Date: 20040628
Docket: IMM-4183-03
Citation: 2004 FC 916
BETWEEN:
TSHOMBA NGONGO LUZI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated May 6, 2003, wherein the Board found that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Tshomba Ngongo Luzi (the applicant) is a citizen of the Democratic Republic of the Congo (the DRC) who claims to fear persecution because of imputed political opinions and because of his membership in a particular social group as the brother of Tungunga Kalunga (Tungunga). The applicant also claims to be a person in need of protection.
[3] The Board found that the applicant was not a Convention refugee or a "person in need of protection" because it found that his claim was not credible. The applicant argues that the Board's conclusions are unreasonable and arbitrary. The respondent, on the other hand, submits that the Court has no reason to intervene in this case because the decision was reasonable and well-founded on the facts before the Board.
[4] The Board seriously questioned the applicant's allegations pertaining to his relation with Tungunga. In fact, the applicant presented no evidence to corroborate his allegations that he was related to a man named Tungunga who had disappeared. In light of this, it was reasonable for the Board to retain the lack of evidence establishing the link between the applicant and Tungunga in order to question his credibility. The Board also found that the applicant had not been arrested and taken to the National Information Agency because he had contradicted himself as to whether he had been searched or not. Contrary to the applicant's allegations, I find that this finding does not rest on speculation but rather, on the internal consistency of the applicant's allegations and the Board is entitled to evaluate the applicant's credibility according to the internal consistency of his claim. The Board also noted that the applicant gave two contradictory versions of events surrounding Tungunga's disappearance. Indeed, a review of the Tribunal record reveals that the applicant wrote in his Personal Information Form (PIF) that Tungunga disappeared after he was called to the presidential palace before Kabila's assassination (see the applicant's PIF at lines 16 to 21 of page 21 of the Tribunal record). However, the applicant testified that he was arrested in the night of January 14, 2001 (see the applicant's PIF and the hearing transcripts at pages 91, 92, 110, 111 and 116 of the Tribunal record). In light of this major inconsistency in the applicant's claim, the Board was entitled to question the credibility of his allegations. The Board noted that in light of the climate of fear that followed president Kabila's assassination, it was implausible that the officer would have helped the applicant escape simply because he had known his brother. The Board is entitled to evaluate the applicant's credibility according to the plausibility of his story. In response to the Board's questions, the applicant could provide no satisfactory explanation for these inconsistencies and implausibilities. The above inconsistencies noted by the Board were central to the applicant's claim because they put into question the very basis of his fear of persecution. As the Board explained reasonably well its reasons for doubting the applicant's credibility on the basis of these discrepancies, I am of the opinion that it committed no patently unreasonable error in concluding that the applicant was not credible.
[5] The applicant submits that the Board erred in law in requiring him to produce documents to support the allegation that Tungunga is his brother. The Board found that the applicant had made no effort to obtain documents which would have corroborated this central element of his claim. Rule 7 of the Refugee Protection Division Rules, SOR/2002-228, (the Rules) sets out that "the claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them". Consequently, the fact that the Board retains the applicant's lack of effort in acquiring evidence to corroborate the central element of his claim is entirely reasonable since the Rules clearly state that the applicant must provide such documents. In this case, the Board rejected the applicant's explanation that such documents are difficult to obtain in the DRC. In light of the finding that many aspects of the applicant's claim were not credible, it is entirely reasonable for the Board to attach great importance to documentation which would have supported the applicant's allegations (Elazi v. Canada (M.C.I.), [2000] F.C.J. No. 212 (F.C.T.D.) (QL)). In this case, the applicant's failure to provide any documentation to corroborate his allegations, or to make any sort of effort to acquire such documentation, limited the parameters of the Board's examination of the evidence. Consequently, I find that the Board could reasonably draw an adverse inference from the fact that the applicant failed to submit any documentation to support his alleged relation with Tungunga since this relationship lies at the core of his alleged fear of persecution.
[6] For all the above reasons, the application for judicial review is dismissed.
[7] The applicant proposes that the Court ought to certify the following questions:
(1) Is the Refugee Division required by virtue of Rule 7 of the Refugee Division Rules to give a claimant the opportunity to provide an explanation in relation to a document that was not provided?
(2) Is the Refugee Division required by section 106 of the Immigration and Refugee Protection Act (in the case of an identity document) to give a claimant the opportunity to provide an explanation in relation to a document that was not provided?
[8] In the context of the above reasons, I agree, on the basis of the written submissions made by the respondent and filed on June 17, 2004, that the above questions proposed for certification do not raise a serious issue of general importance. There is no certification.
JUDGE
OTTAWA, ONTARIO
June 28, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4183-03
STYLE OF CAUSE: TSHOMBA NGONGO LUZI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 26, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: June 28, 2004
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANT
Mr. Ian Hicks FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Crane FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario