Date: 20041102
Docket: IMM-1645-04
Citation: 2004 FC 1483
BETWEEN:
Nanette Wilfride MENGA MOKOMBI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of the decision by the Refugee Protection Division of the Immigration and Refugee Board on January 27, 2004 that the applicant is not a Convention "refugee" nor a "person in need of protection" in accordance with the definitions given in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Menga Mokombi (the applicant) is a national of the People's Republic of the Congo (PRC). She was born in 1971 and did her studies in the PRC, working until 2000 in the business of her father, a shipowner and merchant, as a programmer and manager.
[3] The applicant has been in Canada studying since October 2000. She alleged she could not return to her country because she would be persecuted by the authorities on account of her membership in a particular social group and alleged political opinions.
[4] The IRB dismissed her application for asylum because it found that the applicant was not credible and that her testimony was not reliable. The testimony was confused, vague and hesitant. The explanations given for the apparent contradictions were not found satisfactory and the lengthy delay in seeking asylum (ten months), after learning from her mother that the authorities were looking for her, indicated a lack of urgency and necessity.
[5] The applicant based her application for judicial review on two primary arguments: a denial of natural justice and a misunderstanding of the evidence by the IRB.
[6] She alleged that the IRB member should have allowed her to answer in Lingala. Two passages from the transcript deal with this matter. The first occurred when there was an attempt to establish the chronology of the actions taken by the authorities in the PRC (up to that point, it appears that interpretation was used):
[TRANSLATION]
Counsel for the applicant (CA): . . . What was the first event that occurred in your life involving the authorities?
Applicant (A): I can answer by saying that the police raided the business where I was working.
CA: That's right, that's fine. What date was that event? Do you remember?
A: I . . . I do not exactly remember the month.
CA: Right.
A: But it is . . . it was after our return from Kinshasa.
CA: What happened when this event took place?
A: O.K. Well, I can speak in French sometimes and answer . . .
Presiding member (P): Yes. Is your first language French, Madam?
A: Yes, it's French.
P: I would prefer if we continued in French.
A: O.K.
P: Agreed?
A: Agreed.
P: Because there is . . . if it is your first language, it is your first language, we are less likely to have errors in . . . in interpretation of the testimony. Agreed?
A: Agreed.
P: Then, I would like you . . . take your time, it is not a big deal, but answer in French.
A: O.K.
P: Agreed?
A: O.K.
[7] As can be seen, it was the applicant herself who offered to speak French: the presiding member ensured that this was her first language and that she was in agreement with proceeding in French.
[8] A little later, when she was asked questions to clarify the nature of the visits by the police, the applicant wanted to go back to Lingala:
[TRANSLATION]
P: Then, according to you, you say they came looking for you more than five times. Your counsel asked you how this happened - so we want to know how you considered that this happened.
A: O.K.
Can I speak in Lingala? This will not be a problem?
P: But I would like it better in French.
A: French.
P: Well, take your time, but go ahead in French.
A: O.K. I remember once also, they came, I was at home . . .
[9] From reading the transcript, the applicant does not appear to have had any difficulty understanding French or expressing herself in that language. She voluntarily indicated in her Personal Information Form (PIF) that this was her first language. Finally, she did her studies in French.
[10] Based on the precedents in this Court and the Federal Court of Appeal, I do not think it can be argued here that there was a denial of natural justice from the fact that the applicant was unable to speak "in the . . . language of their choice" at certain points (see Bykov v. Canada (M.C.I.), [1999] F.C.J. No. 1459 (T.D.) (QL), Mosa v. Canada (M.E.I.), [1993] F.C.J. No. 348 (F.C.A.) (QL) and Tung v. Canada (M.E.I.), [1991] F.C.J. No. 292 (F.C.A.) (QL)). Neither in her affidavit nor her memorandum did she maintain she was unable to understand or speak French, the requirement for section 14 of the Canadian Charter of Rights and Freedoms to apply (see R. v. Tran, [1994] 2 S.C.R. 951). Someone who objects to interpretation must establish that he or she has been harmed from the poor quality of that interpretation, and this was not the case here. The applicant is actually claiming the right not to speak in her first language. The argument is absurd, especially as the applicant did not explain how speaking in Lingala would have made her testimony more credible.
[11] The applicant's second argument dealt with the misunderstanding of evidence. The IRB, for example, allegedly did not understand the employment document showing she had in fact worked for her father. The problems regarding credibility did not have to do with her employment. What the IRB had problems believing was rather that there had been persecution by the authorities: how was she able to leave her country three times and return twice, be awarded a scholarship, if she was in fact being regarded as an enemy of the government?
[12] The applicant indicated that her position in the business allowed her to pay funds to the Mouvement congolais pour la démocratie et le développement intégral (MCDDI) and that these payments were the reason she was persecuted by the authorities. At the hearing, she testified that she made out cheques to the MCDDI, explaining that this was the Mouvement congolais pour la démocratie et le développement intégral. In her testimony she stated that this represented about CFA 20 million, at the rate of three or four million each time. Nevertheless, at the interview with the immigration officer she was unable to say what the abbreviation MCDDI meant (she answered [TRANSLATION] "Movement something or other"), nor the amounts paid to her knowledge. When this matter was put to her at the hearing by the member, the applicant answered that she did not expect such questions from the immigration officer.
[13] In its decision, the IRB noted the improbabilities in the claim. The applicant maintained that she and her father were the target of police action because of association with the MCDDI opposition party: nevertheless, the applicant left her country three times without difficulty and returned twice without any problems. Before leaving for Canada, she went in the PRC from one city to another, between Pointe-Noire and Brazzaville, without difficulty. She applied for and obtained a scholarship. Finally, she waited some ten months before applying for asylum in Canada, which also undermined the credibility of her subjective fear.
[14] The IRB further noted discrepancies in her testimony. The applicant was unable to provide a chronology of the events indicating police persecution, thus contradicting in her testimony what she had written in her PIF. In the latter, the problems with the police continued into 2000; in her testimony, she said the events occurred from August to October 1999. When this contradiction was put to her, she said the visits by the police continued but they were not as brutal.
[15] According to the PIF and the testimony, the decision to claim asylum was based on communications received from her mother in January 2002 and February 2002, according to which, respectively, her father was arrested and an arrest warrant was issued for her. Nevertheless, in the interview with the immigration officer on November 15, 2002, at the time her file was being prepared for purposes of the asylum application, she said she did not know when her father was arrested and her mother told her in January 2001 that she was being sought by the authorities.
[16] Under subsection 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7, the Court cannot intervene in a decision based on a finding of fact unless it was made in a perverse or capricious manner or without regard for the evidence. On reading the PIF, the immigration officer's notes and the transcript, I consider that the IRB, which is presumed to have considered all the evidence, including the documentary evidence, had good grounds for doubting the applicant's credibility. I further consider that the use of French, the applicant's first language, the language which she still speaks and in which she did her studies, caused her no harm.
[17] For these reasons, the application for judicial review is dismissed.
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"Yvon Pinard"
Judge |
OTTAWA, ONTARIO
November 2, 2004
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1645-04
STYLE OF CAUSE: NANETTE WILFRIDE MENGA MOKOMBI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 21, 2004
REASONS FOR ORDER BY: Pinard J.
DATED: November 2, 2004
APPEARANCES:
Dany Brouillette FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dany Brouillette FOR THE APPLICANT
Laval, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec