[6]The context in which the demonstration took place is important. According to the applicant, the Mauritanian government apparently found out about his participation in the demonstration and suspected him of leading the attempted coup d’etat that occurred six days later. After the attempted coup d’etat, the Mauritanian authorities apparently questioned his family about his connection with the insurgents.
[7]Clearly, the panel had serious reservations about whether the photos of the demonstration had been posted on the Internet in such a way that they were accessible to the general public. (Panel’s transcripts of the May 10, 2004, hearing, panel’s record, at pages 344, 349, 353 and 354 and panel’s transcripts of the May 7, 2004, hearing, panel’s record, at pages 380, 381, 382, 383, 410 and 411.)
[8]At the start of the hearing on May 10, 2004, the panel informed counsel for the applicant (panel’s record at page 344) that [translation] “I personally searched for these photos myself on the Internet on. . . on Friday after the hearing and did not find them. . .”, to which the counsel responded [translation] “but it is clear that it is the website. It is clearly identified at the bottom that it was taken from the internet.” This led the panel to respond, [translation] “Counsel, I. . . I think I can say without arrogance I know how to use a computer.”
[9]As stated, the panel used its specialized knowledge to conclude that the photos of the demonstration had never appeared on the Internet since [translation] “a glance at the fly-leaf shows that it was actually an email message containing the photos as attachments.”
[10]In my view, the panel made three errors in its analysis on the question as to whether the Mauritanian authorities knew that the applicant had demonstrated in Ottawa against the regime on May 30, 2003.
[11]Firstly, section 18 of the RPD Rules provides that before using any information that is within its specialized knowledge, the Division must notify the claimant and give them a chance to make representations on the reliability and use of the information.
[12]The panel’s record clearly shows that the panel did not notify the applicant and his counsel that, based on its specialized knowledge of computers, exhibit P-18 entitled “Yahoo ! France Groupes forum de la Diaspora pour une Mauritanie unie et prospère — Coalition pour le changement” message 2070/2550 dated June 5, 2003, with the subject [translation] “Photos of the demonstration in Ottawa (30/05/03)”, was actually an email message containing the photos as attachments, which were therefore not accessible to the general public. The applicant and his counsel were not aware of this finding of the panel until they read the final judgment.
[13]The purpose of section 18 of the RPD Rules is to govern procedural fairness and the presentation of evidence. The panel was obligated to give the applicant a chance to demonstrate that its conclusion that the documents presented were email messages and not a copy of a web page accessible to the general public, based on its specialized knowledge of the Internet, was possibly incorrect. If confronted, the applicant or his counsel might have been able to demonstrate to the panel that Yahoo ! France Groupes had a discussion forum entitled “ForumDiaspora” on the Internet and that the attached photos were therefore accessible to the general public.
[14]Secondly, it is important to note that the document from Yahoo ! France Groupes was not the only evidence for this point. The applicant had submitted into evidence a message entitled “MAURITANIE-NET archives - May 2003, Week 5” describing the demonstration in Ottawa and stating that [translation] “the photos of the demonstration will be available in the coming days” (panel’s record, at page 129). The panel ignored this evidence showing that Mauritanie-Net was a website accessible to the general public and not an email service.
[15]Thirdly, and more fundamentally, the panel ignored the evidence demonstrating that the photos of the demonstration, whether or not they were posted on Yahoo ! France Groupes, were not the only photos identifying the applicant as an opponent of the regime. The applicant testified (panel’s record, at page 364) that [translation] “. . . after the. . .coup d’etat, the attempted coup d’etat in Mauritania, our names were given to the Mauritania intelligence services with our photos. . .”. The photos were taken at the Embassy of Mauritania in Ottawa by people from the Embassy (panel’s record, at page 374). In response to a question asked by the presiding member, the applicant suggested two ways Mauritanian officers could have identified him. In the panel’s record, at page 410, he said [translation] “I had these two possibilities, that is, that there was the possibility that it was on. . . from the Internet that they got the photo, it was also possible that it was sent by the Embassy. I do not know what. . . their source was.”
[16]In my opinion, the panel was obligated to comment on this evidence and not simply ignore it. This evidence was the basis of his refugee sur place claim and of his fear of the Mauritanian authorities.
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