Docket: IMM-8291-03
Toronto, Ontario, September 22nd, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
BONIFACE TSHIBANGU MULAJA
PASCALINE KABEYA WA NTUMBA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The Applicant is a citizen of the Democratic Republic of Congo (DRC). The Applicant lived in Kinshasa with his family where he worked as an electrician as well as a trader of precious stones. He fled the DRC as he persecuted for membership in a political party called UDPS. He was arrested several times, ordered to appear at the Cour d'ordre militaire, but managed to bribe his way out of prison and escaped to Canada in June 6, 2001. The Immigration and Refugee Board on Sept 12, 2003 denied refugee status to the Applicant and his minor daughter Pascaline.
[2] In making its decision the Board committed five errors, which when regarded cumulatively, leave me no choice but to set aside its decision.
[3] First the Board received (subsequent to the hearing but about month prior to rendering its decision) a letter from the Applicant's solicitor attaching additional evidence, particularly a report from the Belgium Commissariat General, Refugies et Apatrides dated October, 2002. This report is particularly pertinent as it details the 'witch hunt' by the Congolese government against the UDPS. The Board did not refer to this report anywhere in its decision. While the Board does not have to deal with every piece of evidence ( See Hassan v. Canada (M.E.I.) (1992) 147 N.R. 317), a material authoritative report right on point cannot be totally overlooked. The Board should have stated whether it accepts or rejects the findings of the Belgian report.
[4] Second the Board dismissed 10 summons and citations ordering the Applicant to appear before Congolese authorities on the following basis: "parce que nous savons que des documents peuvent etre délivrés facilement en RDC et se donnent libre cours sur le marché". Upon examination of the Tribunal Record (p. 433) it becomes clear that the Board questioned the veracity of the documents because they did no bear official emblems. While it is open to the Board to accept of reject evidence, it must have a sufficient basis for doing so. See Lin v. Canada (M.E.I.) [1994] F.C.J. No. 1567, para 10.
[5] Third the Board found it "curieux" that the Applicant did not have a license as a diamond dealer and used this fact to casts doubts on the Applicant's testimony regarding his persecution by the authorities. Given that there was no evidence that such a license is required in the DRC and given that the Applicant in his sworn testimony said such a license is not required, the Board was in error to make such a finding. The Board cannot establish facts on the basis of making assumptions and hold it against the Applicant if he cannot rebut such assumptions. His sworn testimony to the contrary is enough to rebut any assumptions.
[6] Fourth, one of the central issues in the Applicant's story was his membership in the UDPS. He produced both a Congolese and a Canadian document establish this fact. The Board made no finding in this respect but implicitly rejected it as it found him not to be a credible witness. Where documentary evidence is tendered to establish material fact it is the duty of the Board to comment on it and assign weight. By failing to do so in this case , it is totally unclear whether the documentary evidence respecting UDPS membership was wanting and why or whether the Board failed to address it.
[7] Fifth, the minor applicant was represented by separate counsel before the Board. The Board gave him leave to introduce additional evidence after the hearing and acknowledged in its decision that it had received additional submissions. However it never commented on the documents received. It merely held that having found that the parent's claim failed for lack of credibility, the minor's claim, (which was based on that of her father) must also fail. However in these additional submissions and supporting documents a totally separate claim was advanced for the minor applicant based on forced recruitment and sexual abuse. It is the duty of the Board to address each major claim advanced by an Applicant; failure to do so amounts to a reversible error.
[8] Accordingly this application will be allowed.
ORDER
THIS COURT ORDERS that the decision of the Immigration and Refugee Board of September 23, 2003 is hereby set aside and the matter is referred back to the board for consideration by a differently constituted panel.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8291-03
STYLE OF CAUSE: BONIFACE TSHIBANGU MULAJA
PASCALINE KABEYA WA NTUMBA
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 21, 2004
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: SEPTEMBER 22, 2004
APPEARANCES:
Micheal Crane FOR THE PLAINTIFFS
David Tyndale FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Micheal Crane
Barrister and Solicitor
Toronto, Ontario FOR THE PLAINTIFFS
Morris Rosenberd
Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENTS
FEDERAL COURT
Date: 20040922
Docket: IMM-8291-03
BETWEEN:
BONIFACE TSHIBANGU MULAJA
PASCALINE KABEYA WA NTUMBA
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR ORDER
AND ORDER