Date: 20050127
Docket: IMM-10369-03
Citation: 2005 FC 124
Between:
CARINE NTUMBA
Applicant
- and -
DEPARTMENT OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review from a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board. According to that decision, dated December 4, 2003, the application is not a Convention refugee or a person in need of protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act (IRPA).
Facts
[2] The applicant is a citizen of the Democratic Republic of the Congo (DRC). Her father is a former Mobutu supporter. He had a transportation business whose buses were seized by the Kabila authorities. However, he was able to continue his activities with a few buses.
[3] The applicant claimed that in early 1999 a man came to her residence to question her about her father's buses. She said that soldiers came in and mistreated her, tried to rape her and burnt her. During another visit, the soldiers seized the buses. She also said that her father was kept in detention for five days.
[4] The applicant claimed that in 1999 she received visits from soldiers six times when her father was absent: they gave her summonses for her father which she had to sign. On the last of these visits, in December, she had to acknowledge the receipt of an arrest warrant issued against her father. Her father subsequently went to the military camp.
[5] In April 2001, when she was returning home, a neighbour stopped her to tell her the soldiers were at her house and that they had taken away her father. She remained in hiding with the neighbour for two days before going to Brazzaville. Subsequently, with the help of a smuggler, she came to Canada with her cousin through the U.S. on May 27, 2001. Her cousin in fact obtained refugee status in Canada.
Decision of the RPD
[6] First, the RPD noted that the applicant's identity had been confirmed despite the fact that the authenticity of her birth certificate was suspect. With respect to the credibility of the applicant's testimony, the RDP was not persuaded of the truthfulness of certain facts and it listed a few examples.
[7] First, the RPD referred to facts of December 1999 and did not find it credible that the authorities would be seeking the applicant today because of a warrant against her father in 1999. The authorities showed no interest in her in 1999. Further, no other incident occurred between December 1999 and April 2001.
[8] With regard to the events that occurred in April 2001, the panel noted that the applicant had not entered the date in her Personal Information Form (PIF), and the date was not added until September 2003. The panel found this omission significant and noted that the applicant's explanation in this regard was not satisfactory: consequently, the panel drew a negative inference from it.
[9] Also, the applicant was not in a position to provide explanations for the authorities' interest in her in 2001. Instead, her story was that the soldiers were interested in her father. Accordingly, the panel noted that there was not sufficient evidence to establish that the authorities were after the applicant, although the latter had worked for her father's business. On this point, the RPD observed that it had not been established that she had in fact worked for her father.
[10] The RPD did not find it plausible that the applicant and her family would be targeted by the authorities on account of her father's affiliation to the Mobutu supporters. The panel cited certain facts (children attending school, family having the services of a driver, residence in a district specially protected by the police) and concluded that the family enjoyed "an extraordinary lifestyle, far better than that of the overwhelming majority . . . the above-mentioned privileges cast serious doubt on the contention that the family was pro-Mobuto."
[11] Accordingly, in the view of the RPD, the applicant did not establish that there was a reasonable possibility that she would be persecuted by the authorities.
Applicant's arguments
[12] The applicant raised three issues. First, in her submission, the panel ignored relevant evidence about the events that took place in 1999. These facts are mentioned in the PIF and, at the hearing, the applicant's counsel tried to question her about this and the panel mentioned that these facts were clear and asked her to relate the events of April 2001. By acting in this way, the panel suggested that it accepted this evidence, but it was not considered in the panel's reasons. Its decision only commented on one of the events that occurred in 1999, in December. The panel objected that the applicant had not established why the authorities would be looking for her, but the RPD did not put these facts to the applicant and did not consider her testimony.
[13] Secondly, the applicant felt that the panel made determinations which were not supported by the evidence. The applicant established by her testimony that she had been sought in April 2001, but this testimony was not considered by the RPD. Further, the panel appeared to accept that the applicant's family was outside the DRC and that her father was dead, but the panel reached a contradictory conclusion when it then found that the family had not been targeted by the authorities. The panel further stated that the applicant had not proved that she was working in her father's business, when this fact was explained in her PIF and in her testimony.
[14] The applicant felt that another of the panel's conclusions presented a problem. The panel said that the family enjoyed an extraordinary lifestyle, although this issue was not discussed at the hearing and the evidence did not support such a statement.
[15] The RPD concluded that the applicant had adequate protection from the government: this finding was wrong, since her problems were caused by members of the security forces and the documentary evidence supported the applicant's contentions.
[16] Third, the applicant submitted that the panel based itself on irrelevant considerations in assessing her credibility. It drew a negative inference from the omission of the date of April 2001 from the PIF and thus stressed a detail that had been mentioned before the hearing began.
Respondent's arguments
[17] On the panel's failure to consider relevant evidence, the respondent simply answered that in the past this Court has refused to find that the panel has erred in failing to mention evidence.
[18] With regard to findings not being based on the evidence, the respondent maintained that the RPD had explained in detail the evidence on which it based its decision. As for the applicant's arguments about government protection, the respondent maintained that that factor did not have to be considered, since the RPD dismissed the claim on the basis that the applicant's allegations were not credible, not because she did not have government protection. Also, in the respondent's submission, the RPD explained the reasons why the applicant was not credible.
[19] Finally, the respondent argued that the failure to indicate the date of April 2001 was a significant omission, since this was the date of the incident which led the applicant to leave her country. On the matter of the applicant's work in her father's business, the respondent said that the applicant had to establish the validity of her allegations.
Analysis
[20] First, it is important to note that the standard of review in the case at bar is that of the patent unreasonableness.
[21] The courts have held that the RPD does not have to specify all the evidence on which it relies, but this aspect must be analyzed in terms of the relevance of the evidence which is not mentioned.[1]
[22] In this case, it should be noted that in the RDP's description of the events, it only mentioned that the applicant received visits from soldiers six times in 1999, and the facts of April 2001. Its description, under the heading "key events", is as follows:
The claimant maintains that when her father was away in December 1999 she was visited on six occasions by military force members and had to sign a document attesting that she had been given a warrant to bring her father to be taken to a camp and that she promised to notify her father of this on his return. Subsequently, the father went to the military camp as summoned.
[23] As to the credibility associated with these events, the RPD made the following conclusion about the facts that occurred in 1999:
[TRANSLATION]
The claimant said she feared being persecuted if she returned to her country because in December 1999 she had signed a document stating she received a warrant requiring her father to attend at a military camp. She further maintained that the Kabila authorities were seeking her because she was the eldest in the family and they suspected it was she who had her father's business documents.
The panel does not find it credible that the authorities are looking for her at the present time on account of a "warrant of committal" from December 1999. According to her testimony, she gave the warrant to her father when he arrived, and he went to the Bumba camp as required. At this point, the authorities showed no further interest in the claimant.
The claimant admitted there had been no other incidents between December 1999 and April 2001.
[24] Then, under the panel's conclusions for the 2001 incident:
[TRANSLATION]
However, the claimant was unable to provide satisfactory explanations to justify the interest the authorities allegedly took in her in April 2001, a year and a half after the 1999 events. According to her story, the soldiers who came to her residence at least six times in that period, even after allegedly having recognized her as a person who worked in her father's business, did not arrest her and did not take her with them, which clearly shows that she was of no interest to them. Throughout her testimony, her evidence was that the soldiers came for her father and not for her. Further, her story revealed that the neighbour saw the soldiers take her father away alone in April 2001.
. . . . .
The claimant did not discharge her burden of proof to establish that the authorities were interested in her. [Emphasis added.]
[25] The applicant's PIF contained nine paragraphs explaining in sufficient detail the events that occurred in 1999. In it she claimed, inter alia, that she was attacked in early 1999, she was struck, a soldier tried to attack her sexually and burnt her with an iron (paragraph 6). Also, a soldier pointed a weapon at her head (paragraph 7). She said she had also expressed her disagreement with the procedure followed by the authorities.
[26] At the hearing, the applicant was able only to give a brief account of the incident in December 1999,[2] since the panel told counsel that it did not [TRANSLATION] "need any more information. It is very, very detailed. I want to know what happened in April 2001".[3] According to the transcript, the panel then raised no questions about what happened in 1999.
[27] In its reasons, the RPD made no mention of the incident in early 1999 in which the applicant alleged she was the victim of attempted rape, when the soldiers mistreated and burned her. However, this incident is a major part of the applicant's story and enabled her to explain the interest taken in her by the Congolese authorities, but it was not dealt with by the RPD. Accordingly, when the panel did not find it credible that the authorities were looking for her on account of the arrest warrant for her father, it referred only to one of the incidents in 1999, and part of the evidence was therefore ignored.
[28] In accordance with the rules of natural justice, it is well established that an applicant must be able to submit his or her evidence and be able to testify, without being prevented from doing so by the panel. If the panel prevents certain explanations from being given, it cannot then blame the applicant for them.
[29] In Li v. Canada (M.C.I.), the Court concluded that "I do not think the Board can rely on a lacuna in the evidence when it has discouraged the adducing of evidence on that point, unless it subsequently puts questions concerning those facts to the applicant".[4]
[30] In Sivaraj v. Canada (M.C.I.), the panel said the following: "It is clear that the Board cannot discourage testimony on a point and then rely on the absence of evidence on it in its decision".[5]
[31] Also, the judgment in Veres v. Canada (M.C.I.) states:
One would not think it contentious to say that the person who has the onus of proof must be given a fair chance to meet that onus. In court proceedings, whether civil or criminal, the person with the onus of proof in the cause leads their evidence first and is then cross-examined. They controlled the process by which the evidence was put before the trier of fact. The same is not true where a claimant's personal information form is taken as read, the claimant is asked not to repeat everything that appears in it and the oral evidence begins with cross-examination. The person with the onus no longer has control of the process and is in the position of not knowing what needs to be said and what doesn't. In those circumstances, it is unfair to reproach claimants for having failed to provide some piece of evidence unless they have noticed that they are at risk on the issue.[6]
[32] First, the RPD did not want any explanation about the many incidents in 1999, when the soldiers went to the applicant's residence several times, including the incident in which she was the victim of a physical assault, second, the RPD objected that she had not established that the authorities had any interest in her. On account of this approach, part of the evidence could not be presented. In asking for explanations only about the incidents in April 2001, the RPD implied that it accepted the applicant's story about the 1999 events. Accordingly, it is not fair to then complain that the applicant has not discharged her burden of proof. That is a breach of the rules of natural justice.
[33] The RPD cannot ignore evidence and then complain that the applicant has not shown why the authorities were targeting her. This error by the RPD is sufficient to allow the application for judicial review.[7]
[34] As to the panel's conclusion about the applicant's employment, it was clearly established that she worked for her father's business. Her PIF mentions this and she was questioned about it at the hearing;[8] nothing in the evidence contradicts this aspect of the applicant's testimony. Accordingly, this determination is inconsistent with the evidence submitted.
[35] The panel's determination about the lifestyle of the applicant's family is curious. The panel drew a negative inference from the fact that the family enjoyed an unusual lifestyle, which cast doubt on the fact the family was pro-Mobutu. According to the transcript of the applicant's testimony, this issue was not addressed directly. The applicant explained how security was organized in her neighbourhood, and it was [TRANSLATION] "not out of the ordinary"[9] and why the family had the services of a driver.[10] Also, the RPD did not explain why it determined that the family was not targeted by the authorities.
[36] It noted that the evidence was not sufficient in this regard. However, after reading the transcript, I can say that these questions were not asked. At the hearing, much emphasis was placed on the issue of the applicant's testimony, her travel and identity documents and her efforts to locate her family since she has been in Canada.
[37] The Court must treat the RPD's findings with deference. In the case at bar, however, the RPD did not allow the applicant to testify about all the evidence in 1999 and so ignored part of the evidence, contrary to the rules of natural justice. Furthermore, some of its conclusions are not justified in light of the evidence submitted. Accordingly, the RPD's decision is patently unreasonable.
[38] The application for judicial review is allowed and the applicant's case referred back to the RPD for reconsideration by another officer for rehearing and redetermination of the application.
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"P. ROULEAU"
JUDGE |
OTTAWA, Ontario
January 27, 2005
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10369-03
STYLE OF CAUSE: CARINE NTUMBA v. THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, Ontario
DATE OF HEARING: January 19, 2005
REASONS: The Honourable Mr. Justice Rouleau
DATED: January 27, 2005
APPEARANCES:
Jacques Despatis FOR THE APPLICANT
Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jacques Despatis FOR THE APPLICANT
Ottawa, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] Cepeda-Gutierrez v. Canada (MCI), [1998] F.T.R. 35.
[2] Pp. 114-117, panel's record.
[3] P. 117, panel's record.
[4] [1994] F.C.J. No. 1109 (F.C.T.D.).
[5]Sivaraj v. Canada (M.C.I.), [1996] 120 F.T.R. 136.
[6] Veres v. Canada (M.C.I.), [2001] 2 F.C. 124 (F.C.T.D.).
[7] Sivaraj, supra.
[8] PIF, pp. 41 and 47; testimony, p. 213, panel's record. At p. 118 she also mentions that she returned to get the [TRANSLATION] "receipts" in April 2001.
[9] P. 212, panel's record.
[10] P. 214, panel's record.