Date: 20000824
Docket: IMM-3464-99
Ottawa, Ontario, August 24, 2000
Before: Pinard J.
Between:
Aboudou Rassidou ADAM
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review is allowed. The decision of the Refugee Division on June 2, 1999 that the plaintiff is not a Convention refugee and that he did not establish a credible basis for his claim is set aside and the matter referred back to a Refugee Division of different members for reconsideration.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000824
Docket: IMM-3464-99
Between:
Aboudou Rassidou ADAM
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division of the Immigration and Refugee Board ("the panel") on June 2, 1999 that the plaintiff is not a Convention refugee, as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I- ("the Act"), and did not present evidence of a credible basis for his claim pursuant to s. 69.1(9.1) of that Act.
[2] The plaintiff, a citizen of Togo, alleged that he had a well-founded fear of persecution for his political opinions. The panel summarized the relevant facts as follows:
[TRANSLATION]
| The claimant alleged that he was a student representative in the district where he lived. He said he had been a member of the Parti pour la démocratie et le renouveau (PDR) since July 1991. According to his account, he distributed leaflets in February 1995 and went underground. The claimant filed as an exhibit a letter from the president of the ASSOLI section, telling his family that he was being sought and was in danger. They were asked to inform the claimant of this situation. He was in hiding and remained there. |
| Then, on June 21, 1998 the claimant broke silence on the occasion of the elections and played an important part. The election took place on June 24, 1998. The outgoing president, Gnassinbé Eyadema, was returned to power with 52% of the votes passed. According to the claimant, before the Minister of the Interior took charge of the count the four large cities in the country gave the leader of the opposition 80 percent support. |
| On June 25, 1998 three persons came to his residence looking for him. The claimant was away. He learned through his cousin that these persons were masked and uttered threats about him. The claimant went into hiding again for two days before finally leaving his country on June 27, 1998 for Benin. He went through the Ivory Coast and Senegal before reaching the United States, where he stayed for four days before crossing the border to Canada on July 11. He claimed refugee status the same day. [References omitted.] |
[3] The panel recognized that the plaintiff had an excellent knowledge of politics in Togo and his testimony about the June 1998 election and the counting of the vote was corroborated by the documentary evidence.
[4] However, the panel found the plaintiff not credible for the following reasons:
| - he did not prove that he was an active militant in the electoral campaign because he was in hiding until June 21; |
| - no evidence was filed that the masked individuals who came to his residence the day after the election were government agents; |
| - he was not a threat to the Togolese government as his party only received 3.02 percent of the votes and came fourth in the presidential elections. |
[5] The panel also found that since the elections, [TRANSLATION] "the dust has settled and the animosity between the various factions has definitely receded: life has returned to normal".
[6] Finally, the panel reacted unfavourably to the fact that the plaintiff had travelled through Benin, the Ivory Coast, Senegal and the U.S. without claiming refugee status there.
[7] It is well settled that where credibility and the assessment of the facts are concerned, this Court should not intervene lightly, in view of inter alia the specialized jurisdiction of the panel (see the Federal Court of Appeal's judgment in Aguebor v. M.E.I. (1993), 160 N.R. 315).
[8] In the case at bar, the panel appears to the Court to have made several errors.
[9] First, the evidence clearly showed that the elections took place on June 21, 1998, not June 24. Then, with regard to the plaintiff's statement in his Personal Information Form that he [TRANSLATION] "broke silence", the panel was wrong to conclude that the plaintiff had said he [TRANSLATION] "came out of the shadows on June 21", and so it was not likely that he could have taken an active part in the electoral campaign. The sentence in which the plaintiff said he broke silence should be read in conjunction with the preceding text and what followed:
[TRANSLATION]
| Sunday, June 21, 1998 was the date scheduled for the elections. I broke silence. Once again, I played a very important part in the presidential campaign. I took part in consciousness-raising tours in Bafilo and surrounding villages. We showed that the opposition was able to attract the electorate. We voted on June 21, 1998 . . . |
[10] Further, the plaintiff explained at the hearing before the panel that he had taken an active part in the events of the campaign from May 6 onwards.1 In this context, it seems quite arbitrary for the panel to conclude that the plaintiff did not come out of the shadows until June 21 and could not have taken part in the electoral campaign.
[11] Additionally, the panel's conclusion that it was improbable for the government to have persecuted an opposition party that got only 3.02 percent of the votes is also not supported by the evidence. The plaintiff's explanation at p. 273 of the panel's Record that the opposition parties were seen as a group is corroborated by the documentary evidence at p. 70 of the said record, indicating that the PDR was part of a coalition. Further, the documentary evidence indicated that PDR organizers had been targeted by the government. According to the article "Bombing Heightens Political Tension",2 dated August 25, 1998:
| A group of eight opposition parties charged in a communique issued last week that members of the security forces had attacked the residences of members of the UFC executive and destroyed the party's headquarters by fire. |
| The district headquarters of the opposition Party for Renewal and Democracy (PDR) in the central town of Sokode was damaged by a bomb while the home of the party's representative in Bafilo, 50 kms from Sokode was reportedly destroyed in a bomb blast. In Lome, one of the houses of PDR leader Zarifou Ayeva suffered the same fate. |
[12] Accordingly, the panel's conclusion that the PDR [TRANSLATION] "is in no way a threat to the stability of the government, so why target the claimant, a local organizer?" is in my opinion erroneous.
[13] Finally, the panel's statement that life in Togo returned to normal is not supported by the evidence. The article "Togo Holds Legislative Elections in March",3 dated January 22, 1999, indicates that there is still a "political impasse". There is nothing to indicate that the situation in Togo had improved at the time of the hearing.
[14] All these errors seem sufficiently serious to the Court to vitiate the assessment by the panel of the plaintiff's credibility and to undermine its decision as a whole.
[15] Accordingly, the application for judicial review is allowed and the matter referred back to a Refugee Division of different members for reconsideration.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 24, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3464-99
STYLE OF CAUSE: ABOUDOU RASSIDOU ADAM v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 11, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: AUGUST 24, 2000
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
CAROLINE DOYON FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Panel's Record, p. 269.
2 Panel's record, p. 176.
3 Panel's Record, p. 191.