Date: 20050131
Docket: IMM-1988-04
Citation: 2005 FC 126
Ottawa, Ontario, January 31,
2005
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
AUGUSTIN MBOUKO
ROLANDE ANNIE MBOUKO
ELVIRA CHANTAL MBOUKO
AUGUSTANIE LUDM MBOUKO
Respondents
REASONS
FOR ORDER AND ORDER
BACKGROUND
[1] The
Minister of Citizenship and Immigration (the Minister) is asking this Court to
set aside the decision of the Refugee Protection Division (the panel) dated
February 16, 2004, that (1) the Mbouko family, citizens of the
Central African Republic (the CAR), are Convention refugees, (2) they are
refugees sur place, (3) the Minister did not meet the burden of proving
that Mr. Mbouko should be excluded under Article 1F(b) of the former Immigration
Act (serious non-political crime) and (4) the incidents that occurred in
the CAR in 2003 do not correspond to a change in circumstances that is
significant enough to remove the reasonableness of the fear alleged.
[2] According
to the Minister, there is only one reason why the panel’s decision should be
overturned. Referring to new legislation concerning the obligation to provide
written reasons (subsection 61(3) of the Refugee Protection Division Rules)
and to the Federal Court of Appeal in Mehterian v. Canada (Minister of
Employment and Immigration) [1992] F.C.J. No. 545, the Minister submits
that the panel erred in law: it breached the principles of procedural fairness
and natural justice by providing insufficient and inadequate reasons in
reaching its decision.
[3] The
refugee claim was heard on April 5, 2002, September 17, 2002, November 13,
2002, and February 26, 2003. As indicated above, the panel’s decision was
handed down on February 16, 2004.
[4] The
principal claimant is afraid of being persecuted by the CAR, because, he says,
a plot was mounted against him owing to his political opinions (membership in
the opposition party, the Rassemblement démocratique centrafricain [RDC], and
his support of the RDC during the 1999 elections) and his Yakoma ethnicity.
[5] He
fled the CAR in February 2000 and went to Cameroon, where he applied for a
Canadian visa, which was denied. In August 2000, he was in the United States,
and five weeks later, in Canada.
[6] The
plot consisted in a fraud charge laid on January 27, 2000, for making and
uttering false documents, aiding and abetting in customs fraud and false
pretences, and in a national and international arrest warrant issued by the
Senior Examining Magistrate of the CAR.
[7] The
offences were related to the sale of oil to Zongo Oil by PETROCA, for which
Mr. Mbouko worked as Assistant to the Marketing Director. The oil was sold
tax free because it was intended for export, but instead Zongo Oil resold it
fraudulently on the domestic market including tax, from which the politicians
in power profited. Zongo Oil was headed at the time by Sani Yalo, President
Patassé’s son-in-law.
[8] The
panel’s analysis takes up only one of several pages of the decision. The entire
analysis is reproduced below.
ANALYSIS
After
analysing all of the evidence, both the testimony and the documentary evidence,
the panel has concluded that the adult claimants and their children are
“Convention refugees” for the following reasons.
In
the panel’s opinion, the testimony of the principal claimant was credible. The
claimant established that he had worked as an executive at PETROCA and that,
because of his membership in the Yakoma ethnic group and the RDC party, he had
been “scapegoated” for a fraud. The claimant’s allegations are confirmed by the
numerous personal documents filed in evidence.
The
Minister’s representative failed to meet her burden of proving that the
claimant should be excluded under paragraph 1F(b), since no evidence was adduced
that established a serious reason to believe that the claimant had participated
in the fraud of which he was accused.
Furthermore,
in view of the breach of confidentiality with respect to identifying
information from the file of a refugee protection claimant, the four
claimants became refugees “sur place” under paragraphs 94 to 96 of the
UNHCR Handbook.
Someone
from the Canadian Embassy, seeking information about the claimant,
Mr. Mbouko, (Exhibit M-10), met with the Attorney General of the Central African
Republic, a country with limited freedom of expression, since it was led at the
time by President Patassé, although the case was criminal in nature and
involved the President of the Republic.
Finally,
the testimony of the adult claimants is consistent with the extensive
documentary evidence filed in this case, which does not disclose any
fundamental and durable change in the political situation in the CAR.
The
panel determines that the two adult claimants and their children have
established that they would face a “reasonable chance” of persecution within
the meaning of Adjei, if they were to return to the Central African
Republic
[Emphasis
added.]
[9] Subsection
61(3) of the new Refugee Protection Division Rules, a provision that was
not included in the former immigration framework, reads as follows:
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(3) If the
reasons of the Division indicate that it has allowed a claim for refugee
protection after determining that sections E or F of Article 1 of the Refugee
Convention do not apply, the Division must provide the notice of decision and
written reasons for the decision to the claimant and the Minister.
[Emphasis added.]
|
|
(3) Dans
le cas où elle indique dans les motifs de sa décision qu’elle accueille la
demande d’asile après avoir conclu que les sections E ou F de ‘article
premier de la Convention sur les réfugiés ne s’appliquent pas, la Section
transmet au demandeur d’asile et au ministre, avec l’avis de décision, les
motifs écrits de la décision. [je souligne]
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1) Principles
[10] The
crux of Mehterian, supra, is summarized in the following two
paragraphs of the decision of Hugessen J.A.:
Subsection
69.1(11) of the Immigration Act [R.S.C. 1985, c. 1-2.] requires that the
Refugee Division "give written reasons" for any decision against the
claimant. If this obligation is to be met, the reasons must be sufficiently
clear, precise and intelligible that the claimant may know why his claim has
failed and decide whether to seek leave to appeal, where necessary.
We
are all of the opinion that the reasons given by the Refugee Division in this
case do not meet these criteria. Stating that the claimant "did not prove
the existence of the reasonable fear of persecution", without saying
any more, may mean that the panel did not believe the claimant, or that it
believed him but that the reasons for the alleged persecution do not fall
within the reasons listed in the Act, or that the reasonable fear which existed
in the past is no longer reasonable because of changed circumstances in the
country of origin. There are several other possibilities, inter alia that the
Refugee Division interpreted the Act itself badly.
[Emphasis
added.]
[11] Case
law defines the circumstances in which sufficient reasons must be provided to
enable individuals to understand why their claims failed and determine whether
they should appeal.
[12] I
quote Martineau J. in Canada (Minister of Citizenship and Immigration) v.
Koriagin, 2003 FC 1210, at paragraphs 5, 6 and 7:
¶ 5
To fulfil the obligation under paragraph 69.1(11)(b) of the Act, the
reasons must be sufficiently clear, precise and intelligible to allow the
Minister or the person making the claim to understand the grounds on which the
decision is based and, where applicable should the decision be appealed, to
allow the Court to satisfy itself that the Refugee Division exercised its
jurisdiction in accordance with the Act. See inter alia: Mehterian v.
Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545
(F.C.A.) (QL); Minister of Citizenship and Immigration v. Roitman,
[2001] F.C.J. No. 718 (F.C.T.D.) (QL); Zannat v. Minister of Citizenship and
Immigration (2000), 188 F.T.R. 148; Zoga v. Minister of Citizenship and
Immigration, [1999] F.C.J. No. 1253 (F.C.T.D.) (QL); Khan v. Minister of
Citizenship and Immigration, [1998] F.C.J. No. 1187 (F.C.T.D.) (QL).
¶ 6 A
determination that there is a reasonable fear of persecution based on one of
the grounds listed in the Convention raises a question of mixed fact and law.
In Chan v. Canada (Minister of Employment and Immigration), [1995] 187 N.R.
321, the Supreme Court of Canada reaffirmed that a refugee claimant has the
burden of proof in establishing a well-founded fear of persecution. Clearly,
this determination calls for a careful analysis of the claimant's testimony and
of the documentary evidence concerning the conditions in the country. When
written reasons are required, it is not sufficient to state that the
determination in the affirmative is based on the evidence without further
explanation.
¶ 7
The subjective fear of the claimant must always be assessed. When the evidence
shows that the claimant did not take advantage of the first opportunity to
claim refugee status this could compromise his claim under certain
circumstances. Although this consideration is not determinative in itself, it
is relevant in assessing the claimant's credibility: Gavryushenko v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. 1209 (QL); Ilie
v. Minister of Citizenship and Immigration (1994), 88 F.T.R. 220; Huerta
v. Minister of Employment and Immigration, [1993] 157 N.R. 225, paragraph 4
(F.C.A.).
[13] I
also refer to Layden-Stevenson J. in Liang v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1501:
It is
important not to lose sight of the purpose of reasons. In Li v. Canada
(Minister of Employment and Immigration), [1995] F.C.J. No. 413 (T.D.), Mr.
Justice Teitelbaum, citing Syed v. Canada (Minister of Employment and
Immigration) (1994), 83 F.T.R. 283 (T.D.), stated:
The
function of written reasons is to allow an individual adversely affected by an
administrative tribunal's decision to know the underlying rationale for the
decision. To that end, the reasons must be proper, adequate and intelligible
and must give consideration to the substantial points of argument raised by the
parties ... The Refugee Division is obligated, at the very least, to comment on
the evidence adduced by the applicant at the hearing. If that evidence is
accepted or rejected, the applicant should be advised of the reasons why.
At
the same time, the reasons are not to be read microscopically and held to a
standard of perfection. They must be read as a whole: Medina v. Canada
(Minister of Employment and Immigration) (1990), 120 N.R. 385 (F.C.A.); Ahmed
v. Canada (Minister of Employment and Immigration) (1993), 156 N.R. 221
(F.C.A.).
[14] Although
the decision of Evans J., as he then was, in Cepada-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425,
dealt with whether a panel had failed to consider the evidence before it, I
feel it is still relevant in this case:
¶ 15
The Court may infer that the administrative agency under review made the
erroneous finding of fact "without regard to the evidence" from the
agency's failure to mention in its reasons some evidence before it that was relevant
to the finding, and pointed to a different conclusion from that reached by the
agency. Just as a court will only defer to an agency's interpretation of its
constituent statute if it provides reasons for its conclusion, so a court will
be reluctant to defer to an agency's factual determinations in the absence of
express findings, and an analysis of the evidence that shows how the agency
reached its result.
¶ 16
On the other hand, the reasons given by administrative agencies are not to be
read hypercritically by a court (Medina v. Canada (Minister of Employment
and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies
required to refer to every piece of evidence that they received that is
contrary to their finding, and to explain how they dealt with it (see, for
example, Hassan v. Canada (Minister of Employment and Immigration) (1992),
147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon
administrative decision-makers who may be struggling with a heavy case-load and
inadequate resources. A statement by the agency in its reasons for decision
that, in making its findings, it considered all the evidence before it, will
often suffice to assure the parties, and a reviewing court, that the agency
directed itself to the totality of the evidence when making its findings of
fact.
¶ 17
However, the more important the evidence that is not mentioned specifically and
analyzed in the agency's reasons, the more willing a court may be to infer from
the silence that the agency made an erroneous finding of fact "without
regard to the evidence": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. Thus, a blanket statement that the agency has considered
all the evidence will not suffice when the evidence omitted from any discussion
in the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[15] The
notion of adequate reasons has been raised a number of times before the Supreme
Court of Canada, albeit in a criminal context. I nevertheless feel that it can
also be useful in an immigration case and provide guidance with respect to the
specific issue before me.
[16] I
quote paragraph 46 of Binnie J.’s reasons in R. v. Sheppard, 2002 SCC
26:
¶ 46 These
cases make it clear, I think, that the duty to give reasons, where it exists,
arises out of the circumstances of a particular case. Where it is plain from
the record why an accused has been convicted or acquitted, and the absence or
inadequacy of reasons provides no significant impediment to the exercise of the
right of appeal, the appeal court will not on that account intervene. On the
other hand, where the path taken by the trial judge through confused or
conflicting evidence is not at all apparent, or there are difficult issues of
law that need to be confronted but which the trial judge has circumnavigated
without explanation, or where (as here) there are conflicting theories for why
the trial judge might have decided as he or she did, at least some of which
would clearly constitute reversible error, the appeal court may in some cases
consider itself unable to give effect to the statutory right of appeal. In
such a case, one or other of the parties may question the correctness of the
result, but will wrongly have been deprived by the absence or inadequacy of
reasons of the opportunity to have the trial verdict properly scrutinized on
appeal. In such a case, even if the record discloses evidence that on one view
could support a reasonable verdict, the deficiencies in the reasons may amount
to an error of law and justify appellate intervention. It will be for the
appeal court to determine whether, in a particular case, the deficiency in the
reasons precludes it from properly carrying out its appellate function.
[Emphasis added.]
[17] In a
recent decision by the Court of Appeal for Ontario, R. v. Brown
(2002), 61, O.R. (3d) 619, Catzman J.A. quashed the trial decision because the
reasons “neither advanced the accused’s understanding of the reasons for his
conviction (beyond the blanket rejection of his testimony and the
unenlightening reference to the ‘accumulation of evidence’), nor did they
facilitate meaningful appellate review of the correctness of the decision”.
2) The standard
of review
[18] With
respect to the standard of review, Layden-Stevenson J. in Liang, supra,
sums up my line of thinking in paragraph 9 of her reasons:
¶ 9 The standard of review for findings of fact made by
the CRDD is set out in paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, C. F-7, as amended. Findings of fact can be reviewed only if they
are erroneous and made in a perverse or capricious manner or without regard for
the material before the Refugee Division. This standard is the same as that of
patent unreasonableness. Findings that apply the law to the facts of the case
can be reviewed only if they are unreasonable. Insofar as they interpret the
meaning of the exclusion clause, the findings can be reviewed if they are
erroneous: Harb v. Canada (Minister of Citizenship and Immigration)
(2003), 302 N.R. 178 (F.C.A.). Questions of law are reviewable on a standard of
correctness: Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982 (Pushpanathan).
3) Conclusions
[19] Counsel for the claimants argues that the panel’s decision
is well reasoned and, to convince me, discussed the testimonial and documentary
evidence by referring to the panel’s record.
[20] In his view, the evidence supports the scapegoat theory,
according to which the President of the CAR and PETROCA executives covered up
their participation in the customs fraud by falsely charging, with the help of
magistrates, lower management of the oil company. He submits that nothing in
the record contradicts Mr. Mbouko, who must be presumed to have told the truth.
[21] According to counsel for the respondents, the Minister
failed to prove that Mr. Mbouko should be excluded, because the only
evidence he filed was the indictment.
[22] In addition, the principal claimant explained why he delayed
coming to Canada.
[23] Finally, the documentary evidence shows that changes in the
CAR are tenuous.
[24] In my view, some evidentiary elements undeniably support the
claimants’ story.
[25] Nevertheless, as counsel for the Minister claims, there is
some contradictory evidence, and he contends that the panel did not analyse and
weigh the evidence as a whole. It is important, counsel argues, to realize that
my duty is not to decide whether the panel’s findings are justified or whether
the claimants should be granted refugee status. The issue is limited to
determining whether the panel’s reasons are sufficient.
[26] In my opinion, the Minister had several grounds on which he
could argue that the panel’s reasons were insufficient, constituting an error
in law.
[27] First, the panel issues a finding of credibility without
mentioning evidence that, in my view, undermined the principal claimant’s
credibility:
1. Contradictory
evidence about when he stopped working for PETROCA;
2. His
testimony concerning his salary and the sums of money in the bank statements he
submitted to the Canadian Embassy in support of his visa application;
3. The
plausibility of his testimony concerning his arrest, charges and flight;
4. The
fact that two of his colleagues who had been arrested with him were not
subsequently released;
5. The
credibility of his story about his five-week stay in the United States.
[28] With respect to this last point, I refer to paragraphs 15
and 16 of Nadon J.’s decision in Canada (Minister of Citizenship and
Immigration) v. Roitman, 2001 FCT 462:
¶ 15
Another error made by Mr. Choquette, in my view, concerns his conclusion about
the defendants' credibility. At p. 2 of his reasons Mr. Choquette said the
following:
[TRANSLATION]
At
the outset the tribunal has no hesitation in saying that the account, given
primarily by the female claimant, of the personal injuries inflicted on the
minor child is essentially confirmed by him and is fundamentally honest and
credible.
¶ 16
There is nothing else in Mr. Choquette's reasons regarding the defendants'
credibility. There were several points in evidence before the Refugee Division
which could have affected their credibility. This can be seen simply from
reading the dissenting reasons of Mr. Handfield on the following points: the
fact that the claimants did not claim refugee status while they were staying in
Ireland, Holland and possibly France; the fact that the defendant indicated in
her PIF that all members of her family, except for her, had remained in
Moldavia, while she testified viva voce that her sisters Irina and Anna and her
mother were also living in Israel; the fact that the defendant Alexander could
not give the name of the town where he had lived in Israel; and the fact that
the defendant could not remember the name of the school where she had
registered her son in September 1999.
[29] Second, the panel did not carry out an analysis of the coup
d’état in 2003 in the CAR against President Patassé, who was deposed.
Furthermore, it did not rule on how the coup could have eliminated the fear of
the principal claimant or his wife, who is a cousin of the son of the CAR’s
former president, the leader of the RDC, who returned from exile and is now a member
of the Council of Ministers and has been restored to his rank of Lieutenant
General.
[30] Third, the panel is silent and does not refer to any
evidence with respect to the probative value of the international warrant the
CAR’s judicial authorities issued for Mr. Mbouko’s arrest. The panel does
not refer to any evidence in support of its finding that Mr. Mbouko was made a
scapegoat for a fraud.
[31] Fourth, the panel found that the claimants were refugees sur
place, simply because somebody from the Canadian Embassy met with the CAR’s
Attorney General to obtain information about the principal claimant.
[32] In this regard, paragraph 96 of the Handbook on
Procedures and Criteria for Determining Refugee Status, published by the
United Nations Commissioner for Refugees, indicates that:
96. A
person may become a refugee “sur place” as a result of his own actions,
such as associating with refugees already recognized, or expressing his
political views in his country of residence. Whether such actions are
sufficient to justify a well-founded fear of persecution must be determined by
a careful examination of the circumstances. Regard should be had in particular
to whether such actions may have come to the notice of the authorities of the
person’s country of origin and how they are likely to be viewed by those
authorities.
[33] The panel did not analyse this matter. Some of the evidence
indicates that the CAR authorities were aware the principal claimant had fled
the country and knew his whereabouts.
[34] I refer to McGillis J. in Igbinosun v. Canada (Minister
of Citizenship and Immigration), [1994] F.C.J. No. 1705, in which she
states the following at paragraph 6:
¶ 6 In
the present case, the evidence establishes that the identity of the applicant
was disclosed to Nigerian police officials to determine whether he had been
charged with the offence of murder. There is no evidence to indicate that any
confidential information given by the applicant in his personal information
form was disclosed. The objection to the admissibility of the telex on the
basis that the Privacy Act was violated has been advanced in the absence
of a proper evidentiary framework and, as a result, must be rejected. Alternatively,
even if Canadian officials did provide confidential information from the
applicant to the Nigerian police, the disclosure was made for the purpose of
permitting the Minister to formulate an opinion as to whether the claim of the
applicant raised a matter within the exclusionary provision in subsection
F(b) of Article 1 of the Convention. [See subparagraph 69.1(5)(a)(ii)
of the Immigration Act.] Since the applicant provided the information
for immigration purposes, its use, if any, by the Minister or his
representatives was clearly "for a use consistent with that purpose"
within the meaning of paragraph 8(2)(a) of the Privacy Act. [See
also Rahman v. M.E.I., decision dated June 10, 1994, F.C.T.D., No.
IMM-2078-93].
[Emphasis
added.]
[35] Fifth, the panel did not indicate which evidence served as a
basis in finding that “no evidence was adduced that established a serious
reason to believe that the claimant had participated in the fraud of which he
was accused”.
[36] The panel does not in any way address the applicable
standard of review, which is neither “beyond a reasonable doubt” nor “on a
balance of probabilities,” but, rather, the lower standard of “serious
possibility based on credible evidence”.
ORDER
THE COURT ORDERS that:
For these reasons, the application for judicial review
is allowed, the panel’s decision set aside and the matter referred for
rehearing by a differently constituted panel. The parties have one week to
submit questions for certification, with a right of reply within five business
days following the date on which the proposed questions are received.
J u d g e
Certified true translation
Jason Oettel
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