Date: 20030131
Docket: IMM-4996-01
Neutral citation: 2003 FCT 110
Ottawa, Ontario, this 31st day of January, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
JOSEMAR MONTEIRO (A.K.A. JOSEMAR LOURENCO MONTEIRO)
ISABEL PAULO (A.K.A. ISABEL MARIA FRANCISCO PAULO)
INDIRA MONTEIRO (A.K.A. INDIRA VISOLELA PAULO MONTEIRO)
by her Litigation Guardian, JOSEMAR MONTEIRO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended, of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "CRDD"), dated September 26, 2001, wherein the applicants were found not to be Convention refugees.
[2] The applicants seek an order that the decision of the CRDD be set aside and that the matter be referred back to a differently constituted panel for hearing and redetermination.
Background
[3] The principal applicant is Josemar Monteiro (a.k.a. Josemar Lourenco Monteiro), the female applicant is his wife, Isabel Paulo (a.k.a. Isabel Maria Francisco Paulo) and the minor applicant, their daughter, Indira Monteiro (a.k.a. Indira Visolela Paulo Monteiro) (hereinafter referred to as the "principal applicant", the "female applicant" and the "minor applicant", respectively).
[4] All of the applicants are citizens of Angola who allege a well-founded fear of persecution, based on the Convention grounds of membership in a particular social group and political opinion. The applicants allege fear of persecution by the government of the Popular Movement for the Liberation of Angola (the "MPLA"), because the MPLA government perceives the principal applicant to be a member of the guerilla group, Union for the Total Independence of Angola ("UNITA"). The applicants allege that, if they return to Angola, they will be arrested at the airport, brutally tortured and extra-judicially executed by the MPLA government.
[5] The applicants lived in Caala City, in the Province of Huambo, Angola, from February 7, 1996 until October 25, 1999. During this time, the principal applicant owned and ran a grocery store. In early 1999, the government allegedly accused the principal applicant of selling food and giving information to UNITA members. The government ordered the principal applicant to stop supplying UNITA and to assist the government in obtaining information about UNITA. The government constantly harassed the principal applicant for information about the guerilla group. Because the principal applicant did not provide any information to the government, the government considered him to be a UNITA member.
[6] According to the principal applicant's Personal Information Form (PIF), on October 25, 1999, the police came to their home, wanting information regarding the principal applicant's connection to UNITA. The principal applicant's parents and brother, Augusto Josefina Monteiro ("Augusto"), were all interrogated by the police. When no information was forthcoming, the police destroyed everything and beat the parents and Augusto. The principal applicant's parents were killed in this attack.
[7] At the time of the attack, the applicants were in the annex to the main house. This annex was in the backyard of the main house, and was physically separated from the main house by a "small space". Augusto managed to escape from the home and warned the applicants to flee. The applicants and Augusto fled to Namibia, where they remained for one month before travelling to South Africa, the United States and finally Canada.
[8] Augusto returned to Angola to verify their parents' deaths. According to the principal applicant, Augusto remained in the capital city of Luanda while he was in Angola.
The Decision of the CRDD
[9] On August 27, 2001, a one-member panel of the CRDD determined that the applicants were not Convention refugees. The CRDD found that there were central aspects of the applicants' story which were not credible and their cumulative effect impeached the credibility of their story. These aspects include:
1. The death certificates of the principal applicant's parents are inconsistent with information in the principal applicant's PIF pertaining to the age of the parents at the alleged date of death. The principal applicant's explanation for this inconsistency was that the civil registry office must have made a mistake. The CRDD did not find this explanation satisfactory.
2. In a letter dated July 16, 2001, from Augusto to the principal applicant, Augusto refers to his parents as having "disappeared" on November 25, 1999. There were two problems with this letter:
(a) According to the testimony of the principal applicant and the date on the death certificates, his parents were killed on October 25, 1999. The CRDD did not find the applicant's explanation, that Augusto made a mistake regarding the date, to be reasonable.
(b) The CRDD disagreed that Augusto's use of the term "disappearance", rather than "killing", was a matter of semantics. The CRDD did not believe that the parents' deaths were a case of disappearance, particularly since the principal applicant testified that Augusto went back to Angola to confirm the killing of their parents.
3. The CRDD did not find it credible that Augusto would return to the province of Huambo, in Angola, in order to verify the killing of his parents, particularly since Augusto allegedly escaped death the day his parents were killed. In addition, the CRDD referred to the principal applicant's evidence that Augusto contacted him from Luanda, the capital city of Angola, as inconsistent with other portions of the principal applicant's evidence.
4. The CRDD did not find it credible that Augusto, having verified the killing of his parents, would remain in Angola where he would be in danger.
Applicants' Submissions
[10] The applicants submit that this Court must quash the CRDD's reasons where it made an adverse determination of credibility based on findings made in a capricious manner and without due regard for the evidence before it.
[11] The applicants submit that the CRDD erred in law by misconstruing the evidence before it, making findings in a capricious manner and making a negative credibility determination on the basis of the misconstrued evidence and capricious findings. In particular, the applicants submit the CRDD misconstrued the evidence regarding Augusto's return to Angola, the use of the word "disappearance" by Augusto in the July 16, 2001 letter, the miscalculation of the parents' ages at death and the status of the minor child.
Respondent's Submissions
[12] Although the respondent does not directly address the standard of review, the respondent's submissions suggest that the Court should not intervene if the evidence rationally supports the non-credibility finding of the CRDD.
[13] The respondent submits that the CRDD did not misconstrue the evidence. However, even if the CRDD did misinterpret some of the evidence, the respondent submits that other facts and material rationally support the negative credibility determination.
[14] Issues
1. What is the standard of review for credibility determinations made by the CRDD?
2. Were the credibility findings of the CRDD supported by the evidence?
Analysis and Decision
[15] Issue 1
What is the standard of review for credibility determinations made by the CRDD?
It is trite law that findings of credibility are at the centre of the CRDD's jurisdiction and attract a high degree of deference. Kelen J. of this Court in Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1194, F.C.J. No. 1611 (QL) (T.D.) at paragraph 4 stated:
The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22,000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that 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.
I adopt the finding of Kelen J.
[16] Issue 2
Were the credibility findings of the CRDD supported by the evidence?
The CRDD found that the testimony of the principal applicant, the only witness to testify, was not credible. The CRDD gave reasons for coming to this conclusion and stated in its decision at page 4:
The panel finds that the cumulative effect of the inconsistencies and implausibilities in the evidence, impeaches the credibility of the claimants' story. As a result, the panel does not believe the claimants' account of events. The panel concludes that the claims are defeated on the basis of a lack of credibility.
[17] The CRDD gave the following reasons for the finding of non-credibility:
1. The evidence regarding Augusto's return to Angola.
2. Augusto's use of the word "disappearance" in the July 16, 2001 letter.
3. Error in the parents' death certificates.
4. The "drama" on November 25, 1999.
The applicants took issue with each of these reasons for the negative credibility finding. I propose to deal with each in turn.
[18] 1. The evidence regarding Augusto's return to Angola
The CRDD in its decision stated that Augusto returned to Huambo to confirm the killing of his parents. In fact, the evidence is that Augusto returned to Angola to investigate the disappearance of his parents. He did not go to the place where the killings took place. The applicants submit that by misconstruing the evidence and relying on it to find the applicants not credible, the CRDD made a serious error of law. The CRDD did state in its decision at page 3, that Augusto returned to Angola:
The panel also does not find it credible that Augusto would return to Angola in order to verify the killings of his parents.
and
The panel also does not find it credible that, having verified that his parents were killed Augusto would remain in Angola, thereby continuing to live in a risky situation.
I am not satisfied that the CRDD made a reviewable error in this respect.
[19] 2. Augusto's use of the word "disappearance" in the July 16, 2001 letter.
Augusto stated in his letter of July 16, 2001 that he felt bad about the disappearance of his parents. However, the principal applicant stated that their parents were killed on October 25, 1999. The CRDD used this inconsistency as a reason to find the principal applicant's testimony was not credible. I am of the view that since Augusto was present when the attack occurred, it was not unreasonable for the CRDD to use the reference to "disappearance" as a basis for its credibility finding. The applicants argued that "disappearance" and "killed" are really no different. I do not agree.
[20] 3. Error in the parents' death certificates.
The principal applicant, in his PIF, stated that his father and mother were born in 1945 and 1951 respectively. This would have made them 54 and 48 in 1999. The death certificates show that the principal applicant's father and mother were 50 and 56 years of age at the time of their death. The principal applicant's explanation for the difference was that the authorities must have made a mistake. I am satisfied that the CRDD did not misconstrue this evidence, nor make an error in using the difference in the parents' ages, in its non-credibility finding.
[21] 4. The "drama" on November 25, 1999.
In his letter dated July 16, 2001, Augusto refers to the "drama" on November 25, 1999 when writing about his parents disappearance. The principal applicant in his testimony and in his PIF stated that their parents were killed on October 25, 1999. When asked to explain the different dates, the principal applicant stated that his brother must have made a mistake. I am of the view that the CRDD did not make a reviewable error in using this inconsistency in its non-credibility finding.
[22] The applicants also raised in their memorandum of argument the fact that the CRDD referred to the principal applicant and his wife's child as their adopted child, when their daughter was in fact their biological child. I agree that the CRDD was incorrect in this statement, but this fact is not material to the finding of the CRDD.
[23] In conclusion, I am of the view that the CRDD did not make a reviewable error in concluding that the "cumulative effect of the inconsistencies and implausibilities in the evidence, impeaches the credibility of the claimants' story".
[24] The application for judicial review is dismissed.
[25] Neither party wished to certify a serious question of general importance.
ORDER
[26] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
January 31, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4996-01
STYLE OF CAUSE: JOSEMAR MONTEIRO (A.K.A. JOSEMAR
LOURENCO MONTEIRO), ISABEL PAULO (A.K.A.
ISABEL MARIA FRANCISCO PAULO), INDIRA
MONTEIRO (A.K.A. INDIRA VISOLELA PAULO
MONTEIRO) by her Litigation Guardian,
JOSEMAR MONTEIRO
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, October 3, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, January 31, 2003
APPEARANCES:
Mr. Daniel Kingwell
FOR APPLICANTS
Mr. Steven Jarvis
FOR RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates
Suite 300
74 Victoria Street
Toronto, Ontario
M5C 2A5
FOR APPLICANTS
Department of Justice
Suite 3400, Box 36, The Exchange Tower
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT