Date: 20030408
Docket: IMM-2176-02
Citation: 2003 FCT 411
Ottawa, Ontario, the 8th day of April 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
LOUBERCLAUDE LY BOUNGOU TSAKALA
ESTERONE DIVINE MOUSSAMBOTE-LOUBERT
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD), dated April 17, 2002, that the applicants are not Convention refugees.
[2] The applicant, Louberclaude Ly Boungou Tsakala, who was born in 1975, and her minor daughter, Esterone Divine Moussambote-Loubert, are citizens of the Republic of Congo (Congo). They allege that they have a well-founded fear of persecution at the hands of Congo authorities should they return to that country by reason of their ethnic group (they are Lari from the region of the Pool), their perceived political opinions (opponents of the new regime of President Sassou N'guesso) and their membership in a particular group, that of the family given the relationships with Messrs. Pierre Boungou Tsakala, the father of the adult applicant, and Moussambote Aimé-Claude, the father of the child.
[3] The applicants based their claims on the following alleged facts:
- Mr. Tsakala was once the cultural advisor to President Lissouba. When the latter was overthrown by the victory of the new President Sassou N'guesso, the father had to leave Congo and go to Ivory Coast;
- In the same period, Mr. Moussambote, who was working in military intelligence, was arrested and jailed for close to four months;
- On December 18, 1998, Mr. Moussambote left the country and went to the Democratic Republic of the Congo (DRC) and the applicants left Brazzaville to go to Pointe-Noire;
- On February 13, 2000, the principal applicant was kidnapped and taken to the Mvou Mvou public security station to be questioned about the father of her daughter. She also alleges that she was raped;
- The applicant left Congo with false identity documents on October 20, 2000, and with the assistance of some police officers.
[4] The CRDD did not question the applicants' identity and citizenship. However, following the reasons, the CRDD found that:
The obvious lack of subjective fear on the part of the claimant, combined with contradictions and implausibilities concerning essential elements of her claim, for which she was unable to provide satisfactory explanations, has irremediably undermined the credibility of her testimony as a whole.
[5] The CRDD reasons indicate that it based this conclusion on various discrepancies such as contradictions, inconsistencies and improbabilities, and on certain comments in the course of her testimony that were interspersed with hesitations and uncertainty. The CRDD's conclusion that she lacked a subjective fear was based on the lengthy period that elapsed between the occurrence of the events supporting the fear of persecution and their flight from Congo, the travels by the applicants following the events and the travel by the child's father, and the circumstances surrounding the applicants' flight from Congo.
[6] The applicants argue that the CRDD did not give reasons for its decision, that it erred in its assessment of the evidence concerning the credibility of the principal applicant, and that it erred in failing to consider the objective documentary evidence in relation to living conditions in Congo. The applicants also contend that the CRDD failed to comply with the rules of procedural fairness by demonstrating bias. Finally, it is submitted that the CRDD did not comply with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, constituting Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 (the Charter) and Canada's international obligations in regard to deportation.
[7] Contrary to the applicants' allegations, I am of the opinion that the CRDD gave sufficient reasons for its decision. I can say that the CRDD amply specified its reasons and to a substantial degree relied on the facts disclosed by the applicant in reaching its conclusions. This being said, the CRDD did not commit any patent error on this point.
[8] The CRDD based itself primarily on the Personal Information Form (PIF) and the testimony of the principal applicant in determining that her story was not credible owing to improbabilities and contradictions. However, the applicant argues that she testified credibly and coherently and that the CRDD failed to assess the applicants' evidence for what it was worth. On this, I can only reiterate what is laid down in the cases: insofar as the CRDD's findings are not patently unreasonable, made in a perverse or capricious manner or without regard for the material before it, the Court should not intervene to substitute its opinion for that of the CRDD and/or to set aside the decision.
[9] In the case at bar, the applicants have not demonstrated to me how the CRDD patently erred in the analysis it made of the facts and the conclusions it drew from them. In my opinion, the applicants are attempting to substitute their own opinion for that of the CRDD in respect of the assessment of the credibility of their statements and the probative value, relevance and sufficiency of the testimonial and documentary evidence submitted.
[10] I would add, moreover, that the applicants are attempting to minimize the items addressed in the findings of the CRDD, characterizing them as "secondary", when the applicants themselves cited these items as the basis of their claim.
[11] The applicants argue that the CRDD did not consider the objective documentary evidence dealing with the situation in Congo and that if it had done so it would have found that the applicants' claim was well-founded. The case law in this regard is very clear. It is not sufficient for an applicant to simply base himself on the objective documentation pertaining to the living conditions in the country in which he fears persecution in order to demonstrate a well-founded fear of persecution; a refugee claimant must absolutely and necessarily demonstrate both components of the fear, that is, a subjective fear and an objective fear. If a refugee claim could be determinative solely through the analysis of the objective documentary evidence, then anyone could read one of the stories that one finds in the cases and adopt it as his or her own.
[12] This is especially true in this case, since the CRDD determined that the applicants' conduct in Congo had been incompatible with a subjective fear, so it was not necessary for the CRDD to make a finding in regard to the objective evidence. However, I am convinced that it did nevertheless consider this evidence since it had to refer to it in order to complement the applicant's testimony as to certain dates.
[13] Concerning the natural justice argument to the effect that the CRDD hearing was unfair to her, that the chairman took control of the examination, I have examined the transcript and I disagree with this suggestion. The applicants were represented by counsel and at no time did he raise any concern in this regard.
[14] Overall, the hearing was well conducted and the questions raised demonstrate a search for the truth and a concern for detail.
[15] As to the applicants' third submission, that their deportation would violate the Charter, this Court has already considered this question. On several occasions it has confirmed that the CRDD does not have jurisdiction to apply the various international instruments cited by the applicants. In fact, the Court has written that it was simply premature to invoke them at the stage where the CRDD's sole jurisdiction is to determine whether or not a claimant is a Convention refugee [Sandhu v. Canada (M.C.I.) (2000), 258 N.R. 100 (C.A.), Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3, Arica v. Canada (M.E.I.), [1995] F.C.J. No. 670, Kofitse v. Canada (M.C.I), [2002] F.C.J. No. 1168].
[16] Counsel did not submit any question to be certified. There is no question to certify.
JUDGMENT
THE COURT ORDERS THAT:
This appeal be dismissed.
"Simon Noël"
Judge
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-2176-02
STYLE:
LOUBERCLAUDE LY BOUNGOU TSAKALA
ESTERONE DIVINE MOUSSAMBOTE-LOUBERT
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 19, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE S. NOËL
DATED: April 8, 2003
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANTS
Christine Bernard FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada