Date: 20000323
Docket: IMM-847-99
Between:
NORA CATHIA NEAME
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. INTRODUCTION
[1] In a decision rendered January 12, 1999, the Refugee Division (the panel) ruled that Nora Cathia Neame, 21, a citizen of the Democratic Republic of the Congo (DRC, formerly Zaire), is not a Convention refugee and that her claim has no credible basis. In the panel"s opinion, her account, considered overall, was not credible owing to major contradictions that remained without a satisfactory explanation.
B. PANEL"S DECISION
(i) Alleged facts
[2] The panel states that certain facts were disclosed by the applicant"s Personal Information Form (PIF) and oral testimony. She says she was born in August 1977 in Bukavu, in the eastern DRC, of a mixed-blood Syrian Zairian father and a Zairian mother of Tutsi origin.
[3] The applicant completed her schooling in Kinshasa, where she has spent most of her life. She says she was a saleswoman from December 1995 to February 1998 in a clothing store of which her mother was a co-owner, located in the Hôtel Intercontinental. At the time, she had been living alone in the family residence in Kinshasa since December 1996 after her mother, sisters and brother fled the DRC for Rwanda via Brazzaville in order to escape the war on the Tutsis.
[4] In April 1996, the applicant says she began an affair with a married man about 30 years of age, named Fangbi. He is said to have been the son of a former people"s commissar and a brother-in-law and private advisor of the late dictator Mobutu. Mr. Fangbi and his family left the DRC and sought refuge in Morocco just before the entry into the capital of the rebel leader Laurent-Désiré Kabila and his troops of the Alliance des forces démocratiques pour la libération du Congo-Zaïre (AFDL).
[5] The applicant alleges that she met with her lover on two occasions in the Congo, once in November 1996 and a second time on February 12, 1998 in Brazzaville, where she then became pregnant by him. Both were seen and recognized in the Hôtel Méridien by President Kabila"s cousin and right-hand man.
[6] This trip to Brazzaville is said to have been the beginning of the applicant"s problems. She said she was intercepted by AFDL soldiers when she returned to Kinshasa and was held for a few hours for lengthy interrogation concerning her recent stay in Brazzaville, in the course of which she disclosed her relationship with Mr. Fangbi. She was released the same day thanks to the intervention of a Rwandan soldier, a cousin of her mother.
[7] The applicant submits that she stopped her work as a saleswoman in the Hôtel Intercontinental and confined herself to her residence, notwithstanding the fact that she alleges she was intimidated there at least a half-dozen times by soldiers of the AFDL.
[8] On May 11, 1998, the applicant says she again crossed the river to Brazzaville, where she lived for a month with her lover, who was now her fiancé, who obtained some Belgian travel papers for her to enable her to leave the Congo and avoid returning to the DRC.
[9] The applicant flew to France alone on June 11, 1998, stayed there for two days without requesting asylum, and arrived in Canada June 14, 1998, where she applied for refugee status. She gave birth to a daughter on July 29, 1998 in Montréal, and Mr. Fangbi has acknowledged he is the father. The applicant says she fears returning to her country of origin as she says she is still being sought by the present authorities because she is Fangbi"s mistress and of Tutsi ethnic origin.
(ii) Panel"s findings
[10] The central factor and the basis for the panel"s conclusion is found in the contradiction between the reply given by the applicant in her PIF and the reply in the sheet signed by her at the port of entry into Canada on June 14, 1998. The panel notes that in her PIF the applicant stated she was Tutsi and that she was ethnically a member of the Tutsi tribe in Zaire owing to the fact that her mother was a Zairian of Tutsi origin. In her record of entry, however, she says that the reason for her persecution in the DRC is that "[Translation ] my mother is of Rwandan origin but of the Hutu ethnic group."
[11] The panel confronted the applicant with this contradiction, which resulted in the following explanation:
| [Translation] The claimant explained that when she was filling out this sheet, "I was tired, I was pregnant, my feet were swollen, I was stressed and things were not going well at that point" and that "I was very poorly advised" by some friends in Montréal whom she did not identify and with whom she allegedly had a telephone conversation in Brazzaville before her departure for Canada. These friends, she says, had suggested that she declare that she was Hutu on her arrival in Canada because, she explained, "at that point the [Zairian] army was composed of Tutsis." And she concluded: "I know, it is a serious error." [Emphasis added] |
[12] The panel then asked her a number of questions. It reminded her that she had affixed her signature on the record after the following statement, which is an integral part of the record: "[Translation ] I have read and understood the questions asked and I therefore confirm that I have completed this form and that the information I have recorded is accurate."
[13] The panel reminded her that she had replied to a number of other questions concerning this record in which stress and fatigue had not influenced the result. It also pointed out that she had stated that the new ethnic persecution against the Tutsis by the current authorities in the DRC had begun in early August 1998, two weeks after she completed her PIF.
[14] The panel was of the view that all of the applicant"s explanations were insufficient to overcome "[Translation ] the basic statement the claimant wrote spontaneously and unambiguously in her port of entry form... a fact that is at the heart of everyday life in the DRC, namely, a citizen"s birth link with the Hutus or the Tutsis".
[15] The panel noted that the applicant filed as exhibit P-5 the names of a dozen or so of her friends and cousins who had signed an affidavit in which they declare that she is a Tutsi. However, the panel assigned no weight to this document, which it characterized as originating from an interested party, several of whose members, if not all, were likely to be numbered among the Canadian friends, unidentified by the applicant, who had advised her in a telephone conversation in Brazzaville to identify herself as a Hutu upon her arrival in Canada.
[16] Following these observations, the panel reached the following conclusion:
| [Translation] |
| The claimant"s lack of credibility on a point so crucial to her claim suffices, in our opinion, to irreparably taint the credibility of her testimony as a whole. |
| CONCLUSION |
| The evidence presented to us is not insufficient to establish that the claimant, should she return to the Democratic Republic of the Congo, would face a "reasonable chance" of persecution, to use the language of Adjei [Adjei v. M.E.I., [1989] 2 F.C. 680 (F.C.A.)]. [Emphasis added] |
ANALYSIS
[17] The entry record signed by the applicant contains a falsehood concerning a fact that is essential to her claim, namely, her tribal or ethnic origin. But some time later, the circumstances having changed in the DRC, it was now to the applicant"s advantage to disclose her true origin, which she did, without the least scruple, in her PIF. The applicant"s actions led the panel to disbelieve her story and conclude that she had not been persecuted and would not be persecuted in the future if she were to return to the DRC.
[18] The applicant"s counsel argues that the panel committed a number of errors of law. Essentially, he criticizes the panel for assigning undue significance to the applicant"s statement at the port of entry and completely dismissing the documentary evidence concerning the dangers faced in the DRC by former dignitaries of the Mobutu regime. In my opinion, the arguments raised by counsel are without merit.
[19] My colleague Mr. Justice Teitelbaum, in Antonippillai v. Canada (Minister of Citizenship and Immigration), IMM-2724-98 (March 22, 1999), had occasion to summarize some applicable principles of law in the assessment of credibility performed by a Refugee Division panel:
| [9] There is no question that the Board has all the necessary discretion to assess the credibility of the testimony of people who claim refugee status, and may have regard to a multitude of factors in so doing. The Board may base its findings on internal contradictions, inconsistencies and evasive statements, which are the "heartland of the discretion of triers of fact", and other extrinsic factors such as rationality, common sense and judicial notice, but those findings must not be made in a perverse or capricious manner or without regard for the material before the Board.... |
[20] I fully subscribe to these remarks. It is true that the panel concluded that the applicant lacked credibility solely on the basis of the false statement she made to the immigration officer at the port of entry. However, like Teitelbaum J. in Jumriany v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. no. 683, in some identical circumstances, I think the panel did not err when it drew an unfavourable conclusion concerning the applicant"s credibility based solely on the false statement she made to the immigration officer. Indeed, as I mentioned earlier, this false statement had to do with an essential point in her claim and her explanations of her lie were unconvincing, according to the panel.
[21] Furthermore, I think the remarks by Mr. Justice MacGuigan in Sheikh v. Minister of Employment and Immigration, [1990] 3 F.C. 238, at page 244, are applicable to the case at bar:
| The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant"s claim can be directly deduced), a tribunal"s perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim . [Emphasis added] |
[22] Indeed, the facts in Sheikh, supra, are similar to those in the case before me in that the evidence adduced by the applicant to establish the merit of her claim is based primarily on her testimony before the panel, and only minimally supported by documentation in relation to her personal situation.
[23] Thus, Sheikh is authority for the panel"s rejection of the general documentary evidence on conditions in the DRC "from which nothing about the applicant"s claim can be directly deduced". The decision by my colleague Gibson J. in Addullahi v. Canada (Minister of Citizenship and Immigration , [1996] F.C.J. no. 1433 is to the same effect: in the context of this case, the applicant had to establish a direct relationship of persecution against her, which she cannot do in view of her lack of credibility.
[24] I see no merit in the applicant"s submissions concerning the hearing process. Counsel argues that the questions asked by the panel member and the Refugee Claim Officer are biased, disapproving, aggressive and vexatious. Counsel says the RCO and the panel member cross-examined the applicant and went beyond the limits established by the cases, thereby raising a reasonable apprehension of bias and breaching the principles of procedural fairness.
[25] In Selim Mohammad v. Minister of Citizenship and Immigration, IMM-2390-99 (March 16, 2000), I had an opportunity to canvass the case-law on such matters.
[26] Having read the transcript of this case, I am unable to find that the questions asked and the comments made go beyond the framework established in a number of judgments of this Court. The RCO was entitled to cross-examine the applicant; the panel member could ask question in order to obtain particulars concerning the applicant"s story and disclose to her his concerns in order to give her an opportunity to respond. In view of the facts in this case, I conclude that Yusuf v. Minister of Employment and Immigration , [1992] 1 F.C. 629 (F.C.A.) has no application since the law in question differs completely.
CONCLUSION
[27] For all these reasons, this application for judicial review is dismissed. Neither counsel recommended that I certify the existence of a serious question of general importance. So there will be no certification.
| "François Lemieux" |
| J. |
Ottawa, Ontario
March 23, 2000
Certified true translation
Martine Brunet, LL.B.
Date: 20000323
Docket: IMM-847-99
Ottawa, Ontario, the 23rd day of March, 2000
Present: THE HONOURABLE MR. JUSTICE FRANÇOIS LEMIEUX
Between:
NORA CATHIA NEAME
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons stated, the application for judicial review is dismissed. Neither counsel recommended that I certify the existence of a serious question of general importance. There will therefore be no certification.
| "François Lemieux" |
| J. |
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-847-99 |
| STYLE: NORA CATHIA NEAME v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JANUARY 6, 2000 |
REASONS FOR ORDER OF LEMIEUX J.
DATED: MARCH 23, 2000
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANT
PASCALE-CATHERINE GUAY FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
MICHÈLE JOUBERT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada