Date: 20060420
Docket: IMM-9797-04
Citation: 2006 FC 502
Ottawa, Ontario, the 20th
day of April 2006
BETWEEN:
MIKE
BILOMBA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1]
On
January 20, 2004 an individual went to the Immigration and Refugee Board (IRB)
in downtown Montréal. This individual represented himself as one Mike Bilomba
and he filed a refugee claim status. On December 18, 2003,
Mr. Bilomba had apparently taken an Air Canada flight from London to
Montréal on a false French passport with the name “Jean Dupont”. At the IRB
Mr. Bilomba did not submit this passport or the boarding pass.
[2]
Mr. Bilomba
claimed that he was originally from the Democratic Republic of
Congo (DRC). He tried to claim refugee protection for his political
opinions, membership in a political group, the Union pour la démocratie et le
progrès social (UDPS), and his association with that group as well as his Luba
ethnic identity.
[3]
The
applicant said that at the meeting of this political group on October 30,
2003, he was arrested, detained and tortured by armed civilians. This was the
event which ultimately led to his refugee claim. On December 10, 2003, he
was able to escape the place where he was being held thanks to the help of one
of the civilians.
[4]
After he
went to the IRB and filed his refugee claim, the IRB Refugee Protection
Division (RPD) held a hearing with the applicant on September 1, 2004. It
is important to note that, at the outset, Mr. Bilomba’s counsel objected
to a reverse order of examinations and indicated her intention to put questions
to him before the tribunal began its questioning. However, in view of
Directive No. 7 on the preparation and the holding of RPD hearings
and the fact that the panel has complete control of its procedure, it decided
that the refugee protection agent (RPA) should intervene first.
[5]
The RPD
dismissed Mr. Bilomba’s refugee claim as the latter was not a “person in
need of protection” within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act. Essentially, the panel based its decision on a
lack of credibility.
[6]
Mr. Bilomba
accordingly sought judicial review of that decision. The application for
judicial review turns on the following two arguments:
1.
the RPD
did not observe the rules of procedural fairness and natural justice;
additionally, Directive No. 7 contravenes sections 7 and 15 of
the Canadian Charter of Rights and Freedoms;
2.
In
relation to the applicant’s credibility, the findings of fact and legal rulings
of the RPD were patently unreasonable.
Procedural background
[7]
After
Mr. Bilomba was granted leave to appeal in the application for judicial
review and before hearing, Mr. Justice Blanchard rendered a decision
on the reverse order of examinations and Directive No. 7. Thamotharem
v. Canada (M.C.I.), 2006 FC 16: he held that, in some circumstances, the
effect of the reverse order of examinations, and in particular
Directive No. 7, was to fetter the exercise of the RPD’s discretion
and to infringe the rules of natural justice. Further, he certified three
important questions which could support an application for an appeal before the
Federal Court of Appeal. That appeal is currently pending.
[8]
In view of
Thamotharem, supra, Chief Justice Lutfy ordered that all pending cases
which involved Directive No. 7 be specially managed. The two judges
responsible for the special management were Madam Justice Snider and
Mr. Justice Gibson.
[9]
In her
order dated February 20, 2006, in Benitez v. Canada (Minister of Citizenship
and Immigration), Court docket No. IMM‑9766‑04,
Madam Justice Snider separated the issues to be considered under
rule 105 of the Federal Courts Rules and then ordered that the
proceedings relating to Directive No. 7 be consolidated before a judge
sitting alone on March 7, 2006. Mr. Bilomba’s case was one of these.
[10]
Madam Justice Snider’s
order also stated that the other issues raised by each of the consolidated
applications would be decided in separate hearings presided over by one or more
judges, as soon as possible after the accelerated hearing of the issue relating
to Directive No. 7.
[11]
The
applications regarding Directive No. 7, including the one at bar,
were heard by Mr. Justice Mosley in Toronto on March 7 and 8,
2006.
[12]
By order
in this case and by reasons stated in Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, dated April 10, 2006,
Mr. Justice Mosley dismissed the applications for judicial review in
respect of all the issues relating to Directive No. 7: “This application
for judicial review is dismissed with respect to the issues that were heard by
the Court at Toronto, Ontario on Tuesday, the 7 th of March and
Wednesday, the 8th of March by reason of the consolidation order
dated February 20, 2006”. He nevertheless certified seven questions of
general importance.
[13]
In
view of the foregoing procedural background, it is now necessary to note that
this application for judicial review at bar only concerns the substantive
issues raised by Mr. Bilomba, except for those relating to
Directive No. 7. In other words, this Court does not have to rule on
the RPD’s reasons, which all have to do with a conclusion of a lack of
credibility.
Issues
Standard of review
[15]
Credibility
turns on the interpretation of facts. The case law appears to indicate that
the applicable standard of review on interpretation of facts is patent
unreasonableness: see Mugesera v. Canada (Minister of Citizenship
and Immigration), [2005] 2 S.C.R. 100, at paragraph 38; Kaur v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J.
No. 2112 (QL); and Canada (Minister of Citizenship and Immigration) v.
Sittampalam, 2004 FC 1756, [2004] F.C.J. No. 2152 (QL).
Analysis
[16]
Since
Directive No. 7 is not at issue, this Court only has to make a
determination based on the issue of credibility. The Court must exercise great
restraint with respect to a finding by the RPD that the applicant lacked
credibility. The Minister relied on Aguebor v. M.E.I. (1993), 160 N.R.
315 (F.C.A.), as support for the argument that it is the function of the RPD,
as a specialized tribunal, to assess the testimony of a refugee protection
claimant and determine the credibility of his statements in the context of the
evidence as a whole.
[17]
Notwithstanding
this rule, however, we should bear in mind that witnesses should not be treated
with scepticism;
rather, one must be willing to believe that they are telling the truth, and to
abide by that belief until there is a clear and important reason to think
otherwise: see Anthonimuthu v. Canada, [2005] F.C.J. No. 162 (QL),
at paragraph 46. As indicated in Maldonado v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302, there is a rebuttable
presumption that the applicant’s testimony is accurate.
[18]
In
its reasons, the RPD considered the applicant’s identity, and despite its
concern the panel nevertheless undertook an analysis of the application, while
indicating that [translation]
“even if his identity had been established, the applicant is not credible”.
The RPD must instead undertake an analysis of credibility in general terms
rather than focusing on the applicant’s identity. At least, that is what the
panel should have done.
[20]
For
example, the RPD dwelt at great length on the Air Canada flight taken by the
applicant to come to Canada. Ordinarily, it is true that the applicant’s
flight may be a serious point which the RPD must consider. Flight documents
are often the only documentary evidence which is objective and verifiable.
While it is acceptable for the RPD to ask questions about the way in which the
applicant came to Canada, in the circumstances the RPD did not make a finding
on the fact that the passenger list did not show the name of the passport held
by Mr. Bilomba,
that is “Jean Dupont”. There are a number of possible reasons why this name
was not on the list: Mr. Bilomba may have lied, he may have mistaken his
date of arrival, there may have been a misspelling of the name “Jean Dupont” or
Air Canada could have made a mistake. Despite all these possible explanations,
the RPD did not try to check with Mr. Bilomba other information that might
have been relevant: for example, it could have asked him about the weather in
London when he left, the weather in Canada when he arrived and so on. Despite
the importance which the RPD appeared to attach to the flight and the passenger
list, it was not conclusive in Mr. Bilomba’s refugee claim as his identity
and the way in which he arrived here are two distinct questions.
[21]
Although
the RPD tried to separate the other reasons pertaining to credibility, they are
all related. In short, those reasons primarily bear on his political beliefs
and membership in the UDPS. We should also always bear in mind that in his
refugee claim, Mr. Bilomba expressly mentioned that he had been the victim
of several attacks on account of his political opinions and Luba ethnic origin.
[22]
From
reading the RPD’s reasons as to the remaining factors, it seems clear to the
Court that the panel did not undertake a logical and fluid analysis. On the
contrary, the other reasons were based on minor inconsistencies. In
particular, the RPD tried to find a genuine contradiction between the fact that
the applicant did not mention the UDPS at the point of entry, the extent of his
participation in that party, and his testimony. On the contrary, there is no
contradiction since the immigration officer at the point of entry indicated to
Mr. Bilomba
that it was not necessary for him to specify the reasons why he came to Canada,
as he could put this information into his Personal Information Form (PIF),
which he did. In his PIF, Mr. Bilomba referred clearly to his association
with the UDPS. The RPD sought to establish a lack of credibility on account of
the fact that the applicant claimed he was a sympathizer, whereas the
documentary evidence mentioned his membership in the UDPS. This cannot be
conclusive, since the distinction between holding a membership card and being a
sympathizer may quite simply be a matter of language.
[23]
Further,
this Court cannot ignore the fact that the RPD never considered the event which
led to the refugee claim, namely his arrest on October 30, 2003 at a UDPS meeting,
which led to the detention and torture of the applicant by armed civilians.
The RPD also made no mention of the applicant’s ethnic origin as a reason for
the application. In view of the panel’s concerns regarding the applicant’s
flight, it may be assumed that the RPD would at least have required the
applicant to explain this point. However, the RPD’s reasons make no mention of
the matters noted above.
[24]
In
Singh v.
Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 426 (QL), while
the RPD determined that omissions on points essential to the claim, namely the
applicant’s failure to mention the death of his father and his cousin, were
sufficient to support a finding that he was not credible,
Mr. Justice Simon Noël held that these contradictions were quite
minor and could not undermine the applicant’s credibility. As the RPD did not
analyze the core of the problem or the events surrounding the protection
application in Mr. Bilomba’s case, I accept my colleague’s analysis at paragraphs 21
and 22 of Singh, supra:
[translation]
¶ 21 In my opinion, this
is a very minor contradiction which can be understood from reading the
applicant’s testimony. Such a contradiction clearly could not undermine the
applicant’s credibility. The RPD should not demonstrate excessive zeal in
finding contradictions where there are none (see in particular R.K.L. v.
Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162,
2003 FCTD 116).
¶ 22 For these reasons, I
am of the view that the decision by the RPD on the applicant’s credibility is
based on certain mistakes of fact and contradictions which are so minor that
the decision cannot be allowed to stand. The decision on the applicant’s
credibility is patently unreasonable. The RPD may have had valid reasons for
considering that the applicant was not credible, but these reasons do not appear
in its decision. The matter must accordingly be referred back to the RPD to be
considered by a differently constituted panel.
[25]
As my
colleague Mr. Justice Teitelbaum noted in Ahortor v. Canada
(M.E.I.), [1993] F.C.J. No. 705 (QL), at paragraphs 36 and 37,
the panel should not try to find fault with the applicant’s testimony without
basing itself on concrete evidence contradicting his testimony.
[26]
Accordingly,
it appears to the Court that the RPD’s reasons are in fact patently
unreasonable. This finding of “patently unreasonable” was noted by
Mr. Justice Iacobucci in Law Society of New Brunswick v. Ryan,
[2003] 1 S.C.R. 247, at paragraph 52:
¶ 52 The standard of
reasonableness simpliciter is also very different from the more
deferential standard of patent unreasonableness. In Southam, supra, at
para. 57, the Court described the difference between an unreasonable
decision and a patently unreasonable one as rooted “in the immediacy or
obviousness of the defect”. Another way to say this is that a patently
unreasonable defect, once identified, can be explained simply and easily,
leaving no real possibility of doubting that the decision is defective. A
patently unreasonable decision has been described as “clearly irrational” or
“evidently not in accordance with reason” (Canada (Attorney General) v.
Public Service Alliance of Canada, [1993] 1 S.C.R. 941,
at pp. 963‑964, per Cory J.; Centre communautaire
juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at
paras. 9‑12, per Gonthier J.). A decision that is
patently unreasonable is so flawed that no amount of curial deference can
justify letting it stand.
[27]
While
the determination of credibility falls within the expertise of the RPD, in
Mr. Bilomba’s case the RPD’s statements seem to me to be arbitrary and not
supported by very convincing evidence. Accordingly, it is worth mentioning the
comments by Mr. Justice O’Halloran in Faryna v. Chorny (1952),
2 D.L.R. 354, at page 356:
The credibility of interested
witnesses, particularly in cases of conflict of evidence cannot be gauged
solely by the test of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably subject his story to
an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions.
The RPD’s analysis in Mr. Bilomba’s
case does not harmonize with the context.
Conclusion
[28]
It
is quite clear that Mr. Bilomba’s identity and the RPD’s doubts in this
regard detracted the latter’s attention from the other reasons regarding the
applicant’s credibility. Despite the deference which this Court must show the
RPD on issues of credibility, that does not allow the RPD to make erroneous
findings of fact based on a biased perception, which it did. The RPD did not
offer sufficiently clear and reasonable grounds to persuade the Court that the
applicant lacked credibility. Further, Mr. Bilomba’s application
regarding persecution was never analyzed.
[29]
It
is for this reason that I must allow this application for judicial review.
[30]
There
is no question to be certified.
ORDER
IN VIEW OF the
application for judicial review of the Refugee Protection Division decision on
October 30, 2004 that Mr. Bilomba was not a Convention refugee and
was not a “person in need of protection”;
IN VIEW OF the reasons
for the order of this date;
THIS COURT
ORDERS that,
for the reasons given in this order in this judicial proceeding heard in
Montréal on April 12, 2006, the applicant’s application for judicial
review is allowed and the matter referred back to the Refugee Protection
Division before a differently constituted panel for reconsideration.
“Sean Harrington”
Certified
true translation
François
Brunet, LLB, BCL
Email this Content