Docket: IMM-5970-02
Ottawa, Ontario, this 12th day of November, 2003
Present:The Honourable Mr. Justice Simon Noël
BETWEEN:
MITILA BULAMBO
NYAMWENDA BASILA
PHILIPPE ATANDA BASILA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated October 21st, 2002, wherein the applicants were denied Convention refugee status.
STANDARD OF REVIEW
[2] The only ground for this application is the credibility and plausibility findings of the Board. The Board rejected the applicants' refugee claims because the evidence was not credible. The Board is a specialized tribunal in determining refugee claims and has direct access to the testimony of the witness, and is usually 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 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.
[3] In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 para 11, before a credibility finding of the Board is set aside, one of the following criteria must be established:
1. The Board did not provide valid reasons for finding that an applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[4] Credibility findings of the Board are therefore entitled to the highest degree of deference, and should only be set aside in accordance with the criteria set out above. With respect to credibility or plausibility, the Court should not substitute its opinion for that of the Board except in the "clearest of cases".
ANALYSIS
[5] The applicants and their minor daughter, are all citizens of the Democratic Republic of the Congo ("DRC"). They allege a fear of persecution based on their (perceived) political opinions and their membership to a particular social group. The applicants essentially base their claim on the fact that in October 2000 The National Intelligence Agency of the DRC issued a warrant for Mrs Bulambo's arrest stating as reasons: "contact with the anti-government rebellion" and "boîte aux lettres". The applicants fear for their lives because of Mrs Bulambo's alleged involvement, as a former employee with Sabena Airlines, in smuggling politically compromising videocassettes out of the country. Mrs Bulambo claims that the mail system in the DRC is mainly dysfunctional and that, because she often travelled to Europe for training, carrying mail for friends was common place. She also claims to have been unaware of the contents of the cassettes a friend asked her to carry and to have been detained without reason by DRC authorities from August 26th, 2000 until September 8th, 2000 when she managed to escape.
[6] Mrs Bulambo left the DRC for Belgium on September 26th, 2000 using false documents. She collected her daughter who had been staying in Belgium and, in approximately 2 weeks, obtained a second set of false papers for the two of them to travel to the United States. She spent about 2 weeks in the US (mostly with her sister in law in Atlanta, Georgia) before making her way to Canada and arriving in Toronto the first of November 2000.
[7] Her husband, Mr Basila was away on a business trip on August 26th, 2000 and, after learning about her arrest and detention from one of his brothers, returned to Kinshasa on October 5th. He went into hiding and alleges that he was delayed in leaving the country because of a failed attempt to obtain false documents and a lack of further means to obtain new ones. He claims to have remained in hiding until his mother in law intervened to help him leave on May 28th, 2002. He followed the same itinerary as his wife by first stopping in Atlanta and then made his way to Toronto.
[8] The Board listed several reasons why it came to the conclusion that the allegations of persecution were not credible. Firstly, Mrs Bulambo's testimony was judged to lack credibility because she failed to ask the airport Director of Immigration, a person whom she knew and the first person to detain her, why she was being arrested and what the contents of the video cassettes were. Nor did the Board consider it plausible that her brother-in-law, a third party to the matter, would be able to obtain the information while she could not. The Board also found that her version of the facts concerning her knowledge of the video cassettes' contents were "confused". Secondly, the Board determined that her inability to properly identify the "Invitation et Interrogation" document issued by the DRC National Intelligence Agency contradicted her husband's evidence of an arrest warrant issued against her. Thirdly, the Board found that, because Mrs Bulambo had travelled through two different countries before coming to Canada without seeking refugee status, that her claim of persecution is not founded. The Board also found her statements "contradictory" with regards to her explanation, based on linguistic concerns, for choosing Canada instead of the United States and Toronto instead of Montréal as a place to seek refugee status. The Board went on further to state that the lack of credibility found in Mrs Bulambo's claim "necessarily" affected the credibility of her husband's account. The Board found that the more than year long delay in leaving the country was "unreasonable" in light of the alleged apprehension for his life and security. The Board therefore denied Convention refugee status because of the two testimonies lack of credibility.
[9] The central issue in this claim is whether or not the applicants have a "well founded fear of persecution" and in light of the criteria previously outlined, those seeking to set aside credibility findings have a very heavy onus to discharge. However; in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 032 at 305 (F.C.A.), it was made clear that the Board must have valid reasons for finding that an applicant lacks credibility. The decision in Attakora v. Canada (Minister of Employment and Immigration), [1989] 99 N.R. 168 (F.C.A.), and Owusu - Ansah v. Canada (Minister of Employment and Immigration), [1990] 8 Imm. L.R. (2d) 106 (F.C.A.), are both cases in which decisions were set aside because the inferences drawn by the Board were based on implausibility findings that were not inherently such. In Frimpong v. Canada (Minister of Employment and Immigration), [1980] 8 Imm. L.R. (2d) 106 (F.C.A.), a decision of the Board was set aside because it was based on inferences that were unsupported by the evidence. As stated in Bains, this is because a reviewing Court, depending on the nature of the alleged implausibilities, may be in as good a position as the Board to assess the validity of the alleged implausibilities.
[10] Applying this jurisprudence to the case at bar, I have carefully considered the reasons for the decision as well as the submissions from the parties. With respect to the first reason for decision that Mrs Bulambo's testimony regarding the contents of the video cassette and reasons for arrest was not credible or that her answers were confused or unresponsive, the transcript shows from pages 286 to 293 that the applicant stated that she had no personal knowledge of this information and that she was relating what others (her mother, husband, brother-in-law) had said. As to the possible reasons she did not obtain the information from the airport Director of Immigration, the transcript from pages 278 to 280 indicates that she was more concerned with being sent to prison "les cachots" than with what was on the tapes. Although, the airport Director of Immigration "knew her", he was nonetheless in a position of authority over her. Mrs Bulambo had been detained, searched and when she had this discussion with him, he had already brought soldiers with him to take her to prison. The conclusions the Board has reached on this issue is speculative and appears to disregard the cultural differences between Canada and the DRC with respect to treatment of persons in positions of authority.
[11] The transcripts from the hearing do not indicate that Mrs Bulambo was unresponsive. On the contrary pages 286 to 293 indicates that she repeatedly indicated to the Board that she had no direct knowledge of the contents of the video cassettes, nor of the reasons for her arrest. She consistently stated that what information she had, she found out from others and she is careful to state "it appears" (il parraît, ma mère m'aurait expliqué...). The comments referred to at pages 289 to 290 of the transcript must be given meaning within the context in which they were made. Mrs Bulambo did not say that she found out what was on the video cassettes from the ANR, rumours and from a newspaper, but rather stated at page 290 that her husband's cousin "l'aurait appris"/ would have learned the information from ANR agents, rumours, a newspaper... and she is careful to add: "il paraît"/it seems, because her contention is that she has no first hand knowledge of the information. Mr Basila's testimony at page 400 of the transcript is consistent with that of his wife. He is cautious in expressing knowledge about the contents of the video cassettes and reiterates the position that none of their knowledge is first hand.
[12] With respect to the finding that it was implausible for a third party to have knowledge of the reasons for her arrest when she herself did not, I am not convinced that the Board's decision is supported by the evidence. The "U.S. Department of State Country Report on the Human Rights practices of the Democratic Republic of the Congo" which was included in the Department's file, states that "women (there) are relegated to a secondary role in society... and are required by law to obtain their spouse's permission before engaging in routine legal transactions... such as opening a bank account". Mrs Bulambo also testified that her brother-in-law had mistakenly been arrested by authorities who thought he was her husband and that the information she had gleaned came from his interrogation which was in turn related to her through her husband. Given these circumstances it is quite plausible that others might have a better understanding of the reasons for her arrest and the contents of the video cassettes than she herself.
[13] With regards to the document submitted by the applicants and Mrs Bulambo's failure to properly identify the "Invitation et Interrogation" document issued by the DRC National Intelligence Agency, I fail to see how her error in identifying the document contradicted her husband's evidence of an arrest warrant issued against her. At page 290, Mrs Bulambo states that the document was provided by her husband; her error in identifying it does not in and of itself establish a lack of credibility or documentary invalidity. The transcript shows at pages 359 to 363 that Mr Basila obtained the warrant from a cousin whose father worked for the DRC National Intelligence Agency. The Board, determines that the document is "in fact an arrest warrant", but appears to have simply ignored this evidence which is central to the applicants' claim and more so when it refers specifically to "boîte aux lettres" which such mention seems to support Mrs. Bulambo's testimony.
[14] Also, given the fact that Canada is an officially bilingual country and federal services are provided in both official languages regardless of whether they are requested in Montréal or Toronto, I have difficulty understanding the conclusion that the applicants' explanation for the delay in arriving in Canada was not credible. It would appear from the applicants' testimony that travelling with false documents limited the choices of destinations and obtaining documents for travel to the U.S. was less difficult than obtaining documents for Canada especially when accompanied by a young child. In Mrs Bulambo's case, her travel to Canada was completed in approximately 4 weeks, presumably while she was recovering from the after effects of detention and was pregnant. Her husband's explanation of having limited means because he was in hiding and delayed because of a failed attempt to obtain travel documents, even though the time lapse is quite long, is logical and, given the undisputed facts in this matter, is plausible. Furthermore, I find it credible that travel from Kinshasa to Brazzaville might vary depending on the political situation in the country at the time and his ability to obtain travel documents that would permit reunification with his wife and child might be more difficult from Brazzaville. Based on the record, the Board's decision in this matter appears speculative and does not provide sufficient basis for a finding.
[15] I have carefully considered these reasons as well as the submissions from the parties, and conclude that in consideration of the totality of the errors made that the reasons given are patently unreasonable and the Board's decision must be set aside.
[16] Counsels were ask to suggest questions for certification and they did not.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is granted and the matter is remitted to a differently constituted panel of the Board for redetermination. There is no question for certification.
"Simon Noël" Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5970-02
STYLE OF CAUSE: MITILA BULAMBO ET AL v. MCI
DATE OF HEARING: November 4, 2003
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: November 12th, 2003
APPEARANCES BY: Mr .Micheal Crane
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Micheal Crane
Barrister and Solicitor
166 Pearl Street, Suite 100
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent