Date: 19991122
Docket: IMM-712-99
OTTAWA, ONTARIO, NOVEMBER 22, 1999
BEFORE: DANIÈLE TREMBLAY-LAMER J.
Between:
ANGE DOONDO NSOLE MBOKOSO,
NAOMIE NZITA DONDO TSHIBOLA,
MAYISA JEAN JAC NZITA,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
O R D E R
The application for judicial review is allowed in part. The case is returned to a newly formed panel for it to consider whether the plaintiff"s activities in Canada could make him a refugee regardless of his country of origin.
Certified true translation
Bernard Olivier, LL. B.
Date: 19991122
Docket: IMM-712-99
Between:
ANGE DOONDO NSOLE MBOKOSO,
NAOMIE NZITA DONDO TSHIBOLA,
MAYISA JEAN JAC NZITA,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board ("the Refugee Division") that the plaintiffs are not Convention refugees.
[2] The plaintiffs are citizens of the Democratic Republic of the Congo ("DRC"). They allege a fear of persecution because of the plaintiffs" political activities in the Union pour la démocratie et le progrès social ("UDPS") in 1994. The plaintiffs, a family, base their claim on the plaintiff"s fear of persecution.
[3] The Refugee Division concluded that the plaintiff"s account lacked credibility.
[4] Although some of the improbabilities noted by the panel were less than convincing, and an error occurred in assessing the facts, the fact remains that there were sufficient contradictions in the plaintiff"s testimony to support the panel"s finding that the account lacked credibility.
[5] As to the panel"s silence regarding the plaintiff"s activities in Canada, the defendant argued that the panel"s omission in this regard could in no way justify this Court"s intervention as the panel had concluded that the account lacked credibility in its entirety.
[6] In Attakora v. Canada (M.E.I.),1 the Court noted:
| Whether or not the applicant was a credible witness, and I have already indicated that the Board"s reasons for finding him not credible are based in error, that does not prevent him from being a refugee if his political opinions and activities are likely to lead to his arrest and punishment . In those circumstances, the only conclusion that was open to the Board was to find that the applicant was indeed a Convention refugee. |
[7] In Manzila v. Canada (M.C.I.),2 Hugessen J. held that the plaintiff"s activities could make him a refugee regardless of the activities in his country and that the Board member had erred in ignoring those activities:
| With respect, the member"s error was that he completely failed to deal with the second part of the applicant"s claim, namely his allegation that his activities here in Canada would have serious repercussions for him in his home country. The member mentions these activities at the very beginning of his decision but he does not dispose of the applicant"s claim that his activities here make him a refugee irrespective of his activities in his country of origin.3 |
[8] The defendant further noted that at his hearing the plaintiff never indicated that he had political activities in Canada. Counsel cited Guajardo-Espinoza v. Canada (M.E.I.)4 and Pierre-Louis v. Canada (M.E.I.)5 to this effect. In Pierre-Louis, Décary J.A. stated:
| In this case, we do not believe that the Refugee Division can be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole. |
[9] In Guajardo-Espinoza, Létourneau J.A. restated the same rules:
| With respect, the court does not feel that the appellants can ex post facto, that is once the Refugee Division decision has been rendered, change the nature of the argument they made to the tribunal based on one single sentence they took out of the file after fine tooth-combing it. As this court recently said in Pierre-Louis [sic] v. M.E.I. (F.C.A., No. A-1264-91, April 29, 1993), the Refugee Division cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole (Ibid, at p. 3). Saying the contrary would lead to a real hide-and-seek or guessing game and oblige the Refugee Division to undertake interminable investigations to eliminate reasons that did not apply in any case, that no one had raised and that the evidence did not support in any way, to say nothing of frivolous and pointless appeals that would certainly follow.6 |
[10] I do not think those judgments apply in the case at bar. The panel had evidence in the record regarding activities in Canada which emerged perceptibly: in particular, a letter written by the UDPS, Montréal-East cell, indicating that the plaintiff was an active member of their party. This letter explained that he attended meetings and took part in demonstrations. In view of this evidence, the panel should have examined the impact of the plaintiff"s membership in UDPS-Canada to determine whether the plaintiff had a reasonable fear of persecution on account of his activities in Canada.
[11] In the circumstances, the application for judicial review is allowed in part. The matter is referred back to a newly formed panel for it to consider whether the plaintiff"s activities in Canada could make him a refugee regardless of his activities in his country of origin.
[12] Counsel for the plaintiff asked that the following question be certified:
| Does a panel of the Refugee Division hearing a refugee status claim under s. 69.1 of the Immigration Act, that does not take into account documents which the claimant did not submit in evidence but which were in the possession of the panel, and which were drawn to the attention of members of the panel before the hearing, commit an error justifying reversal of its decision? |
[13] Counsel did not persuade the Court of the general significance of such a question. There will therefore be no question to certify.
| |
Danièle Tremblay-Lamer
JUDGE
|
OTTAWA, ONTARIO
November 22, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: ANGE DOONDO NSOLE MBOKOSO, |
- and -
| NAOMIE NZITA DONDO TSHIBOLA, |
- and -
v.
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: NOVEMBER 17, 1999 |
| REASONS FOR ORDER BY: TREMBLAY-LAMER J. |
APPEARANCES:
| JEAN-MICHEL MONTBRIAND FOR THE PLAINTIFF |
| ANNIE VAN DER MEERSCHEN FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| DOYON, GUERTIN, MONTBRIAND FOR THE PLAINTIFF |
& PLAMONDON
MONTRÉAL, QUEBEC
| MORRIS ROSENBERG FOR THE DEFENDANT |
DEPUTY ATTORNEY GENERAL
OF CANADA
__________________
1 (1989), 99 N.R. 168.
2 September 22, 1998, IMM-4757-97 (F.C.T.D.).
3 Ibid., para. 4.
4 (1993), 161 N.R. 132.
5 April 29, 1993, A-1264-91 (F.C.A.).
6 Supra, note 4, at 134-35.
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