Docket : IMM-2645-03
Ottawa, Ontario, this 24th, day of March, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
CHARLOTTE KABEDI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated 26 March, 2003 wherein the Applicant was denied Convention refugee status and found not to be a person in need of protection.
STANDARD OF REVIEW
[2] The only ground for this application is the credibility and plausibility findings of the Board. The Board rejected the Applicant's refugee claims because it found that the evidence was not credible. The Board is an expert tribunal in determining refugee claims, has direct access to the testimony of the witness, and is usually in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor the Federal Court of Appeal said:
Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[3] In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 para 11, before a credibility finding of the Board is set aside, one of the following criteria must be established:
1. The Board did not provide valid reasons for finding that an applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[4] Credibility findings of the Board are therefore entitled to the highest degree of deference, and should only be set aside in accordance with the criteria set out above. With respect to credibility or plausibility, the Court should not substitute its opinion for that of the Board except in the "clearest of cases".
[5] This being said, the Board is nonetheless bound by the Refugee Protection Division Rules and, in the present case, specifically by Rule 18 which reads as follows:
"Before using any information or opinions that is within its specialized knowledge, the division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing and give them a chance to:
a) make representations on the reliability and use of the information or opinion; and
b) give evidence in support of their representations."
ISSUES
[6] A. By not informing the Applicant that it intended to use specialized knowledge to render its decision, has the Board committed a reviewable error that is determinative?
B. If necessary, determine whether the Board made findings of credibility which were not supported by the evidence or founded its decision simply on opinions given without proper basis?
SUMMARY OF THE FACTS
[7] The Applicant is a citizen of the Democratic Republic of the Congo (DRC). She alleges a well-founded fear of persecution based on her political opinions, as a member of the UDPS and because of her membership to a particular social group, women who are victims of harassment. The Applicant essentially based her claim before the Board on the fact that in May, 2000, after obtaining employment at the Kinshasa city hall, that the vice-governor, Christophe Muzungu, had sexually harassed her, threatened her and visited her home without her consent. The claimant further alleged that on October 28th, 2000 some soldiers arrested her and took her blindfolded to prison where they interrogated her and accused her of membership in the UDPS. She also alleged that on November 9, 2000 three men took her from the prison by van, to a wooded area where a couple was waiting to help her escape. With their help she left the DRC for Canada on November 11th, 2000.
ANALYSIS
[8] With regards to the question of valid UDPS membership, the Board must conform to the Rules. In this case, the Board had the obligation to inform the Applicant of its intention to rely on specialized knowledge in order to make a determination regarding the membership card's validity. The Board did not inform the Applicant that it would be relying on its specialized knowledge of UDPS membership cards and concluded, based on the absence of indications of payment of dues and dates on the card she presented, that the card's validity was in doubt. Clearly, the Board's failure to inform the Applicant of its intention to rely on this specialized knowledge constitutes a breach of the basic principle of procedural fairness. However, this being said, the Court must still determine whether such a breach constitutes a sufficient basis to find a reviewable error whereby the decision must be quashed and the case returned for determination by a different Board?
[9] Having come to a conclusion on the first issue, the second issue of whether the reviewable error is determinative must also be addressed. To do so, the Court must review the other credibility findings, establish whether they stand on their own and, if they do, determine whether the error is so fundamental that it alone provides a sufficient basis to quash the decision.
[10] Based on the jurisprudence set out in Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) ("Yassine") and in Mobile Oil Canada Ltd. Et al. vs. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, a reviewable error constituting a breach of natural justice will ordinarily void the hearing and the resulting decision; however, an exception to this strict rule has been recognized where the other elements of the claim support the original finding and where re-determination of the claim would likely result in the same decision.
[11] Review of the record reveals that the Board committed a breach in procedural fairness potentially equivalent to a reviewable error when it concluded that valid Union for Democracy and Social Progress (UDPS) membership cards always include an indication of the amount and date that dues were paid. The Board having based this conclusion on its specialized knowledge without having informed the Applicant beforehand, prevented a rebuttal of the evidence and, in so doing, denied the Applicant procedural fairness.
[12] Based on 9 findings that the Applicant's testimony lacked credibility, the Board determined that there was no reasonable chance the Applicant would be persecuted for one of the grounds set out in the Convention and that there was no reasonable chance of her being subjected to torture, nor a risk to her of cruel and unusual treatment or punishment within the meaning of paragraphs 97(1)(a) and (b) of the Immigration and Refugee Protection Act, if she were to return to the DRC. The Board listed 9 reasons why it came to the conclusion that the allegations of persecution were not credible. Firstly, the Applicant's testimony was judged to lack credibility because she provided an invalidated UDPS membership card in her father's name as proof of membership in the UDPS. When questioned about her involvement in the UDPS, the Applicant was unable to provide details concerning the organizational structure of the cell she belonged to or other details the Board considered an active member of the UDPS would be familiar with such as the meaning of "avant-gardiste". She was unable to explain why her father's name appeared on the membership card, nor why the boxes where the dues are indicated were empty which, according to the Board's specialized knowledge which was not communicated to the Applicant, put into doubt the card's validity.
[13] The Board also found that the letter the Applicant submitted as evidence of her employment as a receptionist with the Kinshasa city hall was of questionable reliability based on signs of photocopying found on the city logo, a typographical error made in the spelling of the vice-governor's name as well as the fact that the Applicant failed to provide a copy of her work contract. Furthermore the Board did not consider it plausible that the city's vice-governor, now vice-minister of youth would have attended the home of a receptionist without neighbours noticing or that he would have acted personally as a spy to ensure that she was at home before sending in soldiers to apprehend her. The Board found contradictions in the statements the Applicant made concerning the discovery of her UDPS membership by the authorities and the manner in which she was arrested. The Board also found the Applicant's testimony implausible when she could not explain why an original UDPS membership card bearing her name could not be sent to her by mail when other claimants had been able to do so in the past.
[14] Keeping in mind the failure to respect Rule 18, it is important to review the Board's decision in such a way as to assess the remaining findings. In other words, to determine whether the other findings if they stand on their own, are sufficient to uphold the Board's conclusion of non credibility, or whether the breach of Rule 18 is sufficient to set aside the decision. (See Lin v. Canada (Minister of Citizenship and Immigration) 1999 F.C.J. no. 1148, page 4, paragraph 21 and 23)
[15] The central issue in this claim is whether or not the Applicant has a "well founded fear of persecution" and, in light of the criteria previously outlined, those seeking to set aside credibility findings have a very heavy onus to discharge. However; in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 032 at 305 (F.C.A.), it was made clear that the Board must have valid reasons for finding that an Applicant lacks credibility. The decision in Attakora v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168 (F.C.A.), and Owusu - Ansah v. Canada (Minister of Employment and Immigration), [1990] 8 Imm. L.R. (2d) 106 (F.C.A.), are both cases in which decisions were set aside because the inferences drawn by the Board were based on implausibility findings that were not inherently such. In Frimpong v. Canada (Minister of Employment and Immigration), [1980] 8 Imm. L.R. (2d) 106 (F.C.A.), a decision of the Board was set aside because it was based on inferences that were unsupported by the evidence. As stated in Bains, this is because a reviewing court, depending on the nature of the alleged implausibilities, may be in as good a position as the Board to assess the validity of the alleged implausibilities.
[16] Keeping these principles in mind and having set aside the finding regarding ownership of the UDPS membership card and the question of dues for the time being, I have reviewed the 8 remaining findings and the transcript of the Applicant's testimony. From my reading it is clear that the Applicant did not testify in a consistent manner, appears to have been hesitant in providing information and often gave unclear or vague responses. The record also clearly demonstrates that she lacks the level of knowledge concerning the UDPS that an active member of that party would be expected to have. Moreover, I find that the implausibility findings made with reference to the letter of employment and the Vice-Governor's visit to her parent's house were open to the Board to make especially when one considers the documents filed and the discrepancies in the Applicant's testimony.
[17] For these reasons as well as the general doubt sewn as a result of the Applicant's testimony, I have determined that the remaining 8 findings made by the Board stand up to scrutiny on their own and the Board's adverse finding regarding credibility was properly made. I also conclude that the finding regarding the payment of dues and inscription of dates on the membership card, which was based on specialized knowledge, is of extremely limited scope and, although improperly considered, does not impact on the other findings made by the Board. As was decided at par. 9 of Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.):
Even if the new information was improperly received and this impropriety was not waived, there would still appear to be no purpose for remitting the matter to the Refugee Division provided, as I have concluded, the adverse finding of credibility was properly made. I do not suggest that a breach of justice does not normally require a new hearing. The right to a fair hearing is an independent right. Ordinarily the denial of that right will void the hearing and the resulting decision. An exception to this strict rule was recognized in Mobile Oil Canada Ltd. et al. V. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 where at page 228, the Supreme Court of Canada quoted the following views of Professor Wade:
A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
[18] I have carefully considered the reasons provided by the Board for its decision as well as the submissions from the parties, and conclude that overall the reasons given by the Board are based on a fair and reasonable assessment of all of the evidence submitted. The adverse finding of credibility having been properly made, I see no purpose in returning the matter to the Refugee Division. The Board's decision must therefore be upheld.
Question submitted for certification
[19] The Applicant submits the following question for certification:
If the Refugee Division fails to respect Rule 18 of the Refugee Division rules, (a failure to disclose specialized knowledge) where credibility of the claimant is the only issue, is a remedy under s.18.1 of the Federal Court Act discretionary in the sense that the Court is required to attempt to determine the effect of the error on the decision of the Refugee Division, or should the Refugee Division decision be quashed?
[20] Additionally, the Applicant submits the following argument to further support certification of the question submitted:
[...] the Court has found that it is relevant to consider the effect of the failure to respect the notice provision of specialized knowledge, but has not found that the error necessarily had to be with respect to a central issue (...) Given that Rule 18 provides an additional "right" to a claimant and to the Minister, compared to what the case was under the Immigration Act (the parties now have the right to provide evidence as well as submissions, whereas under the Immigration Act a party could only make representations), and given that this is a matter of an important procedural protection (...) the decision of the Refugee Division (ought) to be quashed if Rule 18 is not respected, even if the error relates to what might appear to be a secondary element.
[21] The Respondent opposes the Applicant's proposed question for certification as it is argued that it does not raise a serious question of general importance. The Respondent bases this argument on the Federal Court of Appeal's determination in Yassine (supra) that the failure to disclose specialized knowledge pursuant to legislative provisions does not require the quashing of the decision if the Board's findings would have been the same had the breach not occurred. The Respondent claims that this determination applies a fortiori to this matter where the Board's failure to disclose specialized knowledge as set out in Rules that were made pursuant to the legislative provisions of the Immigration and Refugee Protection Act.
[22] Having considered the arguments as submitted, I come to the conclusion that the case law as set out in Yassine (Supra) answers the question submitted by the Applicant. While Rule 18 now provides the opportunity for presenting evidence in support of submissions and is not limited to representations, as was the case under the Immigration Act, I do not think that this legislative change creates a substantially different situation with regards to a breach of fundamental justice than what has been considered in the past. The change in Rule 18 simply enlarges the previous concept of "representation" to include the right to present evidence. I therefore find that the Court of Appeal's decision in Yassine (Supra) is still relevant most notably because, in the case at bar, the adverse finding of credibility was properly made and there also would also appear to be no purpose for remitting the matter to the Refugee Division. Therefore, I will not certify a question.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review is denied and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2645-03
STYLE OF CAUSE: CHARLOTTE KABEDI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MARCH 16, 2004
REASONS FOR ORDER BY: NOËL S. J.
APPEARANCES BY:
Mr. Michael Crane For the Applicant
Mr. Ian Hicks For the Respondent
SOLICITORS OF RECORD:
Mr. Michael Crane
Barrister & Solicitor
166 Pearl Street, Suite 100
Toronto, Ontario
M5H 1L3 For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT OF CANADA
Date: 20040324
Docket: IMM-2645-03
BETWEEN:
CHARLOTTE KABEDI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER