Date: 20020524
Docket: IMM-774-01
Neutral citation: 2002 FCT 594
BETWEEN:
DAUDET BWANDA VINDA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board (the "Board") concerned with a hearing held December 6, 2000. The decision was reserved then reasons were dictated December 6, 2000 in chambers; on January 30, 2001, written reasons for the decision were signed and released. The Board concluded that the applicant is not a Convention refugee.
[2] The applicant is a citizen of Zaire, or the Democratic Republic of Congo (the "DRC") as it is now called. He alleges that he is a member of the "Union pour la Démocratie et le Progrès Social" (the "UDPS") and that he has participated in various protests, marches and other demonstrations organized by the UDPS.
[3] He received his first UDPS membership card in 1990; however, it was subsequently confiscated by the police during his arrest and detention for participating in a UDPS-sponsored demonstration. He continued his involvement with the organisation nevertheless and received his second membership card, dated June 25, 1992; however, it was also confiscated under similar circumstances.
[4] In 1997, President Kabila and his party, the Alliance of Democratic Forces for the Liberation of Congo-Zaire, overthrew the previous regime headed by Mobutu Sese Seko. However, the applicant and the UDPS continued to exert pressure on the government of the day.
[5] According to his chronicles, the applicant's life changed forever on June 28, 1999. On that day the applicant was delivering pamphlets and other materials to be used during a protest to take place a few days later. These materials spoke of the UDPS and criticized Kabila's government. Unfortunately however, the applicant suffered a flat tire in the middle of a busy intersection, which attracted the attention of the police.
[6] When the police discovered the contents of the applicant's vehicle, he was arrested again and interrogated at length. He was then held at two different prisons until October 6, 1999, when he managed to escape. Throughout the period of incarceration, the applicant claims to have been tortured and forced into labour.
[7] Upon his escape, the applicant made his way to Brazzaville, where he made contact with his family. They helped him to secure the money that he needed to leave the country. Before leaving however, he claims to have learned that the military was searching for him and that as a result they had arrested and tortured his father for two days. His father died two days after his release.
[8] The Board concluded that the applicant's evidence regarding his membership in the UDPS was not credible. Given the Board's specific questions at the hearing on December 6, 2000 concerning the applicant's failure to file a letter from the local chapter (Toronto) of the UDPS confirming his membership in the organisation; the Board appears to resolve the matter of lack of credibility on the basis of not providing such a letter. Subsequently a letter was obtained and delivered to the Board on December 18, 2000. It is clear however from the Board's reasons that they did not consider the letter.
[9] The Board listed the following five factors that influenced its negative credibility finding:
1) The applicant's membership card, which he claimed to have received in 1997, did not correspond to the typical format of cards issued at that time, as established by documentary evidence;
2) There was a contradiction between the applicant's Personal Information Form and his testimony with respect to the destination of the anti-regime materials;
3) The applicant responded incorrectly to questions regarding the location and existence of the UDPS's office; and
4) The applicant had not submitted confirmation of his membership from the Canadian Branch of the UDPS.
[10] The main focus of the debate in this case concerned the conflict between the date of the Board's dictating its decision on December 6, 2001 and January 30, 2001, the date the Board signed and released its determination. On the cover page it is indicated that the hearing took place on December 6, 2000; the date of dictating the decision is December 6, 2000 (in chambers) and on January 30, 2001 written reasons were signed and released. This is confirmed in page 11 of the Tribunal Record. The applicant was notified by a Notice of Decision (along with the Board's written reasons), which were sent to him on February 1, 2001.
[11] The main issue is whether the Board was under an obligation to consider further evidence provided by the applicant on December 18, 2000 or was the Board functus officio and whether the Board did commit any other reviewable error that would justify the intervention of this Court.
[12] The applicant argues that the Board was under a continuing obligation to consider evidence until its decision was signed and delivered; that the final determination was not rendered until January 30, 2001: Nadarajah v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 383 (F.C.A.), Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration) (2000), 264 N.R. 382 (F.C.A.).
[13] The applicant also submits that the Board erred in other respects. For example, the Board found that the applicant's testimony was inconsistent with documentary evidence suggesting that the UDPS's office in the Congo had been closed in 1998; however, there is no evidence to assert that the office could not have been reopened. The applicant suggests that the Board provided no explanation for preferring the documentary evidence to the sworn testimony of the applicant; that this by itself would constitute a reviewable error: Okyere-Akosah v. Canada (Minister of Employment and Immigration) (1992), 157 N.R. 387 (F.C.A.). As importantly however, I hasten to add that at the hearing the applicant was asked about the location and existence of the UDPS's office in Limete (Tribunal Record at 109-112), whereas the Board's reasons (at p. 4) speak of the office in Kinshasa.
[14] The applicant also argues that he should not have been faulted for saying that the UDPS's headquarters were on 13th street rather than on 12th street since he corrected himself shortly after making the mistake during the hearing. He also contends that there is in fact no contradiction in his evidence concerning the destination of the anti-regime materials. In particular, the applicant stated at the hearing that, although the materials were ultimately destined for the UDPS's office, access to the office was restricted for security reasons and that he could not go there himself. In other words, they would have to be delivered through an intermediary. Finally, it is argued that, given the Board's finding that the applicant had probably participated in UDPS activities in the past, the Board was under an obligation to consider whether the applicant would face a risk of persecution if he was returned.
[15] The respondent argues that the Board's negative credibility finding was reasonably open to it and that such a finding is properly supported by examples of contradictions and inconsistencies in the applicant's evidence.
[16] The respondent also submits that the Board's decision was rendered on December 6, 2000, the date of the hearing, and that the Board became functus officio thereafter. It is suggested that the date of the decision can be gleaned from the date marked on the cover page of the decision and the Hearing Disposition Record (Tribunal Record at 40), which the Board members signed indicating a negative decision dictated in chambers on December 6, 2001. This conclusion is also supported by the Refugee Division's "Policy on Oral Decisions and Oral Reasons", which allows panel members to deliver an oral decision by recording their reasons provided that it is done within seven days of the hearing.
[17] It is argued that the Court has maintained that a Board can render an oral decision from the Bench with written reasons to follow; therefore the Board should also be permitted to render an oral decision in chambers with written reasons to follow: Isiaku v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 143 (F.C.T.D.) aff'd (1999), 247 N.R. 292 (F.C.A.). The Court is urged not to depart from Isiaku in this case and the applicant would not be further prejudiced.
[18] Moreover, the respondent argues that the applicant has the onus of showing that he was a Convention refugee and that the Board was entitled to draw a negative inference from the fact that the applicant was not diligent in obtaining a letter from the Canadian branch of the UDPS. The respondent further submits that the applicant should have brought a motion to have his claim reopened.
[19] In Nadarajah (supra), the Court of Appeal held that the Board is under a continuing obligation to consider evidence proffered by the applicant until the Board is functus officio. The respondent challenges that proposition saying that the law has changed since Tambwe-Lubemba (supra). As I see it, the passage relied upon by the respondent is taken out of context. The applicants in Tambwe-Lubemba submitted that the panel hearing their claim should have considered information received by the Refugee Division's document centre after the hearing but before the decision had been rendered. What the Court held was that the panel was under no obligation to consider information that the members had not seen and that was not tendered by the claimants.
[20] In my view, the principal question that the Court is called upon to answer in this judicial review is whether the Board was functus officio after dictating its reasons on December 6, 2001 and before signature on January 30, 2001. The Court of Appeal has spoken quite clearly that a Board will be functus officio once its decision has been "rendered" within the meaning of subsection 69.1(9) of the Immigration Act and that a decision will be "rendered" once written reasons are signed: Tambwe-Lubemba (supra). The distinction with the case at bar is obvious. In Isiaku (supra), the Board had rendered an oral decision from the Bench before signing its reasons. In this case the Board reserved its decision at the close of the hearing.
[21] The relevant provisions of the Immigration Act are as follows:
| 69.1(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister.
[...]
(11) The Refugee Division may give written reasons for its decision on a claim, except that
(a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; and...
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69.1(9) La section du statut rend sa décision sur la revendication tu statut de réfugié au sens de la Convention le plus tôt possible après l'audience et la notifie à l'intéressé et au ministre par écrit.
[...]
(11) La section du statut n,est tenue de motiver par écrit sa décision que dans les cas suivants:
(a) la décision est défavorable à l'intéressé, auquel cas la transmission des motifs se fait avec sa notification.
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[22] As I see it, there is no way to test whether the written reasons ultimately delivered are the same or similar to the ones that were allegedly recorded. An important factor that should not be overlooked is that, while the respondent's counsel has asserted in her Memorandum of Argument that the Board's reasons were recorded immediately after the hearing, such assertions do not constitute evidence.
[23] A decision is meant to be communicated to the interested parties and it then binds the decision-maker. In my view, there is nothing in the evidence in this application for judicial review that would have bound the Board until it signed its reasons on January 30, 2001.
[24] I am also satisfied that the Board violated a principle of natural justice and that the application should be allowed in any event. No doubt, the onus is clearly upon the applicant to satisfy the Board that he is a Convention refugee. Accordingly, it was up to the applicant to produce evidence of his UDPS membership to support his allegation of membership in the organisation.
[25] The Board was aware that most Congolese seeking refugee protection in Canada may obtain a letter from a Canadian branch of the UDPS and they were of the view that such letters should be obtained in a short period of time. This view held by the Board is not supported by the facts. The transcript indicates that the Canadian Executive of the UDPS will not provide a letter of membership to Canadian immigrants from the Congo until such time as they have received confirmation from the political party's headquarters in the Congo. Obviously, they were extremely cautious and necessarily it would take a considerable amount of time to obtain confirmation before a letter would issue in Canada.
[26] The Board drew a strong negative inference from the applicant's failure to provide such a letter suggesting that he easily could have obtained one in time.
[27] At the hearing the applicant explained that, upon arriving in Canada, he had obtained shelter from the Salvation Army and that it took some time before he made contact with the Congolese community in this country. The applicant in his testimony indicated that the "bureaucracy" was delaying his request.
[28] In my view, the applicant made reasonable attempts to prove his affiliation with the UDPS and it would be unreasonable for him to presume how much weight and importance the Board would attribute to this facet of the hearing. In any event, he had already requested such a letter but had simply not received it at the time of the hearing. In neglecting to acknowledge or even comment on the letter received December 18, 2001, the Board failed in its duty and responsibility and I am satisfied they acted unfairly and committed a reviewable error.
[29] I have no doubt that the documentary evidence supported the applicant's fear and apprehension with respect to returning to the Congo. As noted by the Refugee claim officer's comments at the conclusion of the hearing:
Le revendicateur a témoigné à propos de plusieurs faits de l'UDPS qui sont consistants avec les informations des preuves documentaires que nous avons. Il avait bien mentionné la date correcte de la formation de l'UDPS. En plus, il a bien cité les chefs de l'UDPS. Il a aussi bien cité les régions géographiques dont les cellules, les sections sont responsables. Mais il y a eu aussi des problèmes avec quelques-uns des faits qu'il a témoignés.
[30] There is no doubt that the primary reason for rejecting this claim for refugee status was the fact that he failed to produce a letter from the UDPS Executive in Canada. This also was referred to by the Refugee claim officer in her summary:
Alors la Commission peut décider si ses démarches et si un manque d'attestation du parti de l'UDPS ici au Canada démontre quelque chose à propos de la véracité de l'adhésion du revendicateur au parti de l'UDPS.
[31] For all of these reasons, I allow the application for judicial review.
[32] It was suggested that perhaps a question of general importance could be submitted to the Federal Court of Appeal. It was argued by the respondent that there remains some doubt with respect to when a panel becomes functus officio. I am satisfied that the Federal Court of Appeal in Tambwe-Lubemba (supra) held that once written reasons are signed, the decision of the Refugee Division is "rendered" within the meaning of subsection 69.1(9) of the Immigration Act. As I indicated above, there is a distinction between this case and Isiaku (supra). The Board did not render a decision at the hearing but reserved and then in chambers dictated a decision.
JUDGE
OTTAWA, Ontario
May 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-774-01
STYLE OF CAUSE: Daudet Bwanda Vinda v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 30, 2002
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice Rouleau
DATED: May 24, 2002
APPEARANCES:
Mr. Micheal CraneFOR THE APPLICANT
Ms. Angela MarinosFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal CraneFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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