Date: 20050207
Ottawa, Ontario, the 7th day of February 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
TSHIBUNDA LEAH KABEDI
and
BOKEKO THOMAS KALONDA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the panel), dated April 7, 2004, that the applicants are not Convention refugees under section 96 of the Act or persons in need of protection under section 97 of the Act.
ISSUES
[2] The issues are as follows:
1. Did the panel commit a patently unreasonable error in finding that the applicants did not satisfactorily establish their identities?
2. Did the panel commit a patently unreasonable error in finding that the applicants lack credibility?
3. Did the panel commit a patently unreasonable error in not giving any probative value to the medical evidence submitted by the applicants?
4. Did the panel err in its findings in relation to the documentary evidence on living conditions in the Democratic Republic of the Congo?
[3] For the reasons set out below, I answer in the negative to the four above questions. The application for judicial review will therefore be dismissed.
BACKGROUND
[4] The applicants are nationals of the Democratic Republic of the Congo (DRC). They are married and the parents of a child who was born in Canada on July 12, 2003. They claim they have a well-founded fear of persecution for reasons of ethnic origin and because they operated a telephone centre, which made them suspicious in the eyes of the authorities. They claim they would be subject to a danger of torture and a risk of cruel and unusual treatment or punishment if they were to return to their country of origin.
IMPUGNED DECISION
[5] The panel found that the applicants are not credible. It felt that they did not submit acceptable identity documents in accordance with s. 106 of the Act. The panel also believed that they never operated a telephone centre and decided not to give any probative value to the documents indicating that the female applicant had been hospitalized. The decision-maker also found that there was a lack of objective fear.
ANALYSIS
1. Did the panel commit a patently unreasonable error in finding that the applicants did not satisfactorily establish their identities?
[6] According to s. 106 of the Act, the onus is on the claimant to establish his or her identity. A lack of acceptable documentation could undermine a claimant's credibility. Section 106 reads as follows:
| Claimant Without Identification
Credibility
106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.
|
|
Étrangers sans papier
Crédibilité
106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer. |
[7] The standard of review applicable to assessing the probative value of identity documents is patent unreasonableness (Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35 (F.C.T.D.), at para. 15; Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623 (F.C.T.D.) (QL), at para. 7, and Gasparyan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1103 (F.C.T.D) (QL), at para. 6).
[8] According to the panel, the applicants did not provide any evidence proving their identity. They each filed an attestation of loss of identity documents (P-4 and P-7), an extract of a birth certificate (P-3 and P-6) and a monogamous customary marriage certificate (P-5), which were seized by Immigration Canada.
[9] The decision-maker detected several errors in these documents. In her view, the male applicant did not provide a satisfactory answer to justify the spelling mistake in his name. On some documents, the name of the male applicant is written as "Bobeco", whereas on others, "Bobeko". The male applicant claims that the mistake was made because the letters "k" and "c" are very similar in pronunciation.
[10] The remarks concerning the applicants' occupations does not reflect reality. The male applicant is described as an employee, whereas he was a business owner. As for the female applicant, she is described as a student, whereas she worked with her husband. They did not correct these mistakes, because, according to them, they did not think there would be any problems. The member also decided not to give any probative value to the attestations of loss of identity documents, since they do not bear the tax stamp and security seal identifying the mayor.
[11] The birth certificates and marriage certificate were set aside because they did not bear a stamp and were not signed by the declarants or witnesses (Exhibit A-4, Response to request for information RDC37263.F, June 6, 2001). According to the documentary evidence, stamps are proof that administrative fees have been paid to obtain a document (Exhibit A-1, Item 2.2, Montreal Regional Binder on the DRC, RDC40199.F, October 2, 2002) and are placed on all documents issued by the commune (Exhibit A-1, Item 2.3, Montreal Regional Binder on the DRC, RDC40295.F). The documents entered into evidence were issued more than two years after this practice was implemented.
[12] I admit that it is implausible that the attestations of loss of identity documents do not have the security seal identifying the mayor and that the female applicant's birth certificate, dated 2002, and the marriage certificate, issued in 2001, do not have a stamp. The Court's intervention is therefore not required here.
2. Did the panel commit a patently unreasonable error in finding that the applicants lack credibility?
[13] The same standard of review applies to credibility (Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL), at para. 4).
[14] The Court cannot substitute its decision for that of a panel unless the applicant succeeds in establishing that a finding of fact was erroneous or made in a perverse or capricious manner or without regard for the material before it (Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 (F.C.T.D.) (QL), at para. 14, and s. 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7).
[15] In this case, the decision-maker found that when he was asked to describe what he did to set up his telephone centre, the male applicant provided vague and general testimony that was not spontaneous. The male applicant had difficulty explaining how he obtained his operating licence and with which telephone company he did business.
[16] The male applicant alleged that his business profits were in US dollars, whereas the Congolese franc is the currency in the DRC. The documentary evidence (Montreal Regional Binder, RDC38431.F, page 0132, panel's file) indicates as follows:
[TRANSLATION]
RDC38431.F February 27, 2002
. . .
Effective June 30, 1998, the date on which the Congolese franc (FC) was introduced in the Democratic Republic of the Congo (DRC), administrative and legal fees charged to obtain official documents are paid in Congolese francs. Stamps placed on these documents indicate the amount of fees paid followed by "FC", signifying Congolese francs.
The Congolese legal officer also explained that, in January 1999, a presidential decree prohibited the use of any currency other than the Congolese franc across the country.
For further information on this prohibition, consult RDC35805.F and RDC34669.F, dated November 16 and July 28, 2000, respectively.
[17] Documents RDC35805.F and RDC34669.F indicate as follows:
[TRANSLATION]
Reached in Brussels on November 16, 2000, a journalist for the Belgian newspaper Le Soir, who is a specialist on the Great Lakes region of Africa, said that the current government in the Democratic Republic of the Congo prohibits the possession and use of foreign currencies, including US dollars, across the country. According to the journalist, only the local currency, the Congolese franc, is used in the country (ibid.). Individuals who have foreign currency must convert it into Congolese money at government-authorized exchange offices (ibid.). (RDC35805.F)
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[TRANSLATION]
Effective January 1999, Presidential Decree No. 177 (ICG, Sept. 21, 1999, 24) prohibits all transactions in foreign currency across the country (AFP, Jan. 22, 1999; ICG, Sept. 21, 1999, 24; Le Monde, March 20, 1999; ASADHO 1999; Info-Congo, Jan. 27, 1999, 6; IPS, Jan. 15, 1999). The decree includes the stipulation that henceforth all transactions in the country must be carried out in the national currency, the Congolese franc (Info-Congo, Jan. 27, 1999, 6). The measure also imposes an official exchange rate and requires that exchange operations be done at the central bank or other authorized exchange offices (AFP, Jan. 22, 1999; ICG, Sept. 21, 1999, 24; Le Monde, March 20, 1999).
[18] I therefore find there is no patently unreasonable error in the decision with regard to the applicants' credibility.
3. Did the panel commit a patently unreasonable error in not giving any probative value to the medical evidence submitted by the applicants?
[19] Case law in similar matters has established that it is the responsibility of the panel to judge upon the value to be given to expert testimony. In R v. Abbey, [1982] 2 S.C.R. 24, at paras. 41 and 48, the Supreme Court of Canada stated as follows:
An expert witness, like any other witness, may testify as to the veracity of facts of which he has first-hand experience, but this is not the main purpose of his or her testimony. An expert is there to give an opinion. And the opinion more often than not will be based on second-hand evidence. This is especially true of the opinions of psychiatrists.
. . .
Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. [Emphasis added.]
[20] In Danailov v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 1019 (F.C.T.D.) (QL), at para. 2, Reed J. explained that:
With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did. [Emphasis added.]
[21] The applicants in this case were found to lack credibility. The panel therefore was open to set aside the medical documents, since in its view they did not establish a link with the persecution alleged.
4. Did the panel err in its findings in relation to the documentary evidence on living conditions in the Democratic Republic of the Congo?
[22] The applicants alleged that a document entered into evidence corroborates their story (US Department of State, Country Report on Human Rights Practice for 2002, p. 14 of 32, section 1(f) - see p. 158 of applicants' file). The applicants claim the following paragraphs are relevant:
There were some reported cases in which security forces raided private businesses and arrested employees accused of collaborating with rebel forces or attacking state security (see section 1.d.); however, there were fewer reported cases than in the previous years.
ANR security agents monitored mail passing through private express delivery companies as well as through the very limited state mail service. The Government widely was believed to monitor some telephone communications.
[23] For these remarks to have any relevance whatsoever, that applicants would have had to satisfactorily demonstrate that they really did own a telephone centre. The panel came to a different conclusion. Once again, I found no reviewable errors.
[24] The parties declined to submit questions for certification. This case contains no question for certification.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4150-04
STYLE OF CAUSE: TSHIBUNDA LEAH KABEDI and
BOKEKO THOMAS KALONDA v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 20, 2005
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: February 7, 2005
APPEARANCES:
Dany Brouillette FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dany Brouillette FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec