Federal Court Decisions

Date: 20050118

Docket: IMM-3016-04

Citation: 2005 FC 21

Ottawa, Ontario, the 18th day of January 2005

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

GILBERT OUEDRAOGO

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]        There is an important distinction to be made between there being no credible basis and a lack of credibility. Whenever there is no credible basis, it implies a lack of credibility, but a lack of credibility does not always imply that there is no credible basis.

NATURE OF JUDICIAL PROCEEDING

[2]        This is an application for judicial review from a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated March 12, 2004, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (the Act)^[1]. In that decision, the Board determined that the applicant did not qualify as a "Convention refugee" under section 96 or as a "person in need of protection" under subsection 97(1) of the Act.

FACTS

[3]        The applicant Gilbert Ouedraogo, a citizen of Burkina Faso, alleged that he had a well-founded fear of persecution on the basis of his membership in a particular social group and his perceived political opinion.

[4]        The alleged facts as described by the Board are as follows. Mr. Ouedraogo was a member of the "Convention Panafricaine Sankariste" (CPS) political party and he worked in a business in the Ouagadougou market. He challenged the electoral fraud discovered in the legislative elections of May 5, 2002. Mr. Ouedraogo was then arrested on August 20, 2002, and released on August 30, 2002. He received three summonses to report to the gendarmerie, on August 10, September 20 and October 18, 2002. Mr. Ouedraogo did not respond to those summonses. Instead, he left his country to come to Canada on October 26, 2002, and claimed refugee protection the same day.

IMPUGNED DECISION

[5]        The Board dismissed the refugee claim based on Mr. Ouedraogo's lack of credibility and that he had no credible basis for his claim (subsection 107(2) of the Act). It made a long list of inconsistencies and contradictions in Mr. Ouedraogo's story.

ISSUES

[6]        1. Is the determination that the applicant was not credible patently unreasonable?

            2. Did the Board err in finding that there was no credible basis for the application under subsection 107(2) of the Act, and if so, is that error determinative?

ANALYSIS

1. Is the determination that the applicant was not credible patently unreasonable?

[7]        It is well settled that on questions of credibility, as in the case at bar, the Board's error must be patently unreasonable for the Court to intervene [Aguebor v. Canada (Minister of Employment and Immigration),^[2] Pissareva v. Canada (Minister of Citizenship and Immigration)^[3] and Singh v. Canada (Minister of Citizenship and Immigration)^[4]].

[8]        Mr. Ouedraogo argued that the Board did not take into account the psychological report entered in evidence, the only relevant passages from which are the following:

[TRANSLATION]

At the present time, he seems to suffer from a state of anxiety and depression associated with this traumatic experience and his migration.

. . . . .

We found no psychotic problems and no problem of consumption of drugs or alcohol. We also found certain problems concentrating and remembering certain facts and dates, as well as nightmares tending to disturb his sleep and disrupt the following day.

[9]        Mr. Ouedraogo cited Sanghera v. Canada (Minister of Employment and Immigration):^[5]

. . . The Tribunal expresses concern about the ". . . somewhat evasive and confusing" nature of the Applicant's testimony. It acknowledges the submissions of Applicant's counsel in this regard relating to the passage of time and the Applicant's "minimal educational standards". The Tribunal appears to completely ignore evidence before it in the form of a written psychiatric report that indicates the Applicant suffers from Post-Traumatic Stress Disorder and Depression with the result that ". . . he gets very forgetful, loses his train of thoughts, concentration and becomes very afraid, especially when the past is discussed." The Applicant is entitled to an assurance that such evidence was taken into account in the credibility finding against him that apparently was based on the evasiveness and confusion in his testimony.

(Emphasis added.)

He also referred to Ahmed v. Canada (Minister of Citizenship and Immigration):^[6]

The medical certificate indicates that the applicant was the victim of an attack on November 30, 2000, as alleged by the applicant. Given the importance of this evidence to the applicant's claim, I am of the view that the Board should have discussed it and explained why no probative value was assigned to it.

If the Board chose to disregard this evidence, then reasons should have been provided. A blanket statement that no probative value was assigned to this evidence because of a negative credibility finding will not suffice.

(Emphasis added.)

[10]      Unlike the Board in Sanghera and in Ahmed, the Board in this case indicated in its reasons that it took the psychological report provided into account and also explained why it rejected that evidence. At page 3 of its reasons, the Board wrote the following:

The claimant's lawyer attempted to rely on Exhibit P-21, "report from the claimant's psychological file dated November 5, 2003," to say that her client had some difficulty remembering certain facts and dates. The confusion surrounding the dates in exhibits P-8, P-18 and P-19 is not attributable to the claimant; this undermines his credibility.

[11]      In his Personal Information Form, Mr. Ouedraogo said that he was detained from August 20 to 30, 2002. At the hearing, on the other hand, he stated that he had been imprisoned after the second summons, that of September 20, 2002. Additionally, Exhibit P-8, a letter from the president of the Burkinabe Movement for Human Rights, states that Mr. Ouedraogo [TRANSLATION] "filed a complaint against his arrest at home, sector 12, OUAGADOUGOU AUGUST 20, 2002 at 2:30 p.m., released on July 30, 2002 at 1:00 p.m." (emphasis added). Exhibit P-18, a release application dated July 21, 2002 and sent by Mr. Ouedraogo's family to the president of the Burkinabe Movement for Human Rights, states on the other hand that [TRANSLATION] "it was on the night of July 20, 2002 at about 2:30 a.m. that two security officers in civilian clothing came to take him from his home" (emphasis added). Finally, Exhibit P-19 is a complaint from the Burkinabe Movement for Human Rights stating that Mr. Ouedraogo was [TRANSLATION] "arbitrarily arrested on July 20, 2002" (emphasis added).

[12]      In view of the different versions of Mr. Ouedraogo's dates of detention, including three versions which came from other persons, it is reasonable for the Board not to have attached much importance to the psychological report referring to Mr. Ouedraogo's memory problems about the dates. The Board accordingly gave reasonable explanations for dismissing the psychological report. This is especially the case as, unlike the situation in Sanghera and Ahmed, the Board mentioned several other inconsistencies in the testimony and documentary evidence submitted by Mr. Ouedraogo which had nothing to do with dates. These are a few examples. First, Mr. Ouedraogo said that he decided to leave in about mid-May 2002 as his [TRANSLATION] "business was in a bad way", and at another point that he decided to leave after receiving the three summonses. Second, it is unlikely that the summonses dated August 10 and September 20, 2002, were dated on the same dates as the meetings.

[13]      Although Mr. Ouedraogo submitted a late supplementary memorandum, the Court accepts it and analyzes below the arguments made therein. Mr. Ouedraogo claimed that the Board erred when it wrote in its reasons that he was unable to state what was discussed at the meetings, where he helped Ernest Nongma, described by Mr. Ouedraogo as the candidate for presidency of the CPS party, to speak at these meetings. From the relevant passages in the transcript, the Court sees no specific explanation by Mr. Ouedraogo on this matter, apart from the very general statement that the purpose of the discussions was to assist Mr. Nongma in obtaining the presidency of the CPS. According to the transcript, the theft of votes was what led to the discussions, and not the subject of the discussions.

[14]      Finally, the Board drew a negative inference about Mr. Ouedraogo's credibility because he said that it was his older brother who had sent him certain documents. This older brother is four years younger than Mr. Ouedraogo. Mr. Ouedraogo maintained that the interpreter himself told the Board that there are really no specific terms for the word [TRANSLATION] "brother" in the Mora language. Undoubtedly, but the interpreter went on to state that one had to say "big brother" or "younger brother", which implies specifying the birth order of the brother. Accordingly, the Board did not err.

[15]      In short, it was entirely reasonable for the Board to conclude that Mr. Ouedraogo lacked credibility.

2. Did the Board err in finding that there was no credible basis for the application under subsection 107(2) of the Act, and if so, is that error determinative?

[16]      Subsection 107(2) provides the following:

If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.		Si elle estime, en cas de rejet, qu'il n'a été présenté aucun élément de preuve crédible ou digne de foi sur lequel elle aurait pu fonder une décision favorable, la section doit faire état dans sa décision de l'absence de minimum de fondement de la demande.

[17]      Mr. Ouedraogo argued that he had submitted the following credible evidence: his membership card in the CPS party and two documents titled respectively [TRANSLATION] "Politics - Legislature 2002 - PNR/JV asks vote be cancelled" and [TRANSLATION] "Politics - May 5 vote".

[18]      In Rahaman v. Canada (Minister of Citizenship and Immigration),^[7] the Federal Court of Appeal stated that, if there is no credible evidence on which the Board can rely in acknowledging refugee status, a determination that there is no credible basis is justified:

Finally, while I have not been able to accept the position advanced by counsel for Mr. Rahaman in this appeal, I would agree that the Board should not routinely state that a claim has "no credible basis" whenever it concludes that the claimant is not a credible witness. As I have attempted to demonstrate, subsection 69.1(9.1) requires the Board to examine all the evidence and to conclude that the claim has no credible basis only when there is no trustworthy or credible evidence that could support a recognition of the claim.

For these reasons, I agree with Teitelbaum J. that, having considered the oral and documentary evidence before it, the Board committed no reviewable error in stating that Mr. Rahaman's claim lacked a credible basis. Accordingly, I would dismiss the appeal and answer the certified question as follows:

Whether a finding that a refugee claimant is not a credible witness triggers the application of subsection 69.1(9.1) depends on an assessment of all the evidence in the case, both oral and documentary. In the absence of any credible or trustworthy evidence on which each Board member could have determined that the claimant was a Convention refugee, a finding that the claimant was not a credible witness will justify the conclusion that the claim lacks any credible basis.

(Emphasis added.)

[19]      In Rahaman, the Federal Court of Appeal clarified Foyet v. Canada (Minister of Citizenship and Immigration) as follows:^[8]

Some Judges have noted, however, that because of the change in statutory context Sheikh, supra, should not be read broadly so as to relieve the Board of the duty to base a "no credible basis" finding on the totality of the evidence before it. This caution was well articulated in Foyet v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 181, on which counsel for the appellant placed considerable weight. In this case (supra, at paragraph 19), Denault J. summarised his understanding of the law as follows:

In my view, what Sheikh, tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding.

In my view, this is an accurate statement of the law as it has been understood to date, subject to one qualification: in order to preclude a "no credible basis" finding, the "independent and credible documentary evidence" to which Denault J. refers must have been capable of supporting a positive determination of the refugee claim. [Emphasis added.]

[20]      In this case, the validity of Mr. Ouedraogo's CPS party membership card was not challenged either before the Board or on judicial review. It is thus a credible point supporting part of Mr. Ouedraogo's account of his persecution, since the card shows Mr. Ouedraogo's membership in the CPS party. Further, the two documents also relied on by Mr. Ouedraogo with reference to credibility, [TRANSLATION] "Politics - Legislature 2002 - PNR/JV asks vote be cancelled" and [TRANSLATION] "Politics - May 5 vote", do mention irregularities in the May 2002 elections, which would tend to corroborate Mr. Ouedraogo's statement that there was fraud in those elections. Without discussing the evidentiary value of these documents, the Court notes that the first document consists of a complaint written by an interested party, not a neutral observer. The second document concludes as follows: [TRANSLATION] "OIE overall judgment on May 5 vote: Everything went well!". In short, it is clear that at least the CPS party membership card was a credible point that did not substantiate a finding that there was no credible basis under subsection 107(2) of the Act. The Board accordingly erred on this point. However, that error is not determinative since the finding on the lack of credibility would in any case have led to dismissal of the refugee claim.

[21]      The Court determines that the Board made no error warranting intervention.

CONCLUSION

[22]      For these reasons, the Court answers the two questions at issue in the negative and will therefore dismiss this application for judicial review.

ORDER

THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.

Certified true translation

Kelley A. Harvey, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   IMM-3016-04

STYLE OF CAUSE:                                                   GILBERT OUEDRAOGO

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION OF CANADA

PLACE OF HEARING:                                             MONTRÉAL, QUEBEC

DATE OF HEARING:                                               JANUARY 11, 2005

REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE SHORE

DATE OF ORDER AND ORDER:                          JANUARY 18, 2005

APPEARANCES:

Kathleen Gaudreau                                                        FOR THE APPLICANT

Thi My Dung Tran                                                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Kathleen Gaudreau                                                        FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS                                                            FOR THE RESPONDENT

Deputy Attorney General of Canada