Date: 20030211
Docket: IMM-2485-02
Neutral citation: 2003 FCT 143
Ottawa, Ontario, this 11th day of February 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
PAULO JORGE SAMBA JOAQUIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is seeking a judicial review in respect of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("The Board") dated May 3, 2002, which denied him the status of Convention Refugee.
[2] The applicant is a citizen of Angola and he is claiming a well-founded fear of persecution on the basis of his alleged political opinion.
[3] Prior to his arrival in Canada on October 31, 2000, where he claimed refugee status, at the suggestion of a stranger, the applicant destroyed a false Portuguese passport and an authentic Angola passport.
[4] On the first day of hearing held before the Board on December 14, 2001, the applicant testified and was found to be "reasonably credible."
[5] However, the Board was concerned about the destruction of the passports and with the written consent of the applicant, the Portuguese Embassy was asked if the applicant had entered Portugal or had applied for a status.
[6] In the weeks following, the Embassy replied with information contradicting the applicant's testimony and documentary evidence. The Board was informed that an Angolan citizen with the same name as the applicant had, in February 1998, entered Portugal with a visa obtained from the Portuguese Embassy in Luanda, Angola.
[7] The applicant testified for a second time and gave the Board an explanation about the information obtained from the Portuguese Embassy.
THE DECISION OF THE BOARD
[8] The Board summarized the explanation given by the applicant in the following way:
"The claimant then recounted a story of how his father and mother had taken him to the visa officer and obtained the visa for a purpose other than for him personally, to travel to Portugal. He said that an Angolan passport with such a visa was like gold. When it was pointed out that his father was detained on February 2nd, just before the issuance of the visa, the claimant then said his mother picked it up and he could not remember ever seeing that passport with the visa again. He insisted that he had never been to Portugal and implied that someone else must have used the passport. It was also suggested at one point that perhaps the police had taken the passport.
When the claimant was reminded that at the last sitting he had testified that he had come to the U.S. with a valid Angolan passport, which he had then destroyed, the claimant then testified that he had obtained a new valid Angolan passport at the same time as the false Portuguese one. He obtained this passport because his original intention had been to claim asylum in the U.S. and he needed it to establish his nationality. The claimant was then asked why he had destroyed this critical evidence of his nationality after he decided to claim asylum in Canada rather than the U.S. All the claimant could say was that he followed the advice of the stranger on the airplane to the U.S. who had told him to go to Canada rather than stay in the U.S., and destroy all his documents."
[9] The Board found the explanations given non credible and that the applicant had mislead the Board concerning the trip to Portugal. Furthermore, the Board referred to implausibilities which brought into question the truthfulness as a whole of the applicant's testimony. Therefore the Board concluded that the applicant was not credible nor trustworthy.
THE ISSUES
[10] The applicant submits that the Board erred in the following way:
- by failing to comment on the applicant's explanations to important questions;
- by making inferences of fact which were not supported by the evidence;
- by ignoring relevant evidence properly before the Board when making findings of fact;
- by confining its consideration to matters other than the real basis of the fear of the applicant;
[11] The issues raised by the applicant are all related to the finding of the Board on lack of credibility.
[12] The respondent argued that the Board being an expert tribunal was in the best position, having the totality of the evidence before it, to make findings on the credibility of the applicant and that in doing so, it did not err in law nor in fact.
THE STANDARD OF REVIEW
[13] Questions of credibility are questions of facts. It was determined by J. Décary in Aguebor v. Canada (Minister of Citizenship and Immigration), (1993), 160 N.R. 315, pp. 316-317 at paragraph 4, that the panel is in the best position to evaluate the credibility of a claimant:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
THE ANALYSIS
[14] The credibility of an applicant on immigration matters is crucial in successfully obtaining Refugee Status. It is the essential element that a claimant must project in order to convince a Board.
[15] It is a well recognized principle that the assessment of an applicant's credibility is the prerogative of the Board because of his speciality but also because it is in a position to view, hear the applicant and weigh the evidence as a whole.
[16] Our Court will intervene on credibility issues when the alleged error is so evident and conclusively unjust. Such a situation is exceptional.
[17] My reading of the Board's decision is that it made a specific finding of non-credibility based on the explanation given by the applicant following the information obtained from the Portuguese Embassy and based on some implausibility findings, it made another general finding of non credibility and lack of trustworthiness.
[18] The Board, contrary to what is argued by the applicant, did refer and comment on the explanations given when it made its specific finding of non-credibility. It simply did not believe that somebody other than the applicant had gone to Portugal in February 1998. The decision at page 2 refers and comments on the explanations given.
[19] The transcript of the April 24, 2001 hearing is a good indicator of the concerns the one panel member of the Board had on the question of credibility:
"But I'm entitled to draw negative inferences from this. That means I'm entitled not to believe you and I have given you every opportunity to try and explain this in a way - - in a truthful way in my view, because I don't believe you're telling me the truth now. None of us are experts in, you know, assessing the truth. We just try and do our best but I definitely have the impression that you're just someone that's kind of floundering right now and suggesting that well, then maybe I went with my parents to get this, except now the dates don't quite fit because your father was supposed to have been in jail." (Tribunal record p. 390)
[20] Counsel for the applicant argued that the sole panel member shared a closed mind attitude when she said that, if the applicant admits to a visit to Portugal in February 1998, she was willing to consider the granting of Refugee Status. The applicant submits that it was a patently unreasonable comment.
[21] Although, such comment should not have been made, I do not think that it shows a closed mind attitude. The explanation given by the applicant were such that they were not to be believe. The comment of the panel member in that context was not a patently unreasonable matter.
[22] Having read the testimony of applicant without having had the benefit of seeing him at his hearing, I see no reason why I should go along the exceptional road and intervene on the credibility finding made by the Board. As a matter of fact, it is a well made and sound conclusion. The applicant, as it appears from the transcript, was hesitant and not forthcoming in his answers. He was adapting his answers as the questions were asked. Such a performance cannot obtain a different conclusion on credibility.
[23] The other issues raised by the applicant are all related to the finding of non-credibility, I will not address them specifically.
[24] As a last comment, it is clear that the Board, after the first sitting, had a positive assessment of the applicant. But when the new information came from the Portuguese Embassy, the Board reviewed the initial assessment because the applicant had not initially informed that he had obtained a visa from Portugal. Thereafter, the explanations given did not satisfy the Board. It then reviewed the evidence under a different perspective and arrived at some implausibility findings and a general finding of non-credibility.
[25] The approach followed by the Board in receiving, assessing and re-assessing the evidence, shows a concern for the search for the truth in the interest of all parties concerned.
[26] Counsel for the applicant proposed a certified question which reads as follows:
"Does the panel err where it indicates to a claimant that a particular answer to a question will result in a positive (or negative) decision?"
[27] Counsel for the respondent opposed the certification for three reasons. First, the respondent submits that the question is not appropriate because it does not relate to the evidence in the record which is before the Court. The Board member never said if a certain answer was given, there would be a definite result one way or the other, rather, she said that "... she was willing to give the applicant a positive determination provided the applicant explained how and why he was in Portugal and why he did not reveal this before."
[28] Second, the respondent argues that the question should not be certified because it would not be determinative of an appeal in this case. The applicant's answers with respect to the 1998 Portuguese visa were not determinative of this case. The decision makes clear that the Board member had a number of other concerns, including two implausibility findings and serious concerns about the applicant's testimony concerning his various passports.
[29] The respondent's third argument is that the question is not of broad significance, because the question of whether a Board member has improperly questioned or addressed a claimant must be determined on the particular facts and context of each case.
[30] I agree with counsel for the respondent that the question suggested is not one that meets the criteria to obtain certification. The following comments of Martineau J. in the recent decision Monteiro v. Canada (M.C.I.), [2002] F.C.J. No. 1720, can be applied in the present case:
In Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, the Federal Court of Appeal specified at paragraph 4 that a certified question must be one that "transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application [...] but it must also be one that is determinative of the appeal". Furthermore, the Court in Huynh v. Canada, [1995] 1 F.C. 633 (F.C.T.D.) (confirmed by [1996] 2 F.C. 976 (F.C.A.)) indicated that "[a] certified question is not about the case at bar; it seeks to clarify an undecided legal point of general importance". In the case at bar, the proposed questions are not determinative of the appeal. Moreover, the present record and the particular circumstances of this case would make it difficult, through an appeal, to clarify any undecided legal point of general importance. Accordingly, no question of general importance will be certified.
Therefore, the certified question proposed is too specific and related to the facts in issue to be one that would clarify an undecided legal point of general importance. Therefore, no question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed and no question is certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2485-02
STYLE OF CAUSE : PAULO JORGE SAMBA JOAQUIM and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : OTTAWA, Ontario
DATE OF HEARING : January 28, 2003
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
APPEARANCES :
Mr. David Morris FOR THE APPLICANT
Mr. John Unrau FOR THE RESPONDENT
SOLICITORS OF RECORD :
Mr. David Morris FOR THE APPLICANT
BELL, UNGER, MORRIS
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Department of Justice Canada
Ottawa, Ontario