Date: 20040122
Docket: IMM-4262-02
Citation: 2004 FC 94
Toronto, Ontario, January 22nd, 2004
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
CARLOS MASSANJI MIGUEL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a 21 years old citizen of Angola and a member of the Bakongo tribe who challenges the July 29th, 2002 decision of the Refugee Division of the Immigration and Refugee Board (the tribunal) rejecting his second refugee claim.
[2] A previous tribunal rejected his first claim based on political opinion and ethnicity by decision dated August 17th, 1999. He had fled Angola a few month's after he had turned 18 years of age. That tribunal did not found the Applicant credible nor was it satisfied he had established his ethnicity as a member of the Bakongo tribe.
[3] After his first claim was rejected, he went to the United States for a short period and returned to Canada to make a second claim.
[4] The sole issue raised before me was whether the tribunal erred in law by failing to address a fear he advanced of forcible recruitment (conscription) into the Angolan Army should he return there.
[5] In his PIF to his second claim, the Applicant stated:
Je suis toujours en risque à cause de mon association à ma famille, parce que je suis un Bakongo qui est membre d'un parti d'opposition en temps de guerre civile. Aussi, j'ai toujours évité le servicemilitaire, puisque je suis contre les abus de droits de l'homme du régime. Je pourrais être forcé de faire le service militaire et l'armée envoi [sic] normalement les Bakongos au front pour être tué [sic].
[6] The tribunal's decision touched upon issues related to interpretation, the claims made by his sisters and his membership in an opposition political party. The tribunal ruled against the Applicant in these matters.
[7] As to the remaining issues, the tribunal wrote:
En ce qui concerne l'aspect de la revendication fondée sur l'ethnicité Bakongos, le Tribunal ne peut conclure qu'il existe une possibilité sérieuse de persécution pour le revendicateur, du seul fait de son ethnicité. Selon la documentation déposée sous A-2, les Bakongos ont été victimes d'un massacre en 1993, mais de tels incidents ne se sont pas reproduits. On mentionne qu'ils peuvent servir de bouc-émissaire dans certaines situations et faire l'objet d'extorsion. La même documentation fait aussi état d'une possible association du point de vue de l'état [sic] avec l'Union nationale pour l'indépendance totale de l'Angola (UNITA), groupe rebelle d'opposition au régime en place, mais que ceci n'est pas automatique. Il n'y a pas non plus de preuve qu'il existe une persécution systématique des Bakongos. Ainsi, en raison du fait que la preuve des activités politiques du revendicateur n'est pas crédible, rien dans la preuve ne permet de conclure que le gouvernement actuel associerait le revendicateur à l'UNITA. (Je souligne)
[8] Counsel for the Respondent does not dispute the proposition of law put forward by counsel for the Applicant that the tribunal was obligated to address every material issue advanced by the Applicant including his fear of conscription into military service.
[9] She argues ethnicity drives his fear of military service and not his being a conscientious objector. She points out the tribunal considered the issue of ethnicity and concluded, based on the documentary evidence, a well-founded fear of persecution was not made out by the Applicant by simply proving he was a Bakongo, without more, a proposition which his counsel does not disagree with.
[10] She argued the documentary evidence did not show members of the Bakongo tribe were targeted by the government for forcible recruitment into the military nor did it support his claim members of that tribe were targeted to the front lines.
[11] She added the Applicant did not testify on the issue nor was this point elaborated by his counsel although he touched upon it in argument before the tribunal.
[12] She referred me to the transcript (p. 547) to a question how he thought he would be treated as a Bakongo in Angola should he return. The Applicant did not mention military service in his answer.
[13] Counsel for the Applicant stated opposing counsel was trying to rewrite the tribunal's reasons and that the Applicant's fear of military service was not because he was a Bakongo. Military service was obligatory for everyone. He objected to service because of the abuses the Angolan Army had committed. In terms of the Bakongo tribe being pushed to the front, his counsel stated the tribunal did not go into that aspect of the matter at all.
[14] I also accept his argument the Applicant's PIF clearly identified the issue and for the sake of the efficacy of the tribunal's process he only dealt with those issues which the tribunal said it was concerned with.
[15] He conceded that technically he was wrong to have identified in his memorandum the Applicant's claim was a sur place claim but that did not make any difference to his argument. I agree and need only to refer to his argument before the tribunal at page 569 of the transcript.
[16] Simply put, he concludes the tribunal failed to deal with the issue of his fear of military service.
[17] I cannot conclude as urged upon me by counsel for the Respondent, this is the kind of case such as Nthoubanza v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1848 where Justice Denault held a tribunal did not have to address every factual issue or discuss every single piece of evidence.
[18] The issue of his fear of military service was raised by the Applicant. The UNHCR Handbook states the necessity to perform military service may be a sole ground for a claim for refugee status in circumstances where it can be linked to a Convention ground. The tribunal was obliged to dealt with that issue but did not.
ORDER
THIS COURT ORDERS that:
This judicial review application is allowed, the tribunal's decision is set aside and the Applicant's claim is remitted for recommendation by a differently constituted panel. No certified question was proposed.
"François Lemieux"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4262-02
STYLE OF CAUSE: CARLOS MASSANJI MIGUEL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 20, 2004
REASONS FOR ORDER
AND ORDER BY : LEMIEUX J.
DATED: JANUARY 22, 2004
APPEARANCES:
Mr. Raoul Boulakia FOR APPLICANT
Ms. Neeta Logsetty FOR RESPONDENT
SOLICITORS OF RECORD:
Raoul Boulakia
Barrister and Solicitor
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040122
Docket: IMM-4262-02
BETWEEN:
CARLOS MASSANJI MIGUEL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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