Date: 20040817
Docket: IMM-6501-03
Ottawa, Ontario, the 17th day of August 2004
Present: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
CLAUDE MANEGABE MULIRI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel) under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). In that decision, the panel determined that the applicant did not qualify as a "Convention Refugee" within the meaning of section 96 of the Act, and was not a "person in need of protection" pursuant to section 97 of that same Act.
FACTUAL BACKGROUND
[2] The applicant is a citizen of the Democratic Republic of Congo (DRC) and alleges that he has a well founded fear of persecution on the basis of his perceived political opinion.
[3] The applicant alleges that his father was arrested by the authorities of the DRC and imprisoned on May 3, 2000, because he was accused of being an informer for Rwanda.
[4] According to the applicants' claims, the claimant's father was assassinated in October 2000. After this incident, the applicant was allegedly protected by one clergyman, Father Raymond Kongolo. At the end of his secondary school studies, the applicant was sent to South Africa to continue his studies.
[5] On October 11, 2001, the applicant returned to Kinshasa in the DRC in order to settle an inheritance problem after his father's death. At that time, the applicant contends that he had been told that some friends had been arrested because of their Rwandan morphology. Further, the applicant also states that his brother was arrested by the police.
[6] On January 26, 2002, a group of young people forced open the door to the residence where the applicant was living. After that incident, the applicant took refuge at Father Kongolo's home.
[7] On February 6, 2002, the applicant left his country to go to South Africa, with a visa so that he could continue his studies. In South Africa, the applicant obtained a visa to come to Canada. On July 13, 2002, he left South Africa and arrived in Canada the next day after passing through Switzerland.
[8] When he testified before the panel, the applicant said that his father was a shopkeeper and that the applicant had to flee his country and come to Canada because of the problem his father had with the authorities in the DRC. However, the applicant's application record for the visa to come to Canada that the claimant had filled out on April 29, 2002, in South Africa refers to facts that contradict those mentioned in the applicant's testimony before the panel.
[9] In fact, in reviewing the record of the visa application, which was filled out on April 29, 2002, we note that the applicant had written that his father was alive and was employed by the government of the DRC. His father worked for the Department of Security while his mother was employed by the DRC's National Social Security Institute. Moreover, the same document indicates that the applicant's father was the person who paid the cost of the applicant's trip to Canada.
IMPUGNED DECISION
[10] The panel reviewed all of the evidence and determined that the applicant's story was not credible. In the eyes of the panel, the existence of the two contradictory versions mentioned above greatly undermined the applicant's credibility. The panel confronted the applicant about this major contradiction. The applicant explained to the panel that he lied to the authorities of the Canadian Embassy in order to obtain a Canadian visa. The panel was not satisfied with the explanation given by the applicant. At this point it is appropriate to reproduce the relevant passage from the panel's decision:
The claimant told the panel that he had lied to the authorities at the Canadian embassy in order to obtain a Canadian visa. The panel does not believe the claimant, since the information he submitted to the Canadian authorities was easy to verify. Moreover, the panel has taken into consideration the fact that the claimant was in South Africa when he made the visa application and was not in any danger.
The panel finds that the claimant made up his story from start to finish.
Page 2, panel's decision
ISSUE
[11] Was the panel's decision based on erroneous findings of law or findings of fact made in a perverse or capricious manner or without regard for the material before it?
APPLICANT'S ARGUMENTS
[12] First, the applicant argues that the panel made a patently unreasonable error in deciding not to accept the explanation given by the applicant to justify the contradictory versions, i.e. that he lied to the Embassy to obtain the visa, which he did not think he could have obtained if he had told the truth about his father's fate.
[13] Then the applicant notes that, apart from his testimony, he called a witness (Mr. Zagabe) who, based on his contacts with organizations working to defend human rights, testified to the risk of persecution of individuals of Rwandan origin in the DRC, the applicant's Rwandan ethnicity and the news that he received about the assassination of the applicant's father.
[14] Further, the applicant points out that he filed a number of documentary exhibits corroborating the risk of persecution for people like him associated with the Rwandans and an exhibit confirming his father's death.
[15] The applicant points out that the panel completely disregarded his evidence, thereby violating the fundamental principle requiring the panel to consider and assess all of the evidence, and especially, to examine the evidence corroborating an applicant's case and the situation in the applicant's native country as well as the experiences of people who are in an analogous situation in the same country.
RESPONDENT'S ARGUMENTS
[16] The respondent begins by pointing out that the panel must assess the credibility of the evidence filed and that, unless the applicant can show that the panel's inferences could not have been drawn reasonably, the Court cannot intervene.
[17] The respondent points out that in this case the panel confronted the applicant with the contradictory statements and properly determined that the applicant was unable to credibly and satisfactorily explain this major contradiction in his evidence.
[18] The respondent submits that the panel, as the trier of fact, is in the best position to draw reasonable inferences with regard to the credibility of the applicant's story, relying on the lack of plausibility, common sense and reason, and that in this case the inferences drawn by the panel are far from being unreasonable.
[19] Finally, with respect to the statement of the witness Mr. Zagabe, the respondent notes that it was devoid of any probative value because it was hearsay and was therefore inadmissible. The respondent submits that the panel nevertheless considered that evidence, relying on the presumption that a decision-maker will take into account all of the evidence submitted to it.
ANALYSIS
Standard of judicial review
[20] It is self-evident that the panel has a well-established expertise when deciding questions of fact, and in particular when assessing the credibility of refugee claimants. In fact, the assessment of the facts is at the very heart of the panel's jurisdiction.
[21] In Solis v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 372, Evans J. , then sitting in Trial Division, explains the judicial deference that the Court must exercise when reviewing a purely factual decision resting on credibility. At paragraph 3 of his decision, he states:
¶ 3 It is trite law that this Court is reluctant to set aside decisions of the Board on the basis on the basis of a credibility finding, because such findings are at the heart of the specialized jurisdiction of the Board as the trier of fact.
.
Application of the standard
[22] That said, there is no doubt that this judicial deference does not amount to a blind acceptance of the findings of fact drawn by the panel, without any critical analysis by the Court. In fact, the judicial review process exists to ensure that administrative tribunals do not venture into the absurd thinking that they can make findings of fact which simply do not stand up and which are, to use the legal term, patently unreasonable.
[23] In this case, the panel's finding is one whose review could prove to be very useful for any jurist trying to grasp the true meaning of the expression "patently unreasonable", because it is a perfect example.
[24] In fact, as stated above, the panel in this case disregarded the explanation given by the applicant at the hearing for the simple reason that "the information he submitted to the Canadian authorities [may be] easy to verify".(Emphasis added)
[25] Easy to verify, perhaps, but there is nothing in the record indicating that that information was indeed verified. In my view, the panel should have advocated a proactive approach and done more than accept one version of the facts for the simple reason that it could have been verified. The panel perhaps should have attempted to verify the first version, especially since it was easy to verify, which was not done. (See Owoussou v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 809, for an example of an inquisitorial approach by an immigration officer).
[26] As drafted, the panel's decision cannot escape this Court's intervention. In light of the foregoing, we need not say more on the applicant's argument regarding the panel's omission to consider relevant evidence.
ORDER
THE COURT ORDERS that the application for judicial review shall be allowed.
The file is referred to a differently constituted panel for redetermination. No serious question of general importance is certified.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6501-03
STYLE OF CAUSE: CLAUDE MANEGABE MULIRI
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 20, 2004
AND ORDER: HARRINGTON J.
DATE OF REASONS: AUGUST 17, 2004
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Christine Bernard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Johanne Doyon FOR THE APPLICANT
Doyon & Morin
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada