facilitate her visa application in the United States, since this was a factor that could secure her return to Chad. Initially, the applicant said she did not know them. But she later filed in evidence the two birth certificates of these children. However, once again, she denied knowing them. At the very end, she admitted that the children were those of a friend of her uncle and that it was his lawyer who had advised her to add the birth certificates to the file. The panel also noted that the applicant's date of birth included in the passport had been altered and the applicant explained that her uncle had told her that if she was older it would help her situation.
[11] Third, the panel found that the applicant's explanations of how she had lost her plane ticket lacked credibility, as she changed her story several times.
[12] Fourth, the applicant stated during the hearing that her father had died six years ago, while in her PIF she had written that her father was alive and residing in Chad. This contradiction was presented to the applicant, but her explanation did not satisfy the panel.
[13] Fifth, the explanations regarding why the applicant came to Canada after her arrival in New York changed more than once. At the beginning, the applicant said it was suggested that she come to Canada because it would be hard to find a lawyer in New York. Later, the applicant explained that she came to Canada because a taxi driver told her that people speak French in Canada. This change in the explanations led the panel to characterize her testimony as lacking in credibility.
[14] Finally, the panel found that the applicant's version of her kidnapping and stay at Mr. Déby's home did not merit being reported, given the imprecision and confusion in the testimony.
PARTIES' SUBMISSIONS
The applicant
[15] The applicant submits that she never stated on her PIF that she was not married since, although she had not ticked off the "married" box, she did indicate on the PIF the name of her husband and the date of the marriage. She adds that she was not married to Mr. Déby (i.e. a marriage ceremony was never held), but that she called him her husband for reasons of convenience and because of the role he imposed on her, for she was forced to live with him. The date of marriage indicated on her PIF was in reality the date of her kidnapping. She thinks that these explanations were not taken into consideration by the panel.
[16] The applicant says the information that Mr. Déby was the president's friend and not his brother was an error written by a third person, which is obvious when we note that this information was written on the form by a person other than the applicant. In all the other places, Ms. Kabak explained that Mr. Déby was the president's brother and not a friend. This was an error caused by a third person for which the applicant cannot be held responsible.
[17] Furthermore, the applicant says she explained clearly why her date of birth had been altered on her passport; that is, for the purpose of increasing her chances of obtaining an American visa. Her uncle thought that in order to get such a visa the applicant needed to appear older and more mature. For the same reason, her uncle added the two children to her passport, to suggest that the applicant had some children. The existence of these children in association with the applicant could indicate to the American authorities that she had some reason to return to Chad, which could facilitate obtaining a visa. Moreover, as she explained to the panel, she did not know these children. She had filed birth certificates only in order to demonstrate that they were not her own children.
[18] With respect to the plane ticket, it had been seized and was part of the panel's record, which explains why the applicant did not find it. The applicant cannot be blamed on the basis of confusion in her explanation, given that the ticket was seized and was part of the panel's record. The panel did not even mention this in its decision.
[19] With respect to the failure to state in the PIF that her father had died six years earlier, this was a mere oversight by the applicant for which the panel should not have criticized her.
[20] Concerning the reasons why she came to Canada by passing through New York, the applicant submits that it was only in the United States that she decided to come to Canada. She stayed only one day in New York because a New York taxi driver recommended to her that she go to Canada in the hours following her arrival. There is an unquestionable logic to the applicant's explanations and conduct.
[21] A further criticism that the applicant makes of the decision is the total absence of grounds for not accepting her testimony concerning her kidnapping and her experiences following that kidnapping. In the applicant's opinion, it is a fundamental error not to give reasons, particularly in view of her testimony, which is precise and descriptive, as the evidence shows.
[22] Finally, she alleges that the panel did not consider the guidelines of the IRB chairperson concerning gender-related claims (the guidelines). The applicant is a victim of violence, which should have led the panel to mention the guidelines and to have taken them into account in its decision as well. There is absolutely no reference to the guidelines and a lack of understanding of the situation that the applicant experienced.
The respondent
[23] The respondent submits that it is the task of the Refugee Division, as a specialized tribunal, to assess the claimant's testimony and evaluate the credibility of her statements in the context of the evidence as a whole. In this case the panel did not draw any unreasonable inferences and consequently the Court should not intervene.
[24] The evidence submitted to the panel by the applicant was confused and contradictory in several respects. This application for judicial review, the respondent says, is intended only to complement her evidence. So the application should not be allowed.
[25] The respondent counters each of the applicant's arguments by referring to the panel's decision and the record. He adds that some of the explanations not accepted by a panel need not be reassessed by the Court where there is a lack of credibility; it can affect all of the related evidence.
[26] Concerning the IRB chairperson's guidelines, the respondent argues that they do not have force of law.
ANALYSIS
Standard of review
[27] The standard of review on purely factual questions is that of patently unreasonableness: Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 108 (F.C.A., per Décary J.A.); Shrestha v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1154 (T.D., per Lemieux J.); Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, [2003] 1 F.C. 331 (F.C.A., per Evans J.A.). See also paragraph 3 of Bulambo v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1682:
In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 para 11, before a credibility finding of the Board is set aside, one of the following criteria must be established:
1. The Board did not provide valid reasons for finding that an applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
ANALYSIS OF THE DECISION
[28] The applicant, in her submissions, presented eight arguments in opposition to the panel's findings which I will categorize as follows:
(a) The confusion in stating that Mr. Déby is her husband when he is not;
(b) Mr. Déby was referred to by the applicant as being a friend of the president when in reality he is his brother
(c) The alteration of the date of birth on the passport and the inclusion of two photos of children who are not hers;
(d) The explanations given about the plane ticket;
(e) The failure to report in the PIF the death of her father six years ago;
(f) The explanations given to explain her arrival in Canada;
(g) The rejection without reasons of the applicant's testimony concerning her kidnapping and incarceration at Mr. Déby's home; and
(h) No reference to the guidelines of the IRB chairperson concerning gender-related claims and no empathy toward the applicant as a victim of violence in the panel's decision.
[29] In the case of items (a), (c), (e) and (f), the Court is being asked to accept the applicant's explanations and to make a finding that differs from the panel's. However, if the basis for rejecting the explanations is reasonable in the circumstances, this Court must not intervene. Having examined the record, the memoranda and the transcript, I reach the conclusion that it was reasonable for the panel to reject the explanations provided in the following cases:
- Mr. Déby was not the applicant's husband. So why did she refer to him as her husband? The kidnapping and the violence in her regard do not justify such an association. It was reasonable to reject the explanation (see paragraph 15 herein);
- The alteration of the date of birth and the inclusion of two children's photos were explained (see paragraph 17 herein). The panel rejected the explanations. It was reasonable to do so, given the circumstances and the testimony;
- The failure to write in the PIF that her father was deceased. The explanations given (see paragraph 19) are dubious. It is reasonable to believe that we know when one of our parents is dead. It seems that such information is basic. It was reasonable for the panel to reject the explanations in this regard;
- The explanations given (see paragraph 20 herein) to explain the arrival in Canada, namely that a taxi driver had directed the applicant toward Canada since lawyers are not easily accessible and people speak French in Canada, were not accepted by the panel. It was within the parameters of reasonableness to reject this explanation.
[30] These four findings cannot help but seriously affect the credibility of the applicant. In Miranda v. Canada (Minister of Citizenship and Immigration), [1993] 63 F.T.R. 81, Mr. Justice Joyal wrote this about a problem resembling the one in this case:
[3] For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
[4] I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel. Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error.
[5] It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals. Yet we must always remind ourselves of what the Supreme Court of Canada said on a criminal appeal where the grounds for appeal were some 12 errors in the judge's charge to the jury. In rendering judgment, the Court stated that it had found 18 errors in the judge's charge, but that in the absence of any miscarriage of justice, the appeal could not succeed.
[31] A careful reading of the panel's decision demonstrates the consequences of these findings on the applicant's story as a whole.
[32] The question remains as to whether these four findings are sufficient to uphold the decision as a whole.
[33] The arguments in opposition to the situations described in (b) and (d) are of some merit, in fact. The Court thinks that on the face of the record it was inappropriate to draw a negative conclusion from the reference to Mr. Déby as the friend of the president when he is in reality his brother. A reading of Schedule 1 of the background information, where the reference to friend is indicated, indicates that the written entry was made by a third party and not by the applicant. The Court notes that the panel did not note this in the decision.
[34] As to the plane ticket and the explanation characterized as confused by the panel, it was inappropriate to draw a negative conclusion since the plane ticket had been seized by the officers at the border and is part of the file. Again, the panel did not consider this fact. Its finding on this point should have taken the seizure of the tickets into consideration.
[35] Are these findings sufficient in themselves to determine that the panel's findings were patently unreasonable conclusions and therefore justify setting aside the decision?
[36] Before answering, the Court will consider the submissions (see paragraph 21 herein) in opposition to the panel's finding (the rejection without reasons of the applicant's testimony concerning her kidnapping and confinement at Mr. Déby's home). The Court has in mind the privileged situation of the panel when it examines, hears and sees the witnesses as they testify. This is an obvious advantage for the panel that the Court does not have. A proper understanding of this case (including the reading of the transcript) enables the undersigned to understand the panel's process and the assessment it makes of the applicant's testimony.
[37] Of course, it would have been better to give reasons for the decision to reject the testimony concerning the kidnapping. However, in the context of this case the panel had already assessed the applicant's testimony and her explanations. It had already cited some concerns about a number of explanations, and these concerns as a whole led it to conclude that the applicant was not credible. It is in this context that the determination without reasons not to accept the applicant's testimony about her kidnapping and her life with Mr. Déby must be assessed. It is a continuity within the framework of the determinations already made.
[38] The errors in the determinations concerning the reference to Mr Déby as being a friend instead of the brother of the president and the reference to the plane ticket are not fatal. A decision must be evaluated as a whole, taking into account its particular features. A reading of the decision does not warrant the intervention of the Court on the basis of the patently unreasonable decision.
[39] Concerning the argument in opposition to the non-reference to the guidelines of the IRB chairperson concerning the applicant's experience during her confinement, the Court finds that the guidelines are of some importance in some cases but that there is no legal obligation to refer to them (see Hazarat v. Canada (Secretary of State), [1994] F.C.J. No. 1774 (T.D.), per Mackay J. at paragraph 7). Moreover, it must be detectable when reading the decision and the transcripts that the panel considered them (see Ayub v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1707 (F.C.), per Martineau J.). In this regard, the Court has consulted the transcripts and is in a position to note that the applicant was treated with consideration for the human aspect and with all the understanding owing to someone who has experienced such circumstances. The panel did not consider her credible and so the story as told by the complainant was not accepted.
[40] The parties were invited to submit questions for certification but they declined.
ORDER
THIS IS WHY THE COURT ORDERS THAT:
- This application for judicial review be dismissed and no question will be certified.
"Simon Noël"
Judge
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6056-04
STYLE: MARIAM KABAK
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal
DATE OF HEARING: May 3, 2005
REASONS: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: May 13, 2005
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Lyne Lazaroff FOR THE RESPONDENT
SOLICITORS OF RECORD:
Johanne Doyon FOR THE APPLICANT
6337 Saint-Denis St.
Montréal, Quebec H2S 2R8
(514) 277-4077
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
of Canada
Montréal, Quebec