Present: The Honourable Mr. Justice Blais
BETWEEN:
AFFO AYE KOKOU KIKINA BIACHI
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision by the Refugee Protection Division (the panel) of the Immigration and Refugee Board, dated September 8, 2005, that Affo Aye Kokou Kikina Biachi (the applicant) was not a Convention Refugee or a person in need of protection within the meaning of sections 96 and 97 of the Act.
RELEVANT FACTS
[2] The applicant alleges that in 1997 he became a member of the Union of Forces for Change (UFC). He was not an active member but he had a membership card substantiating his support. The applicant attended some UFC meetings and distributed pamphlets. In 1999, the applicant became a taxi driver.
[3] On January 5, 2002, three men visited the applicant, proposing that he transport people on Mono Boulevard for six consecutive days. The next day, when the applicant reported to the site of the meeting, the people that were there wanted to put giant posters of President Eyadema on his car and oblige him to wear a T-shirt commemorating the president and a cap of the Rally for the Togolese People (UFC), the party in power. The applicant categorically refused and, when threatened, fled.
[4] On the night of January 6 and 7, 2002, when returning from his shift, the applicant stopped not far from his home and sent a friend from his neighbourhood to his house in order to see if all was well. It was then that his friend told him that soldiers had had carried out an aggressive raid at the family residence. After the attack, his father and brothers left for Ghana and his mother was transported to the hospital because she had received a violent blow to the throat from the soldiers.
[5] The applicant fled to Benin. From there, he took a boat to go to Italy. On March 11, 2002, the applicant arrived in Austria. On March 13, 2002, the applicant filed a refugee claim in Austria, which was denied. While his refugee claim was being appealed, the applicant left Austria with a false Belgian passport on August 30, 2003, and sought protection when he arrived at Pierre-Elliott-Trudeau Airport.
ISSUES
[6] 1. Did the panel err in finding that the applicant was not credible?
2. Did the panel err in misinterpreting the documentary evidence?
3. Did the tribunal’s decision fail to observe sections 7 and 12 of the Charter and section 3 of the United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)?
ANALYSIS
1. Did the panel err in finding that the applicant was not credible?
[7] In Anthonimuthu v. Canada (Minister of Citizenship and Immigration), 2005 FC 141, [2005] F.C.J. No. 162, at paragraph 45, my colleague Mr. Justice Yves de Montigny reiterated that an assessment of credibility is a question of fact and that this Court cannot intervene unless that assessment is perverse or capricious or does not take into account the evidence:
Turning first to the credibility issue, it is trite to say that decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of witnesses. As indicated in a number of decisions, credibility determinations lie within “the heartland of the discretion of triers of fact” and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts (Aguebor v. Minister of Employment & Immigration, [1993] F.C.J. no 732 (F.C.A.); Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. no 1113; Sivanathan v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. no 662 (F.C.).
[8] There are many ways to make determinations in matters of credibility. In assessing the reliability of the applicant’s testimony the Board may consider, for example, vagueness, hesitation, inconsistencies, contradictions and demeanour (Ezi-Ashi v. Canada (Secretary of State) [1994] F.C.J. No. 401, at paragraph 4). In El Balazi v. Canada (Minister of Citizenship and Immigration) 2006 FC 38, [2006] F.C.J. No. 80, at paragraph 6, Mr. Justice Yvon Pinard states that even in some circumstances, the applicant’s conduct may be enough to deny a refugee claim:
The respondent correctly says that the IRB may take into account a claimant’s conduct when assessing his or her statements and actions, and that in certain circumstances a claimant’s conduct may be sufficient, in itself, to dismiss a refugee claim (Huerta v. Minister of Employment and Immigration (March 17, 1993), A-448-91, Ilie v. Minister of Citizenship and Immigration (November 22, 1994), IMM‑462-94 and Riadinskaia v. Minister of Citizenship and Immigration (January 12, 2001), IMM-4881-99).
[9] In this case, the panel described the applicant’s testimony as being vague, particularly when he was questioned about the UFC, the ideology of that party and the content of the pamphlets that he distributed for them.
The claimant is not credible. The panel is incapable of reconciling the Togolese customs work schedule and the corruption of the soldiers assigned to traffic with the “rights” of the Togolese population that were denied by the government. The panel notes that the claimant was saying anything and everything to justify his ignorance.
(Panel’s decision, September 8, 2005, tribunal record at page 6)
[10] The applicant alleges that he explained, in a reasonable manner, the content of the pamphlets that he distributed on behalf of the UFC and that the panel erred in finding that he lacked credibility on that point. Further, the applicant claims that if his answers seem to be vague, it is rather because he had never gone to school and the panel was using a language that he was unable to understand. The transcript, at page 323, states:
[TRANSLATION]
Q. What did these pamphlets say?
A. I cannot give the exact dates, but I know that I did it until I left, once in awhile putting pamphlets in the street.
- Give me some examples.
A. The last one that I can remember before the elections is the pamphlet saying that we had to mobilize to confiscate, to reclaim the rights taken by the governmental authorities.
Q. What rights were those, Sir?
A. That’s what the pamphlet said, that’s because it wasn’t me that wrote it.
Q. Yes, but Sir, did you see the pamphlet?
A. [Not translated.]
- Okay
Q. Can you tell me what rights the government had taken away?
A. For example, what it was about, it was that we wanted customs to be open 24 hours a day, for the economy, and also the arbitrary arrests of soldiers in the streets, who asked you to park and then they asked you to give them change. The fact is that they will ask you for papers, all the papers are in order, but they will not give you the papers back, until you give them money. The fact also is also to share power. [sic]
(Transcript, June 16, 2005, tribunal record at pages 323 and 324)
[11] In rereading the transcript, I am of the opinion that the applicant had an interpreter available to him and that he understood the questions asked. Based on his conduct, the panel made unfavourable determinations on the applicant’s credibility when he answered questions saying anything to justify his story. These determinations are reasonable considering that they are supported by the applicant’s conduct at the hearing. The applicant has not succeeded in establishing that the panel’s decision was based on erroneous findings of fact drawn in a perverse and capricious manner and without regard to the evidence before it. The Court need not reassess the evidence, or substitute its opinion for that of the panel. It is the panel’s responsibility to hear the evidence and to assess the credibility of the claimant and the documents filed in support of his claim.
[12] The panel determined that the applicant did not establish that he was involved in political activities with the UFC. The panel dismissed the probative value of the UFC membership card because of other documentary evidence. The applicant claims that the panel should not have disregarded his credible testimony with regard to the steps he took to get his membership card because of the other documentary evidence.
Moreover, when asked to describe the steps he took to obtain his UFC membership card, the claimant said that he went to their offices and presented his identity card and photograph. His membership card was issued the next day. From the outset, the panel noted a discrepancy between the claimant’s national identity card (Exhibit P–10) and his UFC membership card (Exhibit P–11). Exhibit P–10 shows that the claimant lived in “Lomé, qt Adéwui mson Kikina Biachi” [sic], while the address indicated on his UFC membership card (Exhibit P–11) is “Qt. Bè-Apeyemé, Lomé/Togo.”
Furthermore, the claimant was confronted with independent and reliable documentary evidence that relates to Article 10 of the UFC’s statutes, which reads as follows:
ARTICLE 10
Applications for membership, as from the date of permanent establishment of the UFC shall be made in writing, dated, signed and sent to the National Office which will make a decision after considering whether to accept the applicant. The decision whether to accept the applicant may be delegated to the presidents of the federations.
The claimant changed his testimony to say that he had signed some papers. He was confronted with another document that stated the following:
Even though the party statutes require the president to sign each membership card, it is Emmanuel Akitani Bob, the executive vice-president of the UFC, who is currently signing them because the party president, Gilchrist Olympio, resides outside the country.
The claimant was also confronted with the fact that, on his membership card, the signature of “Gilchrist Olympio,” president of the UFC, appears in print and that it is not an original signature. The claimant answered that the seal had already been affixed to the card and that many people were authorized to sign the membership cards. That answer is contradictory to the reliable documentary evidence from a legitimate source, which the panel finds more credible than the claimant’s testimony.
(Panel’s decision, September 8, 2005, tribunal record at pages 6 and 7)
[13] The panel is entitled to prefer documentary evidence to a refugee claimant’s testimony. Mr. Justice Edmond P. Blanchard, in Meyer v. Canada (Minister of Citizenship and Immigration), 2003 F.C. 878, states at paragraph 20:
. . . The applicant essentially argued that the Board afforded far too much importance to the documentary evidence and failed to properly consider the applicant’s evidence. I reject the applicant’s argument. There is nothing before me to support the contention that the Board has failed to have regard to the evidence before it. The applicant may not accept the Board’s findings, but it is not the role of the Court on judicial review to re-weigh the evidence. It is also well established that the Board, an expert tribunal, is at liberty in assessing evidence to prefer documentary evidence over the testimony of an applicant. [Zhou v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1087 (QL)]. Based on the evidence before the Board, I do not find its credibility and plausibility assessments to be patently unreasonable.
[14] In this case, the panel was justified in preferring the documentary evidence to the applicant’s testimony with regard to the membership card.
[15] The applicant argues that the panel erred in refusing to recognize that his mother died because of the abuses committed by the military during an illegal raid of the family home. The applicant alleges that the panel based its refusal on acknowledgements found on the back of his mother’s death announcement. The applicant states that if the panel had taken into account Togo’s particularities, it would have determined that it was normal to put the names of persons in positions of authority on the card. The panel determined:
The panel is of the opinion that it is completely inconsistent, in the alleged context, that people so high up in the Togolese government would appear with their wives and children at the claimant’s mother’s funeral and receive thanks from their hosts. This significant inconsistency, combined with the spontaneous testimony from the claimant that he has a large family, leads the panel to conclude that the claimant’s mother did not die under the alleged circumstances.
(Panel’s decision, September 8, 2005, tribunal record at page 8)
[16] It is my opinion that the panel took Togo’s particularities into consideration. The panel was correct to find that the acknowledgements on the card brought an element of negative credibility to the applicant’s story based on his conduct during the hearing. The decision was made after a complete analysis of the evidence and in my opinion the panel did not err in finding that the applicant lacked credibility.
2. Did the panel err in misinterpreting the documentary evidence?
[17] The applicant argues that the panel erred in law in its assessment of the exhibits filed, by dismissing them based on certain discrepancies. The respondent contends that considering the serious credibility problem, the panel was correct not to assign probative value to the letters and other documents filed by the applicant.
[18] I agree with the respondent’s reasoning. The fact that each of the documents filed into evidence was not mentioned does not indicate that the panel failed to consider it, given that the panel is assumed to have weighed and considered all of the evidence (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598). In this case, the panel stated that it doubted the authenticity of several documents because the applicant’s story lacked credibility. In Singh v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 744, at paragraph 19, Mr. Justice Blanchard is of the opinion that this is entirely reasonable:
Since credibility is at the root of testimony before the Refugee Division, this Court has repeatedly taken the position of MacGuigan J.A. in Sheikh, that a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.
[19] The applicant’s fear is based on the fact that he is a political opponent and that the documentary evidence on the human rights situation in Togo reports massive and systematic repression of political opponents by the government. The applicant alleges that the panel erred in dismissing the evidence on Togo without explanation. However, the panel reasonably determined that the applicant was not targeted in his country because of his political activities. The applicant’s fear cannot be based on the factors mentioned above unless he is able to connect the objective evidence to his personal situation. In Al-Shammari v. Canada (Minister of Citizenship and Immigration) (2002), 23 Imm. L.R. (3d) 66, at paragraph 24, Blanchard J. states:
This Court has repeatedly held that a claimant must establish a credible link between his claim and the objective situation prevailing in a country in order to be granted Convention refugee status (Canada (Secretary of State) v. Jules, (1994), 84 F.T.R. 161). Accordingly, it will not suffice for an applicant to present evidence showing problems encountered by some of this fellow-citizens. He must also establish a connection between his claim and the objective situation in his country.
[20] The applicant did not establish the existence of a subjective fear of persecution because he was found to lack credibility. Because the applicant’s story was found to lack credibility, he failed to connect the objective evidence of a fear of persecution to his personal situation. Therefore, the panel did not err in dismissing the evidence on Togo setting out the human rights violations committed in regard to political opponents.
3. Did the tribunal’s decision fail to observe sections 7 and 12 of the Charter and section 3 of the United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)?
[21] The applicant contends that removing him to his country where his life is in danger would violate his rights to life and to security of the person as well as his right not to be subjected to any cruel and unusual treatment or punishment, guaranteed by sections 7 and 12 of the Charter and by section 3 of the Convention.
[22] I do not agree with the applicant. As the respondent stated, the argument relating to a breach of sections 7 and 12 of the Charter or of section 3 of the Convention is premature in the sense that the panel’s negative decision does not at all amount to a threat of deportation.
[23] The Court has established that section 12 of the Charter cannot be raised before the final step of the deportation. The applicant’s argument is premature since the issue before the panel was only to determine whether or not he satisfied the definition of a refugee (Kabengele v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1866; Plecko v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 567.
[24] In Jekula v. Canada (Minister of Citizenship and Immigration) [1999] 1 F.C. 266, at paragraph 33, Mr. Justice John Evans refers to the scope of the rights guaranteed by section 7 of the Charter:
In summary, section 7 rights are not engaged at the eligibility determination and exclusion order stages of the process. However, the applicant cannot be lawfully removed from Canada without an assessment of the risks that she may face if returned to Sierra Leone. And the manner in which that assessment is conducted must comply with the principles of fundamental justice.
[25] In this case, the panel determined that the applicant was not credible and that his fear of returning to Togo was not justified. Further, the panel made that observation based on the principles of fundamental justice.
JUDGMENT
The application for judicial review is dismissed and no question will be certified.
“Pierre Blais”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6143-05
STYLE OF CAUSE: AFFO AYE KOKOU KIKINA BIACHI v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 19, 2006
REASONS FOR JUDGMENT
APPEARANCES:
|
Alain Vallières
|
FOR THE APPLICANT |
|
Sylviane Roy
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Stewart Istvanffy Law Firm
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |