Date: 20040922
Docket: IMM-7927-03
Toronto, Ontario, September 22nd, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
THOMAS MAFATALA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of the Democratic Republic of Congo ("DRC"). He is 24 years old and arrived in Canada via Cameroon, Senegal and the United States on or about June 12, 2002 where he claimed refugee status. He claims he was a student at the University of Kinshasa and attended meetings of "le mouvement des étudiants de Kinshasa (MEK)". He was President and Secretary of the association. On June 25, 1998, the Applicant claims he was imprisoned and tortured for allegedly being a member of a political group, l'union pour la démocratie et le progrès social (UDPS), that is hostile to the new government. He was released from prison on July 10, 1998. The Applicant denies membership to this group.
[2] On December 13, 2001, a demonstration was held at the University of Kinshasa. The demonstration became violent when a student seized the microphone and threatened the authorities. The Applicant claims he was again imprisoned and tortured and alleges that the fact that the police believe him to be a member of the UDPS puts his life in danger. On March 30, 2002, a man named Malutikidi aided in the Appellant's flight from prison due to an alleged moral debt owed to the Applicant's father. The Applicant hid at Mr. Malutikidi's house and on June 9, 2002 he travelled to Canada using false identification.
[3] The Immigration and Refugee Board (Board) denied his claims under sections 96 and 97(1)(a) and (b). The Board found the Applicant not to be credible and that his claim was insufficiently supported by documentation.
[4] The Board found that:
a) the Applicant was not able to give sufficient detail regarding events leading up to and including those of December 13, 2001 and only referred to the boycotting of classes. Inter alia he said there was no burning of tires blocking entry to the University, contrary to a Belgian report considered by the Board; he said several memoranda were signed for submission to the University Management Committee while other evidence revealed there was only one; and
b) the Applicant did not present any documents such as a student card, transcripts, fees receipt or other document to prove that he was a student at the University of Kinshasa at the material times. He claimed that all his documents were in his dorm room when he was arrested the second time on December 13, 2001 and he never returned to his dorm room. The Board found it curious that the Applicant did not have his student ID and library card in his possession given that these are documents that a student would need on a daily basis. It found it implausible that they would be left in a student's dorm room and not kept in his possession.
[5] Two issues arise in this case:
i) did the Board err in failing to specify why it preferred the Belgian report over the Applicant's sworn testimony
ii) did the Board make an unwarranted plausibility finding regarding his student ID and library card.
[6] Both sides agree that the standard of review for decisions of the Board involving credibility or unwarranted plausibility findings is patent unreasonableness.
[7] Regarding issue i) the relevant jurisprudence suggests that the Board can properly choose to believe documentary evidence over the sworn testimony of the Applicant. Such an approach is proper provided that the Board states clearly and unmistakable why it prefers the documentary evidence over the viva voce evidence of the Applicant. As stated in Okyere-Arosay v. M.E.I. [1992] F.C.J. No. 411
The central issue raised by this application is whether the panel can properly choose to believe documentary evidence over the sworn testimony of the applicant. The relevant jurisprudence suggests that such an approach is proper provided that the panel states clearly and unmistakable why it prefers the documentary evidence over the viva voce evidence of the applicant.
[8] The Board found that the Applicant's testimony was very general, left out many pertinent details, that he was unable to tell the story in its chronological order, that he made no mention of burning tires (a memorable event) and spoke of several memoranda while the Belgian report only spoke of one. The Belgian report was written by Commissariat General, Réfugiés et Apatrides in October of 2002. The foreword reads.
Le présent rapport a été rédigé par Wim Verbeken, Information Officer au CEDOCA, le centre de documentation et de recherche du Commissariat général aux réfugiés et aux apatrides (G.G.R.A.). Sauf mention contraire, le rapport est basé sur des informations obtenues lors d'une mission du CEDOCA en RDC qui s'est déroulée du 16 juin au 5 août 2002. Toutes les sources citées sont publiques, ce qui fait de ce rapport un document public. Toutes les informations présentées dans le rapport ont été recherchées, évaluées et traitées avec soin.
Le présent rapport n'ambitionne pas de présenter un panorama complet de la République démocratique du Congo. Il s'efforce uniquement d'apporter des réponses aux différents besoins en information suscités par le processus de décision au C.G.R.A. et constitue ainsi un élément dans la détermination de la politique du C.G.R.A. Afin de répondre à ces besoins, des contacts ont été établis avec des spécialistes locaux.
[9] The authors obviously have no stake in the facts as presented in the report. Essentially the report is the equivalent of an IRB research paper. Thus it is reasonable that the Board preferred this report from a neutral source over the general and imprecise testimony of the Applicant. While it would have been preferable for the Board to explicitly state its preference, the failure to do so does not amount to a reversible error. After all it referenced the report and the report forms part of the Tribunal record. Okyere-Akosah (supra) does not apply as that case rested on a different fact basis. In that case there was contradictory documentary evidence and the Board ignored evidence that could have supported the Applicant's claim. This clearly is not the case here. The Applicant in this case presented no documentary evidence whatsoever regarding the student demonstrations.
[10] Regarding issue ii) the Board made the following findings.
Tout d'abord, même si sa revendication a un lien direct avec son statut d'étudiant à l'Université de Kinshasa, le demandeur n'a présenté aucun document, ni sa carte d'etudiant, ni des relevés de notes de nature à établir sa fréquentation universitaire, sous prétexte que tout est resté dans son dortoir à l'université.
Le tribunal comprend que les livres du demandeur et ses instruments de travail aient pu avoir été gardés dans sa chambre, mais trouve curieux que sa carte d'étudiant et sa carte de bibliothèque n'aient pas été dans sa poche au moment où il aurait été arrêté. La carte d'étudiant et la carte de bibliothèque étant deux documents don't l'étudiant a besoin en tout temps dans son quotidien, que ce soit en classe ou dans l'enciente de l'université, le tribunal s'imagine mal qu'il les ait gardées dans son dortoir.
En conséquence, n'ayant rien produit en relation avec son statut d'étudiant à l'Université de Kinshasa et n'étant pas satisfait de son explication, le tribunal doit conclure que le demandeur ne s'est pas déchargé de son fardeau de prouver qu'il fréquentait cette insitution.
[11] From this excerpt it is clear that the Board not only made a finding of implausibility re the ID card and library card but rather found that the Applicant did not present any proof at all as to his student status at the University of Kinshasa. It was not unreasonable to assume that the Applicant or his parents (after all he testified that they tried to obtain a student ID for him) would be able to come up with some document evidencing his attendance. It is was not unreasonable for the Board to doubt that no marks, bill for fees, correspondence or any other document could be produced as evidence of his attendance.
[12] Similarly, in this context it was also not implausible to surmise that, even if all his documents were in the dorm he should have at least had his student ID and library card on him, given that students in a developing country such as DRC may require these daily as proof of student status. As stated in Hussein v. Canada (M.E.I.) [1998] F.C.J. No 726 at para 8:
In refugee claims, the determination of credibility is a question of fact [See Note 1 below] which is within the Board's jurisdiction. Although in the area of plausibility, the unreasonableness of a decision may be more obvious, the Board is still in the best position to gauge the credibility of a claimant [See Note 2 below].
Note 1: White v. R.,[1947] R.C.S. 268. Note 2:Aguebor v. M.E.I. (1993), 160 N.R. 315
[13] For the reasons stated above this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be denied.
"K. Von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7927-03
STYLE OF CAUSE: THOMAS MAFATALA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 21, 2004
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: SEPTEMBER 22, 2004
APPEARANCES:
Micheal Crane FOR THE APPLICANT
Amina Riaz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040922
Docket: IMM-7927-03
BETWEEN:
THOMAS MAFATALA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER