Date: 20001206
Docket: IMM-512-00
Ottawa, Ontario, December 6, 2000
Before: Pinard J.
Between:
Siula LUBEYA
Mayena LUBEYA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision by the Refugee Division on January 4, 2000 that the applicants are not Convention refugees is dismissed.
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YVON PINARD JUDGE |
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
Date: 20001206
Docket: IMM-512-00
Between:
Siula LUBEYA
Mayena LUBEYA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The application for judicial review is from a decision by the Refugee Division of the Immigration and Refugee Board on January 4, 2000 that the applicants are not Convention refugees.
[2] Siula Lubeya, "the applicant", 42 years old, and his wife Mayena Lubeya, 36 years old, citizens of the Democratic Republic of the Congo (DRC, formerly Zaïre), came to Canada on September 25, 1998 and claimed refugee status at the point of entry.
[3] Mr. Lubeya alleged that he had a well-founded fear of persecution in the DRC because of his alleged political opinions and his membership in the social group of former members of the Zaïre armed forces (ZAF) and the Zaïre civil guard.
[4] Ms. Lubeya, for her part, alleged she had a well-founded fear of persecution in the DRC for her alleged political opinions and her membership in the social group of the family.
[5] This is a case in which, after having refused to exclude the applicant under art. 1F(a) of the Convention because he was a member of the ZAF and the civil guard at a time when the latter had become a criminal organization, the tribunal did not believe the applicants' story and so dismissed their claim for refugee status.
[6] As in the absence of clear and persuasive evidence to the contrary I must presume that the Refugee Division considered all the evidence (see Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, at 318) and as the Refugee Division was entitled to give priority to the documentary evidence which it put to the applicant (see Zhou v. Minister of Employment and Immigration (July 18, 1994), A-492-91 (F.C. Appeal)), I was not persuaded after hearing counsel for the applicants and reviewing the evidence that this specialized tribunal could not as a general rule reasonably draw the inferences which it drew and reach the conclusions which it did (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, at 316 and 317).
[7] Section 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, also states that in questions of credibility and assessment of the facts it is not this Court's function to take the place
of the administrative tribunal when, as here, the applicants were unable to show that its decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. In the case at bar, I can see no patent error that would be conclusive.
[8] Finally, in view of the particular circumstances of the case at bar, the Refugee Division's perception that the applicants were not credible amounts in fact to a finding that there was no credible evidence to support their claim to refugee status (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at 244).
[9] Although the female applicant did not exclusively tie her claim to that of the male applicant, citing her own alleged political opinions as well as her membership in the social group of the family, the fact remains that, as appears from the following passage from the decision in question, as she fully supported the statements by her husband which were found not to be credible, the tribunal could reasonably conclude that she was not credible either and so dismiss her claim as it did for the male applicant:
[TRANSLATION]
Towards the close of the hearing the female applicant, in a brief testimony punctuated by tears, completely endorsed the statements made by her husband.
Because of the many improbabilities and inconsistencies found during the testimony of the principal applicant, which were left without satisfactory explanation, the tribunal can attach no credibility to the applicants' story. The comments of MacGuigan J.A. in Sheikh [Abdulhakim Ali Sheikh v. Canada (M.E.I.) [1990] 3 F.C. 238 (C.A.), at 244], are directly applicable here:
. . . even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim . . . In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.
[10] For these reasons, the application for judicial review is dismissed.
[11] Following the hearing in this Court, counsel for the applicants proposed, with supporting allegations in writing, that the following questions be certified pursuant to s. 83(1) of the Immigration Act, R.S.C. 1985, c. I-2:
[TRANSLATION]
1. Notwithstanding a finding by the RD that a claimant is not credible about the events he experienced in his country of origin, does the said RD have a duty to determine whether the claimant nonetheless has a reasonable fear of persecution on account of his or her intrinsic and/or unchanging characteristics, such as race, sex, age, sexual orientation, religion or past or present membership in a particular social group?
2. Does the RD have a duty to rule distinctly and specifically on the credibility of the testimony (in accordance with the tests in Hilo, A-260-90, 15/03/91, a judgment of the Appeal Division of this Court) and on the reasonable fear of persecution by the spouse of the principal claimant who in addition alleged her own fear of persecution and testified about specific acts of persecution she had experienced?
[12] I have also reviewed the written submissions of the respondent opposing the certification requested and the written submissions filed by the applicant in reply on November 24, 2000.
[13] In view of the particular facts of the case at bar and the nature of the preceding reasons, it
seems clear to the Court that the proposed questions do not meet the tests set out by the Federal Court of Appeal in Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4. There is therefore nothing here for certification.
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YVON PINARD JUDGE |
OTTAWA, ONTARIO
December 6, 2000
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-512-00
STYLE OF CAUSE: Siula LUBEYA, Mayena LUBEYA v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 25, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: December 6, 2000
APPEARANCES:
Jean-Michel Montbriand FOR THE Applicant
Michel Pépin FOR THE Respondent
SOLICITORS OF RECORD:
Jean-Michel Montbriand FOR THE Applicant
Doyon, Guertin, Montbriand & Plamondon
Montréal, Quebec
Morris Rosenberg FOR THE Respondent
Deputy Attorney General of Canada