Date: 20020212
Docket: IMM-6507-00
Neutral reference: 2002 FCT 156
Ottawa, Ontario, February 12, 2002
BEFORE: EDMOND P. BLANCHARD
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
Maleke Nicole BOFUNDA
Ekila Jessica BOSEKOTA
Bofunda Axel BOSEKOTA
Lokilo Jeremy BOSEKOTA
Ekumbo Olivier BOSEKOTA
Mapemba Frank BOSEKOTA
Defendants
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review from a decision by Raymond Boulet, member of the Immigration and Refugee Board ("IRB"), Refugee Division, made viva voce at the hearing of December 12, 2000, giving the defendants Convention refugee status.
Statement of facts
[2] The principal defendant, Maleke Nicole Bofunda, was born in Zaire, which has since become the Democratic Republic of the Congo ("DRC"). She says she is a citizen of that country.
[3] The principal defendant completed her primary and secondary education in Belgium and also did university study there in legal sciences. The principal defendant stated that her father and herself had studied in Belgium and that she spent most of her time in Europe.
[4] The principal defendant further stated that her de facto spouse Philippe Bossekota did his studies in political science at the Université libre de Bruxelles in Belgium and returned to his country of origin to work in the Zairean government. He was hired by the Centre national de la documentation ("CND"), one of the chief security agencies of the government of that country.
[5] In 1984 the principal defendant entered the country to live with her spouse Mr. Bossekota, with whom she had four children.
[6] Over time her spouse Mr. Bossekota became a leading figure in the CND and, according to the principal defendant, a man feared by the people of Zaire. She said he was more or less the security number two for the government headed by Mobutu.
[7] The principal defendant claimed that the couple lived in Kinshasa in the well-to-do quarter where leading figures in the Mobutu regime lived.
[8] In September 1991 when the political situation was changing and tensions were rising, there was the first of major looting attacks in Kinshasa led by the Zaire army. Shortly before these riots, the principal defendant and her children left the country to live in Belgium. After living there for over a year they unsuccessfully claimed refugee status.
[9] In her written testimony, contained in her Personal Information Form (PIF), the principal defendant stated that she was Mr. Bossekota's de facto spouse. It was not until the hearing of December 12, 2000, that the principal defendant admitted she had married one Jean-Richard Denis in 1995 in the hope of obtaining Belgian citizenship.
[10] The principal defendant and her children arrived in Canada on September 4, 1999 and claimed refugee status. She alleged that she could not go back to the DRC or Belgium as her children bore the name of one of the bloodiest figures in the Mobutu regime, and so claimed Canadian protection.
REFUGEE DIVISION'S DECISION
[11] I feel it is worth reproducing the brief reasons delivered viva voce by the Refugee Division.
[TRANSLATION]
The claimant is Maleke Nocle BOFUNDA, born on October 2, 1962, as well as for files M99-07407, M99-07408, M99-07409, M99-07410 and M99-07411, which are her daughter Jessica and her sons Axel, Jérémy, Olivier and Franck.
In the instant case there is a certain confusion caused by the fact that the claimant is a Belgian citizen, according to the Minister's representative. This is apparently also the view of the documents filed by the hearing officer, Jacques Courteau.
The tribunal accepts that if the claimant were to return to the Democratic Republic of the Congo (DRC) she would be persecuted, as would her children. She has been in Canada with her children since September 4, 1999. There is a moratorium in Canada not to return Zaireans to their country.
The claimant married a Zairean who was born at Gemena in Zaire. Under s. 59 of the Zaire Law and s. 27 of the Belgian Law she lost citizenship of one of these two countries if she married a foreigner. She married a Zairean. She is therefore Zairean. The Minister's representative submitted an Internet document as Exhibit M-9. This is a very valuable document, but to what point must the tribunal give evidentiary force to the document when the lives of people are concerned? The tribunal does not have before it the opportunity to cross-question anyone; the tribunal does not have a document like a letter from the Belgian Embassy stating that the claimant is a Belgian national. In the circumstances, the tribunal refers to art. 200 of the United Nations High Commission for Refugees (HCR) Guide and gives the claimant the benefit of the doubt.
The tribunal accordingly grants you and your children "Convention refugee" status as defined in s. 2(1) of the Immigration Act. (References omitted)
POINT AT ISSUE
[12] Two conclusions underlie Mr. Boulet's decision. First, he came to the conclusion that the defendants were of Zairean nationality. Second, he found that the defendants had presented evidence of a valid fear of persecution in the DRC. The plaintiff maintained that these two conclusions were wrong in fact and in law, in particular:
[TRANSLATION]
1. These conclusions are based on crucial errors of fact.
2. They are also based on irrelevant information.
3. The two conclusions which underlie the member's decision are also unreasonable, excessive and arbitrary, based on the evidence which was before him.
4. In arriving at these conclusions the member erred in fact and in law by falling to consider the conclusive points of evidence.
5. He further erred in law by passing over the conclusive evidence contradicting his decision.
6. Finally, the member erred in law in not requiring the defendants to establish the validity of their claim, but imposing on the Minister's representative and the refugee claims officer a duty to show that the defendants' claim was invalid.
ANALYSIS
[13] The Refugee Division concluded that the principal defendant was Zairean because she was married to a Zairean. However, the documentary evidence shows without the shadow of a doubt that on May 31, 1995, the principal defendant married a Belgian citizen of Zairean origin, born at Gemena in Zaire, Jean-Richard Denis. The record also contained a marriage certificate, her husband's national identity card and an extract from the Belgian government's [TRANSLATION] "household composition" found in the principal defendant's possession and filed as Exhibit M-7. Further, it is worth noting that the principal defendant has never maintained that her Zairean common-law husband, one Philippe Bossekota, was or had been her legal husband, stating on the contrary that he was her de facto spouse. As the principal defendant noted, he held a position in the Centre national de documentation and was in prison.
[14] We can see from reading the transcript of the hearing held on December 12, 2000, the following exchange between the principal plaintiff and the Commissioner:
[TRANSLATION]
Q. You married a man who was born in Gemena. Gemena certainly is in Zaire, not in Belgium. This man was called Jean-Richard Denis.
A. Yes.
Q. Where is he now, in prison?
A. No, no, no, in Belgium.
- He is in Belgium.
Q. But was he in prison?
A. It is not he who is in prison, it is their father who is prison.
- Right.
Q. The man who was in the Centre national de documentation?
A. Yes, yes.
[15] There is no evidence that would have allowed the Refugee Division to conclude that the principal defendant had married a Zairean. This was an entirely arbitrary conclusion based on an erroneous finding of fact. It was also a conclusion which was the basis for the Refugee Division's decision, that the principal defendant had Zairean nationality. I adopt the plaintiff's comments: this conclusion is crucial and requires this Court's intervention pursuant to s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7.
[16] In this connection the Refugee Division also cited ss. 59 of the Zaire Law and 27 of the Belgian Law. It can be seen from s. 27 of the Belgian Law that a woman's marriage to a Belgian citizen does not lead to her being regarded as Belgian by birth. In the second paragraph of s. 27 it states that a Belgian woman married to a non-Belgian may in certain circumstances retain Belgian nationality. This section has nothing to do with foreign women married to Belgians. There is nothing in the section to allow the Refugee Division to conclude that the principal defendant was of Zairean nationality.
[17] The Refugee Division also cited s. 59 of the Zaire Law. There was no document before the Refugee Division setting out s. 59 of the Zaire Law. The evidence contained a document prepared by Dr. Kalongo Mbikayi. At para. 60 of that article Prof. Kalongo Mbikayi stated that a Zairean woman marrying a foreigner lost Zairean nationality provided she expressly renounced it. Here again, I cannot see how it could be concluded from this document that the principal defendant was a Zairean.
Evidence not considered
[18] The plaintiff submitted that the Refugee Division did not consider two other points in evidence which were just as conclusive and inescapable, showing that the principal defendant's children were also of Belgian nationality. The answer to question 15 of her PIF clearly showed that all the principal defendant's children were under 18 at the time of the hearing. The evidence included the Code of Belgian Nationality, s. 12 of which provides that Belgian nationality is automatically granted in Belgium to children under 18 of a parent who voluntarily acquires Belgian nationality.
[19] The Refugee Division's complete silence on these further points of evidence, which corroborate the information contained in Exhibit M-9, are in favour of the acquisition by the principal defendant and her children of Belgian nationality and contradict its findings. In Cepeda-Gutierrez v. M.C.I. (1998), 157 F.T.R. 35 (F.C.T.D.), Evans J. stated that a tribunal makes an error when it fails to mention in its reasons important evidence supporting a different conclusion from that of the tribunal.
[20] I consider that the plaintiff should have examined, analyzed and expressly rejected in its reasons the evidence supporting the obtaining of Belgian nationality by the principal defendant and her children. This evidence squarely contradicts the conclusions that the principal defendant was of Zairean nationality. I consider that by passing over this evidence, to which the Refugee Division made no reference, it made an error of law (see Atwal v. Canada (Secretary of State) (1994), 25 Imm. L.R. (2d) 80 (F.C.T.D.)).
[21] I therefore conclude that the Refugee Division's determination that the principal defendant is of Zairean nationality is a conclusion that goes to the root of its decision and is based on crucial errors of fact, justifying this Court's intervention pursuant to s. 18.1(4)(d) of the Federal Court Act.
[22] In view of my conclusions it is not necessary to consider the other points at issue raised by the plaintiff. For all these reasons, the application for judicial review is allowed.
[23] The parties did not ask the Court to certify a serious question of general importance, as provided for in s. 83 of the Immigration Act, R.S.C. 1985, c. I-2, though they had an opportunity to do so. I therefore do not propose to certify such a question.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is allowed.
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"Edmond P. Blanchard"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6507-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
v.
MALEKE NICOLE BOFUNDA ET AL.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 6, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: FEBRUARY 12, 2002
APPEARANCES:
MARIE-NICOLE MOREAU FOR THE PLAINTIFF
STEWART ISTVANFFY FOR THE DEFENDANT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE PLAINTIFF
DEPUTY ATTORNEY GENERAL OF CANADA
STEWART ISTVANFFY FOR THE DEFENDANT
MONTRÉAL, QUEBEC
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