Date: 20050429
Docket: IMM-7640-04
Citation: 2005 FC 587
Ottawa, Ontario, the 29th day of April 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
AGATHA DOROTEIA NZINGA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision by a panel of the Immigration and Refugee Board (Refugee Protection Division) (the panel and the IRB) dated August 19, 2004, that the applicant was not a Convention refugee since she was excluded on account of her complicity in an organization which committed crimes against humanity. The applicant is seeking to have this decision set aside and to have the matter referred to a differently constituted panel.
ISSUES
[2] On a preliminary point, since there is no transcript of the third day of hearing, is the Court in a position to carry out its analytical and review duties in accordance with the issues raised?
[3] If necessary, did the panel correctly apply the concepts of "member" and "complicity" associated with exclusion pursuant to clause 1F(a) of the United Nations Convention Relating to the Status of Refugees (the Convention) and pursuant to section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA)?
[4] If necessary, did the panel err in law or make a determination based on erroneous facts, or act in a manner contrary to the law, in arriving at its decision?
CONCLUSION
[5] For the reasons set out below, the answer to the preliminary question is negative. Consequently, there is no need to answer the other two questions. However, for the purposes of enlightening the reader, it would seem necessary to discuss the facts giving rise to the proceeding at bar.
FACTS
[6] The applicant Agatha Doroteia Nzinga (Ms. Nzinga or the applicant) is a citizen of Angola of ethnic origin. She said she feared persecution in Angola for her political opinion and her membership in a particular ethnic group.
[7] Her fiancé and several members of the family were members of the political party Union Nationale pour l'Indépendance Totale de l'Angola (UNITA). In 1989, when she was 17, the applicant became a member of UNITA. As a female member of UNITA, she was not entitled to hold any position of power and was relegated to mass education. According to her testimony, she distributed pamphlets, put up notices, recruited members and informed members when there were meetings. It should be noted that UNITA could not hold public meetings as the Angola government had prohibited them.
[8] The applicant was a member of UNITA for nearly 10 years, from 1989 to 1998. However, she alleged that in 1995 she tried to withdraw from UNITA as the result of rumours which had been circulating since 1992 that the party was involved in massacres of the Angolan people. Despite the fact that her fiancé had told her that such massacres had not taken place, the applicant nevertheless wished to withdraw. However, she did not terminate her participation in UNITA because of an anonymous letter from a member of UNITA threatening her if she left. As she was unable to completely abandon her involvement in UNITA, she said that she reduced the extent of her role and her activities.
[9] In March 1998, because of the Angolan situation, her father sent her to study in France. She said she had no contact with UNITA or its personnel (except for her fiancé) while she was away. While she was in France, she filed an application for protection, which was denied. In October 1992, she returned to Angola since her mother was ill.
[10] After her return, her fiancé - now a captain in UNITA - was arrested and imprisoned. In early January 2002, soldiers came to the applicant's residence because her fiancé had escaped from prison. As he was not at her residence, they blamed her family. She testified that this happened on two occasions in early January 2002.
[11] Fearing for her life, she decided to leave her country. A Portugese friend was able to obtain a passport for her and she travelled to Canada with it, arriving on January 27, 2002, and claiming refugee status on her arrival.
IMPUGNED DECISION
[12] The hearing of May 9, 2003, was adjourned when the applicant spontaneously testified about her involvement in and activities with UNITA, since that information was not part of her Personal Information Form (PIF) or the form she completed at the point of entry (POE). On the contrary, her comments concerning UNITA were limited to the participation of other members of her family. A representative of the Minister of Citizenship and Immigration subsequently intervened in the applicant's case. The hearing of February 18, 2004, had to be adjourned after a time since the applicant's baby was crying, preventing her from participating in the hearing. Finally, the matter was concluded on April 27, 2004, but the tape of that hearing was defective and this prevented the production of a transcript.
[13] The panel determined that the respondent had discharged his burden of establishing that there were serious reasons for thinking that the applicant was excluded because of her membership in a group responsible for crimes against humanity:
[TRANSLATION]
The panel concludes that the applicant should be excluded because she is a person with respect to whom there are serious reasons for considering that, as an accomplice, she committed a crime against humanity: she was active in UNITA, sharing their aims, she remained in UNITA and she was aware of the atrocities committed by the group. [See page 11 of decision.]
[14] The panel further concluded that the applicant's testimony lacked credibility on important aspects of her claim on account of her omissions and contradictions. For example, the applicant gave several different dates to describe the same events (for instance, the date of her engagement). The panel also found implausible the applicant's explanation that someone in France suggested she omit information about her function and activities in UNITA, since this was [TRANSLATION] "a matter at the heart of her claim" (see page 3 of decision, final paragraph).
PARTIES' ARGUMENTS
Applicant
[15] The applicant argued that the panel erred in its conclusions in determining that she was an accomplice and had committed crimes against humanity because of her membership in and duties with UNITA. In support of this she cited Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.) (Ramirez), at page 316, in which MacGuigan J.A. noted that the use of the word "committed" in the Convention implied a mental element or knowledge: "no one can 'commit' international crimes without personal and knowing participation". According to the principles stated in Ramirez, supra, and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] F.C. 433 (C.A.) (Sivakumar), the panel did not properly analyse the part the applicant played in UNITA. She had no decision-making power, was not part of any decision-making process for the commission of these crimes, and in addition she had no knowledge apart from rumours that UNITA was committing such crimes against the citizens of Angola. That said, she alleged that the conclusion at which the panel arrived, regarding her as an accomplice, was unreasonable.
[16] The applicant submitted that the panel erred in failing to address the question dealing with the applicant's fear at the hearing if return to her country was imposed. She noted in her arguments that she feared persecution by the present government and could not return to her country of origin, since she feared for her life. According to the applicant, the panel did not review this evidence and made no determinations regarding her fear of persecution, which in her submission is an error reviewable by this Court.
Respondent
[17] The respondent argued that, since the issue before this Court is assessment of the applicant's credibility, the Court should not intervene unless there is a patently unreasonable finding of fact. Insofar as findings of fact are supported by the evidence, the Court should not interfere with the decision even if it would have reached a different conclusion. In the case at bar, the panel gave the applicant an opportunity to explain the contradictions and implausibilities arising from her testimony and from the documentary evidence.
[18] Further, the panel correctly applied section 98 of the IRPA, in finding that, pursuant to clause 1F(a) of the Convention, the applicant was excluded. There were serious reasons for considering that the applicant had committed a crime against humanity through her membership in UNITA. That finding is a question of law and fact, and so reviewable by the reasonableness standard. Taking the evidence as a whole into account, the panel's decision was reasonable and there is no basis for intervention by this Court.
ANALYSIS
Panel's decision: Preliminary point
[19] As indicated above, the hearing lasted for three days. The hearing of May 9, 2003, was adjourned following the applicant's spontaneous testimony about her involvement in and activities with UNITA. The hearing of February 18, 2004, was adjourned because her child, who was with her, prevented her from paying the attention required. The hearing ended on April 27, 2004. There are transcripts for the first two days, but as the tape was not working there is no transcript for the last day.
[20] I raised this matter at the hearing and heard the positions of the parties, and the situation concerns me although there is no statutory or regulatory requirement that a panel's hearings be recorded. There may be circumstances in which such a lack of a transcript could raise a serious question of infringement of the rules of natural justice. In this connection, I have in mind the following comments by L'Heureux-Dubé J., formerly of the Supreme Court, in Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793:
[80] In my view, the decisions in Kandiah and Hayes, supra [Kandiah v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 232 (F.C.A.), and R. v. Hayes, [1989] 1 S.C.R. 44], provide an excellent statement of the principles of natural justice as they apply to the record made of an administrative tribunal's hearing. In cases where the record is incomplete, the denial of justice allegedly arises from the inadequacy of the information upon which a reviewing court bases its decision. As a consequence, an appellant may be denied his or her grounds of appeal or review. The rules enunciated in these decisions prevent this unfortunate result. They also avoid the unnecessary encumbrance of administrative proceedings and needless repetition of a fact-finding inquiry long after the events in question have passed.
[81] In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. [Emphasis added.]
(See also the comments of Lemieux J. in Goodman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 342 (T.D.), at paragraphs 67-90, and especially paragraphs 81-82, and Voslaev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1299 (T.D.))
[21] Without a transcript, but taking into account the panel's decision and the record, how can the Court be sure that the claimant had an opportunity to properly present her evidence or that the panel properly discharged its obligations?
I have concluded that without a transcript of the hearing, I am unable to properly review the general finding of a lack of credibility, nor can I properly consider whether the Board provided a reasonable opportunity to the applicant to address its concerns or complied with its obligation under subsection 68(5) of the Immigration Act.
[Ahmed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 739 (T.D.), per Dawson J., at para. 18.]
[22] The fact that a transcript of the hearing on April 27, 2004, is not available raises an important question about whether the Court can determine if the applicant was denied a ground of review because of that non-availability. Specifically, without a transcript of the hearing I cannot determine whether the applicant was correct in arguing that the panel did not properly understand her function in UNITA. The essence of the case at bar is the applicant's role as a member of UNITA and her knowledge, or lack thereof, of the crimes against humanity committed by that political organization, and the credibility of the testimony in this regard.
[23] I note that at the end of the second day's hearing the participants acknowledged that the concept of "member" and what the applicant knew as a member had not yet been addressed (see pages 784 et seq. of the panel's record). With this concern in mind, inter alia, the panel set the peremptory date of April 27, 2004, for continuing the hearing. As mentioned earlier, there was no tape of that hearing. It is thus impossible for the Court to analyse the panel's determination that the applicant committed a crime against humanity as an accomplice, on account of her activity in UNITA, sharing its objectives and knowing of the atrocities committed by the group. The final day of the hearing was to deal with these matters, inter alia, and the issue of the applicant's credibility.
[24] In these circumstances, and in the interests of justice, it seems prudent for the Court to set aside the panel's decision and refer the applicant's to a differently constituted panel.
Comment on exclusion of applicant
[25] Having made this determination, it is not necessary according to the applicable standard for the Court to analyse the panel's finding on the applicant's complicity in the crimes against humanity attributed to UNITA, and consequently the exclusion under clause 1F(a) of the Convention.
[26] Counsel were invited to submit a certified question, but declined to do so.
ORDER
THE COURT ORDERS THAT:
- The panel's decision dated August 19, 2004 is set aside and the matter referred to a differently constituted panel. No question will be certified.
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"Simon Noël"
Judge
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Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7640-04
STYLE OF CAUSE: AGATHA DOROTEIA NZINGA
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA
DATE OF HEARING: APRIL 25, 2005
REASONS: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: APRIL 29, 2005
APPEARANCES:
Kibondo Kilongozi FOR THE APPLICANT
Sonia Barette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kibondo Kilongozi FOR THE APPLICANT
Ottawa (613) 236-1119
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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