Date: 20030924
Docket: IMM-2406-02
Citation: 2003 FC 1069
Between:
Boimu Felly MOLAY
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 of the Refugee Division of the Immigration and Refugee Board (the IRB) dated May 1, 2002, ruling that the applicant is not a Convention refugee according to the definition provided in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2.
[2] The applicant is a citizen of the Democratic Republic of the Congo. He alleges he has a well-founded fear of persecution because of his membership in a particular social group.
[3] The applicant disputes the finding of the IRB that his testimony is not credible.
[4] The applicant submits, first, that the IRB erred in saying he was mistaken when he mentioned at one point that citizens attacked the Rwandans in August 1999, when it was in August 1998. The IRB states that it confronted the applicant, that it asked him to explain why he was mistaken about such an important incident, and that he did not reply. In reality, as is apparent from the following extract from the transcript, it was the applicant himself who corrected himself without being asked to do so:
[translation]
BY THE PRESIDING MEMBER (to the person in question)
Q. But August what year?
A. 99.
- 99.
A. Yes.
- OK. So I am going to recapitulate what I have understood.
A. Yes.
- August 99 they began to drive out all the people who are not Congolese.
A. 98, excuse me, I often confuse.
Q. 98?
A. Yes.
Q. Are you sure it is 98?
A. Yes, August 98.
- OK.
[5] The IRB erred, therefore, in interpreting the applicant's testimony as it did.
[6] The applicant submits that the IRB also erred in basing its decision on the fact that it believes he is a Belgian citizen. In light of the evidence, and in particular the memorandum of François-Pierre Déry, a forgery analyst with the Investigation Department of Citizenship and Immigration Canada (CIC), it was clear that the passport used by the applicant to enter Canada was authentic, but that it had been issued fraudulently. The memorandum also states that it was the second passport that had been issued fraudulently under the identity of Mr. Ebongo. The applicant testified that he was then using a passport that was not his in order to get to Canada. In view of the presumption of truth that attaches to the testimony of a claimant absent evidence to the contrary (Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.)), and in view of the existence of the evidence coming from CIC that in fact confirms the applicant's version of the facts, the IRB clearly erred in casting doubt on his testimony that he was not Mr. Ebongo.
[7] I am also of the opinion that the IRB further erred in finding that the applicant should have claimed refugee status in Belgium or France. He was simply transiting these countries, so he was under no obligation to claim refugee status there (see Aguilar v. Canada (M.C.I.), [2000] 4 F.C. 20 (F.C.T.D.)).
[8] To my way of thinking, all these errors, linked to the IRB's finding concerning the applicant's lack of credibility, seriously impair the decision at issue. They are therefore sufficient to warrant the intervention of this Court.
[9] The application for judicial review is consequently allowed and the matter is sent back to a differently constituted panel for rehearing and redetermination.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
September 24, 2003
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-2406-02
STYLE: Boimu Felly MOLAY v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 19, 2003
REASONS FOR ORDER OF: The Honourable Mr. Justice Pinard
DATED: September 24, 2003
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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