Date: 20040903
Docket: IMM-7485-03
Ottawa, Ontario, September 3, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
IRURA MOUISSI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] Irura Mouissi's application for refugee protection was refused by the Immigration and Refugee Board because the Board found there to be insufficient credible evidence to support Ms. Mouissi's claim that she was a political activist in the Republic of Congo, or that she was targeted for these activities. Similarly, the Board rejected her claim that she was imprisoned and both physically and sexually assaulted by government forces.
[2] Ms. Mouissi seeks to have the Board's decision set aside, asserting that the Board ignored and misinterpreted the evidence before it, and that, as a result, its credibility findings were patently unreasonable.
Ms. Mouissi's Allegations
[3] Ms. Mouissi is a Congolese citizen. She claims to have a well-founded fear of persecution because of her political opinion, as a result of her membership in the Mouvement congolais pour la démocratie et le développement intégral (or "MCDDI").
[4] Ms. Mouissi says that she joined the MCDDI when she was a student in 1995. In 1999, while she was attending a political meeting in Brazzaville, Ms. Mouissi was arrested by government forces. She says that she was held for a day, during which time she was interrogated and beaten. She was then released.
[5] In March of 2000, Ms. Mouissi says that she was again arrested, after she and five other MCDDI members were caught distributing flyers which branded Congolese President Sassou-Nguesso a criminal. The police allegedly used tear gas to disperse the group, and Ms. Mouissi was arrested and held for a week. Ms. Mouissi says that she was four months pregnant at the time, and the beatings that she says she endured caused her to lose the baby.
[6] On November 25, 2000, Ms. Mouissi says that she participated in a demonstration in Brazzaville. The purpose of the demonstration was to denounce the arbitrary arrests, disappearances and execution of members of the MCDDI at the hands of the Sassou-Nguesso regime. Ms. Mouissi says that she and some 30 others were arrested. This time, Ms. Mouissi says, she was jailed for more than four weeks. In the course of her incarceration, she was both physically and sexually assaulted.
[7] After her release from prison on December 31, 2000, and after discussing the matter with a colleague, Ms. Mouissi decided to go public with the story of her rapes. She said that she did this in order to attract attention to the treatment of women in Congolese prisons. This attracted further negative attention from the authorities, leading Ms. Mouissi's husband to make arrangements for her to flee the Congo. She travelled to the United States, and then on to Canada, where she made her refugee claim.
The Board's Decision
[8] The Board's conclusion that Ms. Mouissi was neither a Convention refugee nor a person in need of protection was based entirely upon its credibility findings. The Board found that the documentary evidence did not support Ms. Mouissi's allegations that MCDDI members were being persecuted. The Board also made a number of negative credibility findings with regard to other aspects of her testimony.
[9] For example, Ms. Mouissi claimed that she was unable to complete her university studies because of her political activism. However, the Board found that she had some difficulty explaining how far she had gone in school, and which courses she had taken in university. At one point, Ms. Mouissi is noted to have stated that she had not written her university exams in the 1999/2000 academic year. However, she subsequently stated that she had not passed these exams.
[10] Although Ms. Mouissi claimed to have been very politically active, the Board found that she appeared to be unaware of the current political situation in the Congo. She did not know if the MCDDI had participated in the most recent elections. She also was unsure if the MCDDI was a legal party, but did state that political meetings were not allowed. The Board found that this latter testimony was inconsistent with documentary evidence that indicated that the MCDDI was the second largest political party in the country, and that it governed the Congo jointly with Sassou-Nguesso's PCT party.
[11] The Board noted that Ms. Mouissi failed to mention that the MCDDI split apart in 1997, and that there are now two factions in existence. One faction led by Michel Mampouya shares power in the government, while the other faction appears to be marginalised. Ms. Mouissi did not claim to be at risk because she was affiliated with this latter faction. According to the Board, the country condition information before it did not support that claim that members of the MCDDI were being persecuted in the Congo.
[12] According to the Board, Ms. Mouissi also did not know that Bernard Kolélas, the founder and former leader of the MCDDI, was the Mayor of Brazzaville from 1994 to 1997, even though she claimed to have joined the party in 1995. She is also recorded as having stated that Kolélas was Prime Minister from 1992-1997. However, the Board observed that the documentary evidence before the Defendant indicated that Kolélas was appointed Prime Minister in August of 1997, leaving the post in October of the same year, when the Congolese President was deposed by Sassou-Nguesso.
[13] The Board also noted that Ms. Mouissi's testimony was inconsistent as it related to her allegations of sexual assault. In her Personal Information Form or "PIF", she stated that her detention lasted for approximately one month, and that she was raped a few days before she was released. However, during her oral testimony, she reportedly stated that the rapes occurred after two weeks of detention. Her evidence was also found to have been inconsistent as to whether all of the rapes occurred on the same day. The Board noted that the allegations of sexual assault represented a core element of Ms. Mouissi's claim, and drew a negative inference from the inconsistencies that it found in her testimony on this issue.
[14] Finally, the Board found that Ms. Mouissi's description of her decision to go public with the story of her rape, so that police corruption and the treatment of women in Congolese jails would be publicly exposed, to be inconsistent with other aspects of her story. Specifically, the Board referred to the fact that Ms. Mouissi had previously testified that she had been too ashamed by her own situation to even ask any of the other women in detention if they had been raped.
[15] As a result, the Board found that Ms. Mouissi failed to provide sufficient credible evidence to support her claim, and the claim was dismissed.
Issue
[16] The only issue before the Court is whether the Board's credibility findings were patently unreasonable.
Analysis
[17] The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. As a trier of fact, the Board is entitled to make reasonable findings regarding the credibility of a claimant's story, based on implausibilities, common sense, and rationality. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that such finding is patently unreasonable: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 40, and Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[18] I agree with the respondent that having seen Ms. Mouissi, the Board was in the best position to determine her credibility. Having said that, however, and having had the opportunity to review the entire transcript of the hearing, it is evident that in a number of instances, the Board identified inconsistencies in Ms. Mouissi's story where none really existed.
[19] By way of example, there was indeed some initial confusion on the part of Ms. Mouissi in relation to the questions about whether or not she had 'passed' her university examinations. However, it is clear from the transcript that this confusion arose out of a linguistic misunderstanding, and not from any inconsistency in Ms. Mouissi's answers. While Ms. Mouissi's first language is French, she testified in English at her refugee hearing. Although Ms. Mouissi is clearly proficient in the English language, the exchange in issue makes it clear that there was some confusion on her part arising out of the use of the English word 'passed'. She was apparently confused as to whether the question was whether she had written the examinations or whether she had achieved a passing grade in the examinations. Once the question was clarified, Ms. Mouissi's answer was clear.
[20] More importantly, in relation to what the Board recognized was a central issue underlying Ms. Mouissi's refugee claim, the Board found there to be an inconsistency between Ms. Mouissi's testimony and her PIF where none existed. This alleged inconsistency related to when, during her period of incarceration, the rapes occurred. According to the Board, while Ms. Mouissi stated in her PIF that the rapes occurred near the end of the month that she spent in jail, in her testimony she reportedly stated that the rapes occurred just two weeks after she was imprisoned. A review of the transcript discloses that the Board misconstrued Ms. Mouissi's evidence in this regard, and that her testimony on this point was entirely consistent with that contained in her PIF. Ms. Mouissi testified that she was placed in one cell for approximately two weeks. After two weeks in that cell, she was moved to a different cell. She says that the rapes took place approximately two weeks after she was moved to the second cell - that is, four weeks after she was imprisoned, and shortly before she was released after spending a month in jail.
[21] I am also not persuaded that there was any real inconsistency in the evidence in relation to whether Ms. Mouissi was raped repeatedly on one day, or whether the assaults took place over several days.
[22] There are also problems with the Board's analysis as it relates to Ms. Mouissi's knowledge of the MCDDI, its history and its leadership. For example, the Board stated that Ms. Mouissi did not know that Bernard Kolélas had been the Mayor of Brazzaville, while the transcript indicates that she did.
[23] Further, the Board found that Ms. Mouissi's testimony that political meetings of the MCDDI were not allowed to be inconsistent with country condition documentation indicating that the MCDDI was the second largest party in the Congo. However, it appears that this finding was based on country condition information that was some 10 years old, and did not necessarily reflect the current situation in that country.
[24] As a result, even taking into account the highly deferential standard of review in issue in this case, I am satisfied that the Board's decision must be set aside.
Certification
[25] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7485-03
STYLE OF CAUSE: IRURA MOUISSI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, AUGUST 30, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: SEPTEMBER 3, 2004
APPEARANCES BY: Ms. Mary E.E. Boyce
For the Applicant
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: Ms. Mary E.E. Boyce
Barrister & Solicitor
69 Elm Street
Toronto, Ontario
M5G 1H2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040830
Docket: IMM-7485-03
BETWEEN:
IRURA MOUISSI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER