Date: 20001003
Docket: IMM-3004-99
Between:
ÉRIC KENNEDY FOYET
Applicant
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The issue before the court in this case is whether the decision of the Convention Refugee Determination Division (the Refugee Division) of the Immigration and Refugee Board dated May18, 1999, is correct. The Refugee Division found that the applicant was not a Convention refugee and that he failed to establish a credible basis for his claim as set out in subsection 69.1(9.1) of the Immigration Act.1
[2] The applicant, who is a citizen of Cameroon, fears persecution in his homeland because of political opinions imputed to him. His father was a politician, an opponent of the party in power, and a member of the Social Democratic Front (SDF), the leading opposition party in Cameroon.
[3] The election of the applicant's father as mayor of Bamougoum2 angered both traditional chiefs and officials of the party in power. He was arrested three times and died on December 15, 1997, a few days after his last arrest, as a result of injuries inflicted by his torturers.
[4] In protest, the applicant distributed pamphlets to the public denouncing the situation in the municipality. He was arrested in April 1998, held for two days and interrogated. Shortly afterwards, on June 6, he was arrested and detained for a week. That time, he was questioned and tortured.
[5] The applicant left his homeland on August 9, 1998, and arrived in Canada the following day. Three days later, he claimed refugee status.
[6] In its decision dated May 18, 1999, the Refugee Division found that the applicant had not discharged his burden of proof, that his testimony was not credible, that his story appeared to be a complete fabrication and that he had not proved his political involvement with the SDF.
[7] On the basis of that assessment of the applicant's testimony and their review of the case, the panel members determined first that the applicant was not a "Convention refugee" within the meaning of subsection 2(1) of the Immigration Act. They then determined that he had failed to establish a credible basis for his claim under subsection 69.1(9.1) of the Act.
[8] The Refugee Division did not find the claimant's testimony that he had distributed pamphlets denouncing the specific circumstances surrounding the death of his father, an SDF supporter who had been elected mayor of his municipality under its banner, to be plausible. In its decision, the panel said: [TRANSLATION] "the only exhibit that reports the father's political activities is Exhibit P-6" and "this document does not tell the panel anything about the claimant's participation in the SDF" (T.R., p.7).
[9] The Federal Court of Appeal did state in Aguebor3 that the panel is in a better position than anyone ". . . to gauge the credibility of an account and to draw the necessary inferences [and] [a]s long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review."
[10] In this case, each of the two statements quoted above contains an error in the assessment of the evidence as well as an unreasonable inference against the applicant which is not justified by the facts. First, it is untrue that Exhibit P-6 was the only exhibit that reports the father's political activities, when there are photographs (T.R., pp. 222 and 224) showing his involvement in such activities, and also articles in La Nouvelle Express (T.R., p. 230) and, in particular, in Le Messager (T.R., p. 229) reporting that the applicant [TRANSLATION] ". . . is now resigned to being the victim of those who never put up with the positions taken by his father, the former mayor of the urban commune of Bafoussam and a former official of the Social Democratic Front in the rebel West province." The panel thus drew an unnecessary and unreasonable inference against the applicant by stating that Exhibit P-6 did not tell the panel anything about his participation in the SDF. It is clear from the applicant's testimony that he never claimed to be a supporter of the SDF. Unlike his father, he was not politically active as a member of the SDF (T.R., p. 258) but wanted, by taking action, to denounce the fate that had befallen a member of the SDF-- in this case, his father.
[11] For these reasons alone, the application for judicial review should be allowed.
[12] After finding that the applicant had not discharged his burden of proving that he was a Convention refugee, however, the panel members went a step further and found that he had failed to establish a credible basis for his claim, as provided in subsection 69.1(9.1), which reads:
| (9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim.
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(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.
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[13] The Refugee Division's finding that there was no credible basis for the claim merits some comment. In reaching that conclusion, the panel found that the applicant had adduced [TRANSLATION] "no credible or trustworthy evidence" at the hearing "on which [it] could have determined that [he] was a Convention refugee." (T.R., p. 12). The panel justified this conclusion by relying on Mr. Justice MacGuigan's comments in Sheikh ,4 which the panel believed to be directly applicable in this case. However, the panel failed to distinguish that case as warranted by the new legislative framework. The panel quoted the following passage from Sheikh:
| . . . [E]ven without disbelieving every word an applicant has uttered, a [panel] may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim . . . In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. |
[14] Applying these principles to this case, the panel found that, having determined that the applicant was not credible, it could reject his claim and subsequently make a finding that the applicant had no credible basis for his claim.
[15] In my view, the panel thereby erred in law by giving subsection 69.1(9.1) an interpretation no longer justified by Sheikh, as that case was decided under a completely different legislative framework.
[16] In Sheikh, the Federal Court of Appeal was dealing with part of subsection 46.01(6) of the Immigration Act5 at a time when refugee determination was a two-stage process. The court held that a first-level panel "errs in law in applying the test mandated for a full Refugee Division hearing rather than the lower threshold provided for a level one hearing."
[17] An overly broad interpretation of Sheikh may lead to results far beyond the scope of the case, which, we note, was decided in 1990, before the 1992 amendments to the Immigration Act. A contextual analysis of the decision is therefore required. First, in that case, MacGuigan J.A. himself qualified the comments quoted above, which the panel failed to distinguish in adopting them, when he stated:
| It is the first-level panel which has to be "of the opinion that there is any credible or trustworthy evidence". . . . It is the first-level tribunal which must base its decision on evidence which in the circumstances of the case, is considered credible or trustworthy, evidently by it. |
| The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant . . . . |
MacGuigan J.A. therefore distinguished between subjective evidence (testimony) and objective evidence (documentary evidence).
[18] As a result of amendments to the Immigration Act in 1992, the two-level system no longer exists, and a no credible basis finding, as provided in subsection 69.1(9.1) of the Act, has very serious consequences. When the panel finds that a claim has no credible basis, the claimant is now entitled only to a seven-day stay of execution of the removal order (paragraph 49(1)(f) of the Act). However, when the Refugee Division does not make a no credible basis finding, execution of the removal order is automatically stayed, and the claimant is eligible for consideration under the procedures with respect to a claimant who has been denied refugee status in Canada. A no credible basis finding is therefore very significant for refugee claimants.
[19] In my view, what Sheikh tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In this case, I believe that the panel erred in law by applying a general statement from Sheikh to a case which should have been dealt with under the new legislative framework, and the panel did so without even conducting the analysis recommended in that decision.
[20] In my view, the new subsection 69.1(9.1) of the Immigration Act also requires an analysis of all the evidence, both objective and subjective. In Mathiyabaranam,6Mr. Justice Linden of the Court of Appeal described the change in the legislative framework as follows:
| The genesis of the no credible basis finding in issue here is the former subsection 46(1) of the Act. Before its repeal, that section established a two-stage hearing process. . . . |
| The purpose of this two-stage process was to filter out obviously unfounded claims in an effort to allocate scarce resources only to those claims that had some chance of success. The preliminary credible basis hearing was eventually abandoned, however, in part because the vast majority of claimants were able to satisfy the low threshold imposed on them, so that very few cases were in fact filtered out of the system. Instead of conserving scarce resources, resources were thought to have been squandered on superfluous proceedings. |
| The core of the purpose contained in the old "credible basis" stage has been preserved in the new Act by way of subsection 69.1(9.). This provision limits access to further judicial and administrative resources to those claimants whose claims have some credibility, even though they have been rejected. [emphasis added] |
[21] In Mahanandan,7the Federal Court of Appeal as well affirmed that where documentary evidence which could affect the Board's appreciation of the claim is received in evidence at a hearing, the Board is required to indicate the impact that such evidence had upon the claim. Chief Justice Isaac stated:
| Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand. |
[22] In my view, before making a no credible basis finding, the panel must always consider all the evidence. A broad interpretation of Sheikh is not consistent with subsection 69.1(9.1) of the Immigration Act.
[23] Certainly, the panel need not expressly evaluate each piece of evidence in its reasons; however, given the significance of the provision at issue which, we would point out, was enacted some years after Sheikh, the context in which Sheikh was decided must be taken into account. In my view, a panel should exercise caution in following Sheikh when it decides to refer to that decision in making a no credible basis finding. The fact that a panel finds an applicant's testimony not credible does not, de facto, bring subsection 69.1(9.1) of the Immigration Act into play. As Madam Justice Tremblay-Lamer stated in Seevaratnam:8
| In my opinion, the Board failed to consider all of the evidence before it and simply denied the Applicant's claim because it did not find her credible. In the circumstances of this case, there was still evidence remaining which could have affected the assessment of the claim. Therefore, this evidence should have been expressly assessed. |
[24] Therefore, in every case, a thorough analysis must be carried out to establish whether the documentary evidence is relevant. If it is, the panel is required to state express reasons, having regard to the objective evidence, to explain why subsection 69.1(9.1) of theImmigration Act is being applied. As Mr. Justice Evans wrote in Cepeda-Gutierrez:9
| 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. |
[25] In this case, the panel found that the applicant failed to establish a credible basis for his claim, in accordance with subsection 69.1(9.1), after concluding that the applicant had adduced no credible or trustworthy evidence at the hearing on which it could have determined that the applicant was a Convention refugee.
[26] In order to make such a finding, the Refugee Division had an obligation to assess all the evidence and to expressly state the reasons that led to its no credible basis finding. By failing to expressly assess all the evidence,10 both subjective and objective, and by focusing exclusively on the applicant's testimony, the panel committed an error that is subject to judicial review. Accordingly, its decision regarding the application of subsection 69.1(9.1) of the Immigration Act must be set aside.
[27] For these reasons, I would allow the application for judicial review. Counsel for the parties did not raise any question of general importance.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated May 18, 1999, is allowed, the decision is set aside and the matter is referred back to the Board for a new hearing by a differently constituted panel.
PIERRE DENAULT Judge
Ottawa, Ontario
October 3, 2000
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE NO.: IMM-3004-99 |
| STYLE OF CAUSE: ÉRIC KENNEDY FOYET |
v.
MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: SEPTEMBER 5, 2000 |
REASONS FOR ORDER AND ORDER OF DENAULT J.
APPEARANCES:
| EVELINE FISET FOR THE APPLICANT |
| SIMON RUEL FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| EVELINE FISET FOR THE APPLICANT |
Montréal, Quebec
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
__________________
1 Immigration Act, S.C. 1992, c. 49.
2 A district or section of Bafoussam (Tribunal's record [T.R.] p. 235-236)
3 Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732.
4 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) at p. 244.
5 R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28).
6 Mathiyabaranam v. Canada (Minister of Employment and Immigration) (1995), 94 F.T.R. 262 (F.C.)
7 Mahanandan v. Canada (Minister of Employment and Immigration), (August 24, 1994). A-608-91 (F.C.A.)
8 Seevaratnam et al. v. Canada (Minister of Employment and Immigration) (May 11, 1999), IMM-3728-98 (F.C.)
9 Cepeda-Gutierrez v. Canada (Minister of Employment and Immigration) (October 6, 1998), IMM-596-98, at para. 17 (F.C.)
10 The panel neglected or failed to mention the existence of a medical report which corroborated the applicant's story regarding the mistreatment he suffered at the hands of the Cameroonian authorities while he was detained.
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