Date: 19980824
Docket: IMM-3871-97
OTTAWA, ONTARIO, AUGUST 24, 1998.
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
Between:
AGBODOH-FALSCHAU Kouassi
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
ORDER
The application for judicial review is allowed. The panel's decision is set aside and the matter is referred back to a different panel for reconsideration.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
Bernard Olivier
Date: 19980824
Docket: IMM-3871-97
Between:
AGBODOH-FALSCHAU Kouassi
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
I. This is an application for judicial review of a decision of the Refugee Determination Division of the Immigration and Refugee Board determining that the applicant is not a Convention refugee.
II. The applicant has Togolese citizenship. In support of his claim, he alleged that he had a reasonable fear of persecution by reason of his political opinion.
III. The applicant is a founding member of the Association des jeunes forces patriotiques pour le changement (AJFPC) [association of patriotic youth forces for change]. This is a party that is affiliated with the UFS opposition party.
IV. He claims that he was arrested by soldiers on February 1, 1993, while he was handing out tracts calling for soldiers who had killed people to be arrested.
V. His house was peppered with bullets on March 25, 1993. His brother was seriously wounded in the incident. Subsequently, his family decided to go into exile in Benin and in Ghana.
VI. On August 30, 1993, the applicant was again arrested by the police for handing out tracts, for making defamatory statements against the head of state and for holding prohibited meetings. He was detained for two weeks, tortured and denied food.
VII. On February 20, 1996, the applicant wrote a tract denouncing the arrest of Gilchrist Olympio, the leader of the UFC, at the Milan airport. The tract was discovered by the authorities, who threatened to arrest the authors. In March 1996, the applicant left his country.
VIII. The panel rejected the claim. It found that the applicant's testimony was not credible, having regard essentially to the documentary evidence which did not support the applicant's assertions.
IX. More precisely, the panel concluded that the documentary evidence, which consisted of the 1996 Amnesty International Report and the Country Reports on Human Rights Practices, 1996, did not make any mention of [translation] "any undue pressure against members of the AJFPC".
X. While the two reports in fact contain no mention of the AJFPC, nonetheless it is wrong to say that they do not support the applicant's assertions. The two reports describe the intolerance and hostility of the Eyadema government toward the political opposition. The Amnesty International report states:
Throughout the year, there were reports that the Forces armées togolaises, the Togolese Armed Forces, harassed and intimidated opposition supporters and human rights activists.[1]
XI. The Country Reports on Human Rights Practices, 1996 notes the following:
The Government does not openly restrict the functioning of political opponents, but the President uses the strength of the military and his government allies to intimidate and harass citizens and opposition groups. ...
The Government's human rights record is poor. ... Security forces were responsible for extrajudicial killings, beating, arbitrary detention, and interference with citizens' movement and privacy rights. ... There were instances of infringement of freedom of speech and the press by security forces and the Government, including investigative detention to harass journalists and political opponents, and suspension of newspaper publication.[2]
XII. The panel could therefore not have inferred that the applicant's account was implausible, based on this documentary evidence.
XIII. In addition, the panel did not make any reference in its reasons to the medical report filed in evidence.[3] That report is dated July 16, 1996, and was prepared by Dr. Pierre Dongier, who examined the applicant here in Canada. The report corroborates the applicant's allegations, to a point. Dr. Dongier states that the applicant [translation] "presents physical marks, as well as psychological symptoms, that are consistent with his description of the violence he says was done to him".[4]
XIV. Although the panel did not have to comment on all the evidence in the record, it did, in my opinion, have to address this report and explain why it placed no weight on it. As Gibson J. stated in Atwal v. Canada (Secretary of State):[5]
It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.
XV. The same conclusion applies to other evidence, including the letter dated March 12, 1997, signed by Messan Setodji, the assistant international secretary of the AJFPC.[6] Mr. Setodji confirms that the applicant held the position of coordinator of the association starting in October 1994. He also confirms that the applicant was arrested on August 30, 1993, and was subjected to intimidation by the Togolese authorities. This letter directly corroborates the applicant's account. The panel gave no explanation as to the probative value of these documents.
XVI. These errors are sufficiently serious to vitiate the panel's decision. Accordingly, the application for judicial review is allowed. The panel's decision is set aside and the matter is referred back to a different panel for reconsideration.
Daniele Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
August 24, 1998.
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-3871-97
STYLE OF CAUSE: KOUASSI AGBODOH-FALSHAU
-AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 21, 1998
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE
TREMBLAY-LAMER
DATED: AUGUST 24, 1998
APPEARANCES:
JEAN-FRANÇOIS FISET
FOR THE APPLICANT
LISA MAZIADE
FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEAN-FRANÇOIS FISET
MONTRÉAL, QUEBEC
FOR THE APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL
OF CANADAFOR THE RESPONDENT