Date: 20000517
Docket: IMM-2845-99
Between :
EDWARD KWAKYE AMOAKO
KWAKU BOATENG
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicants seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 3, 1999, determining that the applicants are not Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
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[2] The Board believed that the applicants worked at the Automotive and Technical Services (ATS) and SABAT MOTORS, that they were given severance packages prior to the privatization of ATS and that SABAT MOTORS was shut down when its unionized workers refused to work.
[3] However, it did not believe that the applicants were arrested and tortured by the Bureau of National Investigation (BNI) and the police because of their protest over the privatization of ATS or that they would face similar persecution if they returned to Ghana.
[4] First, the documentary evidence indicates that the government opposed the divestiture of ATS to SABAT MOTORS. The Divestiture Implementation Committee, a government committee, was involved in a lawsuit with SABAT MOTORS over the divestiture agreement. In addition, the Ministry of Trade and Industries had recommended its abrogation on the grounds that it had not been carried out properly and the rights of the workers had not been respected. There was no documentary evidence regarding the alleged arrest and torture of union members opposed to the privatization. The Board found it implausible that the applicants were victimized by government police for protesting a deal which the government itself opposed.
[5] In addition, Mr. Boateng testified that the purpose of the demonstration on May 7, 1998 was to assure the workers of their ten per cent share in ATS and to protest the privatization of public property. The Board found it implausible that the arrest of the union leadership at SABAT MOTORS on April 27, 1998, their three-day detention and the torture they suffered during that period were not mentioned at this demonstration.
[6] The Board also found exhibits P-14, a letter from the police, P-14-A, a letter from the BNI, and P-14-B, a letter from the Ghana Police Service, not to be credible. The three letters are unsigned and printed in identical script. The first two letters are also prefaced by the expression "Re: Sabat Motors Impasse". Furthermore, P-14, dated May 10, 1998, orders the applicants to report for interrogation, but the applicants testified that they were already in the custody of the BNI on that date. In addition, P-14-B contains the words "Final Warning", which led the applicants to conclude that their lives were in danger. The Board found this conclusion unreasonable given that the letter was sent by local police whereas the previous two letters came from the Superintendent of Police and the BNI.
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[7] The first issue raised in this application is whether the Board erred in finding the applicants not to be credible. It is well-established that credibility is squarely within the jurisdiction of the Board as the trier of fact. The Board is entitled to infer that an applicant is untrustworthy because of implausibilities in his or her evidence as long as its inferences are not unreasonable (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316 (F.C.A.)) and its reasons are set out in "clear and unmistakable terms" (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 at 201 (F.C.A.)). The jurisprudence also establishes that where the Board has concerns about an applicant's credibility, it is obliged to alert the applicant to these concerns and to give the applicant an opportunity to explain the alleged inconsistencies in his or her evidence (Gracielome v. Canada (M.E.I.) (1989), 9 Imm.L.R. (2d) 237 (F.C.A.)).
[8] On the one hand, the inference drawn by the Board from Mr. Boateng's alleged failure to mention the torture of union leaders when asked about the demonstration of May 7, 1998 seems unreasonable. As far as I can tell from the transcript of the hearing, Mr. Boateng was never asked specifically about the purpose of the demonstration, as the respondent claims at paragraph 31 of his Mémoire du défendeur, nor about whether the treatment of the union leaders was raised during the demonstration.
[9] On the other hand, I do not think that the Board's finding of non-credibility was based on this inference. Rather, its finding was based on inconsistencies and implausibilities in the documentary evidence. Therefore, I do not think that the questionable conclusion reached by the Board on this point is sufficient to justify allowing the application.
[10] The second argument raised by the applicants is that the Board ignored documentary evidence and failed to refer to articles supporting the applicants' claim in its reasons. Unless the contrary is shown, however, the Board is assumed to have considered all the evidence presented to it. In general, the fact that some of the documentary evidence is not mentioned in its reasons is not fatal to the Board's decision (see Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 at 318 (F.C.A.)).
[11] It seems to me that the applicants are asking this Court to substitute its assessment of the evidence for the decision of the Board. However, this is not the role of the Court in an application for judicial review. I am not persuaded that the Board ignored evidence before it or that the Board's assessment of the documentary evidence was unreasonable. The conclusions reached by the Board about the Ghanian government's position on the privatization of ATS, the probative value of the letters submitted by the applicants and the credibility of the applicants were open to it considering the material before it.
[12] Finally, concerning the applicants' last argument with respect to deportation, I agree with the respondent that the argument is premature given that the Board's finding was limited to the conclusion that they are not Convention refugees (see Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3 (F.C.A.), and Plecko v. Minister of Citizenship and Immigration (April 26, 1996), IMM-980-95). Furthermore, the Board's finding that the applicants were not credible indicates that they would not be persecuted if they were to return to Ghana. Therefore, Canada's international human rights obligations would not be breached if they were deported.
[13] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
May 17, 2000