Date: 19991223
Docket: IMM-6299-98
Ottawa, Ontario, the 23rd day of December, 1999
Present: The Honourable Mr. Justice Pinard
Between:
David Luis JOHNSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision rendered on October 20, 1998 by the Convention Refugee Determination Division, ruling that the applicant is not a Convention refugee, is quashed and the matter is sent back to the Convention Refugee Determination Division, otherwise constituted, for reconsideration.
Certified true translation
Bernard Olivier
Date: 19991223
Docket: IMM-6299-98
Between:
David Luis JOHNSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on October 20, 1998 by the Convention Refugee Determination Division, ruling that the applicant is not a Convention refugee.
[2] The Board"s decision is essentially based on the applicant"s lack of credibility, as is indicated in the following extract from its decision:
[Translation]
The claimant, after demonstrating his knowledge of the FLEC movement, stated he had never had a membership card, that he did not think there even were any membership cards, that perhaps there were such but that he had never seen any and never attempted to get a card. He says he applied through Mr. Albertino for a birth certificate, the identity card and if possible a membership card in the FLEC. This request for a membership card, in our view, is contradictory to his previous testimony described above and [we] conclude that this undermines the claimant"s credibility. He adjusted his testimony, adding that he had attempted to supply documentary evidence of his affiliation.
In regard to his role as an informer within the FLEC, the Board finds the claimant"s story improbable when he states that Mr. Buta, whom he met once or twice a week according to his testimony, was never aware that he was a member of the FLEC. The Board thinks that if it was true that they met twice a week, Mr. Buta would have been aware of the claimant"s allegiances.
Furthermore, according to the claimant"s testimony, it was not until 1997, and on only one occasion, that Mr. Buta told him "that there would be some battalions in Cabinda and there would be a war". He adds that when Mr. Buta told him this, Mr. Buta did not realize that he was giving him some information.
The Board believes that this information was general, given that for a very long time there had been some clashes in the area, according to the documentary evidence as a whole, information that cannot be useful one way or another, and it does not believe that Mr. Buta was shot as the claimant would have us believe, since the information is not strategically useful.
The Board does not believe that the claimant played the role of an informer and does not believe he was an active member of the FLEC, as his story is improbable and has not satisfactorily demonstrated his involvement.
[3] Having heard from counsel for the parties and reviewed the record, I am of the opinion that at least two of the three "improbabilities" noted above by the Board are not actually so. On the issue of membership cards in the FLEC [Frente de Libertaçao do Enclave de Cabinda " Liberation Front of the Cabinda Enclave], the Board found that the applicant had contradicted himself when, on the one hand, he said he had applied for such a card "through Mr. Albertino" and, on the other hand, he stated that he "never attempted to get a card". But I see nothing in the record that supports the statement that the applicant declared he had never sought to obtain a card. The extracts from the transcript of his testimony to which the respondent"s counsel refers, at pages 247, 291 and 292, do not indicate that the applicant made any such statement.
[4] As to the Board"s statement that the applicant said Mr. Buta "was never aware that he was a member of the FLEC", it is not supported by the record, either. On the contrary, the extract from the transcript of the applicant"s testimony referred to by the respondent"s counsel, at page 261, simply indicates that the applicant stated he had never told Mr. Buta that he was a member of the FLEC, explaining however that the latter might well know.
[5] Since these two questions are related to the applicant"s membership in the FLEC and this membership goes to the very heart of the claim, I am of the opinion that the Board"s misapprehension of the facts vitiates its decision as a whole.
[6] Accordingly, the application for judicial review is allowed, the Board"s decision is quashed and the matter is sent back to the Convention Refugee Determination Division, otherwise constituted, for reconsideration.
OTTAWA, ONTARIO
December 23, 1999
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: DAVID LUIS JOHNSON v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: NOVEMBER 9, 1999 |
REASONS FOR ORDER OF PINARD J.
DATED: DECEMBER 23, 1999
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
EDITH SAVARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
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