Date: 20020725
Docket: IMM-2479-01
Ottawa, Ontario, July 25, 2002
Before: LEMIEUX J.
BETWEEN:
YANIQUE NOUTEPING NGOYI and
GUY PATRICE NOUTEPING MIETCHOP
Plaintiffs
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
For reasons filed today, this application for judicial review is dismissed and no certified question was suggested.
|
|
"François Lemieux"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020725
Docket: IMM-2479-01
Neutral citation: 2002 FCT 821
BETWEEN:
YANIQUE NOUTEPING NGOYI and
GUY PATRICE NOUTEPING MIETCHOP
Plaintiffs
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
LEMIEUX J.
- [1] Yanique Nouteping Ngoyi, aged 21, and Guy Patrice Nouteping Mietchop, aged 19, are brother and sister; they were born at Douala in Cameroon and belong to the Bamileké ethnic group.
- [2] Ms. Ngoyi (the plaintiff) claimed Canada's protection, alleging a fear of being persecuted by the chief of the Bandja village, who had designated her as one of his future wives. She feared a forced marriage and circumcision as required by the village custom. Her brother also alleged that he feared the village chief, since he objected to the circumcision and forced marriage of his sister.
- [3] By a decision of April 24, 2001, the Refugee Division ("the tribunal") refused to grant them refuge. The Court has their application for judicial review before it.
- [4] The tribunal found that the claimants were not credible because of improbabilities, contradictions and [TRANSLATION] "deceitful conduct" when they completed a visa application to come and study in Canada, apparently in order to avoid the marriage and circumcision.
- [5] The Court considered that the entire story was a fabrication so they could emigrate and stay in Canada. In its view, there were other ways to be admitted to Canada as an immigrant than through the Refugee Board.
- [6] Counsel for the applicants argued that the tribunal made the following errors.
1. It imposed a higher burden on the claimants than is required by law and precedent, and in so doing the tribunal altered the concept of a valid fear of persecution. Counsel objected that the tribunal asked Ms. Ngoyi to establish a valid fear of circumcision against her will, a particular form of persecution.
2. It misinterpreted the evidence when it concluded that the claimants had not indicated to the Canadian authorities that they feared persecution in Cameroon. According to their counsel, this fear was disclosed in the claimants' notification of claim on February 21, 2000.
3. The tribunal misunderstood the evidence when it concluded that there was a contradiction in the reply given by Ms. Ngoyi, in not telling the Canadian authorities about the fear of persecution in Cameroon because she feared her visa application would be denied. Counsel maintained that her conduct in respect of the Canadian authorities was based on her fear of persecution and her fear that she could not leave Cameroon without the necessary visa _ a rational and logical response.
4. The tribunal found it improbable that the claimants' entire story (fear of circumcision and fear of a forced marriage), as described in their personal information forms, would be contained word-for-word in a newspaper article published in Douala, [TRANSLATION] "The Young Detective". The tribunal also regarded it as improbable that the article explained customs of the Bamilekés which were already known to them: the tribunal was not satisfied with Ms. Ngoyi's explanations. Counsel maintained that these improbabilities were improper conclusions disregarding the evidence before the tribunal.
5. The tribunal committed another error when it concluded that no newspaper or other source established that young women (in early adulthood) would be compelled to marry village chiefs in Cameroon against their will and that the government would not allow this. Counsel drew the Court's attention to at least two documentary sources in evidence before the tribunal which clearly established that there was a problem in this area.
ANALYSIS
[1] The errors raised by the plaintiffs are different in nature. The first concerns interpretation of the Immigration Act, R.S.C. 1985, c. I-2, and in that case the standard of review is correctness.
[2] The other alleged errors concern questions of credibility and findings of fact, where the standard of review is that set out in s. 18.1(4)(d) of the Federal Court Act, namely a decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[3] In Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, at 844, L'Heureux-Dubé J. wrote the following for the Supreme Court of Canada regarding the standard of review of a finding of fact:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one . . . Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision . . .
[4] On a finding that there was a lack of credibility, McDonald J.A. said the following for the Federal Court of Appeal in Siad v. Canada (Secretary of State), [1997] 1 F.C. 608, at 620:
Despite the hearsay frailties of Professor Samatar's evidence highlighted in the reasons of the presiding judge, the Tribunal was entitled to find this evidence credible and trustworthy, and to base its decision upon it. The Tribunal is uniquely situated to assess the credibility of a refugee claimant; credibility determinations, which lie within "the heartland of the discretion of triers of fact", are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence.
[5] In my opinion, the tribunal made no error that would warrant this Court's intervention.
[6] First, I cannot subscribe to counsel for the plaintiffs' argument that the tribunal altered the concept of a Convention refugee when it imposed on Ms. Ngoyi a higher burden of establishing a fear of being circumcised, not simply the burden in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.), to establish a reasonable possibility of persecution if she returned to her country of origin.
[7] In the specific context of Ms. Ngoyi's claim, the distinction sought by counsel for the plaintiffs is artificial and without foundation since the very source of her fear of persecution was her fear of circumcision. In other words, her fear of circumcision and her fear of persecution amounted to the same thing.
[8] I do not see how I could intervene to quash the tribunal's allegedly erroneous findings of fact. My reading of the transcript of the hearing of August 22, 2000, convinced me that the tribunal properly assessed the evidence, and what counsel for the applicants is asking me to do is to re-assess the evidence and substitute my view of the facts for that of the tribunal, something which I cannot do.
[9] The allegation that the plaintiffs disclosed their fear to the Canadian authorities does not stand up, since what the tribunal objected to was that they did not disclose their fear to the authorities in Cameroon when they were applying for Canadian visas. Clearly the plaintiffs disclosed their fear in Canada to support their refugee application.
[10] The tribunal could find an improbability connected with the article in [TRANSLATION] "The Young Detective". Ms. Ngoyi could not explain how her Personal Information Form could be reproduced almost word-for-word in that publication. Also, the evidence supported the conclusion that the plaintiffs were unable to explain the need to specify the customs of the Bamilekés in that article.
[11] The tribunal made certain findings of fact as to the extent of the practice of circumcision in Cameroon, the type of girl subject to the practice, the region of the country in which the phenomenon occurred and the scope of government protection. The tribunal had before it documentary evidence and the plaintiffs' testimony, which amply corroborated the documentary evidence. I cannot overturn the tribunal's findings on this point.
[12] Intervention by the Court with respect to Mr. Mietchop's claim would not seem to be warranted, since his counsel's challenge was simply based on the assessment of the facts, supported by the evidence.
[13] Finally, I feel the tribunal made an error when it saw a contradiction in Ms. Ngoyi's reply that she feared being rejected in Canada if they disclosed their fear of persecution in Cameroon. This one error in an otherwise correct decision by the tribunal does not provide any basis for quashing that decision.
[14] For all these reasons, the application for judicial review is dismissed. No certified question was suggested.
| "François Lemieux"
Judge |
OTTAWA, Ontario
July 25, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-2479-01
STYLE OF CAUSE: YANIQUE NOUTEPING NGOYI and
GUY PATRICE NOUTEPING MIETCHOP
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 6, 2002
REASONS FOR ORDER: LEMIEUX J.
DATE OF REASONS: July 25, 2002
APPEARANCES:
Michael Dorey FOR THE PLAINTIFFS
Daniel Latulippe FOR THE DEFENDANT
SOLICITORS OF RECORD:
Michael Dorey FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec