Date: 20020306
Docket: IMM-3132-01
Montréal, Quebec, March 6, 2002
Before: Lemieux J.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
EWANGUE NSEME
Defendant
ORDER
For the reasons given, the application for judicial review is allowed, the RD's decision is reversed and the respondent's claim is referred back for re-hearing by a panel of different members.
No certified question was suggested.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020306
Docket: IMM-3132-01
Neutral citation: 2002 FCT 261
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
EWANGUE NSEME
Defendant
REASONS FOR ORDER
LEMIEUX J.
[1] The Minister of Citizenship and Immigration ("the Minister") is asking the Court to quash the decision by the Refugee Division ("the RD") on July 4, 2001 which found that Ewangue Nseme ("the respondent"), a citizen of Cameroon, was a Convention refugee.
[2] The respondent alleged a well-founded fear of persecution for his alleged political opinions since, as an anglophone, he was active in the youth movement to ensure observance of the rights and freedoms of this minority in Cameroon, and this led to his arrest and physical abuse by the police.
[3] The Minister argued that the RD failed to analyze or refer to the evidence presented by the Minister's representative, which in the circumstances allows the Court to conclude that it ignored that evidence.
[4] The Minister noted the following evidence which, in his submission, contradicted the respondent's story and the validity of his fear.
1. After leaving the Spanish ship where he was working as a sailor, the respondent went on the same day, January 19, 2000, to Citizenship and Immigration Canada in St. John's, Newfoundland ("CIC-St. John's") stating he wanted to become a Canadian citizen, did not wish to return to his country of origin for economic reasons (poverty and unemployment) and had no fear of returning to Cameroon or to Spain and ran no risk if he returned. An immigration officer at CIC-St. John's indicated that he had to obtain his landing by a visa through an application made from outside Canada. The respondent informed the immigration officer that he would go back on board his ship.
2. During the meeting at CIC-St. John's, a French interpreter translated from English to French for him.
3. On the following day, January 20, 2000, the respondent went back to CIC-St. John's and claimed refugee status.
4. The respondent visited CIC-St. John's again on April 4, 2000 and told the reception desk he wanted to withdraw his application for recognition, but changed his mind the following day.
5. After leaving Cameroon on October 17, 1998 he lived in Spain for over a year without claiming refuge in that country.
[5] By a notice of intervention dated January 26, 2001, pursuant to s. 69.1(5)(a)(ii) of the Immigration Act ("the Act"), the Minister's representative filed documentary evidence which the Minister alleged was not taken into account.
[6] The most relevant documents were a copy of the special residence permit in Spain and a copy of the interview notes between CIC-St. John's and the respondent dated January 19, January 20, January 25 and April 6, 2000.
[7] Section 69.1(5)(a)(ii) of the Act reads as follows:
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(5) At the hearing into a person's claim to be a Convention refugee, the Refugee Division
(a) shall give
...
(ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations . . .
[My emphasis.]
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(5) À l'audience, la section du statut_:
a) est tenue de donner_:
...
(ii) au ministre, la possibilité de produire des éléments de preuve, d'interroger l'intéressé ou tout autre témoin et de présenter des observations, ces deux derniers droits n'étant toutefois accordés au ministre que s'il l'informe qu'à son avis, la revendication met en cause la section E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la présente loi . . .
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[8] At the RD hearing which considered the respondent's claim, the Minister's representative was not present: she had indicated in her notice of intervention that she would be absent. The refugee claims officer was also absent. The Minister's documentation was admitted in evidence by the RD.
[9] Counsel for the Minister cited the judgment of Evans J., as he then was, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, in support of his argument that the RD failed to consider an important part of the evidence submitted by the Minister's representative and that in fact the Refugee Division made no mention of this evidence, which raises questions about the respondent's credibility since it directly contradicts his allegations before the Refugee Division. The Federal Court of Appeal's judgment in Maharajah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 735, was cited as authority for the principle that the RD should refer to essential evidence, and the judgment of Blais J. in Canada (Minister of Citizenship and Immigration) v. Ken, 2001 FCT 548, for the principle that the RD is required to refer to and analyze evidence which is important and contradicts the evidence accepted by the tribunal.
[10] What is more, counsel for the Minister argued that the RD did not take into account the existence of a subjective fear by the respondent since the latter failed to claim refugee status in Spain where he had lived for an entire year.
[11] Counsel for the respondent indicated that the tribunal did not ignore the Minister's evidence and cited the following passage from the RD's decision:
[TRANSLATION]
Accordingly, after hearing all the testimony and analyzing all the documentary evidence in the record, I feel that you have discharged your burden of proof. Your testimony was direct, frank and credible at both hearings. [My emphasis.]
[12] Counsel for the respondent contended that the statement that the tribunal considered the whole of the evidence created a presumption that it had in fact considered it, and could not be questioned by this Court without good reason. She noted that the mere fact that the tribunal did not refer to each and every document filed at the hearing did not mean that it had not considered them. Citing Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598, she argued that on the contrary, especially as the tribunal clearly said in its decision that it had considered the evidence as a whole, the tribunal must be presumed to have weighed and considered all the evidence before it unless the contrary is shown.
[13] She examined the transcript and indicated places where the RD mentioned the Minister's evidence.
Analysis
[14] In Cepeda-Gutierrez, supra, Evans J. wrote this at para. 17:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence" . . . In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. [My emphasis.]
[15] According to the case law cited, it is the contradictory nature of the evidence which gives rise to a duty to analyze and comment upon it.
[16] In the case at bar, there is no doubt that the documentary evidence filed by the Minister's representative contained several points which, if accepted, could undermine the respondent's well-founded fear.
[17] That evidence squarely contradicted his story - his fear of the police seeking him as an activist in favour of the rights of the persecuted anglophone minority, to which he belongs: he needed a French interpreter at CIC-St. John's and testified before the RD in French. He appears to have stated at CIC-St. John's that he was an economic refugee and had no fear of the police. He told an officer he left Spain because he did not like the Spanish.
[18] Further, a review of the transcript of the RD hearing indicated that the tribunal did not deal directly with the respondent's subjective fear, which arose from the fact that he did not claim refuge in Spain.
[19] These two aspects, the failure to analyze the contradictory evidence and the failure to deal with the respondent's subjective fear, require the Court's intervention and oblige it to quash the RD's decision.
[20] In the case at bar, the RD did not have the benefit of representations either by the Minister or the refugee claims officer, representations which the Court would have found useful as a background to the discussion of the merits of the documentary evidence filed by the Minister. It appeared that in the circumstances s. 69.1(5)(a)(ii) limits the Minister's means of intervention to the filing of the evidence.
[21] For these reasons, this application for judicial review is allowed, the RD's decision reversed and the respondent's claim is referred back for re-hearing by a panel of different members.
[22] No certified question was suggested.
Montréal, Quebec
March 6, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020306
Docket: IMM-3132-01
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
EWANGUE NSEME
Defendant
REASONS FOR ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-3132-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
EWANGUE NSEME
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 5, 2002
REASONS FOR ORDER BY: LEMIEUX J.
DATED: March 6, 2002
APPEARANCES:
Sherry Rafai Far FOR THE PLAINTIFF
Michelle Langelier FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Montréal, Quebec
Michelle Langelier FOR THE DEFENDANT
Montréal, Quebec
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