Ottawa, Ontario, June 15, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of the Democratic Republic of Congo (DRC). He bases his claim for protection on an alleged fear of persecution by reason of his political and financial support to the “Rwandophones du Sud Kiwi”. In a decision dated June 12, 2006, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rejected the claim. The Applicant seeks judicial review of that decision.
[2] The Board did not believe the allegations of the Applicant, principally for the following reasons:
- The Board noted that the alleged acts of persecution had taken place in Bukavu during a time when the Applicant stated, in the Inland Processing Interview (IPI) Form, that he was a student in another city;
- The Board further noted that the addresses given by the Applicant on his Personal Information Form (PIF) and the IPI Form were inconsistent; and
- The Board found that discrepancies in the number and timing of his alleged detention (or detentions) undermined his credibility.
Issues
[3] The Applicant alleges that the Board erred in each of the reasons provided. Thus, the issues in this application are the following:
- Did the Board err by failing to comprehend the whole explanation provided for the discrepancies regarding the dates when the Applicant was studying and by expecting the Applicant to correct not only his PIF, but the IPI Form?
- With respect to the confusion surrounding his address, did the Board err by failing to have regard to the fact that two different addresses were provided on the IPI form?
- Did the Board err by failing to put the inconsistency on the number of detentions to the Applicant?
Analysis
[4] As noted above, the foundation of the Board’s decision was an overall finding that the Applicant’s story of persecution was not credible. With respect to the first two issues, the Applicant is, in essence, questioning findings of fact. As such, the standard of review is that of patent unreasonableness, meaning that the decision will only be overturned where the Board has made a finding (i) in a perverse or capricious manner, or (ii) without regard for the material before the Board. Further, any error of fact must be material to the decision.
[5] The third issue relates to an alleged breach of procedural fairness, which is not reviewable on any particular standard. Rather, if a breach of procedural fairness is found, the Court must set aside the decision.
[6] Also, we must not lose sight of the main issue before the Board – specifically, the Applicant’s location during the alleged persecution. Moreover, the onus is on the Applicant to make the case that he was in Bukavu during the alleged persecution as refugee claimants carry the onus of establishing all of the components of their claims (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 at para. 6).
[7] With this in mind, I now turn to the specific alleged errors in the Board’s decision.
Issue #1: Did the Board err by failing to comprehend the whole explanation provided for the discrepancies regarding the dates when the Applicant was studying, and by expecting the Applicant to correct not only his PIF, but the IPI Form?
[8] At the outset of the Board hearing, the Applicant’s counsel corrected two errors in the documents before the Board and then stated that the remainder was “juste et exacte”. He did not make any correction to the IPI Form. The Board noted an important discrepancy between the PIF and the IPI Form, namely that the persecution described by the Applicant was alleged to have taken place in Bukavu, while it was written on the IPI Form that he was a student in Kinshasa at that time. The Board then used this discrepancy to support its conclusion that the Applicant was not credible.
[9] The Applicant asserts that the Board failed to comprehend his explanation that someone else had written the statements in the IPI Form and that the Board erred by expecting the Applicant to correct the IPI Notes at the hearing.
[10] First, it must be noted that there were obvious contradictions between the information on the IPI Form and the PIF. Given the fact that the Applicant failed to avail himself of the opportunity to correct the errors on the IPI Form, both at the time the Form was filled out and at the beginning of the hearing, the Board rejected the Applicant’s explanation that these contradictions just showed that there was an error on the Form.
[11] The Applicant attempts to discredit this finding by stating that it was patently unreasonable for the Board to find that the Applicant would have been able to correct the IPI Form at the hearing or at the time it was filled out. On this, I do not agree. Not only was the Applicant’s counsel able to correct other errors at the beginning of the hearing, but the Applicant signed the declaration at the end of the IPI Form to the effect that all the information provided in this document was accurate and complete. Regardless of whose handwriting was on the Form, there is no question that the Applicant indicated that all of the information was “juste et exacte”. Since the Applicant, through his counsel, interjected to make corrections to the PIF, it was not unreasonable for the Board to assume that other errors, whether in the PIF or other filed documents, would have been corrected.
[12] There was no reviewable error.
Issue #2: With respect to the confusion surrounding his address, did the Board err by failing to have regard to the fact that two different addresses were provided on the IPI form?
[13] The second aspect of the Applicant’s story which raised doubts as to his credibility, had to do with the multiple addresses which he provided on his PIF and IPI Form, as well as in the course of the hearing. The Applicant acknowledges that there was confusing information in the filed evidence with respect to his address. The evidence and the explanations of the Applicant can be summarized as follows:
- In his IPI Form, he gives his address between 1995 and 2005 as being 23 avenue Kasavubu in Bukaru and 5 avenue Marine in Kinshasa. While he explained that the Kinshasa address was his parents’ address which he also used, there were other discrepancies.
- In his PIF, it is written that he resided instead at 40 avenue Kasavubu between 1995 and 2004. He explained this discrepancy at the hearing by saying that, during this time period, he lived at both of these addresses. He then said that he lived at 23 first, then 40, and subsequently reversed that order in his explanation to the Board, as shown at page 15 of the transcript of the Board hearing.
- As for his UDPS membership card, the address listed is 639 avenue Yumbu in Kinshasa. He explained this discrepancy by saying that his parents owned two parcels of land; the first on Marine avenue is where the house is, but he could still use both addresses.
[14] The Board’s conclusion on this was to the effect that such confusion did not allow it to determine where the Applicant truly lived during the period when he was allegedly persecuted and that this supports a finding of lack of credibility.
[15] The Applicant’s argument in challenging this finding of the Board is that the Board erred when it ignored evidence explaining apparent inconsistencies and then made an adverse credibility finding (Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (FCA)). Or, in the same vein, the Applicant argues that the Board cannot ignore a claimant’s logical explanation for a minor inconsistency that is irrelevant to the substance of the argument (Wei v. Canada (Minister of Citizenship and Immigration), 2002 FCT 285).
[16] The problem with this argument is that the Board did not ignore evidence as much as disbelieve the explanation provided by the Applicant, an explanation which the Board clearly did not find compelling regarding an inconsistency which, far from minor, actually went to the heart of the claim. There is thus no reviewable error.
Issue #3: Did the Board err by failing to put the inconsistency on the number of detentions to the Applicant?
[17] The Applicant’s claim that he would be at risk should he be forced to return to the DRC is premised on the fact that he has already been arrested and tortured for his actions (or opinions). When asked to provide the specifics of the arrest, he gave two different dates and two different durations for what should have been the same event. In the IPI Form, at question 4, the Applicant clearly wrote that in 2004, he was arrested and detained for 30 days, during which time he was beaten and tortured. This is the same information that was written down by the immigration officer in his interview notes. In his PIF, however, the Applicant wrote that he was arrested in 2003 and detained for 15 days, following an attack by Mai Mai soldiers, and that he was beaten and tortured. He then wrote that he was subsequently arrested eight or nine times and detained each time for approximately 15 days. The Board concluded that this conflicting evidence also undermined the Applicant’s credibility. However, this was not raised by the Board during the hearing.
[18] The Applicant now alleges that the Board erred by failing to put these inconsistencies to the Applicant and thus allowing him an opportunity to clarify the evidence.
[19] There is no question that there are major discrepancies in the number and timing of the detention (or detentions). These are conspicuous discrepancies that go to the heart of the claim of persecution, and it was reasonable for the Board to make an adverse finding of credibility on that basis. The question raised by the Applicant is whether the Board had an obligation to put these inconsistencies to the Applicant before relying on them.
[20] I agree with the Applicant that this is the sort of inconsistency that “cries out for explanation”. However, it is also true that not every contradiction must be put to a claimant (Ngongo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627 (F.C.T.D.) (QL)). In this case, the discrepancy is obvious and comes from the Applicant’s own signed statements. Further, the Applicant was represented by counsel at the hearing and, therefore, the matter could have been raised during examination by counsel.
[21] The Applicant bolsters his arguments on this point by referring to a brief notation in the declaration annexed to the notes taken by the immigration officer during the interview at the Etobicoke office (part of the IPI Form). In that declaration, there is a mention that the Applicant suffered, on a number of occasions (“à mainte reprise”), from abuse at the hands of the authorities. This, according to the Applicant, corroborates rather than contradicts his allegation that he was detained on numerous occasions (8 or 9 times as per the PIF) after the initial arrest, and should have been considered by the Board.
[22] While the Applicant is correct in stating that the Board failed to mention this, it is also true that having suffered at the hand of the authorities is not necessarily the same thing as having been arrested and detained for weeks on eight or nine occasions. It was not unreasonable for the Board to focus on the references to detention and not to refer to these alleged abuses.
[23] In sum, the evidence on the Applicant’s detention (or detentions) showed discrepancies that were glaring and that did not require interpretation or conjectures on the part of the Board. As such, the failure of the Board to put this contradiction to the Applicant at the hearing does not amount to a reviewable error.
Conclusion
[24] In conclusion, when read as a whole, I find that the decision of the Board is not patently unreasonable, nor does it disclose a breach of procedural fairness. I am not persuaded that the decision of the Board should be overturned and, therefore, the application for judicial review will be dismissed.
[25] Neither party proposed a question for certification. I agree that the issues in this case do not raise a question of general importance and will not certify a question.
ORDER
This Court orders that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
Judith A. Snider
__________________________
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3815-06
STYLE OF CAUSE: SHAKO DJEDI v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12, 2007
REASONS FOR ORDER
APPEARANCES:
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Mr. Micheal Crane
|
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Mr. Lorne McClenaghan |
SOLICITORS OF RECORD:
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Micheal Crane Barrister and Solicitor Toronto, Ontario
|
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John H. Sims, Q.C. Deputy Attorney General of Canada |