Date: 20050930
Docket: IMM-1673-05
Citation: 2005 FC 1327
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
-and-
Marie Thérèse FOUODJI
Respondent
REASONS FOR ORDER
PINARD J.
[1] Neither the respondent nor her counsel, Jean-Phillippe Trudel, were present at the hearing before me. Further, the respondent did not file any record pursuant to Rule 310 of the Federal Courts Rules, SOR/98-106. As I stated to the applicant's counsel, the matter is decided in the respondent's absence and on reviewing the record.
[2] This is therefore an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated February 24, 2005, by member José wa Tshisungu Tshisungu, confirming the determination that the respondent is a "Convention refugee" .
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[3] The respondent, Marie Thérèse Fouodji, is a citizen of Cameroon and the mother of six children: two girls and four boys.
[4] The respondent, who only has five years of schooling, alleges that she was mistreated by her ex-husband, that he had tortured her and threatened her with death.
[5] Helped by the women of her village and a woman who gave her a French passport and a plane ticket to New York for $2,000 Cdn., the respondent left Cameroon on March 26, 2001, arriving the following day in New York (United States).
[6] She reported to the Canadian border on March 29, 2001, without claiming refugee status there. Once she had crossed the border, afraid that she would be caught with a false passport, she destroyed it on the bus.
[7] On March 30, 2001, the respondent claimed refugee status and declared that she had travelled with a French passport that did not belong to her. She stated that she was born in Ebolowa (Cameroon) on September 1, 1967, that she left her country on March 23, 2001, and that she had four children rather than six, believing that she would be turned away if she were to declare that she had six children.
[8] According to her Personal Information Form (PIF), received by the Board on May 2, 2001, she claimed to have a well-founded fear of persecution by her ex-husband in her country based on her membership in a particular social group, that of the feminine sex. Further, she claimed to be a "person in need of protection" because she was subjected to a danger of torture. If she were to return to her country, there would be a risk to her life or a risk of cruel and unusual treatment or punishment . She states in her PIF that she is the mother of six children.
[9] On November 25, 2002, the IRB determined that the respondent had brought enough credible evidence to establish that she was a "Convention refugee", in accordance with section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[10] Following a complaint, Citizenship and Immigration Canada proceeded with an investigation. It appears that the respondent was granted refugee status under a false identity. Her real name is Marie-Thérèse Ndomo Ayissi, born on January 5, 1967. On October 31, 2000, the respondent allegedly applied for two visitor's visas under that name, one for herself and the other for her daughter Gertrude Merveille Nga Ngoumou. The visa she obtained was never used and the respondent filed a second claim for herself on November 28, 2000. On December 25, 2000, Marie-Thérèse Ndomo Ayissi was admitted to Canada as a visitor and she was then obliged to have her departure verified.
[11] An expert's report was written on November 12, 2002, on two photos of Marie-Thérèse Ndomo Ayissi contained in the visa record and two photos of Marie Thérèse Fouodji taken from her immigration record. The photos most likely were of the same person.
[12] On October 23, 2003, the Minister of Citizenship and Immigration filed an application to reconsider and to vacate the decision dated November 25, 2002. He submits that the respondent made several misleading statements before the IRB regarding her surname, her place of birth, her residence, her passport and the alleged incidents, and that if the IRB had been aware of the real facts, its decision on the respondent's refugee claim would have been different.
[13] On February 24, 2005, member José wa Tshisungu Tshisungu dismissed the Minister's application to vacate the IRB's first decision, expressing the opinion that there was relevant evidence to justify that first decision by the panel made on November 25, 2002.
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[14] Section 109 of the Act provides the circumstances in which a decision allowing a claim for refugee protection may be vacated:
109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
(2) The Refuge Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.
(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.
109. (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d'asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
(2) Elle peut rejeter la demande si elle estime qu'il reste suffisamment d'éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l'asile.
(3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
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[15] The IRB dismissed the application to vacate for the following reasons:
First, the respondent acknowledged and explained the context in which she had been led to make misrepresentations mainly about her identity and her subjective fear.
Second, after having analysed these elements deemed misleading as stated above, it is the panel's view that the evidence adduced by the applicant has not disproved the crux of the claim, namely, the respondent's fear of persecution because of her membership in a particular social group, women victims of spousal abuse; particularly since the evidence cited in M-4 shows that Cameroon is a state where the protection of the wife is insufficient because traditions and customs take precedence over written law.
The panel therefore believes that it remains relevant evidence justifying the panel's initial decision of November 25, 2002.
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[16] The applicant submits that the panel erred in law, indeed failing to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe (paragraph 18.1(4)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7) in providing insufficient or inadequate reasons to support its decision. I agree.
[17] In this case, there is no analysis of the evidence filed by the Minister. There is no reference to the most significant misleading statements or misrepresentations. The contradictions although very substantial, are not identified and the panel did not weigh the evidence or analyze the respondent's credibility.
[18] As the applicant points out, the member did not set out the reasons relied on to find, as he did, that the applicant's evidence did not refute the central issue, namely the respondent's fear of persecution based on her social group, women victims of conjugal violence in Cameroon. The panel did not set out clearly and explicitly what part of the remaining evidence filed before the first panel remained credible and why it was credible (see Mehterian v. Canada (M.E.I.), [1992] F.C.J. No.545 (F.C.A.) (QL) and Via Rial Canada Inc. v. National Transportation Agency and Jean Lemonde, [2001] 2 F.C. 25 (C.A.)).
[19] The applicant argues moreover that the panel erred in law by deciding that there was sufficient evidence remaining from the evidence taken into consideration at the time of the first decision to justify allowing the respondent's claim.
[20] In fact, the evidence relied on by the member involves the situation of women in Cameroon in general and does not relate to the respondent in particular. Without evidence relating to the respondent in particular, the IRB could not in this way find a reason to justify allowing the respondent's refugee claim. According to subsection 109(2) of the Act, the existence of documentary evidence regarding the general situation of a country is not in itself sufficient to justify a person's refugee protection (see Annalingam v. Canada (M.C.I.), [2003] 1 F.C. 586 (C.A.), Coomaraswamy v. Canada (M.C.I.), [2002] 4 F.C. 501 (C.A.), application for leave dismissed by the Supreme Court of Canada on January 9, 2003 (29274) and Selvakumaran v. Minister of Citizenship and Immigration, 2003 FC 1445).
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[21] For all of these reasons, the application for judicial review is allowed and the matter referred before a differently constituted panel of the Immigration and Refugee Board for reconsideration.
"Yvon Pinard" JUDGE
OTTAWA, ONTARIO
September 30, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1673-05
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. Marie Thérèse FOUODJI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 20, 2005
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 30, 2005
APPEARANCES:
Michel Pépin FOR THE APPLICANT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Jean-Phillippe Trudel FOR THE RESPONDENT
Sainte-Foy, Quebec
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