Ottawa, Ontario, the 25th day of January 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MOSEKA MASUKI, CLAUDINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The human imagination, often translated into actions, has no limits beyond which acceptable standards can be breached. Justifications for these actions sometimes even exceed what society is willing to tolerate.
NATURE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act[1](the Act) of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated March 5, 2004. In its decision, the Board vacated the decision dated August 18, 1994, granting the applicant the status of Convention refugee within the meaning of section 96 of the Act.
FACTS
[3] A citizen of the Democratic Republic of the Congo (DRC), the applicant, Claudine Moseka Masuki, was granted refugee status on August 18, 1994, following an expedited process in which she simply submitted her Personal Information Form (PIF) and national identity card. According to Ms. Masuki's PIF, her husband was Director General of Presidential Telecommunications of the DRC under Mobutu. He was arrested by soldiers and, on September 27, 1992, [translation] "because he resisted the soldiers, my husband and his father were killed in front of us". Ms. Masuki fainted at the sight of this and regained consciousness in prison. She managed to escape and come to Canada.
[4] In spring 1999, as part of her application for permanent residence, Ms. Masuki provided her seven children's birth certificates and her husband's death certificate, which indicated he died at home on September 27, 1992. The birth certificates were analysed by an expert and determined to be forgeries. An analysis of the death certificate was inconclusive. A decision on the application for permanent residence was therefore deferred.
[5] On December 22, 1999, the Royal Canadian Mounted Police (RCMP) carried out three searches: the first was of two suitcases sent to Ms. Masuki, the second was of Ms. Masuki's home and the third was of her son's car. The first two searches were definitely legal, as they were done after a search warrant was duly obtained. The third search was carried out because Ms. Masuki's son, Papy (or "Fiston") Zamwangana, was at his mother's home at the time of the search and had keys in his pockets that the police used to unlock a car close by. During the first search, many documents were found, including official identity documents from Zimbabwe and Ivory Coast, three marriage certificates from Zaire, 10 birth certificates from Zaire, 30 blank US birth certificates, seals and stamps used to make official identity documents, as well as credit cards. In the second search, the RCMP found a Paymaster 9000 (used to issue cheques from the Canadian government) addressed to Ms. Masuki's son. The third search, of her son's car, turned up over 200 documents, including Ms. Masuki's husband's death certificate, indicating that he died from cardiac arrest on September 27, 1992, a number of identity documents bearing Ms. Masuki's photograph but under seven different names, Ms. Masuki's work permit issued by Immigration Canada, 13 birth certificates for her children, and many documents and equipment used to make identity documents. On April 3, 2000, the RCMP gave the respondent a report containing a list of all the items that were seized. The report has been entered into evidence.
[6] On the basis of this information and in accordance with subsection 109(1) of the Act, the respondent applied to the Board to vacate the protected person status of Ms. Masuki. The Board allowed the application on March 5, 2004.
ISSUES
[7] 1. Did the Board commit a reviewable error in finding that the evidence obtained during a search of the applicant's son's car was admissible?
2. Did the Board commit a reviewable error in finding that the applicant had misrepresented important and relevant facts?
3. Did the Board commit a reviewable error in finding that there was insufficient evidence to justify the granting of refugee protection?
ANALYSIS
1. Did the Board commit a reviewable error in finding that the evidence obtained during a search of the applicant's son's car was admissible?
[8] Before analysing the vacation decision in depth, I should identify which evidence the Board was allowed to take into consideration in its analysis. The legality of the first two searches, that is, of the two suitcases addressed to Ms. Masuki and of her home, is not being challenged, as the RCMP had obtained a search warrant for these purposes. The only issue is to determine whether the search of Ms. Masuki's son's car was legal, allowing the Board to take the items that were seized into account.
[9] It is an established principle in constitutional law that subsection 24(2) of the Canadian Charter of Rights and Freedoms[2](the Charter) provides a remedy only for an individual whose Charter rights have been violated (R. v. Wijesinha, [1995] 3 S.C.R. 422, [1995] S.C.J. No. 49 (QL), at paragraph 66). In R. v. Edwards, [1996] 1 S.C.R. 128, [1996] S.C.J. No. 11 (QL), at paragraph 45, the Supreme Court of Canada listed seven guiding principles pertaining to the nature of rights protected by section 8 of the Charter:
1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, [1987] 1 S.C.R. 588, at p. 619.
2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.
3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, supra.
4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.
5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.
6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256.
7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.
[Emphasis added.]
[10] In this case, Ms. Masuki expressly denied having any reasonable expectation of privacy. She does not own the car in which the items were seized and she dissociated herself from both the car and its contents. The only factor that could lead to the recognition of a reasonable expectation of privacy is Ms. Masuki's presence during the seizure, but this factor alone has very little weight in this case. Ms. Masuki therefore could not argue that the violation of her son's constitutional rights worked in her favour, and, consequently, the Board did not commit an error in admitting the items found in her son's car.
2. Did the Board commit a reviewable error in finding that the applicant had misrepresented important and relevant facts?
[11] Section 109 of the Act describes the circumstances in which a decision allowing a refugee claim can be vacated:
| (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.
(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.
|
|
(1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d'asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
(2) Elle peut rejeter la demande si elle estime qu'il reste suffisamment d'éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l'asile.
(3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
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Two death certificates
[12] The Board had two death certificates for Ms. Masuki's husband. Ms. Masuki submitted the first death certificate when she made her application for permanent residence in spring 1999. It was issued by Dr. M'Bomba Bosana of Kitambo Hospital in Kinshasa West. The document attests that Bongo Mokili died at home on September 27, 1992. The second death certificate was found in Ms. Masuki's son's car during the searches in December 1999. The document is from the Republic of Zaire and was issued by a different doctor, who attests that Bongo Mokili died of cardiac arrest in Kinshasa on September 27, 1992.
[13] According to Ms. Masuki, the Board could not conclude that the two death certificates were incompatible, because the medical cause of the death (cardiac arrest) is different from the circumstances of the death (at home).
[14] This argument is based on the fact that the Board came to a negative finding simply because of two certificates that seem to contradict each other with respect to the cause and circumstances of death. However, upon scrutiny of the reasons, the finding of a lack of probative value of the first certificate is based on at least two other major inconsistencies. First, the two certificates were not issued by the same doctor, and, second, her husband died at home according to one certificate and in hospital according to the other. The information on the certificates prompts some questions, which the Board asked at page 4 of its reasons:
Did he die at home or in hospital? Were the causes of death the result of torture or a cardiac arrest? Who is the physician who certified the death?
[15] The Court also notes that if, according to Ms. Masuki's PIF, her husband was killed because he resisted the soldiers, he did not die of cardiac arrest, as the second death certificate indicates.
[16] The Court feels that it was completely reasonable for the Board to disregard information surrounding the death of Ms. Masuki's husband, as it was not credible. Since the circumstances surrounding Ms. Masuki's husband's death were the central elements of her PIF and testimony, this major fact alone, which was misrepresented, was sufficient for the Board to vacate the decision that granted Ms. Masuki's refugee claim.
[17] Finally, the Court would like to respond to two final arguments submitted by Ms. Masuki concerning the two death certificates. She alleges that the Board committed an error in writing in its reasons that the first death certificate was obtained during the refugee claim process (rather than as part of her application for permanent residence). Although this is indeed the case, it has no impact on the analysis and findings with respect to the certificates themselves. This error does not require the Court's intervention. Ms. Masuki also alleges that the Board ignored her explanations to the effect that she had applied for the first certificate for her application for permanent residence and applied for the second certificate because the first one did not indicate a hospital. Again, the Board took these explanations into consideration, conducted its analysis and came to a reasonable conclusion.
Multiple identities
[18] The evidence on the record, that is, numerous documents seized during the December 1999 searches, reveals that Ms. Masuki had at least seven different identities. In addition, there is no doubt that the seven birth certificates of Ms. Masuki's children, which she submitted in 1999 in support of her application for permanent residence, were forgeries. The Board raised these identity issues and stated that, "Mrs. Masuki was known under several identities (Exhibit M-11) and had means of providing and producing documents at will as called for in the circumstances". In and of itself, the finding that Ms. Masuki had multiple identities was another important fact that justified the vacation of the decision granting her refugee status.
[19] Nevertheless, the Board should have explicitly indicated whether it dismissed the testimony of two people Ms. Masuki had testify at her hearing and the reasons for the dismissal. A woman living in Alberta testified over the telephone that Ms. Masuki was her sister. Another woman, Ms. Bienvenue, who was at the hearing, stated that Ms. Masuki was her mother. One or more witnesses who corroborate a claimant's identity is evidence that should not be disregarded. Ultimately, the Board was not bound to accept this testimony if, as in this case, other evidence is more credible, but it should definitely indicate, even if very succinctly, why it dismissed the testimony. Let me quote Pinard J.'s statements in Tshimbombo v. Canada (Minister of Citizenship and Immigration):[3]
However, the panel merely mentioned, without disposing of the testimony of a third party, who stated he was from the Democratic Republic of the Congo (DRC) and swore that the applicant was truly his brother and that both had the same father and mother. In my opinion, the panel's omission is serious because it relates to evidence from a third party concerning the very identity of the applicant, whose credibility is in question, and thus in and of itself justifies this Court's intervention.
The Board therefore committed an error in failing to dispose of the two testimonies. Nevertheless, the error does not affect the outcome of this case, as the findings related to Ms. Masuki's husband's death certificates are valid and sufficient to vacate refugee protection. The Board's error related to the two testimonies is therefore not critical and does not require the Court's intervention.
[20] With respect to the national identity card submitted by Ms. Masuki, the general rule according to which the Board is to take all submitted evidence into consideration applies, and the Board was not obligated to comment on its probative value, especially since a large number of documents cast fatal doubt on Ms. Masuki's identity.
Ms. Masuki's son's PIF
[21] In determining that Ms. Masuki misrepresented a material fact in her claim, the Board also relied on two PIFs submitted by her son, Fiston Elikya Zamwangana, as part of his own refugee claim. Both PIFs include glaring contradictions with respect to the number of Ms. Masuki's children and her husband's identity. Although the PIFs were both very relevant and informative, the respondent did not submit them into evidence for the hearing on the vacation of Ms. Masuki's status. The Board simply quoted excerpts of Ms. Masuki's son's negative decision, which discussed and commented on the contents of the PIFs.
[22] The Court agrees with Ms. Masuki that the Board should not have relied on evidence-Ms. Masuki's son's two PIFs submitted as part of a different claim-that had not been entered into evidence as part of the hearing concerning Ms. Masuki. Simply referring to a decision that itself referred to evidence was insufficient. In so doing, the Board committed an error that breached natural justice. A party must be aware of the evidence against it to have a chance to respond to it. However, since this breach of natural justice would not lead to a different outcome in this case (the findings with respect to Ms. Masuki's husband's death certificates are still valid and sufficient to vacate protection), the error does not require the Court's intervention [Yassine v. Canada (Minister of Employment and Immigration),[4] Kabedi v. Canada (Minister of Citizenship and Immigration)]. [5]
[23] Ms. Masuki also alleges that, because the Board based its decision on two pieces of evidence (Ms. Masuki's son's two PIFs) that were not on the record, there is a reasonable apprehension of bias, since the Board had already denied Ms. Masuki's son's claim for refugee protection. The Court dismisses this argument, since it is merely a technical or procedural breach. In other words, quoting a decision containing relevant information without entering the source document itself into evidence is the error. It is not indicative of a biased or malicious attitude on the part of the Board. In addition, the fact that the Board heard Ms. Masuki's case after denying her son's refugee claim also does not constitute an apprehension of bias, unless, of course, more specific evidence were to be adduced in this regard. This is not the case.
3. Did the Board commit a reviewable error in finding that there was insufficient evidence to justify the granting of refugee protection?
[24] According to Ms. Masuki's PIF, she was detained and fled to Canada in search of protection because of the incident on September 27, 1992, when her husband was killed by soldiers (or died of cardiac arrest in front of the soldiers and Ms. Masuki, according to the second death certificate). Since the information surrounding Ms. Masuki's husband's death is not credible, there is insufficient evidence to justify granting refugee protection to Ms. Masuki. The Board therefore correctly vacated the decision granting Ms. Masuki's refugee protection claim.
CONCLUSION
[25] In spite of the clarifications in response to the second issue, the Court answers the three questions in the negative, and will dismiss this application for judicial review.
ORDER
THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.
Michel M.J. Shore
Judge
Certified true translation
Jason Oettel
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3047-04
STYLE OF CAUSE: MOSEKA MASUKI, CLAUDINE v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 17, 2005
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
DATED: JANUARY 25, 2005
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
DOYON, MORIN FOR THE APPLICANT
Montréal, Quebec
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
[2] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[5] [2004] F.C.J. No 545 (QL) at paragraph 10.