Date: 20001116
Docket: IMM-1422-99
OTTAWA, Ontario, November 16, 2000
BEFORE: Rouleau J.
Between:
MWANA KABENGELE
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
[1] The application for judicial review is dismissed.
P. ROULEAU
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001116
Docket: IMM-1422-99
Between:
MWANA KABENGELE
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] This application for judicial review was brought against a decision of the Refugee Division of the Immigration and Refugee Board (hereinafter "the Refugee Division"), made on February 18, 1999, according to which the plaintiff is not a Convention refugee.
[2] The plaintiff is originally from East Kasai and lived in Kinshasa in the Democratic Republic of the Congo. He never became involved in politics, preferring the world of business. His father, Justin Kabengele-Ba Mwamba, is a politician and a businessman in Kinshasa. He was very wealthy and had a lot of friends in the circle of the former President Mobutu and his Ministers. He was regarded as a leading figure in Mobutu's regime, before Larent-Désiré Kabila took power.
[3] In his reply to question 37 of his Personal Information Form the plaintiff indicated that he was fleeing his country because of the fate reserved for leading figures in the former Mobutu regime and the members of their families by the Kabila government.
[4] The Refugee Division found that the plaintiff was not a Convention refugee. It indicated that a document more recent than those submitted by the plaintiff indicated that the senior persons who had been arrested by the Kabila government had been released and placed under house arrest. Additionally, a reply from the Research Branch of the Refugee Board in Ottawa indicated that there was no documentation regarding the treatment of members of the families of persons sought by the government.
[5] The Refugee Division also found it unlikely that after the plaintiff sought refuge in Congo-Brazzaville for nearly five months, he could return to the Democratic Republic of the Congo for over a month despite the fact that a warrant of arrest had been issued against him. Additionally, the plaintiff wrote in his Personal Information Form that he lived at Bangui in the Central African Republic from February to March 1998. He subsequently indicated that he was in Zaire during this period and that he was only in the Central African Republic for five days, in March 1998. In the Refugee Division's opinion, these contradictions undermine the plaintiff's credibility.
[6] The Refugee Division further noted that the plaintiff's sisters, in exile in Congo-Brazzaville, returned to the Democratic Republic of the Congo in April or May 1998. The plaintiff indicated at the hearing that his sisters were suffering financial hardship and thought that by returning to their country they would suffer no further repressive measures.
[7] The Refugee Division accepted an article from the newspaper "Le Compatriote", dated June 12, 1998, which mentioned three armed men breaking into the plaintiff's sister's house. The Refugee Division noted that the article described the incident as "banditry" and did not mention that the cause of the problems was that she was the daughter of a Mobutu associate.
[8] The same article mentioned a previous similar incident at the home of the plaintiff's parents, but did not say that the plaintiff's father had been arrested. The Refugee Division indicated that a document entered in evidence did indicate that the residence of the plaintiff's father was completely ransacked in broad daylight on July 5, 1997, but there was no document to show that the man was arrested.
[9] The Refugee Division did not attach any weight to the plaintiff's testimony at the hearing when the latter told them he feared returning to his country because of his ethnic origin, since he had not mentioned this point in his Personal Information Form. When questioned about this the plaintiff replied that [TRANSLATION] "he wanted to be modest, he had written (in his words) in `outline' and he tended to minimize things because of his academic training". Since the plaintiff said he had 14 years' education, the Refugee Division found his replies entirely unsatisfactory.
Parties' arguments
[10] The plaintiff argued first that his right to a full and complete defence had been infringed because Exhibit P-3, to which the Refugee Division referred in its decision, was not given to him and was not part of the record. For his part, the defendant maintained that the [TRANSLATION] "Reply to Information Request RDC29348.E", on which the Refugee Division relied in finding that senior persons were safe in the Democratic Republic of the Congo, was clearly filed by the refugee claims officer at the hearing as Exhibit A-3 and was not only part of the list of exhibits filed by the claims officer, but the Refugee Division record contained a complete copy of it. The defendant admitted, however, that in referring to Exhibit P-3 the Refugee Division made an insignificant clerical error since the Division adopted the relevant passage in the text of its decision. I concur with the defendant, and this disposes of this first point forthwith.
[11] The plaintiff argued that the Refugee Division could not reasonably conclude that the circumstances in the plaintiff's country of origin had changed so much that the plaintiff could no longer objectively fear persecution. The plaintiff felt that the political changes regarding leading figures in the former government was not significant, effective or lasting. The plaintiff maintained that the Refugee Division should not have disregarded the document issued by the United Nations High Commission for Refugees and titled "Guidelines for Refugee and Asylum Seekers from the Democratic Republic of Congo". According to the plaintiff, the Refugee Division did not in any way assess the real impact of the political change, if there had been any, on his personal position.
[12] The defendant indicated that since the plaintiff left the Democratic Republic of the Congo the situation is no longer what he described at the hearing and what it might seem to be at first sight from the documentary evidence relied on by him. Assessing the changing situation in a country is a question of fact and the applicable test in a refugee application is still that described in Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680, and Mileva v. Canada (M.E.I.), 3 F.C. 398 [sic], that is, the existence of a reasonable fear of persecution on the day of the hearing. Assessing the evidentiary value of evidence is within the discretion of the Refugee Division, so that this Court may only intervene if the conclusion is perverse, capricious or unreasonable. Further, as the Refugee Division considered that the plaintiff had not even shown that his father was arrested as a senior person, assuming that the documentary evidence did not absolutely establish that senior persons were safe in the Democratic Republic of the Congo, this caused no injury to the plaintiff and the Court clearly could not intervene for this reason.
[13] The plaintiff argued that the Refugee Division erred in dismissing his arguments about his fear based on his ethnic origin for the reason that this point was not mentioned in his Personal Information Form. Similarly, the Refugee Division also erred in not dealing with his fear of persecution for his activities as a businessman, when several things showed that he was at risk. The defendant argued that the Refugee Division assessed the plaintiff's testimony and the evidence contained in the record as a whole. In its assessment of credibility the Refugee Division was entitled to attach more weight to the documentary evidence which contradicted the plaintiff's testimony. Even if this Court had regarded certain points in the documentary evidence differently or come to different conclusions, it could not intervene just for that reason. As to the alleged fear of persecution because of the plaintiff's ethnic origin, the plaintiff [sic] felt it was reasonable for the Refugee Division to conclude that the plaintiff lacked credibility because of this fundamental omission in his Personal Information Form. Further, the plaintiff's complaint against the Refugee Division for failing to deal with the fear of persecution he allegedly had as a member of the social group of businessmen is without basis since the plaintiff had not discharged his burden of proving his allegations. It was not enough to present general evidence of the situation in his country. He still had to establish a connection between his claim and this evidence, and that was not done. The transcript clearly showed that the plaintiff had never spoken of this essential aspect of his claim either at the hearing or in his Personal Information Form. This point was only mentioned in the plaintiff's argument, and very cautiously.
[14] The plaintiff considered that the Refugee Division misinterpreted the meaning of the article in the newspaper "Le Compatriote", which it chose to use as a basis for concluding that the plaintiff's father had not been arrested by the authorities, failing to take into account the plaintiff's explanations regarding the censorship imposed on journalists in the Democratic Republic of the Congo. According to the plaintiff, the Refugee Division undertook a partial and superficial analysis of the evidence as a whole.
[15] The plaintiff considered that in view of the circumstances, in particular his extensive travel within a quite short period of time, the error found by the Refugee Division regarding dates relating to his places of residence in March 1998 in the Central African Republic should not have prejudiced his claim, especially as he told the members of the Board that the dates were approximate.
[16] The plaintiff argued that the fact he returned to his country after spending five months in Congo-Brazzaville, and despite there being a warrant to arrest him, was not a valid reason for doubting his credibility. The plaintiff alleged that the Refugee Division had not taken into account the fact that a passport was not necessary to cross the undefended border between the two states, that Zaire was in a state of anarchy at the relevant time and that he stayed in hiding when he returned. The defendant argued, on the contrary, that it was entirely proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear.
[17] The plaintiff considered that the standard of review to be applied to errors of law is that of the correct decision. The applicable standard for errors of fact and mixed errors of law and fact, he submitted, was the reasonable decision simpliciter. Even if the standard was that of the patently unreasonable decision, the errors noted met the conditions of the test. He proposed to certify a question to that effect. The defendant argued that in order to rebut a finding of fact by the Refugee Division the plaintiff still had to establish that it was patently unreasonable. Even if the standard of review was that of the unreasonable or reasonable conclusion simpliciter, the decision a quo also passed this test.
[18] The plaintiff maintained that deporting him to his country, where his life was in danger, would infringe his right to life and security of the person, as well as the right not to be subject to cruel or unusual punishment or treatment. These rights set out in the Canadian Charter and international conventions have to be applied at all stages of the process of determining refugee status, since as remedies after a rejection by the Refugee Division are almost non-existent, the effect of such a rejection is for all practical purposes to automatically return the plaintiff to his country. The defendant felt that this argument was premature since the Refugee Division's decision, as such, did not constitute cruel and unusual treatment and did not infringe the plaintiff's rights to life, liberty and security of the person.
[19] Finally, the plaintiff argued that the Refugee Division's practice of entering transcripts of the hearing of a decision which has been the subject of a successful judicial review in the new record before the Refugee Division, unless an order is made to the contrary, makes a re-hearing for the claimants entirely illusory and infringes the rules of fundamental justice. As to the filing of the transcript, the defendant noted that the Court never imposed conditions on the use of this material in the Refugee Division when there was a re-determination.
Analysis
[20] After a careful review of the record I find that the plaintiff objected extensively to the findings of the Refugee Division dealing with his credibility and the assessment of facts. In view of the many arguments raised, I will comment on them under separate headings for the sake of clarity.
Standard of review
[21] It is for the Refugee Division, as a specialized tribunal, to assess the credibility of witnesses and of the evidence presented. Unless the plaintiff is able to show that the inferences drawn by the tribunal could not reasonably have been drawn, there is no basis for intervention by this Court. These rules were restated by the Court in Kabeya v. M.C.I., IMM-47-99, January 28, 2000 (per Lemieux J.), as follows:
| As my fellow judges have said many times, the standard of review of an Immigration and Refugee Board decision whose reasons are based on a lack of credibility by the claimant due to implausible and improbable statements, drawn reasonably and based on the evidence, or as a result of the confusion created by the latter's responses, is that stated by the Federal Court of Appeal in Aguebor v. Canada by Décary J.A.: |
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
| This conclusion is consistent with the Supreme Court of Canada judgment in Canadian Union of Public Employees, Local 301 v. City of Montreal, in which L'Heureux-Dubé J. made the following observation at 844: |
| We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent [sic] one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. (See also Mostajelin v. M.E.I., A-122-90, January 15, 1993, F.C.A.). |
[22] These principles must be applied to the case at bar, and the certification of a question in this regard does not prove to be necessary.
Changed circumstances in country
[23] Despite its negative conclusion about the plaintiff's credibility, the Refugee Division concluded that the plaintiff no longer had an objective fear of persecution because of a change in the political situation in the Democratic Republic of the Congo.
[24] The plaintiff had based his claim on the following passage from a document titled "Guidelines for Refugee and Asylum Seekers from the Democratic Republic of Congo", prepared by the United Nations High Commission for Refugees and dated January 5, 1998. The relevant portion read as follows:
| B. Members of Political Parties and Mobutu's Close Relatives, Ministers and Ambassadors |
| 16.1 Leading and active members of MPR and its allies of the Forces Politiques du Conclave and other pro-Mobutu parties (created at the time of the National Conference on Mobutu's initiative and with his financial assistance) might legitimately seek political asylum or refugee status in Europe or Africa, as the political activities are usually banned in the Democratic Republic of Congo and former MPR leaders who have not fled from the country are being detained and ill-treated. This first category of close relatives does include political allies and Mobutu's family members as well as his close collaborators, especially those from Ngbandi tribe or Equateur region, as most of them are being looked for by AFDL regime, simply because of their political relationship or ties of blood with the former President. They, in principle, deserve international protection. |
[25] Since Yusuf v. Canada (M.E.I.) (1995), 179 N.R. 11 (F.C.A.), it has been settled that assessing the changing situation in a country is a question of fact and the test applicable in a refugee status application is still that described in Adjei and Mileva, supra, namely the presence of a reasonable fear of persecution on the date of the hearing:
| We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the Act: does the claimant now have a well founded fear of persecution? Since there was in this case evidence to support the Board's negative finding on this issue, we would not intervene. |
Also:
| There is no necessity for the board to refer in detail to all of the evidence before it (Hassan v. Canada (Minister of Employment & Immigration)), (unreported, Court file A-831-90, October 22, 1992 . . . (Fed. C.A.). The board is one with recognized expertise, and unless its conclusions of fact from all the evidence before it can be said to be capricious or perverse, this Court may not intervene. |
. . . . .
| Generally the weight to be given to evidence is a matter for the tribunal's proper discretion. Unless that discretion can be said to be unreasonably exercised, this court will not intervene. (Tawfik v. M.E.I., 26 Imm. L.R. (2d) 148.) |
[26] In the case at bar the Refugee Division concluded that the political situation in the plaintiff's country was no longer what it was when he left. It relied on the evidence in the record, in particular Exhibit A-4, a [TRANSLATION] "Reply to Information Request RDC 29268.F", dated May 4, 1998. In that document it states:
| The information available on leading figures in the Mobutu regime was provided in the Reply to Information Request RDC 28505.F of January 20, 1998. However, in its 1997 annual report the Zaire Human Rights Defence Association (ZHRDA) noted that leading figures in the Mobutu regime, most of whom had been arrested and detained in the Kinshasa penitentiary and re-education centre, had "almost empty charge sheets" (ZHRDA, Feb. 1998, 11). However, it states in the same report that "former leading figures in the Mobutu regime, for whom judges had initiated prosecutions for economic crimes, have recovered their freedom one by one and ended the prosecutions by negotiating directly with the head of state the cost of dropping the charges against them" (ibid., 7) . . . According to AFP, 26 Mobutu regime leading figures imprisoned for "misappropriation of public funds" were released and placed under house arrest (February 19, 1998) . . . |
[27] The Refugee Division further relied on Exhibit A-3 (which it erroneously numbered P-3, as discussed earlier), which also consisted of a reply by the Research Directorate of the Refugee Board in Ottawa to an information request. It stated:
| . . . There are no reports of family members of persons wanted by the Kabila government (RDC) in the sources consulted by the Research Directorate. |
[28] In his argument the plaintiff essentially suggested a different interpretation of the document of May 4, 1998. The Court certainly has no basis for reassessing the evidence submitted. The Refugee Division's decision was based on certain points in the record, and if it is not shown that its conclusions could not reasonably have been drawn from the documents considered, I do not see how this Court could intervene. In the case at bar, I think it was reasonable for the Refugee Division to conclude that the plaintiff had not proven that he had a reasonable fear of persecution at the time of the hearing.
[29] I note in passing the existence of a judgment by McGillis J. in Sampassa v. Canada (M.C.I.), IMM-964-98, January 13, 1999, which concerned a refugee status claim by Zaïrians who were also members of a family of former leading figures in the former Mobutu regime. I do not think this decision is applicable to the case at bar. It is well established that a refugee status claim must be considered on the particular circumstances of each case. Further, in Sampassa the claimants were found to have been credible, which is not the case here.
Fear of persecution for ethnic origin
[30] The Refugee Division found it improbable that the plaintiff feared persecution on returning to his country because of his ethnic origin. The plaintiff did not mention this ground of fear in his Personal Information Form. A careful reading of his reply to question 37, containing his reasons for fearing persecution, makes it clear that the reason the plaintiff gave was a fear of persecution on account of his family relationship to his father, a leading figure in the Mobutu regime, which is far from synonymous with ethnic origin. The plaintiff tried to justify this discrepancy at the hearing by arguing that he wanted to use as little space as possible in his form and he described his account [TRANSLATION] "in outline" because of the tendency he had to compress things due to his academic training. The plaintiff has 14 years' education.
[31] In his Personal Information Form the plaintiff failed to mention a fundamental aspect of his claim. It is well established that such an omission may be the basis for a negative conclusion as to credibility (see judgment of Nadon J. in Sanchez v. M.E.I., IMM-2631-99, April 20, 2000; see also Oduro v. M.E.I., IMM-903-93, December 24, 1993). Further, although not conclusive the plaintiff's academic training was absolutely relevant in determining his level of understanding of the questions on the form. Question 37 on the form indeed indicated clearly that the plaintiff should describe all important incidents leading him to seek protection outside his country and mention measures taken against him, members of his family or other persons in a similar position.
Fear of persecution for economic activities
[32] The plaintiff relied heavily on the Refugee Division's failure to deal with the fear of persecution which the plaintiff might have on account of his activities as a businessman. Once again, the tribunal's record and the transcript clearly establish that the plaintiff never clearly said that he regarded this aspect as essential to his claim. The plaintiff never made any alterations to his Personal Information Form although he was given an opportunity to do so, so as to mention that he regarded this point as a basis for his fear. Although his counsel questioned him about the basis of his fear of returning, the plaintiff never discussed his fear as a member of the social group of businessmen. Indeed, the point was only referred to once, in counsel for the plaintiff's final argument. The latter in fact indicated he was fully aware that the point had not been raised in the Personal Information Form and tried to justify the oversight by mentioning the plaintiff's habit of making things as short as possible.
[33] It is well settled that it is the plaintiff who has the burden of establishing an objective and subjective fear of persecution. It is not enough simply to present documentary evidence. The plaintiff must have shown that he himself had a valid fear of persecution (see Sinora v. M.E.I. (1993), 66 F.T.R. 113 (F.C.A.)).
[34] In my opinion, it was certainly not unreasonable for the Refugee Division not to deal with this point, which clearly was regarded by the plaintiff as secondary at the time he filed his application.
Arrest of plaintiff's father and importance of article in newspaper "Le Compatriote"
[35] The newspaper article in question made no reference to the arrest of the plaintiff's father and did not indicate that the cause of the theft was the fact that the family was that of a Mobutu associate. The plaintiff argued that the Refugee Division could not reach such a conclusion in view of the censorship and pressures brought to bear on journalists.
[36] It appeared that the Refugee Division preferred to rely on the documentary evidence rather than the plaintiff's testimony, which it was fully entitled to do (Zhou v. M.E.I., A-492-91, July 18, 1994). Further, even if the Court might have assigned different weight to the documentary evidence or reached a different conclusion, it could not intervene just for that reason. In this regard MacKay J. said the following in Pehtereva v. M.C.I., IMM-4078-94, November 7, 1995:
| Even if the reviewing court might have assigned different weight or reached other conclusions that provides no basis for the reviewing court to intervene where it is not established that the tribunal has been perverse or capricious or its conclusions are not reasonably supported by the evidence. I am not persuaded that the tribunal's conclusions can be so classified in this case. |
[37] The question therefore is whether it was reasonable for the Refugee Division to prefer the documentary evidence to the plaintiff's testimony. In my opinion, the answer is yes. The plaintiff's credibility had already been undermined by other contradictions. There is nothing to indicate that the Refugee Division did not take into account the fact that journalists in the Democratic Republic of the Congo are subject to pressures by the government. Indeed, press clippings indicated that muzzling of the press is an established practice in the DRC. However, there is nothing to show that the content of the newspaper article would have been different if it were not for these alleged pressures. Essentially, the plaintiff is asking this Court to rule on the weight that should be attached to the newspaper article. That is an exercise which is within the jurisdiction of the Refugee Division. The Court should not speculate on the possible content of a newspaper article.
Errors about dates of residence
[38] To question 22 on the plaintiff's Personal Information Form, he replied that he lived in Bangui in the Central African Republic from February to March 1998. To question 31, however, the plaintiff wrote that he was in Zaire during that period and he was only in the Central African Republic for five days in March 1998. To explain this apparent contradiction, the plaintiff explained to the Refugee Division that the dates were approximate in view of the fact that during the period in question he was travelling in various countries.
[39] This question is entirely within the jurisdiction of the Refugee Division, which had the opportunity to hear the plaintiff's arguments and his reasons. The plaintiff was unable to persuade the Court that the Refugee Division erred and that its conclusion was unreasonable.
Plaintiff's actions
[40] The Refugee Division considered that the fact that the plaintiff returned voluntarily and for a fairly long time to the country in which he feared persecution, and where there was a warrant of arrest still pending against him, made the existence of a reasonable fear of persecution by the plaintiff unlikely. I entirely agree.
[41] It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely (see Rached v. M.C.I., A-859-91, January 18, 1996; Wey v. S.S. Canada, IMM-2758-94, February 21, 1991; Safakhoo v. M.C.I., IMM-455-96, April 3, 1997; Bello v. M.C.I., IMM-1771-96, April 11, 1997).
[42] The plaintiff argued that the Refugee Division did not take into account his explanations that Kinshasa and Brazzaville are close and that a passport is not necessary to travel from one town to the other, or his testimony that he remained in hiding throughout the period when he returned to Kinshasa. However, there is nothing to indicate that the Refugee Division did not take into account this evidence, which in any case was before it. This Court should not intervene for this reason to review the Refugee Division's assessment of the evidence presented, a fortiori when the arguments submitted are not new and do not show that the initial decision was unreasonable.
Charter arguments
[43] The plaintiff's argument is premature, since the point at issue before the Refugee Division was only whether he met the definition of a refugee. The Federal Court of Appeal has clearly established that s. 12 of the Charter cannot be relied on before the final deportation stage:
| The issue as to the effect of section 12 on the refoulement of Convention refugees being still open, the next question is whether it ought to be dealt with on this appeal. My view is that it should not, since I agree with the Board that the appellant's argument is brought prematurely, against the wrong decision maker at the wrong stage. |
. . . . .
| . . . it is only a return to Chile which could conceivably put the appellant in any section 12 danger, and it is only the Minister who has the statutory power to subject him to that danger. The Minister cannot even make a decision as to the country of removal until the issue of deportation is settled by the Board. |
| For this reason I take the view that the appellant cannot succeed in overturning subsection 27(2) or section 32. His case must therefore rest on a challenge to section 53, which is the only provision that can put the appellant's section 12 rights in jeopardy, because it is the only provision that allows him to be returned to Chile. [Barrera v. Canada, [1993] 2 F.C. 3 (F.C.A.)] |
[44] This reasoning was followed by Tremblay-Lamer J. in Plecko v. M.C.I. (1996), 114 F.T.R. 7 (F.C.):
| In my view, it matters little whether the removal order is based on s. 52 or 53 of the Immigration Act. It is only when the Minister tries to execute the removal order, to compel the applicant to return to Croatia, that he may argue that removal is contrary to s. 12 of the Charter. Political situations change rapidly and it would be premature and pointless to determine at this point whether return to Croatia would be cruel when it may be that no such removal will ever take place, for example if the Minister decided to grant humanitarian relief under s. 114(2) of the Act, or to deport the applicant in a few years when the circumstances in the country, in this instance Croatia, have changed. (See also Ward v. Canada (M.C.I.) (1996), 125 F.T.R. 1 (F.C.)) |
Transcript of hearing
[45] Although I do not have to rule on this point, I will nevertheless make certain observations. The Court's position on the use of transcripts of the initial hearing at a re-hearing is already well settled. In Diamanama v. M.C.I., IMM-1808-95, January 30, 1996 Reed J. stated:
| With respect to the wording of the order, I do not think it appropriate to word it in a way which would limit the Board that rehears the application. . . . The second panel can, of course, use the transcript of the first hearing for whatever purposes it wishes but no order, from me, conditioning that use is either required or appropriate. (See also Sitsabeshan v. Canada (1994), 27 Imm. L.R. (2d) 299, and Diallo v. M.C.I., IMM-6865-93, December 22, 1994) |
[46] At the same time, the plaintiff referred to a decision by the Refugee Division in which it was held that use of this transcript could create a reasonable apprehension of bias. There is also in existence a memorandum in the Refugee Division instructing those responsible to remove the transcript of the first hearing from the record.
[47] Although the argument is interesting in itself, I do not feel it is proper to consider it, even if the initial decision had been reviewed. For it to be anything but academic this type of argument should be raised after the Refugee Division has in fact used the transcript in question. Further, it would seem the Refugee Division is justified in consulting the transcript of the initial hearing when it has to check the veracity of the plaintiff's account.
Final observations and conclusion
[48] At the hearing in this Court, the plaintiff filed 10 documents which were intended to replace the 22 documents already in the record. The defendant, who was represented by a new counsel, did not immediately object and did not argue that he had prepared for the hearing on the basis of the 22 replaced documents. In view of this situation, I consider that the defendant has not suffered any significant disadvantage and that the audi alteram partem rule has not been infringed.
[49] Fundamentally, the Refugee Division arrived at its decision by finding that (1) the plaintiff lacked credibility and (2) the political situation in the plaintiff's country of origin had changed. As indicated earlier, these conclusions are reasonable because they were based on the evidence in the record. That being so, I do not think there is any reason for judicial review of the decision. The application is accordingly dismissed.
P. ROULEAU
JUDGE
OTTAWA, Ontario
November 16, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1422-99
STYLE OF CAUSE: MWANA KABENGELE
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 26, 2000
REASONS FOR ORDER BY: ROULEAU J.
DATED: NOVEMBER 16, 2000
APPEARANCES:
MARIO BLANCHARD PLAINTIFF
MARTINE VALOIS DEFENDANT
SOLICITORS OF RECORD:
MARIO BLANCHARD PLAINTIFF
MONTRÉAL, QUEBEC
MORRIS ROSENBERG DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA
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