Date: 19980821
Docket: IMM-3632-97
| Between: Joaquina Da Costa LAVRES MUSANA |
| Tesire Egidia LAVRES MUSANA |
| Arnaldo Duaguar LAVRES MUSANA |
Applicants
| And: Minister of Citizenship and Immigration |
Respondent
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The applicant, a Rwandan citizen who belongs to the Tutsi tribe, and her minor children (aged 2 and 10) are seeking judicial review of a decision of the Refugee Division (the Panel) refusing to grant them the refugee status that they had claimed.
[2] The applicant fled Rwanda in 1973 when she was only 5 years old. At that time, the Hutu-led government was attacking Tutsi citizens. She lived in Angola with her children until coming to Canada in December 1996, at which point she claimed refugee status by reason of her fear of persecution by members of the Hutu tribe if she were to return to Rwanda.
[3] After analysing the evidence, the Panel found that the applicants" fear of persecution by reason of their Tutsi identity was not well-founded. The Panel members found from the documentary evidence that the predominantly Tutsi Rwandan Patriotic Front (RPF) had come to power after the 1994 genocide and civil war and that over 700,000 Tutsi refugees had returned to Rwanda after long stays outside their country, and then stated:
| [TRANSLATION] Despite the economic and social problems, the documentation shows that the RPF government has solid control over the country. There is no evidence to suggest that ordinary Tutsi citizens or returning Tutsi refugees, regardless of the duration of their expatriation, are in danger at the hands of the majority Hutu population." |
[4] Counsel for the applicants takes issue with the Refugee Division"s analysis of the evidence: she considers the analysis of the documentary evidence to be inaccurate and incomplete with regard to the applicant"s testimony, which was found to be credible. She considers it particularly perverse, given their findings of fact, that the Panel members found there was no evidence to suggest that ordinary Tutsi citizens were in danger at the hands of the majority Hutu population. Last, she argues that no notice of intention had been given under subsection 68(5) of the Immigration Act regarding the Panel members" references to Laurent Kabila coming to power in Zaire and his forces crushing the Hutu militias and former Rwandan armed forces in Zaire, nor were the applicants afforded a reasonable opportunity to make representations with respect thereto.
[5] I am of the opinion that this application for judicial review must be allowed.
[6] In the case at bar, the Panel members acknowledged at the hearing that the applicant"s testimony about the civil war raging in Rwanda and the conflicts pitting Tutsis against Hutus was credible (page 317 of the Tribunal"s record). They seem to have disregarded this in their decision. Instead they referred to the documentary evidence describing the situation in Rwanda since 1994, when the predominantly Tutsi RPF came to power. It goes without saying that it is open to the Panel to give greater weight to the documentary evidence than to the applicant"s testimony (M.E.I. v. Ting Yu Zhou , A-492-91). However, I must say that the Panel"s finding that there was no evidence of danger for ordinary Tutsi citizens, or those returning from expatriation, at the hands of the majority Hutu population, was made in a perverse manner without regard for the material before it. A careful examination of the documentary evidence1 and particularly the findings that the Panel made on the basis of that evidence"[TRANSLATION] "There is ongoing inter-ethnic violence in the country . . . "; "The country documentation indicates that some Tutsis . . . might be attacked by the Hutu militias . . . ""indicate the opposite.
[7] The Panel also found that almost all of the Hutu militias and former Rwandan armed forces in Zaire had been crushed or routed by the Laurent Kabila Alliance forces during the political takeover in Zaire, and that the Alliance forces enjoyed the support of the Rwandan army and maintained close ties with the current RPF government in Rwanda. The Panel members surely made these findings on the basis of information that they had as members of a specialized tribunal; there is nothing in the documentary evidence about the crushing of the former Rwandan armed forces in Zaire or about Laurent Kabila"s support from, and close ties with, the RPF. The record contains little information on the situation in Zaire, whereas it is full of information on the situation in Rwanda and Angola, where the applicant had come from. Before taking notice of these facts, the Panel was required to notify the applicant of its intention, under subsection 68(5) of the Act, and afford her a reasonable opportunity to make representations with respect thereto. The Panel members" bare reference to this issue at the end of the hearing (page 305 of the Tribunal"s record) does not meet the requirements of the Act.
[8] For these reasons, the application for judicial review is allowed, the decision of the Refugee Division dated July 18, 1997, is set aside and the matter must be reheard by a different panel of the Immigration and Refugee Board.
PIERRE DENAULT
J.
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3632-97
STYLE OF CAUSE: Joaquina Da Costa LAVRES MUSANA
Tesire Egidia LAVRES MUSANA
Arnaldo Duaguar LAVRES MUSANA
v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 11, 1998
REASONS FOR ORDER AND ORDER OF DENAULT J.
DATED AUGUST 21, 1998
APPEARANCES:
JOHANNE DOYON
FOR THE APPLICANTS
MICHEL SYNOTT
FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHANNE DOYON
MONTRÉAL, QUEBEC
FOR THE APPLICANTS
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________
1 Among other press reports, Agence France Presse reported the following on July 16, 1996: [TRANSLATION] "Over 110 people, mostly civilians, have been killed in Rwanda since mid-June by Hutu extremists . . . " (page 176 of the Tribunal"s record).
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